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Chapter 3 Review of Summary Findings and Punishments

152 Review of summary findings and punishments

(1) Where—

(a) a charge has been heard summarily, and

(b) a finding that the charge has been proved has been recorded,

the finding or the punishment awarded may be reviewed at any time.

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

(a) the Defence Council; or

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

(3) Subsection (4) applies where—

(a) a review has been carried out under this section in respect of a finding or punishment; and

(b) the person to whom the review relates has not brought an appeal under section 141 within the period provided by subsection (2) of that section.

(4) The person who carried out the review may, with the leave of the Summary Appeal Court, refer the finding or punishment to the court to be considered by it as on an appeal.

(5) Subsections (6) and (7) apply where—

(a) a review has been carried out under this section in respect of a finding or punishment; and

(b) the person to whom the review relates has brought an appeal under section 141.

(6) If—

(a) the Summary Appeal Court has not completed the hearing of the appeal, and

(b) the person who carried out the review considers that any matter arising at or from the summary hearing should be brought to the notice of the court,

he may notify the court of that matter.

(7) If—

(a) the Summary Appeal Court has completed the hearing of the appeal, and

(b) the person who carried out the review considers that any matter arising at or from the summary hearing of which the court was not aware should have been brought to the notice of the court,

he may, with the leave of the court, refer the finding or punishment, including any finding or punishment substituted or awarded by the court, to the court to be considered by it as on an appeal.

(8) A reference to the Summary Appeal Court under subsection (4) or (7) shall be treated for the purposes of this Act as an appeal under section 141 brought by the person to whom the finding or punishment relates against the finding or punishment.

Chapter 4 Summary Hearings etc Rules

153 Summary hearings etc rules

(1) The Secretary of State may by rules make provision with respect to—

(a) the summary hearing of charges by commanding officers;

(b) hearings as regards the making of orders under section 193 (activation of suspended sentence of service detention).

(2) Rules under this section may in particular make provision—

(a) as to the practice and procedure to be followed at hearings;

(b) as to evidence at hearings;

(c) for the delegation by a commanding officer of any of his functions;

(d) as to applications for extended powers;

(e) as to applications for permission to hear summarily charges of a kind mentioned in section 54;

(f) requiring prescribed persons to be notified of prescribed matters.

(3) In subsection (2) “prescribed” means prescribed by rules under this section.

Part 7 Trial by Court Martial

Chapter 1 The Court Martial

154 The Court Martial

(1) There shall be a court, to be known as the Court Martial.

(2) The Court Martial may sit in any place, whether within or outside the United Kingdom.

155 Constitution of the Court Martial

(1) In the case of any proceedings, the Court Martial is to consist of—

(a) a judge advocate; and

(b) at least three but not more than five other persons (“lay members”).

(2) But Court Martial rules may provide that, in the case of proceedings of a prescribed description, there are to be—

(a) at least five but not more than seven lay members; or

(b) no lay members.

(3) In the case of proceedings where the Court Martial consists of a judge advocate and lay members—

(a) a prescribed number of the lay members must be officers or warrant officers qualified for membership under section 156 and not ineligible by virtue of section 157; and

(b) the rest must be officers so qualified and not so ineligible.

(4) Subsection (3) is subject to any provision made by Court Martial rules.

(5) The judge advocate for any proceedings is to be specified by or on behalf of the Judge Advocate General.

(6) The lay members for any proceedings are to be specified by or on behalf of the court administration officer.

(7) The number of lay members specified under subsection (6) is to be the minimum required unless a judge advocate, in accordance with Court Martial rules, directs otherwise.

(8) In subsection (7) “the minimum required” means—

(a) the minimum required by subsection (1)(b); or

(b) where rules made by virtue of subsection (2)(a) apply instead of subsection (1)(b), the minimum required by those rules.

(9) In this section “prescribed” means prescribed by Court Martial rules.

156 Officers and warrant officers qualified for membership of the Court Martial

(1) Subject to subsections (2) to (4), an officer or warrant officer is qualified for membership of the Court Martial if he is subject to service law.

(2) An officer is not qualified for membership of the court unless—

(a) he has held a commission in any of Her Majesty’s forces for at least three years, or for periods amounting in the aggregate to at least three years; or

(b) immediately before receiving his commission, he was a warrant officer in any of those forces.

(3) A warrant officer is not qualified for membership of the court if he is an acting warrant officer.

(4) An officer or warrant officer is not qualified for membership of the court if—

(a) he is a member of the Military Court Service;

(b) he is a member of or on the staff of the Service Prosecuting Authority;

(c) he is a service policeman;

(d) he is a member of the Royal Army Chaplains' Department or the Royal Air Force Chaplains' Branch;

(e) he has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(f) he is an advocate or solicitor in Scotland;

(g) he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or

(h) he has in a relevant territory rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules.

