Courts-Martial (Appeals) Act 1968

Part I U.K. The Courts-Martial Appeal Court

1 The Court and its jurisdiction. U.K.

(1) The Courts-Martial Appeal Court established by the M1 Courts-Martial (Appeals) Act 1951 for the purpose of hearing appeals from naval, army and air force courts-martial, shall continue in existence and is in this Act referred to either as “the Appeal Court” or as “the Court”.

(2) The Appeal Court shall be a superior court of record and shall, for the purposes of this Act and subject to its provisions, have full power to determine, in accordance with this Act, any question necessary to be determined for the purpose of doing justice in any case before the Court.

(3) The powers of the Appeal Court shall be exercisable by them so far as they think it necessary or expedient in the interests of justice that they should be exercised, and the Court may issue any warrants necessary for enforcing their orders or sentences.

(4) Except as provided by Part III of this Act, no appeal shall lie from any decision of the Appeal Court.

Marginal Citations

M1 1951 c. 46.

2 Judges. U.K.

(1) The following shall be judges of the Appeal Court:—

(a) the ex officio and ordinary judges of the Court of Appeal and such of the judges . . . F1 of the High Court as the Lord Chief Justice may, . . . F1 , from time to time nominate for the purpose;

(b) such of the Lords Commissioners of Justiciary as the Lord Justice General may from time to time nominate for the purpose; and

(c) such of the judges of Her Majesty’s Supreme Court of Judicature of Northern Ireland as the Lord Chief Justice of Northern Ireland may from time to time nominate for the purpose.

(2) The Lord Chancellor may appoint other persons, being persons of legal experience, to be judges of the Appeal Court and—

(a) the appointment of a person under this subsection shall be for such term as may be determined by the Lord Chancellor, with the approval of the Treasury, before his appointment and shall be subject to such conditions as may be so determined; and

(b) a person so appointed who ceases to hold office as a judge of the Appeal Court shall be eligible for reappointment.

(3) There may be paid out of moneys provided by Parliament to the persons appointed under subsection (2) of this section to be judges of the Appeal Court such remuneration, and to all the judges of the Court such travelling and subsistence allowances, as the Lord Chancellor may, with the approval of the Treasury, determine.

Textual Amendments

F1 Words repealed by Supreme Court Act 1981 (c. 54, SIF 37), ss. 145(2), 152(4), 153(4)(d), Sch. 7

Modifications etc. (not altering text)

C1 Functions of Treasury under s. 2 now exercisable by Minister for the Civil Service: S.I. 1971/2099

3 Other senior judges who may exercise powers of Appeal Court. U.K.

Any power under this Act which is exercisable by a judge of the Appeal Court may also be exercised—

(a) by any judge . . . F2 of the High Court;

(b) by any Lord Commissioner of Justiciary;

(c) by any judge of Her Majesty’s Supreme Court of Judicature of Northern Ireland,

notwithstanding that he is not for the time being a judge of the Appeal Court; and references in this Act to a judge of the Court shall be construed accordingly.

Textual Amendments

F2 Words repealed by Supreme Court Act 1981 (c. 54, SIF 37), ss. 145(3), 152(4), 153(4)(d), Sch. 7

4 Sittings. U.K.

(1) For the purpose of hearing and determining appeals under this Act, or any matter preliminary or incidental to an appeal, the Appeal Court shall be summoned in accordance with directions given by the Lord Chief Justice with the consent of the Lord Chancellor.

(2) If the Lord Chief Justice so directs, the Appeal Court may sit in two or more divisions.

(3) The Appeal Court shall sit at such place as the Lord Chief Justice shall direct, whether within or outside the United Kingdom.

[F3 5

(1) Subject to subsection (4) below, the Appeal Court shall be duly constituted if it consists of an uneven number of judges not less than three.

(2) Where—

(a) part of any proceedings before the Appeal Court has been heard by an uneven number of judges greater than three; and

(b) one or more members of the Court as constituted for the purpose of those proceedings are unable to continue,

then, subject to subsection (4) below, the Court shall remain duly constituted for the purpose of those proceedings so long as the number of members (whether even or uneven) is not reduced to less than three.

(3) Subject to subsection (4) below, the Appeal Court shall, if it consists of two judges, be duly constituted for every purpose except—

(a) determining an appeal against—

(i) conviction; or

(ii) a finding of not guilty by reason of insanity; or

(iii) a finding of unfitness to stand trial;

(b) determining an application for leave to appeal to the House of Lords; and

(c) refusing an application for leave to appeal to the Appeal Court against conviction or any such finding as is mentioned in paragraph (a)(ii) or (iii), other than an application which has been refused by a single judge.

(4) At least one of the judges of which the Appeal Court consists at any sitting must be a judge of the Court by virtue of section 2(1) of this Act, except that where the Court is directed to sit at a place outside the United Kingdom the Lord Chancellor may, if he thinks it expedient to do so, direct that this provision shall not apply to the Court while sitting at that place.

(5) Where an appeal has been heard by the Appeal Court and the Court as constituted for that purpose consists of an even number of judges, then, if those judges are equally divided, the case shall be re-argued before and determined by an uneven number of judges not less than three.]

Textual Amendments

F3 S. 5 substituted by Supreme Court Act 1981 (c. 54, SIF 37), ss. 145(4), 153(4)(d)

6 Power of Master of the Rolls to act for Lord Chief Justice. U.K.

The Master of the Rolls may exercise the powers conferred on the Lord Chief Justice by sections 2 and 4 above if at any time the Lord Chief Justice is unable to exercise them himself or there is a vacancy in the office of Lord Chief Justice.

7 Court staff, salaries and pensions. U.K.

(1) There shall be a registrar of the Appeal Court (in this Act referred to as “the registrar”) to be appointed by the Lord Chancellor, and the Lord Chancellor may appoint such other officers and servants of the Court as he may, with the approval of the Treasury as to numbers, determine.

(2) The remuneration of the officers and servants of the Appeal Court shall be such as the Lord Chancellor may, with the approval of the Treasury, determine, and [F4 the principal civil service pension scheme within the meaning of section 2 of the M2 Superannuation Act 1972 and for the time being in force shall, with the necessary adaptations, apply to officers and servants of the Court as it applies to other persons employed in the civil service of the State].

(3) The remuneration of the officers and servants of the Appeal Court and such other expenses of the Court as the Treasury may sanction shall be defrayed out of moneys provided by Parliament.

Textual Amendments

F4 Words substituted by Superannuation Act 1972 (c. 11), Sch. 6 para. 70

Modifications etc. (not altering text)

C2 Functions of Treasury under s. 7 now exercisable by Minister for the Civil Service: S.I. 1971/2099

Marginal Citations

M2 1972 c. 11.

Part II U.K. Appeals from Courts-Martial

Right of appeal and initiating procedure U.K.

8 Right of appeal. U.K.

(1) Subject to the provisions of this Act, a person convicted by court-martial may, with the leave of the Appeal Court, appeal to the Court [F5 —

(a) against his conviction; and

(b) against any sentence (not being a sentence fixed by law) passed on him for the offence for which he was convicted.]

[F6 (1ZA) In subsection (1) above, the reference to a sentence fixed by law does not include a reference to an order made under subsection (2) or (4) of section 269 of the Criminal Justice Act 2003 in relation to a life sentence (as defined in section 277 of that Act) that is fixed by law.]

[F7 (1A) An appeal may also be brought, with the leave of the Appeal Court,—

F8 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) by a person on whom a fine is imposed or against whom a compensation order is made under paragraph 13 of any of those Schedules (parents and guardians subject to service jurisdiction).]

