Naval Discipline Act 1957 (repealed) (c. 53)

Part II U.K. Trial and punishment of offences

Review of finding and sentenceF18 U.K.

Textual Amendments applied to the whole legislation

F18 Act repealed (prosp.) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 17 and the repeal being partly in force, as to which see individual provisions

[F1 70 Review of findings and sentences of courts-martial. U.K.

(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 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 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.

F2 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) F3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In this section “prescribed” means prescribed by rules under section 58 of this Act.]

Textual Amendments

F1 S. 70 substituted (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 9; S.I. 1997/304, art. 2 (with art. 3)

F2 S. 70(6) repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

F3 S. 70(7) repealed (28.2.2002) by 2001 c. 19, s. 38, Sch. 7 Pt. 1; S.I. 2002/345, art. 2 (subject to art. 3)

[F4 71 Powers of the reviewing authority. U.K.

(1) On a review under section 70 of this Act 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 the 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 89A(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.]

Textual Amendments

F4 S. 71 substituted (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 10; S.I. 1997/304, art. 2 (with art. 3)

[F5 71A Power to authorise retrial. U.K.

(1) The following provisions of the M1 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 [F6 reviewing authority] under section 70 of this Act of the findings of a courts-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 [F6 reviewing 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.]

Textual Amendments

F5 S. 71A added by Courts-Martial (Appeals) Act 1968 (c. 20), Sch. 4

F6 Words in s. 71A substituted (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 11; S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

M1 1968 c. 20.

Valid from 28/02/2007

[F7 71AB Scope of section 71AC U.K.

(1) Section 71AC of this Act applies to any case—

(a) which is of a description specified for the purposes of this paragraph in an order made by the Secretary of State, or

(b) in which a sentence is passed by a court-martial on a person—

(i) in respect of an offence against section 42 of this Act which satisfies the condition in subsection (2) below, or

(ii) in respect of two or more offences against that section each of which satisfies that condition.

(2) The condition referred to in subsection (1)(b) above is that the civil offence is—

(a) an offence which would be triable by a civil court in England and Wales only on indictment, or

(b) an offence of a description specified for the purposes of this paragraph in an order made by the Secretary of State.

(3) For the purposes of this section and section 71AC of this Act—

(a) “sentence”, in relation to an offence, includes any order made by a court-martial in dealing with an offender, including an order that no punishment be awarded, and

(b) any reference to a sentence passed by a court-martial is a reference to any such sentence as it has effect following a review under section 70 of this Act of the sentence or the finding to which it relates (and, accordingly, the reference in paragraph (a) above to an order that no punishment be awarded includes a reference to the quashing of a sentence on a review).

(4) The power of the Secretary of State to make an order under subsection (1)(a) or (2)(b) above shall be exercisable by statutory instrument.

(5) A statutory instrument containing an order under subsection (1)(a) or (2)(b) above shall be subject to annulment in pursuance of a resolution of either House of Parliament]

Textual Amendments

F7 Ss. 71AB, 71AC inserted (28.2.2007) by 2001 c. 19, ss. 21(2), 39(2); S.I. 2007/662, art. 2

Modifications etc. (not altering text)

C1 S. 71AB(1)(a) applies (31.3.2007) by The Courts-Martial (Review of Sentencing) (Categories of Offences) Order 2007 (S.I. 2007/711), art. 2, Sch.

Valid from 28/02/2007

[F8 71AC Review of sentences by Courts-Martial Appeal Court U.K.

(1) If it appears to the Attorney General—

(a) that a sentence passed on a person by a court-martial has been unduly lenient, and

(b) that the case is one to which this section applies,

he may, with the leave of the Courts-Martial Appeal Court, refer the case to them for them to review the sentencing of that person.

(2) On a reference under subsection (1) above the Courts-Martial Appeal Court may—

(a) quash the sentence passed by the court-martial on the person; and

(b) in place of it pass such sentence, being a sentence which would have been open to the court-martial on the findings made against that person, as they think appropriate.

(3) Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection may be satisfied if it appears to the Attorney General that—

(a) the court-martial erred in law as to its powers of sentencing or the reviewing authority so erred as to its powers on a review under section 70 of this Act; or

(b) the sentence passed on the person was not that required by section 42(1B), (1E) or (1G) of this Act.

[F9 (3A) Where a reference under this section relates to an order under subsection (2) of section 269 of the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence), the Courts-Martial Appeal Court shall not, in deciding what order under that section is appropriate for the case, make any allowance for the fact that the person to whom it relates is being sentenced for a second time.]

(4) Where the Courts-Martial Appeal Court have concluded their review of a case referred to them under this section, the Attorney General or the person to whose sentencing the reference relates may refer a point of law involved in any sentence passed on that person in the proceedings to the House of Lords for their opinion, and the House shall consider the point and give their opinion on it accordingly, and either remit the case to the Courts-Martial Appeal Court to be dealt with or deal with it themselves; and section 41(1) of the Courts-Martial (Appeals) Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.

