Courts-Martial (Appeals) Act 1968

SCHEDULES

Section 20.

SCHEDULE 1 Provisions as to Retrial

PART I Navy

1 On the retrial of any person under section 19 of this Act, the record of the evidence given by any witness at the original trial may, with the leave of the court-martial, be read as evidence—

(a) by agreement between the prosecution and the defence; or

(b) if the court-martial is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or secure his attendance have been made without success or that owing to the exigencies of the service it is not practicable for him to attend as aforesaid,

and may be so read without further proof if it is produced from the custody of the Defence Council.

2 Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by the Naval Discipline Act, not being a sentence of greater severity than that passed on the original conviction.

PART II Army

3 On the retrial of a person under section 19 of this Act, the record of the evidence given by any witness at the original trial may, with the leave of the court-martial, be read as evidence—

(a) by agreement between the prosecution and the defence ; or

(b) if the court-martial is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or secure his attendance have been made without success or that owing to the exigencies of the service it is not practicable for him to attend as aforesaid,

and may be so read without further proof if it forms part of the original proceedings of the original court-martial or a copy thereof and those proceedings are, or that copy is, admissible as evidence under section 200 of the Army Act.

4 Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by the Army Act, not being a sentence of greater severity than that passed on the original conviction.

PART III Air Force

5 On the retrial of a person under section 19 of this Act, the record of the evidence given by any witness at the original trial may, with the leave of the court-martial, be read as evidence—

(a) by agreement between the prosecution and the defence; or

(b) if the court-martial is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or secure his attendance have been made without success or that owing to the exigencies of the service it is not practicable for him to attend as aforesaid,

and may be so read without further proof if it forms part of the original proceedings of the original court-martial or a copy thereof and those proceedings are, or that copy is, adrnissible as evidence under section 200 of the Air Force Act.

6 Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by the Air Force Act, riot being a sentence of greater severity than that passed oh the original conviction.

PART IV Provision applying to all three Services

7 Where a person authorised under section 19 of this Act to be retried is convicted on retrial and sentenced to imprisonment or detention, there shall be taken into account in calculating the period for which he is liable to imprisonment or to be detained in pursuance of that sentence—'"' '"

(a) any time before the original conviction was quashed which would have been taken into account in calculating the period for which he would have been liable to be imprisoned or detained in pursuance of a sentence of imprisonment or detention imposed at the original trial; and

(b) any time after the quashing of his original conviction which he has spent under close arrest awaiting retrial.

Section 55.

SCHEDULE 2 Procedural and other Modifications for Capital Cases

Modifications of Part II

1 (1) In the case of a conviction involving sentence of death , the right of appeal conferred by section 8(1) of this Act on the person convicted shall be exercisable without his being required to present a petition to the Defence Council; and accordingly in such a case subsection (2) of that section shall not apply.

(2) In the case of such a conviction, the power of the Appeal Court under section 9(3) of this Act to extend the period within Which an application for leave to appeal must be lodged sha11 not be exercisable.

2 (1) The following shall apply where a conviction by court-martial involves sentence of death.

(2) The sentence shall not in any case be executed until the expiration of the period for appealing under Part II of this Act (that is to say the period prescribed under section 9 as the period within which an application for leave to appeal must be lodged).

(3) Subject to the following paragraph, if such an application is duly lodged, the sentence shall not be executed until either the application is finally refused, or it is withdrawn, or the appeal is determined or abandoned.

3 (1) Where sentence of death passed on a person on active service by an army or air force court-martial is confirmed, and the authority confirming the sentence certifies that it is essential in the interests of discipline and for the purpose of securing the safety of the force with which that person is present that the sentence should be carried out forthwith, paragraph 2 above shall not apply to the sentence.

(2) In sub-paragraph (1) above the expression " on active service "—

(a) in relation to a person subject to military jaw, has the meaning assigned to it by section 224 of the Army Act; and

(b) in relation to a person subject to the Air Force Act, has the meaning assigned to it by section 222 of that Act;

and a person, who is deemed for the purposes of either of those Acts to be on active service shall be deemed also for the purposes of this paragraph to be on active service.

4 Any appeal to the Appeal Court against a conviction involving sentence of death and any application for leave to appeal to the Court against any such conviction shall be heard and determined with as much expedition as practicable.

5 The Appeal Court shall not have power, by virtue of section 22 of this Act, to impose sentence of death ; and where apart from this paragraph a sentence of death would be required by law, the sentence shall (whatever the circumstances) be one of imprisonment for life.

Modifications of Part III

6 In a case involving sentence of death the power of the House of Lords or the Court under section 40 of this Act to extend the time within which an application by the accused for leave to appeal may be made under that section shall not be exercisable.

7 (1) Where, in a case involving sentence of death, an appeal to the Appeal Court is dismissed, the sentence shall not in any case be executed until after the expiration of the time within which an application for leave to appeal to the House of Lords may be made ; and, if such an application is ,duly made, the sentence shall not be executed while that application, and any appeal for which leave is granted thereon, is pending.