(2) Subject as aforesaid, the person’s right of appeal shall not be exercisable—

(a) unless, within such period as may be prescribed, he presents to the Defence Council a petition praying that his conviction be quashed [F9 or, as the case may require, that his sentence be quashed F10 . . .]; and

(b) until either the prescribed period (beginning with the day on which the petition is presented) expires or he is notified by the Defence Council that the petition has not been granted, whichever event first occurs.

(3) If a person presents a petition for the purposes of subsection (2)(a) above, but fails to do so within the period prescribed for those purposes and subsequently applies for leave to appeal, the Appeal Court may direct that he be treated as not having thereby lost his right of appeal if they think that there is a reasonable explanation of the failure and that it is in the interests of justice that he should be so treated.

(4) Rules of court may provide that, in such circumstances as may be specified in the rules, a petition for the purposes of subsection (1) above which is presented to such person as may be specified in the rules shall be treated, for the purposes of that subsection, as having been presented to the Defence Council.

F11 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F5 S. 8(1): hyphen and sub-paras (a) and (b) substituted (1.4.1997 with savings) for words by 1996 c. 46, s. 17(2)(a); S.I. 1997/304, art. 2 (with art. 3)

F6 S. 8(1ZA) inserted (E.W.) (18.12.2003) by Criminal Justice Act 2003 (c. 44), ss. 271(2), 336(2)

F7 S. 8(1A) added by Armed Forces Act 1976 (c. 52, SIF 7:1), s. 22(5), Sch. 9 para. 16

F8 S. 8(1A)(a) repealed (1.4.1997 with savings) by 1996 c. 46, ss. 17(2)(b), 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with art. 3)

F9 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(2)

F10 Words in s. 8(2)(a) repealed (1.4.1997 with savings) by 1996 c. 46, s. 35(2), Sch. 7 Pt. III; S.I. 1997/304, art. 2, Sch. 1 (with art. 3)

F11 S. 8(5) repealed (1.4.1997 with savings) by 1996 c. 46, ss. 17(2)(c), 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2, Sch. 1 (with art. 3)

9 Application for leave to appeal. U.K.

(1) Leave to appeal to the Appeal Court shall not be given except on an application in that behalf made by or on behalf of the appellant and lodged, within the prescribed period, with the registrar.

(2) The application must be in the prescribed form and specify the grounds on which leave to appeal is sought and such other particulars, if any, as may be prescribed.

(3) The Appeal Court may extend the period within which an application for leave to appeal must be lodged, whether the period has expired or not.

(4) Rules of court may provide that, in such circumstances as may be specified in the rules, an application which is lodged with a person (other than the registrar) specified in the rules shall be treated for purposes of subsection (1) above as having been lodged with the registrar; and it shall be the duty of the specified person, if an application is lodged with him in accordance with the rules, to act as follows:—

(a) he shall forward the application to the registrar with as much expedition as practicable; and

(b) if it appears to him practicable to do so, and in all the circumstances expedient, he shall forthwith furnish the registrar (before the receipt by the latter of the application) with such particulars of the application as will enable the registrar to prepare a copy of it.

10 Alternative procedure for appeal from court-martial abroad. U.K.

(1) The following provisions apply where a person who has been convicted by a court-martial held outside the United Kingdom duly petitions the Defence Council in accordance with section 8 of this Act.

(2) If, before the expiration of the time for appealing, the Defence Council receive from the person convicted an application for leave to appeal to the Appeal Court accompanied by a request that the Council will forward the application to the registrar in the event of its being decided not to grant the petition, it shall be the duty of the Council to comply with that request.

(3) The convicted person’s right of appeal under section 8 of this Act becomes exercisable (if it has not already done so) on the happening of the event referred to in subsection (2) above, that is to say its being decided not to grant the petition.

(4) In this section “the time for appealing” means the period prescribed for the purpose of section 9(1) of this Act as the period within which an application for leave to appeal must be lodged.

11 Consideration of application by Appeal Court. U.K.

(1) In considering whether or not to give leave to appeal the Appeal Court shall have regard to any expression of opinion made by the Judge Advocate of Her Majesty’s Fleet or the Judge Advocate General that the case is a fit one for appeal, and if any such expression is so made they may, without more, give leave to appeal.

(2) Where the Appeal Court dismiss an application for leave to appeal they may, if they consider the application to have been frivolous or vexatious, order that any sentence passed upon the applicant in the proceedings from which it was sought to bring the appeal shall begin to run from the day on which the Appeal Court dismiss the application.

Disposal of appeal U.K.

12 Power to quash conviction as [F12 unsafe.] U.K.

[F13 (1) The Appeal Court—

(a) shall allow an appeal against conviction by court-martial if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case.]

(2) If the Appeal Court allow an appeal against conviction, they shall quash the conviction.

Textual Amendments

F12 Word in s. 12 sidenote substituted (1.1.1996) by 1995 c. 35, s. 29(1), Sch. 2 para. 5(2); S.I. 1995/3061, art. 3 (with art. 4)

F13 S. 12(1) substituted (1.1.1996) for s. 12(1) including the proviso by 1995 c. 35, s. 29(1), Sch. 2 para. 5(2); S.I. 1995/3061, art. 3 (with art. 4)

13 Adjustment of sentence in case of conviction on two or more charges. U.K.

Where—

(a) it appears to the Appeal Court [F14 on an appeal against conviction] that an appellant, though not properly convicted on some charge preferred against him before the court-martial by which he was tried, was properly convicted on some other charge so preferred; and

(b) the sentence passed by the court-martial on the appellant was not warranted by the relevant Service Act for the offence of which he was convicted on the other charge,

the Court shall pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence so warranted as they think proper.

Textual Amendments

F14 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(3)

14 Substitution of conviction on different charge. U.K.

(1) This section applies where an appellant has been convicted of an offence and the court-martial by which he was tried could lawfully have found him guilty of some other offence, and it appears to the Appeal Court [F15 on an appeal against conviction] that the court-martial must have been satisfied of facts which proved him guilty of that other offence.

(2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the other offence, and may pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence as they think proper, being a sentence warranted by the relevant Service Act for that other offence, but not a sentence of greater severity.

Textual Amendments

F15 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(3)

15 Variation of conviction so as to attract different sentence. U.K.

(1) Where an appellant has been convicted of an offence committed under circumstances involving the higher of two degrees of punishment, and it appears to the Appeal Court [F16 on an appeal against conviction] that the court-martial by which he was tried ought to have found him guilty of the offence as being committed under circumstances involving the lower degree of punishment, the Court may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the offence as being committed under circumstances involving the lower degree of punishment.

(2) Where an appellant has been convicted of an offence and it appears to the Appeal Court [F16 on an appeal against conviction] that the court-martial by which he was tried ought to have found him guilty of the offence subject to exceptions or variations, the Court may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the offence subject to exceptions or variations.

(3) Where the Appeal Court exercise the power conferred by subsection (1) or subsection (2) above, they may pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence as they think proper, being a sentence warranted by the relevant Service Act for the offence specified or involved in the substituted finding, but not a sentence of greater severity.

Textual Amendments

F16 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(3)

16 Substitution of finding of insanity or unfitness to plead. U.K.

(1) This section applies in a case where, on an appeal [F17 against conviction], the Appeal Court are of opinion—

(a) that the proper finding would have been a finding of not guilty by reason of insanity; or

(b) that the case is not one where there should have been a finding of not guilty, but that there should have been a finding that the accused was unfit to stand his trial.

(2) The Appeal Court shall order the appellant to be kept in custody under the relevant Service enactment in like manner as on a finding of not guilty by reason of insanity or a finding of unfitness to stand trial by the court-martial by which the appellant was convicted.

