Courts-Martial (Appeals) Act 1968

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

[F1 (1) The limitations imposed by—

• section 52 of the M1 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.]

[F1 (1) Where—

(a) an order under section 19 authorising the retrial of a person has been made, and

(b) the person has not been arraigned (in pursuance of the order) within three months beginning with the date of the order,

the person may not be arraigned unless the Appeal Court give leave.

(1A) A person who may not be arraigned without the leave of the Appeal Court may apply to the Court to set aside the order under section 19.

(1B) On an application under subsection (1) or (1A) the Appeal Court may—

(a) grant leave to arraign; or

(b) set aside the order under section 19.

(1C) But leave to arraign may be granted only if the Appeal Court are satisfied—

(a) that the prosecution has acted with all due expedition; and

(b) that there is a good and sufficient reason for a retrial in spite of the lapse of time since the order under section 19 was made.

(1D) Where an order under section 19 authorising the retrial of a person for an offence is set aside, the person is to be treated as if he had been acquitted by the Court Martial of the offence.

(1E) Where the Appeal Court authorise the retrial of a person they may—

(a) by order authorise the keeping of that person in service custody—

(i) for such period, ending not later than 8 days after the date the order is made, as the Court think appropriate; or

(ii) if the person is legally represented and consents, for such period, not exceeding 28 days, as the Court think appropriate; or

(b) require that person to comply with such requirements as seem to the Court to be necessary for a purpose mentioned in section 107(3) of the 2006 Act.

(1F) Where the person is in service custody the Appeal Court may under subsection (1E)(b) impose a requirement that must be complied with before the person may be released.

(1G) An order under subsection (1E)(a) is to be treated, for the purposes of Part 4 of the 2006 Act, as made under section 105(2) of that Act.

(1H) A requirement imposed under subsection (1E)(b) is to be treated, for the purposes of Part 4 of the 2006 Act, as imposed under section 107(3) of that Act (and, where appropriate, by virtue of section 107(3)(a) of that Act).]

(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.

[F2 (2A) In subsection (2) “relevant time” means—

(a) where arraignment takes place within the three months referred to in subsection (1)—

(i) if the defendant is convicted on his retrial, the end of 28 days beginning with the date of conviction;

(ii) otherwise, the time when the case is finally disposed of;

(b) where arraignment does not take place within those three months, the end of those three months.]

(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 [F3 an order or direction] under United Kingdom mental health legislation, that [F4 order or] direction shall continue in force until the relevant time as if his conviction had not been quashed.

[F5 (3A) In subsection (3) “relevant time” means—

(a) where arraignment takes place within the three months referred to in subsection (1), the time when the case is finally disposed of;

(b) otherwise, the end of those three months.]

(4) The legislation referred to in subsection (3) above is [F6 Part III of the Mental Health Act 1983], [F7 [F8 Part VI of the Mental Health (Scotland) Act 1984] [F8 the Mental Health (Care and Treatment) (Scotland) Act 2003]] and Part III of the Mental Health [F9 (Northern Ireland) Order 1986].

[F10 (4A) Where retrial is authorised in the case of a person who—

(a) was liable to be detained in pursuance of an order or direction under Part 3 of the Mental Health Act 1983;

(b) was then made subject to a community treatment order (within the meaning of that Act); and

(c) was subject to that community treatment order immediately before the date of the authorisation,

the order or direction under Part 3 of that Act and the community treatment order shall continue in force until the relevant time (as defined in subsection (3A)) as if his conviction had not been quashed.

(4B) An order under subsection (1E)(a) is of no effect in relation to a person for so long as he is subject to a community treatment order.]

(5) [F11 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 [F12 of this Act; and of the four Parts of the Schedule, Part I applies to retrial under the M2 Naval Discipline Act; Part II applies to retrial under the Army Act; Part III applies to retrial under the M3 Air Force M4 Act; and Part IV applies to all three cases.]

Textual Amendments

F1 S. 20(1)-(1H) substituted for s. 20(1) (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F2 S. 20(2A) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(b); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F3 Words in s. 20(3) substituted (24.6.2008) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(c)(i); S.I. 2008/1650, art. 4(a)

F4 Words in s. 20(3) inserted (24.6.2008) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(c)(ii); S.I. 2008/1650, art. 4(a)

F5 S. 20(3A) inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(d); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F6 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 24(a)

F7 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 10

F8 Words in s. 20(4) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(e); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F9 Words substituted by S.I. 1986/596, art. 6(a)

F10 S. 20(4A)(4B) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), s. 56(1), Sch. 4 para. 3(2); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F11 S. 20(5) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(f), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F12 Words in s. 20(6) repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(g), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Modifications etc. (not altering text)

C1 S. 20(1) modified (24.4.2009 for specified purposes) by The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059), arts. 1(3), 119(5)

Marginal Citations

M1 1957 c. 53.

M2 1957 c. 53.

M3 1955 c. 18.

M4 1955 c. 19.