(2) In such a case, any application for leave to appeal to the House of Lords and any appeal for which leave is granted on such an application, shall be heard and determined with as much expedition as is practicable.

Section 56.

SCHEDULE 3 Modifications in Relation to Prisoners of War

1 In this Schedule " protected prisoner of war " means a person protected by the convention set out in Schedule 3 to the [1957 c. 52.] Geneva Conventions Act 1957; and " Royal Warrant" means a Royal Warrant governing the maintenance of discipline among prisoners of war.

2 In relation to a protected prisoner of war, this Act shall have effect as if the expression " army court-martial" included a prisoner of war court-martial constituted under a Royal Warrant.

3 In relation to a protected prisoner of war this Act shall have effect as if a reference to a Royal Warrant were substituted—

(a) for any reference in sections 13, 14 or 15 to the relevant Service Act;

(b) for the reference in section 16(2) to the relevant Service enactment;

(c) for the reference in section 17(2)(b) to the Army Act; and

(d) for the reference in section 37(2) to the enactment relating to the revision of the finding or sentence of an army court-martial.

4 Paragraph 3(1) of Schedule 2 to this Act shall not have effect in relation to a protected prisoner of war.

Section 58.

SCHEDULE 4 Consequential Amendment of Enactments

THE ARMY ACT 1955 (c. 18)

Section 113.

In subsection (3), for the words " paragraph (b) of subsection (3) of section 4 of the Courts-Martial (Appeals) Act 1951 " there shall be substituted the words " section 9(4)(b) of the Courts-Martial (Appeals) Act 1968 " .

After section 113 there shall be inserted the following section :—

“113A Power of reviewing authority to authorise retrial.

(1) The following provisions of the Courts-Martial (Appeals) Act 1968, that is to say.—

• section 19,

• section 20, and

• Parts II and IV of Schedule 1,

(power of Courts-Martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modifications in relation to the review by Her Majesty or the Defence Council under section 113 of this Act of the findings of a court-martial, as they apply in relation to an appeal to the Courts-Martial Appeal Court.

(2) Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the Defence Council shall be evidence of the making of the order or the giving of the direction, as the case may be, and of its contents.”

Section 118

In subsection (1), for the words " subsection (7) of section 4 of the Courts-Martial (Appeals) Act 1951 " there shall be substituted the words " section 11(2) of the Courts-Martial (Appeals) Act 1968 ".

Section 138

In subsection (9), for the words (in paragraph (a)) " Part I of the Courts-Martial (Appeals) Act 1951 " there shall be substituted the words " Part II of the Courts-Martial (Appeals) Act 1968 " ; and for the words (in paragraph (e)) " the said Act of 1951 " there shall be substituted the words " Part II of the said Act of 1968 ".

THE AIR FORCE ACT 1955 (c. 19)

Section 113

In subsection (3), for the words "paragraph (h) of subsection (3) of section 4 of the Courts-Martial (Appeals) Act 1951" there shall be substituted the words " section 9(4)(b) of the Courts-Martial (Appeals) Act 1968 " .

After section 113 there shall be inserted the following section :—

“113A Power of reviewing authority to authorise retrial.

(1) The following provisions of the Courts-Martial (Appeals) Act 1968, that is to say.—

• section 19,

• section 20, and

• Parts III. and IV of Schedule 1,

(power of Courts-Martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modifications in relation to the review by Her Majesty or the Defence Council under section 113 of this Act of the findings of a court-martial, as they apply in relation to an appeal to the Courts-Martial Appeal Court.

(2) Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the Defence Council shall be evidence of the making of the order or the giving of the direction, as the case may be, and of its contents.”

Section 118

In subsection (1), for the words " subsection (7) of section 4 of the Courts-Martial (Appeals) Act 1951 " there shall be substituted the words " section 11(2) of the Courts-Martial (Appeals) Act 1968 ".

Section 138

In subsection (9), for the words (in paragraph (a)) " Part I of the Courts-Martial (Appeals) Act 1951 " there shall be substituted the words " Part II of the Courts-Martial (Appeals) Act 1968 " ; and for the words (in paragraph (e)) " the said Act of 1951" there shall be substituted the words " Part II of the said Act of 1968 ".

THE NAVAL DISCIPLINE ACT 1957 (c. 53)

Section 70

In subsection (3), for the words " paragraph (b) of subsection (3) of section 4 of the Courts-Martial (Appeals) Act 1951" there shall be substituted the words " section 9(4)(b) of the Courts-Martial (Appeals) Act 1968 ".

Section 71

At the end of the section there shall be inserted the following section—

“71A Power to authorise retrial.

(1) The following provisions of the Courts-Martial (Appeals) Act 1968, that is to say.—

• section 19,

• section 20, and

• Parts I and IV of Schedule 1,

(power of Courts-Martial Appeal Court to authorise retrial and supplementary provisions applicable when the power is exercised) shall apply with any necessary modifications in relation to the review by the Defence Council under section 70 of this Act of the findings of a court-martial as they apply in relation to an appeal to the Courts-Martial Appeal Court.