(3) In subsection (2) above, the “relevant Service enactment” means—

• section 63 of the M3 Naval Discipline Act;

• section 116 of the M4 Army Act; or

• section 116 of the M5 Air Force Act,

(being enactments which provide for a person to be kept in custody until the pleasure of Her Majesty is made known), according to whether the appellant was convicted by a naval, army or air force court-martial.

Textual Amendments

F17 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(4)

Marginal Citations

M3 1957 c. 53.

M4 1955 c. 18.

M5 1955 c. 19.

[F18 16A Powers on appeals against sentence. U.K.

On an appeal against sentence the Appeal Court, if they consider that the sentence is not appropriate for the case, may quash the sentence and pass in substitution for it such sentence as they think is appropriate, being a sentence which the court-martial had power to pass and which is not of greater severity than that for which it is substituted.]

Textual Amendments

F18 S. 16A added by Armed Forces Act 1971 (c. 33), s. 73(3)

17 Term of sentence passed under s. 13, 14 or 15. U.K.

(1) The term of any sentence passed by the Appeal Court under section 13, 14 [F19 15 or 16A] of this Act shall, unless the Court otherwise direct, begin to run from the time from which it would have begun to run if it had been passed in the proceedings from which the appeal was brought.

(2) A sentence passed by the Appeal Court under any of those sections shall—

(a) if passed on an appeal against conviction by a [F20 or the sentence of]a naval court-martial, be deemed, for purposes of the M6 Naval Discipline Act, to be a sentence passed by such a court-martial; and

(b) if passed on an appeal against conviction by [F20 or the sentence of]an army or air force court-martial, be deemed for purposes of the M7 Army Act or the M8 Air Force Act, as the case may be, to be a sentence passed by an army, or as the case may be, an air force court-martial, F21 . . ..

Textual Amendments

F19 Words substituted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(5)

F20 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(5)

F21 Words in s. 17(2)(b) repealed (1.4.1997) by 1996 c. 46, s. 35(2), SCh. 7 Pt. II; S.I. 1997/304, art. 2(with art. 3)

Marginal Citations

M6 1957 c. 53.

M7 1955 c. 18.

M8 1955 c. 19.

[F22 17A Appeals by civilians: application of Service Act provisions. U.K.

For the avoidance of doubt, the exercise of the power conferred by sections 13, 14, 15 and 16A above, in relation to an order under Schedule 5A to the M9 Army Act 1955, Schedule 5A to the M10 Air Force Act 1955 or Schedule 4A to the M11 Naval Discipline Act 1957 (powers of court on trial of civilians) shall be subject to the restrictions contained in paragraph 15 of each of those Schedules.]

Textual Amendments

F22 S. 17A substituted (1.4.1997 with savings) by 1996 c. 46, s. 17(3); S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M9 1955 c. 18.

M10 1955 c. 19.

M11 1957 c. 53.

Retrial U.K.

18 Retrial generally excluded. U.K.

Except as provided by this Act, where the conviction of a person by court-martial for an offence has been quashed under this Act, he shall not be liable to be tried again for that offence by a court-martial or by any other court.

19 Power to authorise retrial in certain cases. U.K.

(1) The Appeal Court shall have the power, on quashing a conviction, to make an order authorising the appellant to be retried by court-martial, but shall only exercise this power when F23 . . . it appears to the Court that the interests of justice require that an order under this section should be made.

(2) This section has effect notwithstanding the restrictions on retrial imposed by section 134 of the Army Act and section 134 of the M12 Air Force M13 Act.

(3) An appellant shall not be retried under this section for an offence other than—

(a) the offence of which he was convicted by the original court-martial and in respect of which his appeal is allowed as mentioned in subsection (1) above;

(b) any offence of which he could have been convicted at the original court-martial on a charge of the first-mentioned offence; or

(c) any offence charged in the alternative in respect of which the court-martial recorded no finding in consequence of convicting him of the first-mentioned offence.

(4) A person who is to be retried under this section for an offence shall, if the Appeal Court so directs, be retried on a fresh charge or charges specified in the direction; but whether he is so tried or is retried on one or more of the original charges, no fresh investigation or other steps shall be taken under sections 76 to 79 of the Army Act or sections 76 to 79 of the Air Force Act (investigation and summary disposal of charge by commanding officer) in relation to the charge or charges on which he is to be retried.

Textual Amendments

F23 Words in s. 19(1) repealed (01.01.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), ss. 26(1)(2), 27(2), Sch. 2 para. 8, Sch. 3, S.I. 1991/2719, arts. 2, 3(3), Sch.

Marginal Citations

M12 1955 c. 18.

M13 1955 c. 19.

20 Implementation of authority for retrial, and supplementary orders of Appeal Court. U.K.

(1) The limitations imposed by—

• section 52 of the M14 Naval Discipline Act;

• section 132 of the Army Act; and

• section 132 of the Air Force Act,

with respect to the time within which a trial under those Acts respectively may be begun, shall not apply in the case of a retrial authorised by an order of the Appeal Court under section 19 of this Act; but a person to whom such an order applies shall not be retried unless the order convening the court-martial is issued within the period of three months beginning with the date of the order under section 19.

(2) The Appeal Court may, where they authorise a retrial, make such orders as appear to them to be necessary or expedient for the retention until the relevant time of property or money which has been restored, delivered or paid in pursuance of an order made on or in consequence of the original conviction or has been placed in safe custody while the operation of any such order is suspended.

(3) Where retrial is authorised in the case of a person who immediately before the date of the authorisation was liable to be detained in pursuance of a direction under United Kingdom mental health legislation, that direction shall continue in force until the relevant time as if his conviction had not been quashed.

(4) The legislation referred to in subsection (3) above is [F24 Part III of the Mental Health Act 1983], [F25 Part VI of the Mental Health (Scotland) Act 1984]and Part III of the Mental Health [F26 (Northern Ireland) Order 1986].

(5) In subsections (2) and (3) above the references to “the relevant time” are references to the expiration of the period of three months mentioned in subsection (1) of this section or, if during that period a court-martial has been convened for the retrial of an appellant, the time when his case is finally disposed of:

Provided that for the purposes of subsection (2) above the relevant time, in a case where the appellant is found guilty on his retrial, is the expiration of the period of twenty-eight days beginning with the date of the finding.

(6) Schedule 1 to this Act contains additional provisions applicable to a retrial authorised by order of the Appeal Court under section 19 of this Act; and of the four Parts of the Schedule, Part I applies to retrial under the M15 Naval Discipline Act; Part II applies to retrial under the Army Act; Part III applies to retrial under the M16 Air Force M17 Act; and Part IV applies to all three cases.

Textual Amendments

F24 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(a)

F25 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 10

F26 Words substituted by S.I. 1986/596, art. 6(a)

Marginal Citations

M14 1957 c. 53.

M15 1957 c. 53.

M16 1955 c. 18.

M17 1955 c. 19.

Insanity U.K.

21 Appeal against finding of not guilty by reason of insanity. U.K.

(1) A person who has been tried by court-martial for an offence and been found not guilty by reason of insanity may, with the leave of the Appeal Court, appeal to the Court against the finding; and in relation to any such appeal this Part of this Act, except sections 13 to 16, shall apply, subject to this section and section 22 below, as it applies in relation to an appeal by a person convicted against his conviction (with the necessary adaptations of references to a person convicted or to conviction).

(2) Where apart from this subsection—

(a) an appeal against a finding of not guilty by reason of insanity would fall to be allowed; and

(b) none of the grounds for allowing it relates to the question of the insanity of the appellant,

the Appeal Court may dismiss the appeal if they are of opinion that but for the insanity of the appellant the proper finding would have been that he was guilty of an offence other than the offence charged.

22 Consequences where appeal under s. 21 allowed. U.K.

(1) The following provisions shall have effect where an appeal against a finding of not guilty by reason of insanity is allowed by the Appeal Court.