(5) A reference under subsection (4) above shall be made only with the leave of the Courts-Martial Appeal Court or the House of Lords; and leave shall not be granted unless it is certified by the Courts-Martial Appeal Court that the point of law is of general public importance and it appears to the Courts-Martial Appeal Court or the House of Lords (as the case may be) that the point is one which ought to be considered by that House.

(6) For the purpose of dealing with a case under this section the House of Lords may exercise any powers of the Courts-Martial Appeal Court.

(7) A sentence passed by the Courts-Martial Appeal Court or the House of Lords under subsection (2)(b) above shall be treated for the purposes of this Act as a sentence passed by a court-martial.

(8) The Secretary of State may by regulations made by statutory instrument make supplementary provision with respect to references and applications under this section; and the regulations may in particular contain provision equivalent to that made by any provision of Schedule 3 to the Criminal Justice Act 1988 (which contains supplementary provisions relating to reviews under Part 4 of that Act), subject to such modifications as the Secretary of State thinks fit.

(9) A statutory instrument containing regulations under subsection (8) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F8 Ss. 71AB, 71AC inserted (28.2.2007) by 2001 c. 19, ss. 21(2), 39(2); S.I. 2007/662, art. 2

F9 S. 71AC(3A) inserted (18.12.2003) by Criminal Justice Act 2003 (c. 44), ss. 272(2)(c)(3), 336(2)

Modifications etc. (not altering text)

C2 S. 71AC applied (31.3.2007) by The Courts-Martial (Review of Sentencing) (Categories of Offences) Order 2007 (S.I. 2007/711), art. 2, Sch. (with art. 3)

[F10 71B Review of summary findings and awards. U.K.

(1) This section applies where on a summary trial the accused has been found guilty of any offence.

F11 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The finding or any [F12 punishment] awarded (or both) may be reviewed at any F13 . . .time.

(4) A review under this section shall be carried out in accordance with the provisions of Queen’s Regulations.

(5) A review under this section may be carried out by—

(a) the Defence Council;

(b) any naval officer superior in command to the officer who tried the charge summarily;

(c) a flag officer appointed by the Defence Council to carry out the review or any class of review which includes the review.

[F14 (5A) Where—

(a) the period of fourteen days referred to in subsection (2) of section 52FK of this Act has expired, and

(b) no appeal has been brought under that section,

the authority carrying out a review under this section may, with the leave of the summary appeal court, refer the finding or any punishment awarded (or both) to that court to be considered by it as on an appeal.

F14 (5B) Where an appeal has been brought under section 52FK of this Act and it appears to the authority carrying out a review under this section, on consideration of matters appearing to him not to have been brought to the notice of the summary appeal court on the appeal, to be expedient to do so, he may, with the leave of the summary appeal court, refer the finding or any punishment awarded (or both), including any finding or punishment substituted or awarded by the summary appeal court, to that court to be co sidered or reconsidered by that court as on an appeal.

F14 (5C) A reference to the summary appeal court under subsection (5A) or (5B) of this section shall for the purposes of this Act be treated as an appeal brought by the person to whom the finding or punishment relates against the finding or punishment.

F14 (5D) In a case where exceptionally the authority carrying out a review under this section of a finding considers it necessary to do so, the authority may quash that finding and, if the punishment awarded relates only to that finding, quash the punishment awarded in consequence of that finding.

F14 (5E) The powers conferred by subsection (5D) of this section are exercisable whether or not the conditions in subsection (5A)(a) and (b) are satisfied.]

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F10 S. 71B inserted (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 12; S.I. 1997/304, art. 2 (with art. 3)

F11 S. 71B(2) repealed (2.10.2000) by 2000 c. 4, ss. 25, 27, Sch. 3 para. 10(2), Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 15)

F12 Word in s. 71B(3) substituted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 20(3)(a); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F13 Word in s. 71B(3) repealed (2.10.2000) by 2000 c. 4, ss. 25, 27, Sch. 3 para. 20(3)(b), Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 15)

F14 S. 71B(5A)-(5E) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 20(4); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F15 S. 71B(6)(7) repealed (2.10.2000) by 2000 c. 4, ss. 25, 27, Sch. 3 para. 20(5), Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 15)

Modifications etc. (not altering text)

C3 S. 71B(5A)(5B) modified (2.10.2000) by S.I. 2000/2370, rule 13(7)

F16 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F16 S. 72 repealed (1.4.1997 with savings) by 1996 c. 46, s. 16, Sch. 5 para. 13; S.I. 1997/304, art. 2, Sch. (with art. 3)

73 Saving for functions of Judge Advocate of Her Majesty’s Fleet. U.K.

Nothing in this Part of this Act shall prejudice the exercise by the Judge Advocate of Her Majesty’s Fleet of his functions of considering and reporting on the proceedings of courts-martial F17 . . . , or any other of his functions in relation to such courts.

Textual Amendments

F17 Words in s. 73 repealed (28.2.2002) by 2001 c. 19, s. 38, Sch. 7 Pt. 1; S.I. 2002/345, art. 2 (subject to art. 3)