(2) Any document purporting to be an order or direction made or given by virtue of the foregoing subsection by the Defence Council shall be evidence of the making of the order or the giving of the direction, as the case may be, and of its contents.”

Section 77

In subsection (1), for the words (in paragraph (a)) " Part I of the Courts-Martial (Appeals) Act 1951 " there shall be substituted the words " Part II of the Courts-Martial (Appeals) Act 1968 " .

In subsection (3), for the words " the said Act of 1951 " there shall be substituted the words " Part II of the said Act of 1968 ".

Section 85

In subsection (1), for the words " subsection (7) of section 4 of the Courts-Martial (Appeals) Act 1951" there shall be substituted the words " section 11(2) of the Courts-Martial (Appeals) Act 1968 ".

THE MENTAL HEALTH ACT 1959 (c. 72)

Section 71

In subsection (3), for the words " subsection (4) of section 6 of the Courts-Martial (Appeals) Act 1951" there shall be substituted the words " section 16 of the Courts-Martial (Appeals) Act 1968 ".

THE MENTAL HEALTH (SCOTLAND) ACT 1960 (c. 61)

Section 64

In subsection (2), for the words " subsection (4) of section 6 of the Courts-Martial (Appeals) Act 1951 " there shall be substituted the words " section 16 of the Courts-Martial (Appeals) Act 1968 ".

THE MENTAL HEALTH ACT (NORTHERN IRELAND) 1961 (c. 15)

Section 57

In subsection (1), for paragraph (a) there shall be substituted the following paragraph—

“(a) section 16 of the Courts-Martial (Appeals) Act 1968”.

Section 59.

SCHEDULE 5 Transitional Provisions

1 (1) Any right of appeal subsisting immediately before the commencement of this Act by virtue of an enactment repealed thereby shall after that commencement be treated as subsisting by virtue of the corresponding enactment in this Act.

(2) Any appeal or application pending before the said commencement under an enactment so repealed may be presented and disposed of in accordance with the provisions of this Act corresponding to those in force immediately before the said commencement and applicable to the appeal or application.

2 (1) In so far as any order, appointment, rule or regulation made, petition presented, direction given or other thing done under an enactment repealed by this Act could have been made, presented, given or done under a corresponding provision of this Act, it shall not be invalidated by the repeal of that enactment but shall have effect as if made, presented, given or done under that corresponding provision.

(2) Any document referring to an enactment repealed by this Act shall, so far as may be necessary for preserving its effect, be construed as referring, or as including a reference, to the corresponding enactment in this Act.

3 The mention of particular matters in this Schedule shall not be taken to affect the general application of section 38 of the [1880 c. 63.] Interpretation Act 1889 with regard to the effect of repeals.

Section 60.

SCHEDULE 6 Repeals

Chapter	Short Title	Extent of Repeal
14 & 15 Geo. 6. c. 46.	The Courts-Martial (Appeals) Act 1951.	Part I (that is to say, sections 1 to 27).
3 & 4 Eliz. 2. c. 20.	The Revision of the Army and Air Force Acts (Transitional Provisions) Act 1955.	In Schedule 2, paragraph 15(2) to (5).
5 & 6 Eliz. 2. c. 52.	The Geneva Conventions Act 1957.	Section 4(3).
5 & 6 Eliz. 2. c. 53.	The Naval Discipline Act 1957.	In Schedule 5, the entry relating to the Courts-Martial (Appeals) Act 1951.
8 & 9 Eliz. 2. c. 65.	The Administration of Justice Act 1960.	Section 10; in section 20(2) the words from the beginning to "such appeals"; Schedule 1 and so much of Schedule 3 as amends the Courts-Martial (Appeals) Act 1951.
9 & 10 Eliz. 2. c. 52.	The Army and Air Force Act 1961.	In Schedule 2, the entry relating to the Courts-Martial (Appeals) Act 1951.
1964 c. 43.	The Criminal Appeal Act 1964.	Section 4; section 6(3) and, in section 6(5) the words " except so far as it relates to appeals from and retrials by courts-martial "; Schedule 1; and so much of Schedule 2 as amends the Courts-Martial (Appeals) Act 1951.
1964 c. 84.	The Criminal Procedure (Insanity) Act 1964.	In section 7, the references to the Courts-Martial (Appeals) Act 1951 and Part III of Schedule 2 to the Act; and Part III of that Schedule.
1966 c. 31.	The Criminal Appeal Act 1966.	Section 9(1); in section 12(2) the definition of "the 1951 Act"; section 12(4); in section 12(7) the words " appeals from, and "; and Part I of Schedule 1.
1967 c. 80.	The Criminal Justice Act 1967.	In Schedule 4, paragraphs 16 to 19, 31, 32 and 40.