(2) If the ground, or one of the grounds, for allowing the appeal is that the finding as to the appellant’s insanity ought not to stand and the Appeal Court are of opinion that the proper finding would have been a finding of guilty of an offence (whether the offence charged or any other offence of which the court-martial could have found him guilty), the Court shall substitute for the finding of the court-martial a finding of guilty of that offence.

(3) On substituting a finding of guilty of an offence, the Appeal Court shall have the like powers of sentencing the appellant, and other powers, as the court-martial which tried him would have had on the like finding of guilty; and section 17 of this Act shall apply as in the case of a sentence passed by the Court under section 13, 14 or 15 of this Act.

(4) In any case where subsection (2) above does not apply, the Appeal Court shall substitute for the finding appealed against a finding of not guilty.

23 Power to order detention under mental health legislation. U.K.

(1) The following provisions shall have effect in the case of an appeal by a person who, in pursuance of a finding of not guilty by reason of insanity, is detained under—

(a) [F27 section 46 of the Mental Health Act 1983]; or

(b) [F28 section 69 of the Mental Health (Scotland) Act 1984]; or

[F29 (c) Article 52 of the Mental Health (Northern Ireland) Order 1986;]

(which sections relate to orders for a person to be kept in custody during Her Majesty’s pleasure), where the Appeal Court under section 22 of this Act substitute a finding of not guilty.

(2) If the Appeal Court are of opinion—

(a) that the person is suffering from mental disorder (within the meaning of [F30 the Mental Health Act 1983]) of a nature or degree which warrants his [F31 detention in a hospital for assessment (or for assessment followed by medical treatment)]for at least a limited period; and

(b) that he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons,

they shall make an order for his continued detention under the said Act [F32 or Order].

(3) An order under subsection (2) above shall be sufficient authority for the person to be detained, and the said Act [F33 or Order]shall apply as if on the date of the order he had been admitted to hospital in pursuance of an application duly made under that Act [F33 or Order](being in England and Wales an application for [F34 admission for assessment]).

Textual Amendments

F27 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(b)

F28 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 11

F29 S. 23(1)(c) substituted by S.I. 1986/596, art. 6(b)

F30 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(b)

F31 Words substituted by Mental Health (Amendment) Act 1982 (c. 51, SIF 85), ss. 65(1), 69(6), Sch. 3 para. 43(a), Sch. 5 para. 1

F32 Words added by S.I. 1986/596, art. 6(c)

F33 Words inserted by S.I. 1986/596, art. 6(d)

F34 Words substituted by Mental Health (Amendment) Act 1982 (c. 51, SIF 85), ss. 65(1), 69(6), Sch. 3 para. 43(b), Sch. 5 para. 1

Prospective

F35 23A Substitution of finding of not guilty. U.K.

(1) This section applies where, in accordance with section 22(4) of this Act, the Appeal Court substitute a finding of not guilty and the Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion—

(a) that the appellant is suffering from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) that he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(2) The Appeal Court shall—

(a) in the case of an appellant detained pursuant to an admission order made by a court-martial, make an order for his continued detention;

(b) in any other case, make an order that the appellant be admitted for assessment, in accordance with regulations made by the Secretary of State, to such hospital as may be specified by the Secretary of State.

(3) An order under subsection (2) above shall be treated as if it had been made by a civil court in England and Wales, Scotland or Northern Ireland, as the Appeal Court may direct, and the appropriate mental health legislation shall apply accordingly with such modifications as may be prescribed by regulations made by the Secretary of State.

(4) The power of the Secretary of State under subsections (2)(b) and (3) above to make regulations shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) In this section “hospital” and “mental disorder” have the same meanings as in the appropriate mental health legislation.

Textual Amendments

F35 Ss. 23 and 23A substituted (prosp.) for s. 23 by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 9

Unfitness to stand trial U.K.

24 Appeal against finding of unfitness. U.K.

(1) A person found by a court-martial to be unfit to stand his trial may, with the leave of the Appeal Court, appeal to the Court against the finding.

(2) In relation to an appeal under this section, this Part of this Act, except sections 13 to 16, shall apply (subject to section 25 below) as it applies in relation to an appeal by a person convicted against his conviction (with the necessary adaptations of references to a person convicted or to conviction).

25 Disposal of appeal under s. 24. U.K.

(1) The following provisions of this section apply with respect to an appeal under section 24 of this Act.

(2) Where the question whether the accused was unfit to stand his trial was determined by the court-martial at a time later than on arraignment or, in the case of a naval court-martial, later than on the commencement of the trial, the appeal may be allowed (notwithstanding that the finding was properly come to) if the Appeal Court are of opinion that the case is one in which the court-martial should before that time have come to a finding of not guilty.

(3) If the Appeal Court are of the said opinion, they shall substitute a finding of not guilty (but not a finding of not guilty by reason of insanity) and the appellant shall then not be liable to be tried by a court-martial or by any other court for the offence with which he was charged.

(4) Where the appeal is allowed and the Appeal Court do not substitute a finding of not guilty, the appellant may be tried accordingly for the said offence; and if he is for the time being detained under [F36 the Mental Health Act 1983], the [F37 Mental Health (Scotland) Act 1984]or the Mental Health [F38 (Northern Ireland) Order 1986], the Court may make such order as appears to them necessary or expedient pending any such trial for his continued detention under that Act [F39 or Order].

Textual Amendments

F36 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(c)

F37 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 12

F38 Words substituted by S.I. 1986/596, art. 6(a)

F39 Words added by S.I. 1986/596, art. 6(c)

General procedural provisions U.K.

26 Presentation, of appellant’s case. U.K.

An appellant may, if he so desires, instead of presenting his case orally, present it in writing in the prescribed form.

27 Presence of appellant at hearing. U.K.

An appellant shall not be entitled to be present at the hearing of an appeal to the Appeal Court or at any proceedings preliminary or incidental to such an appeal, except where the Court give him leave to be so; and accordingly any power of the Court to pass a sentence may be exercised notwithstanding the absence of the appellant.

28 Evidence. U.K.

(1) The Appeal Court may—

(a) order the production of any document, exhibit or other thing connected with the proceedings the production of which appears to them necessary for the determination of the case;

(b) order any witness who would have been a compellable witness at the trial to attend for examination and be examined before the Court, whether or not he was called at the trial; and

[F40 (c) receive any evidence which was not adduced at the trial.]

[F41 (2) The Appeal Court shall, in considering whether to receive any evidence, have regard in particular to—

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible at the trial on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence at the trial.]

(3) Subsection (1)(c) above applies to any [F42 evidence of a] witness (including the appellant) who is competent but not compellable F43 . . .

(4) The Appeal Court may order the examination of any witness whose attendance may be required under subsection (1)(b) of this section to be conducted in the prescribed manner before any judge of the Court or before any other person appointed by the Court for that purpose, and allow the admission of any depositions so taken as evidence before the Court.

Textual Amendments

F40 S. 28(1)(c) substituted (1.1.1996 subject to savings) by 1995 c. 35, s. 29(1), Sch. 2 para. 5(3)(a); S.I. 1995/3061, art. 3 (with art. 4)

F41 S. 28(2) substituted (1.1.1996 subject to savings) by 1995 c. 35, s. 29(1), Sch. 2 para. 5(3)(b); S.I. 1995/3061, art. 3 (with art. 4)

F42 Words in s. 28(3) inserted (1.1.1996 subject to savings) by 1995 c. 35, s. 29(1), Sch. 2 para. 5(3)(c); S.I. 1995/3061, art. 3 (with art. 4)

F43 Words in s. 28(3) repealed (1.1.1996 subject to savings) by 1995 c. 35, s. 29(2), SCh. 3; S.I. 1995/3061, art. 3 (with art. 4)

29 Power to call for report by member of trial court. U.K.

(1) The Appeal Court may order the taking of such steps as are requisite to obtain from any member of the court-martial by which the appellant was tried, or the person who officiated as judge advocate at the trial, a report giving his opinion on the case or on any point arising in it, or containing a statement as to any facts of which the ascertainment appears to the Court to be material for the purpose of determining the case.