(5) In this section “relevant territory” means—

(a) any of the Channel Islands;

(b) the Isle of Man;

(c) a Commonwealth country; or

(d) a British overseas territory.

157 Officers and warrant officers ineligible for membership in particular circumstances

(1) An officer is ineligible for membership of the Court Martial for proceedings after the arraignment of a defendant if—

(a) he was the commanding officer of the defendant at any time in the period beginning with the date of commission of the offence to which the arraignment relates and ending with the arraignment;

(b) he has taken part in investigating the subject matter of any charge against the defendant; or

(c) he has conducted (whether alone or with other persons) an inquiry into the subject matter of any charge against the defendant.

(2) A warrant officer is ineligible for membership of the Court Martial for proceedings after the arraignment of a defendant if he falls within subsection (1)(b) or (c).

(3) Where a defendant is arraigned in respect of more than one offence, the reference in subsection (1)(a) to the date of commission of the offence there mentioned is to the date of commission of the earliest such offence.

(4) Court Martial rules may provide that an officer or warrant officer of a description prescribed by the rules is ineligible for membership of the Court Martial for a description of proceedings so prescribed.

Chapter 2 Court Martial Proceedings

158 Open court

Subject to any provision made by Court Martial rules, the Court Martial must sit in open court.

159 Rulings and directions

(1) In the case of proceedings where the Court Martial consists of a judge advocate and other persons, rulings and directions on questions of law, procedure or practice are to be given by the judge advocate.

(2) Any rulings or directions given under subsection (1) are binding on the court.

160 Decisions of Court Martial: finding and sentence

(1) Subject to the following provisions of this section, the finding of the Court Martial on a charge, and any sentence passed by it, must be determined by a majority of the votes of the members of the court.

(2) The judge advocate is not entitled to vote on the finding.

(3) In the case of an equality of votes on the finding, the court must acquit the defendant.

(4) In the case of an equality of votes on the sentence, the judge advocate has a casting vote.

161 Power of Court Martial to convict of offence other than that charged

(1) Where the Court Martial acquits a person of an offence specifically charged in the charge sheet, but the allegations in the charge sheet amount to or include (expressly or by implication) an allegation of another service offence, the court may convict him of that other offence.

(2) For the purposes of subsection (1)—

(a) an allegation of an offence to which section 39(1) applies (offence X) shall be taken as including an allegation of an offence under that section of attempting to commit offence X; and

(b) an allegation of a completed section 42 offence shall be taken as including an allegation of a section 42 offence of attempt.

(3) Subsection (1) applies in relation to a charge sheet containing more than one charge as if each charge were contained in a separate charge sheet.

(4) In this section—

• “a completed section 42 offence” means an offence that, by virtue of section 1(4) of the Criminal Attempts Act 1981 (c. 47) as modified by section 43 of this Act, is an offence to which section 1 of that Act applies;

• “a section 42 offence of attempt” has the meaning given by section 44(2).

162 Privileges of witnesses and others

A witness before the Court Martial or any other person whose duty it is to attend the court is entitled to the same immunities and privileges as a witness before the High Court in England and Wales.

163 Court Martial rules

(1) The Secretary of State may by rules (referred to in this Act as “Court Martial rules”) make provision with respect to the Court Martial.

(2) Court Martial rules may in particular make provision with respect to—

(a) sittings of the court, including the place of sitting and changes to the place of sitting;

(b) trials and other proceedings of the court;

(c) the practice and procedure of the court;

(d) evidence, including the admissibility of evidence;

(e) the representation of the defendant;

(f) appeals from the Service Civilian Court.

(3) Without prejudice to the generality of subsections (1) and (2), Court Martial rules may make provision—

(a) as to oaths and affirmations for members of the court, witnesses and other persons;

(b) as to objections to, and the replacement of, members of the court;

(c) as to the constitution of the court;

(d) for such powers of the court as may be prescribed by the rules to be exercised by a judge advocate;

(e) for procuring the attendance of witnesses and other persons and the production of documents and other things, including provision about—

(i) the payment of expenses to persons summoned to attend the court;

(ii) the issue by the court of warrants for the arrest of persons;

(f) as to the amendment of charges;

(g) for the taking into consideration, when sentencing an offender, of any other service offence committed by him;

(h) for the variation by the court of a sentence passed by it or the variation or rescission by it of an order made by it;

(i) for appeals—

(i) against any orders (including directions) of the court prohibiting or restricting the publication of any matter or excluding the public from any proceedings (whether made in preliminary proceedings or otherwise);

(ii) against any other orders or rulings made in proceedings preliminary to a trial;

(j) for the discharge of a court (including provision as to retrials and rehearings following discharge);

(k) for the powers conferred by section 7 of the Bankers' Books Evidence Act 1879 (c. 11) (orders for the inspection of bankers' books for the purposes of legal proceedings) to be exercisable by a judge advocate as well as by the court or a judge within the meaning of that Act;

(l) for the making and retention of records of the proceedings of the court;

(m) for the supply of copies of such records, including provision about the fees payable for the supply of such copies;

(n) conferring functions in relation to the court on the court administration officer;

(o) for the delegation by the court administration officer of any of his functions in relation to the court.

