C2Part II Discipline and Trial and Punishment of Air-Force Offences
F7 Review of proceedings of courts-martial
Cross-heading and s. 112 substituted for s. 112 (1.4.1997) by 1996 c. 46, s. 16, Sch. 5 para. 3; S.I. 1997/304, art. 2 (with art. 3, Sch. 2)
112F8 Approval required for death sentences.
1
A sentence of death passed by a court-martial shall not be carried out until it has been reviewed under section 113 of this Act and has not been quashed or replaced by another sentence on the review.
2
A sentence of death passed by a court-martial shall not be carried out in a colony unless it is also approved by the Governor of the colony.
113F9Review of findings and sentences of courts-martial.
1
Where a court-martial has found the accused guilty of any offence, the accused may, before the end of the prescribed period after sentence is passed, present a petition to the Defence Council against finding or sentence or both.
2
The reviewing authority shall, in accordance with subsections (3) and (4) below, review any finding of guilt made, and sentence passed, by a court-martial.
3
The review under this section shall (if it does not begin sooner) begin as soon as is practicable after—
a
in a case where a petition has been presented under this section, the presentation of the petition;
b
in any other case, the end of the period within which a petition under this section may be presented.
4
Where an application for leave to appeal to the Courts-Martial Appeal Court against a finding or sentence has been made before the review under this section of the finding or sentence has been completed—
a
the reviewing authority shall complete the review as soon as is practicable; but
b
if leave to appeal is granted before the review has been completed, the authority shall cease considering the review.
5
For the purposes of this Act the reviewing authority is—
a
the Defence Council; or
b
any officer to whom all or any of the powers of the Defence Council as reviewing authority may be delegated by the Defence Council.
6
A sentence of death and the finding of guilty in consequence of which it was passed may not be reviewed by an officer to whom powers are delegated under subsection (5)(b) above.
F2113AA Powers of the reviewing authority.
1
On a review under section 113 of this Act of a finding or sentence of a court-martial the reviewing authority has the following powers.
2
In so far as the review is of a finding of guilt, the authority may—
a
quash that finding and, if the sentence relates only to that finding, quash the sentence passed in consequence of that finding;
b
substitute a finding mentioned in subsection (3) below if that finding could have been validly made by the court-martial and the authority is of the opinion that the court-martial must have been satisfied of facts which would justify the making of that finding;
and, where another finding is so substituted, the authority may pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to a court-martial on making such a finding as appears proper.
3
The findings referred to in subsection (2) above are—
a
any finding of guilt which could have been validly made by the court-martial on the charge before it;
b
if the court-martial recorded no finding on a charge alternative to a charge on which the court made the finding being reviewed, a finding of guilt on that alternative charge.
4
In so far as the review is of a sentence, the authority may quash the sentence or substitute a sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) which was open to the court-martial.
5
In reviewing a sentence, the authority may—
a
revoke an order made by the court under section 120A(1) of this Act;
b
remit in whole or part any punishment awarded by the court;
c
commute any such punishment for one or more punishments provided by this Act, being less than the punishment commuted.
6
Where it appears to the reviewing authority that the court-martial, in sentencing the accused, exceeded or erroneously exercised its powers to take other offences into consideration, the authority shall (whether or not substituting a different sentence or remitting or commuting punishment) annul the taking into consideration of the other offence or offences in question and any orders dependent thereon; and where the authority does so the offence or offences shall be treated for all purposes as not having been taken into consideration.
7
Any substituted finding or sentence, or sentence having effect after the remission or commutation of punishment—
a
shall be treated for all purposes as having been made or passed by the court;
b
shall be promulgated and shall have effect as from the date of promulgation.
C1113AF3 Power of reviewing authority to authorise retrial.
—(1) The following provisions of the M1Courts-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 F4the reviewing authority 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 F5reviewing authority shall be evidence of the making of the order or the giving of the direction, as the case may be, and of its contents.
Pt. II (ss. 24-143) applied (1.6.1996) by Armed Force Act 1991 (c. 62, SIF 7:1), ss. 18(9)(b), 20(10)(b); S.I. 1996/1173, art. 2