(2) The Court shall not make an order under this section for the purpose of obtaining a report from a member of a court-martial other than the president of it unless they also make such order for the purpose of obtaining a report from the president or are satisfied that the obtaining of a report from him is impracticable or would involve undue delay.

30 Other powers for facilitating disposal of appeal. U.K.

(1) Where any question arising on an appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the Appeal Court conveniently be conducted before them, the Court may order the reference of the question in the prescribed manner for inquiry and report to a special commissioner appointed by them, and act upon the report of the commissioner so far as they think fit to adopt it.

(2) The Appeal Court may appoint a person with special expert knowledge to act as assessor to the Court in any case where it appears to them that such knowledge is required for the proper determination of the case.

(3) There may be paid out of moneys provided by Parliament to a special commissioner to whom a question is referred under this section for inquiry and report, and to a person appointed as assessor to the Appeal Court, such remuneration and such travelling and subsistence allowances as may be prescribed by regulations made by the Lord Chancellor.

(4) The power of the Lord Chancellor under subsection (3) above to make regulations shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Costs U.K.

31 Costs of successful appeal. U.K.

(1) Where the Appeal Court allow an appeal [F44 other than an appeal against sentence] they may if they think fit, direct the payment by the Secretary of State of costs to the appellant.

(2) The costs which may under this section be directed to be paid are such sums as appear to the Appeal Court reasonably sufficient to compensate the appellant for any expenses properly incurred by him in the case that is to say—

(a) in the prosecution of his appeal (including any proceedings preliminary or incidental thereto); or

(b) in carrying on his defence before the court-martial from which the appeal lies, or before any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the first-mentioned court-martial.

Textual Amendments

F44 Words inserted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(6)

32 Costs against appellant. E+W+S

(1) Where the Appeal Court dismiss an appeal or an application for leave to appeal they may, if they think fit, order the appellant or applicant (as the case may be) to pay to the Secretary of State the whole or any part of the costs of the appeal or application, including the costs of copying or transcribing any documents for the use of the Appeal Court.

(2) An order under this section may be enforced—

[F45 (a) in the same manner as an order for costs made by the criminal division of the Court of Appeal F46 . . .; or]

(b) by making deductions from pay due to the appellant or applicant, as the case may be,

or partly in the one way and partly in the other.

(3) Any sums which by virtue of subsection (2)(a) above are recovered from a person by the Secretary of State shall be paid into the Exchequer.

Extent Information

E1 This version of this provision extends to England and Wales and Scotland only; a separate version has been created for Northern Ireland only.

Textual Amendments

F45 S. 32(2)(a) substituted (E.W.) (S.) by Administration of Justice Act 1970 (c. 31), s. 41(7)

F46 Words in s. 32(2)(a) repealed (1.4.1997 with savings) by 1996 c. 46, s. 35(2), Sch. 7 Pt. III; S.I. 1996/304, art. 2, Sch. 1 (with art. 3)

32 Costs against appellant. N.I.

(1) Where the Appeal Court dismiss an appeal or an application for leave to appeal they may, if they think fit, order the appellant or applicant (as the case may be) to pay to the Secretary of State the whole or any part of the costs of the appeal or application, including the costs of copying or transcribing any documents for the use of the Appeal Court.

(2) An order under this section may be enforced—

(a) in the same manner as an order for the payment of costs made by the High Court in civil proceedings; or

(b) by making deductions from pay due to the appellant or applicant, as the case may be,

or partly in the one way and partly in the other.

(3) Any sums which by virtue of subsection (2)(a) above are recovered from a person by the Secretary of State shall be paid into the Exchequer.

Extent Information

E2 This version of this provision extends to Northern Ireland only; a separate version has been created for England and Wales and Scotland only.

33 Witnesses’ expenses. U.K.

(1) The Appeal Court may, whether or not they exercise their powers under either of the two foregoing sections, order the payment out of moneys provided by Parliament of such sums as appear to the Court reasonably sufficient to compensate any person properly attending to give evidence on an appeal under this Part of this Act or any proceedings preliminary or incidental thereto (whether or not he gives evidence) for the expense, trouble or loss of time properly incurred in or incidental to his attendance.

(2) The amount of any costs ordered to be paid under this section shall be ascertained as soon as practicable by the registrar.

[F47 33A Appellant’s expenses. U.K.

Without prejudice to section 31 above, where an appellant who is not in custody appears before the Appeal Court either on the hearing of his appeal or in any preliminary or incidental proceedings, the Appeal Court may direct the Secretary of State to pay him the expenses of his appearance.]

Textual Amendments

F47 S. 33A added by Administration of Justice Act 1977 (c. 38, SIF 37), s. 5(1)

Special references to Appeal Court U.K.

34 Reference of cases by Service authorities. U.K.

(1) If, in the case of the conviction of a person by court-martial,—

(a) it appears to the Judge Advocate of Her Majesty’s Fleet or the Judge Advocate General that the finding of the court-martial involves a point of law of exceptional importance which in his opinion should be determined by the Appeal Court; or

(b) it appears to the Secretary of State, upon consideration of matters appearing to him not to have been brought to the notice of the court-martial at the trial, to be expedient that the finding of the court-martial should be considered or reconsidered by the Appeal Court,

the Judge Advocate of Her Majesty’s Fleet, the Judge Advocate General or the Secretary of State, as the case may be, may refer the finding to the Court.

(2) A reference to the Appeal Court under [F48 subsection (1) above] shall, for all purposes [F49 other than that of section 32] of this Act, be treated as an appeal by the person convicted against his conviction.

(3) The foregoing provisions of this section shall apply in the case of a finding by a court-martial of not guilty by reason of insanity as they apply in the case of the conviction of a person by court-martial.

[F50 (4) The Secretary of State may, if consideration by the Appeal Court appears to him for any reason desirable, refer the sentence passed on any person convicted by a court-martial to the Appeal Court.

(5) Any reference under subsection (4) above shall be treated as an appeal by the person convicted against sentence for all purposes except those of section 32 of this Act.]

Textual Amendments

F48 Words substituted by Armed Forces Act 1971 (c. 33), Sch. 2 para. 1(7)

F49 Words substituted by Administration of Justice Act 1977 (c. 38, SIF 37), s. 5(2)

F50 S. 34(4)(5) substituted for s. 34(4) (1.4.1997 with savings) by virtue of 1996 c. 46, s. 17(4); S.I. 1997/304, art. 2 (with art. 3)

35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F51 U.K.

Textual Amendments

F51 S. 35repealed by Administration of Justice Act 1977 (c. 38, SIF 37), ss. 5(3), 32, Sch. 5 Pt. VI

Supplementary U.K.

36 Powers under Part II which are exercisable by single judge. U.K.

(1) The following powers of the Appeal Court under this Part of this Act, that is to say the power—

(a) to give a direction under section 8(3) that a person be treated as not having lost his right of appeal;

(b) to give leave to appeal;

(c) to extend the period within which an application for leave to appeal must be lodged;

(d) to make orders under section 20(2) and discharge or revoke such orders;

(e) to allow an appellant to be present at any proceedings;

(f) to order witnesses to attend for examination; and

(g) to make an order under section 32 for the payment of costs,

[F52 and the power to give directions under section 4(4) of the Sexual Offences (Amendment) Act 1976 as adapted by section 5(1)(d) of that Act][F53 or section 3(4) of the Sexual Offences (Amendment) Act 1992]may be exercised by any judge of the Appeal Court in the same manner as they may be exercised by the Court, and subject to the same provisions.

(2) If the judge refuses an application on the part of an appellant to exercise in his favour any of the powers mentioned in subsection (1) above (other than the power to make an order for the payment of costs), the appellant, upon making a requisition in that behalf within the prescribed period and in the prescribed form and manner, shall be entitled to have the application determined by the Appeal Court as duly constituted [F54 for the purpose in accordance with section 5 of this Act].

Textual Amendments

F52 Words inserted (E.W.) (and (S.N.I.) so far as relating to Courts-Martial and the Courts-Martial Appeal Court) by Sexual Offences (Amendment) Act 1976 (c. 82, SIF 39:1), s. 5(6)

F53 Words in s. 36(1) inserted (1.8.1992) (E.W., and S. and N.I. so far as relating to courts-martial and the Courts-Martial Appeal Court) by Sexual Offences (Amendment) Act 1992 (c. 34), s. 7(4) (with s. 6(4)); S.I. 1992/1336, art.2

F54 Words substituted by Supreme Court Act 1981 (c. 54, SIF 37), ss. 145(5), 153(4)(d)

[F55 36A Powers under Part II which are exercisable by registrar. U.K.

(1) The following powers of the Appeal Court under this Part of this Act, namely the power—

(a) to extend the time within which notice of appeal or of application for leave to appeal may be given; and

(b) to order a witness to attend for examination,

may be exercised by the registrar in the same manner as they may be exercised by the Court and subject to the same restrictions.

(2) If the registrar refuses an application on the part of an appellant to exercise in his favour any power specified in subsection (1) above, the appellant shall be entitled to have the application determined by any judge of the Appeal Court.]

Textual Amendments

F55 S. 36A inserted (1.10. 1996 with savings) by 1996 c. 46, s. 18; S.I. 1996/2474, art. 2 (with art. 3)

37 Documents relating to trial to be furnished for appeal. U.K.

(1) In the case of every appeal or application for leave to appeal to the Appeal Court from a naval court-martial it shall be the duty of the Defence Council to furnish to the registrar, in accordance with rules of court, the proceedings of the court-martial and any petition presented by the person tried thereby.

(2) In the case of every appeal or application for leave to appeal from an army or air force court-martial, it shall be the duty of the Judge Advocate General to furnish to the registrar, in accordance with rules of court, the proceedings of the court-martial F56 . . . and any petition presented by the person tried thereby.

Textual Amendments

F56 Words in s. 37(2) repealed (1.4.1997) by 1996 c. 46, s. 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with art. 3)

[F57 [F58 37A False statements in computer record certificates. U.K.

(1) Any person who in a certificate tendered under paragraph 8 of Schedule 3 to the Police and Criminal Evidence Act 1984 (computer records) in evidence before the Appeal Court makes a statement which he knows to be false or does not believe to be true shall be guilty of an offence and liable—

(a) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both;

(b) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

(2) Proceedings for an offence under this section committed outside the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

(3) In this section “statutory maximum” has the meaning given by section 74 of the Criminal Justice Act M18 1982.]]

Textual Amendments

F57 S. 37A repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 5

F58 S. 37A inserted by Police and Criminal Evidence Act 1984 (c. 60, SIF 95), s. 119, Sch. 6 para. 34

Marginal Citations

M18 1982 c.48 (39:1).

38 Defence of appeals. U.K.

It shall be the duty of the Defence Council to undertake the defence of any appeal to the Appeal Court under this Part of this Act.

Part III U.K. Appeal from Courts-Martial Appeal Court to House of Lords

39 Right of appeal. U.K.

(1) An appeal lies to the House of Lords, at the instance of the accused or the Defence Council, from any decision of the Appeal Court on an appeal to them under Part II of this Act, whether given by them when sitting within or outside the United Kingdom.

(2) The appeal lies only with the leave of the Appeal Court or the House of Lords; and such leave shall not be granted unless it is certified by the Appeal Court that a point of law of general public importance is involved in the decision and it appears to the Court or the House of Lords, as the case may be, that the point is one which ought to be considered by that House.

40 Application for leave to appeal. U.K.

(1) An application to the Appeal Court for leave to appeal to the House of Lords shall be made within the period of fourteen days beginning with the date of the decision of the Court; and an application to the House of Lords for leave shall be made within the period of fourteen days beginning with the date on which the application is refused by the Appeal Court.

(2) The House of Lords or the Appeal Court may, upon application made at any time by the accused, extend the time within which an application may be made by him to that House or the Court under subsection (1) above.

(3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and, if leave to appeal is granted, until the appeal is disposed of; and for purposes of this Part of this Act an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it may be made, if it is not made within that time.

41 Hearing and disposal of appeal. U.K.

(1) An appeal under this Part of this Act shall not be heard and determined by the House of Lords unless there are present not less than three of the persons designated Lords of Appeal by section 5 of the M19 Appellate Jurisdiction Act 1876.

(2) Any order of the House of Lords which provides for the hearing of applications for leave to appeal by a committee constituted in accordance with section 5 of the said Act of 1876 may direct that the decision of that committee shall be taken on behalf of the House.

(3) For the purpose of disposing of an appeal under this Part of this Act, the House of Lords may exercise any powers of the Appeal Court or may remit the case to the Court.

Modifications etc. (not altering text)

C3 S. 41(1) applied (prosp.) by 1955 c. 18, s. 113C(4) (as inserted (prosp.) by 2001 c. 19, ss. 21(1), 39(2))

S. 41(1) applied (prosp.) by 1955 c. 19, s. 113C(4) (as inserted (prosp.) by 2001 c. 19, s. 21(1), 39(2))

S. 41(1) applied (prosp.) by 1957 c. 53, s. 71AC(4) (as inserted (prosp.) by 2001 c. 19, s. 21(2), 39(2))

Marginal Citations

M19 1876 c. 59.

42 Bail. U.K.

(1) When a person to whom this section applies appeals, or applies for leave to appeal, to the House of Lords from a decision of the Appeal Court, the Court shall have power to grant him bail pending the appeal.

(2) This section applies to any person who—

(a) not being subject to the M20 Naval Discipline Act, nor to military law nor to air force law, is liable by virtue of that Act, or the Army Act or the M21 Air Force M22 Act, to be tried as if he were so subject; or

(b) is subject to the Naval Discipline Act by virtue only of section 119(1) of it (sentenced offenders).

Marginal Citations

M20 1957 c. 53.

M21 1955 c. 18.

M22 1955 c. 19.

43 Detention of accused. U.K.

(1) Where the accused would, but for the decision of the Appeal Court, be liable to be detained, and immediately after that decision the Defence Council are granted, or give notice that they intend to apply for, leave to appeal, the Appeal Court may make an order providing for the detention of the accused or directing that he shall not be released except on bail (which may, in the case of a person to whom section 42 of this Act applies, be granted as under that section) so long as any appeal to the House of Lords is pending.

(2) An order under this section shall (unless the appeal has been previously disposed of) cease to have effect at the expiration of the period for which the accused would have been liable to be detained but for the decision of the Appeal Court.

(3) An order made under this section for the detention of a person who, but for the decision of the Appeal Court, would be liable to be detained in pursuance of an order or direction under United Kingdom mental health legislation shall be an order authorising his continued detention in pursuance of that order or direction; and the relevant provisions of that legislation with respect to persons liable to be detained thereunder (including provisions as to the renewal of authority for detention and the removal or discharge of patients) shall apply accordingly.

(4) The legislation referred to in subsection (3) above is [F59 Part III of the Mental Health Act 1983] the [F60 Mental Health (Scotland) Act 1984]and the Mental Health [F61 (Northern Ireland) Order 1986].

(5) Where the Appeal Court has power to make an order under this section, and either no such order is made or the accused is released or discharged by virtue of subsection (2) or (3) above before the appeal is disposed of, the accused shall not be liable to be again detained as a result of the decision of the House of Lords on the appeal.

Textual Amendments

F59 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(a)

F60 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 13

F61 Words substituted by S.I. 1986/596, art. 6(a)

44 Presence of accused at hearing. U.K.

Where the accused is detained pending an appeal from the Appeal Court to the House of Lords, he shall not be entitled to be present on the hearing of the appeal or of any proceedings preliminary or incidental thereto unless an order of the House of Lords authorises him to be present, or that House or the Appeal Court give him leave to be present.

45 Effect of appeal on sentence. U.K.

(1) Subject to this section, any sentence passed on an appeal from the Appeal Court to the House of Lords in substitution for another sentence shall, unless the House of Lords or the Appeal Court otherwise direct, begin to run from the time when that other sentence would have begun to run.

(2) Where under this Part of this Act a person subject to a sentence is [F62 granted]bail pending an appeal, the time during which he is [F62 released on bail]shall be disregarded in computing the term of his sentence.

Textual Amendments

F62 Words substituted by Bail Act 1976 (c. 63, SIF 39:1), s. 12, Sch. 2 para. 46

46 Restitution of property. U.K.

(1) Where the operation of an order for the restitution of property, being an order made under—

• section 76 of the M23 Naval Discipline Act;

• section 138 of the M24 Army Act; or

• section 138 of the M25 Air Force Act,

(which sections apply when persons are convicted by court-martial of theft or other offences against property), is suspended until the determination of an appeal to the Appeal Court, the following subsections apply.

(2) If the conviction [F63 or, in the case of an appeal against sentence, the order]is not quashed on appeal, the operation of the order shall continue to be suspended—

(a) in any case, until the expiration of the time within which an application for leave to appeal to the House of Lords may be made (disregarding any extension of time which may be granted under section 40 of this Act); and

(b) if such an application is made within that time, so long as the appeal to the House of Lords is pending.

(3) Where the operation of an order is suspended under this section,—

(a) the order shall not take effect if the conviction [F63 or, in the case of an appeal against sentence, the order] is quashed on appeal to the House of Lords;

(b) such steps shall be taken for the safe custody of the property in question during the period during which the operation of the order is suspended as may be prescribed.

(4) Where by reason of the quashing by the Appeal Court of a person’s conviction an order to which subsection (1) of this section applies does not take effect and on appeal to the House of Lords the conviction is restored by the House, the House may make any order for the restitution of property which could be made on his conviction by the court-martial which convicted him or, in the case of an appeal relating to a conviction under the M26 Naval Discipline Act, by the Defence Council.

Textual Amendments

F63 Words in s. 46(2)(3)(a) inserted (1.4.1997 with savings) by 1996 c. 46, s. 17(5); S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M23 1957 c. 53.

M24 1955 c. 18.

M25 1955 c. 19.

M26 1957 c. 53.

47 Costs. U.K.

(1) Where the Appeal Court or the House of Lords dismiss an application for leave to appeal to that House and the application was made by the Secretary of State, the Court or the House may direct the payment by the Secretary of State of such sums as appear to the Court or the House to be reasonably sufficient to compensate the accused for any expenses properly incurred by him in resisting the application.

(2) Where the Appeal Court or the House of Lords dismiss an application for leave to appeal to that House and the application was made by the accused, the Court or the House may make the like order as may be made by the Court under section 32(1) of this Act where they dismiss an application for leave to appeal to the Court; and any order made under this subsection may be enforced in the manner described in section 32(2) of this Act.

(3) [F64 On determining an appeal from the Appeal Court], the House of Lords may, if they think fit, direct the payment by the Secretary of State of such sums as appear to the House to be reasonably sufficient to compensate the accused for any expenses properly incurred by him in the case up to and including the appeal, that is to say—

(a) in the appeal to the House of Lords;

(b) in the prosecution of his appeal to the Appeal Court (including any proceedings preliminary or incidental thereto); and

(c) in carrying on his defence before the court-martial by which he was convicted or found not guilty by reason of insanity or unfit to stand his trial, or before any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the court-martial by which he was convicted or so found, as the case may be.

(4) Except as provided by the foregoing provisions of this section, no costs shall be allowed on the hearing or determination of an appeal from the Appeal Court to the House of Lords, or of any proceedings preliminary or incidental to such an appeal.

Textual Amendments

F64 Words substituted by Administration of Justice Act 1977 (c. 38, SIF 37), s. 5(4)

48 Powers under Part III which are exercisable by single judge. U.K.

The following powers of the Appeal Court under this Part of this Act, that is to say the power—

(a) to extend the time for making an application for leave to appeal;

(b) to make an order for or in relation to bail; and

(c) to give leave to be present at the hearing of any proceedings preliminary or incidental to an appeal,

may be exercised by any judge of the Court; but where the judge refuses an application to exercise any of the said powers, the applicant shall be entitled to have the application determined by the Appeal Court.

[F65 48A Appeals on behalf of deceased persons. U.K.

(1) Where a person has died—

(a) any relevant appeal which might have been begun by him had he remained alive may be begun by a person approved by the Appeal Court; and

(b) where any relevant appeal was begun by him while he was alive or is begun in relation to his case by virtue of paragraph (a) above, any further step which might have been taken by him in connection with the appeal if he were alive may be taken by a person so approved.

(2) In this section “relevant appeal” means—

(a) an appeal under section 8, 21 or 24 of this Act; or

(b) an appeal under section 39 of this Act from any decision of the Appeal Court on an appeal under any of those sections.

(3) Approval for the purposes of this section may only be given to—

(a) the widow or widower of the dead person;

(b) a personal representative of the dead person; or

(c) any other person appearing to the Court of Appeal to have, by reason of a family or similar relationship with the dead person, a substantial financial or other interest in the determination of a relevant appeal relating to him.

(4) An application for such approval may not be made after the end of the period of one year beginning with the date of death.

(5) Where this section applies, any reference in this Act to the appellant shall, where appropriate, be construed as being or including a reference to the person approved under this section.

(6) The power of the Appeal Court to approve a person under this section may be exercised by any judge of the Appeal Court in the same manner as by the Court and subject to the same provisions; but if the judge refuses the application, the applicant shall be entitled to have the application determined by the Appeal Court.

(7) In subsection (3)(b) above “personal representative” means—

(a) for England and Wales, a person who is a personal representative within the meaning of section 55(1)(xi) of the M27 Administration of Estates Act 1925;

(b) for Scotland, an executor confirmed to the estate of the dead person; or

(c) for Northern Ireland, a person who is one of the personal representatives within the meaning of the M28 Administration of Estates Act (Northern Ireland) 1955.]

Textual Amendments

F65 S. 48A inserted (1.10.1996) by 1996 c. 46, s. 19; S.I. 1996/2474, art. 2(with art. 3)

Marginal Citations

M27 1925 c.23

M28 1955 c. 24(N.I.).

Part IV U.K. Miscellaneous and General

49 Rules of Court. U.K.

(1) Rules of court made by the Lord Chief Justice with the approval of the Lord Chancellor may provide for regulating the procedure and practice to be followed in the Appeal Court and for any other matters which by this Act are expressed to be subjects for rules of court.

(2) Rules of court made for the purposes of any provision of this Act may make different provision in relation to different classes of cases and may provide for any incidental or supplementary matters for which it appears to the Lord Chief Justice to be necessary or expedient for the purposes of that provision to provide.

(3) The power under this section to make rules of court shall be exercisable by statutory instrument, and the M29 Statutory Instruments Act 1946 shall apply to a statutory instrument containing rules of court made under this section in like manner as if the rules had been made by a Minister of the Crown.

(4) A statutory instrument containing rules of court made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Marginal Citations

M29 1946 c. 36.

50 Duties of registrar with respect to appeals etc. U.K.

(1) The registrar shall take all necessary steps for obtaining the determination of an appeal or application under this Act, and shall obtain and lay before the Appeal Court in proper form all documents, exhibits and other things relating to the proceedings in the court-martial by which the appellant or applicant was tried which appear necessary for the proper determination of the appeal or application.

(2) The registrar shall furnish the necessary forms and instructions relating to applications for leave to appeal under this Act to any person who demands them, to persons in charge of places where persons sentenced by court-martial may lawfully be confined for the purpose of serving their sentences and to such other persons as he thinks fit.

(3) Every person in charge of such a place as is referred to in subsection (2) above shall cause the said forms and instructions to be placed at the disposal of persons confined in that place who wish to apply for leave to appeal to the Appeal Court, or from that Court to the House of Lords.

51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F66 U.K.

Textual Amendments

F66 S. 51 repealed (1.10.1968) on coming into force of Pt. IV of Criminal Justice Act 1967 (c. 80) by Courts-Martial (Appeals) Act 1968 (c. 20), s. 51(8)

52 Removal of prisoners. U.K.

Rules or regulations made under—

(a) section 79 or 82 of the M30 Naval Discipline Act;

(b) section 121 or 122 of the M31 Army Act;

(c) section 121 or 122 of the M32 Air Force Act;

(d) section 47 of the M33 Prison Act 1952;

[X1 (e) section 35 of the M34 Prisons (Scotland) Act 1952; or]

[F67 (e) section 39 of the Prisons (Scotland) Act 1989; or]

(f) section 13 of the M35 Prison Act (Northern Ireland) 1953

may provide in what manner an appellant, when in custody, is to be taken to, kept in custody at, and brought back from any place at which he is entitled to be present for purposes of Part II or Part III of this Act or any place to which the Appeal Court or a judge of it may order him to be taken for the purpose of any proceedings of the Court.

Editorial Information

X1 S. 52(e) beginning “section 39" substituted (S.) for S. 52(e) beginning “section 35" by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 10

Textual Amendments

F67 S. 52(e) beginning “section 39" substituted (S.) for S. 52(e) beginning “section 35" by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 10

Marginal Citations

M30 1957 c. 53.

M31 1955 c. 18.

M32 1955 c. 19.

M33 1952 c. 52.

M34 1952 c. 61.

M35 1953 c. 18 (N.I.)

F68 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F68 S. 53 repealed (1.4.1997) by 1996 c. 46, s. 35(2), SCh. 7 Pt. III; S.I. 1997/304, art. 2, Sch. 1

54 Saving for prerogative. U.K.

(1) Nothing in this Act is to be taken as affecting any right of Her Majesty, by virtue of Her Royal prerogative or otherwise, to quash a conviction by court-martial, so far as regards the exercise thereof at a time before whichever of the following two events first occurs—

(a) the receipt by the registrar of an application for leave to appeal under Part II of this Act against the conviction; or

(b) the receipt by him of particulars of such an application furnished in pursuance of section 9 of this Act.

(2) Nothing in this Act is to be taken as affecting Her Majesty’s Royal prerogative of mercy.

55 Modification of provisions in Parts II and III for capital cases. U.K.

Schedule 2 to this Act has effect so as to modify certain provisions of this Act in relation to cases involving sentence of death; and any provision of this Act which is referred to in that Schedule and modified or restricted thereby shall have effect subject to the Schedule.

56 Modification for protected prisoners of war. U.K.

Schedule 3 to this Act has effect so as to modify certain provisions of this Act in relation to protected prisoners of war within the meaning of the M36 Geneva Conventions Act 1957; and any provision of this Act which is referred to in that Schedule and modified or restricted thereby shall have effect subject to the Schedule.

Marginal Citations

M36 1957 c. 52.

57 Interpretation. U.K.

(1) In this Act, unless the context otherwise requires,—

• “the Air Force Act” means the M37 Air Force Act 1955;

• “air force court-martial” means a court-martial under the Air Force Act;

• “appellant” includes a person who has been tried by court-martial and wishes to appeal under Part II of this Act to the Appeal Court;

• “the Army Act” means the M38 Army Act 1955;

• “army court-martial” means a court-martial under the Army Act;

• “court-martial” means a naval, army or air force court-martial;

• “enactment” includes an enactment of the Parliament of Northern Ireland;

• “the Judge Advocate General” means the Advocate General or Judge Martial of all Her Majesty’s regular, auxiliary and reserve land and air forces;

• “the Lord Chief Justice” means the Lord Chief Justice of England;

• “the Naval Discipline Act” means the M39 Naval Discipline Act 1957;

• “naval court-martial” means a court-martial under the Naval Discipline Act F69 . . .;

• “prescribed” means prescribed by rules of court; F70 . . .

• “the registrar” means the registrar of the Appeal Court. [F71 ; and

• “sentence”, in relation to an offence, includes any order made by a court when dealing with an offender.]

(2) Where in connection with any proceedings or powers of the Appeal Court on appeal a provision of this Act refers to “the relevant Service Act", it is to be taken as referring to the Act under which the appellant was tried by court-martial, that is to say the M40 Naval Discipline M41 Act, the Army Act or the M42 Air Force M43 Act, as the case may be.

(3) In Part III of this Act “the accused” means, in relation to an appeal from the Appeal Court to the House of Lords, the person who was the accused in the court-martial proceedings from which the appeal lay to the Appeal Court.

(4) Any reference in this Act to another enactment is a reference thereto as amended by or under any other enactment, including this Act.

(5) Any reference in this Act to an enactment of the Parliament of Northern Ireland includes a reference to an enactment corresponding thereto and for the time being in force in Northern Ireland.

Textual Amendments

F69 Words in the definition of “naval court martial" in s. 57(1) repealed (28.2.2002) by 2001 c. 19, s. 38, Sch. 7 Pt. I; S.I. 2002/345, art. 2 (subject to art. 3)

F70 Word in s. 57(1) repealed (1.4.1997) by 1996 c. 46, s. 35(2), SCh. 7 Pt. III; S.I. 1997/304, art. 2, Sch. 1

F71 Word and definition inserted (1.4.1997 with savings) by 1996 c. 46, s. 17(7); S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M37 1955 c. 19.

M38 1955 c. 18.

M39 1957 c. 53.

M40 1957 c. 53.

M41 1957 c. 53.

M42 1955 c. 18.

M43 1955 c. 19.

58 Consequential amendments of enactments. U.K.

The enactments specified in Schedule 4 to this Act shall be amended as shown in that Schedule.

Modifications etc. (not altering text)

C4 The text of ss. 58, 60, Sch. 6 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any repeals or amendments which may have been made prior to 1.2.1991

59 Transitional provisions. U.K.

The transitional provisions set out in Schedule 5 to this Act shall have effect.

60 Repeals. U.K.

The enactments specified in the second column of Schedule 6 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

Modifications etc. (not altering text)

C5 The text of ss. 58, 60, Sch. 6 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any repeals or amendments which may have been made prior to 1.2.1991

61 Short title and commencement. U.K.

(1) This Act may be cited as the courts-martial (Appeals) Act 1968.

(2) This Act shall come into force on the day appointed under section 106(5) of the M44 Criminal Justice Act 1967 for the coming into force of section 98 of that Act.

Modifications etc. (not altering text)

C6 Section 98 of the Criminal Justice Act 1967 came into force 1.9.1968 by S.I. 1968/325

Marginal Citations

M44 1967 c. 80.