(4) Provision that may be made by the rules by virtue of subsection (2)(d) includes provision applying, with or without modifications, any enactment (whenever passed) creating an offence in respect of statements admitted in evidence.

(5) Provision that may be made by the rules by virtue of subsection (3)(e)(ii) includes provision—

(a) conferring powers of arrest;

(b) requiring any arrested person to be brought before the court;

(c) authorising the keeping of persons in service custody, and the imposition of requirements on release from service custody (including provision applying section 107(5) and (6) with or without modifications).

(6) Court Martial rules must secure that, after arraignment, charges may not be amended—

(a) in circumstances substantially different from those in which indictments are amendable by the Crown Court; or

(b) otherwise than subject to conditions which correspond, as nearly as circumstances permit, to those subject to which indictments are so amendable.

(7) Rules made by virtue of subsection (3)(h) may make provision about the commencement of sentences or orders varied by the court (including provision conferring on the court a power to direct that a sentence shall take effect otherwise than as mentioned in section 289(1)).

(8) Court Martial rules may apply, with or without modifications, any enactment or subordinate legislation (whenever passed or made), including any provision made by or under this Act.

(9) Rules made by virtue of paragraph (i) of subsection (3) may confer jurisdiction on the Court Martial Appeal Court, and rules under section 49 of the Court Martial Appeals Act 1968 may make provision about the powers of that court in relation to appeals made by virtue of that paragraph.

Chapter 3 Punishments Available to Court Martial

164 Punishments available to Court Martial

(1) The second column of the following Table lists the punishments that may be awarded by sentence of the Court Martial, subject in the case of each punishment to any limitation shown in the third column opposite it.

(2) Where this Act provides that a person guilty of a particular offence is liable to any punishment mentioned in the Table or in specified rows of the Table, it means he is liable to any one or more of the punishments so mentioned (subject in the case of each one to any limitation shown in the third column opposite it).

(3) The previous provisions of this section are subject to (in particular)—

• section 165 (offender elected Court Martial trial);

• Chapters 4 to 6 of Part 8 (imprisonment for under 12 months, young offenders' custodial sentences, and mandatory etc sentences for serious offences); and

• Part 9 (general provisions about sentencing).

(4) The Defence Council may by regulations restrict the extent to which persons of a description specified in the regulations may be reduced in rank or disrated under this section.

(5) The court may not make a service community order unless—

(a) the offender is aged 18 or over when convicted; and

(b) it appears to the court that he will reside in the United Kingdom when the order is in force.

(6) Where regulations under row 11 of the Table authorise a minor punishment, they may—

(a) confer on the Court Martial a power, when awarding the punishment, to direct that the punishment shall take effect from a date after the date of the award;

(b) confer on the offender’s commanding officer the function of deciding the details of the punishment;

(c) provide for the delegation by the commanding officer of any of his functions under the regulations.

(7) This section is modified in relation to certain offenders by Schedule 3 (civilians etc).

165 Sentencing powers of Court Martial where election for trial by that court instead of CO

(1) For the purposes of this section, an offence of which a person is convicted or acquitted is “relevant” if—

(a) the charge in respect of the offence is one as regards which the person elected Court Martial trial under section 129 (whether or not the charge was amended after election);

(b) the charge in respect of the offence was—

(i) brought under section 125 in addition to a charge as regards which the person so elected; or

(ii) substituted for a charge as regards which the person so elected, or for a charge within sub-paragraph (i), or for a charge so substituted; or

(c) the person elected Court Martial trial as regards a charge in respect of another offence and conditions prescribed by Court Martial rules are met.

(2) Where—

(a) the Court Martial convicts a person of an offence which is relevant by virtue of subsection (1)(a), and

(b) subsection (4) (multiple relevant offences) does not apply,

the sentence passed in respect of the offence must be such that the commanding officer could have awarded the punishments awarded by that sentence if he had heard the charge summarily and had recorded a finding that the charge had been proved.

(3) In subsection (2) “the commanding officer” means the commanding officer who would have heard the charge if no election under section 129 had been made.

(4) This subsection applies where the court convicts a person of two or more relevant offences the charges in respect of which—

(a) would have been heard summarily together if no election under section 129 had been made; or

(b) are under Court Martial rules to be treated as if they would have been so heard.

(5) Court Martial rules may make provision about the sentencing powers available to the Court Martial—

(a) where subsection (4) applies;

(b) where the court convicts a person of an offence which is relevant by virtue of subsection (1)(b) or (c).

(6) Court Martial rules may make provision—

(a) about the sentencing principles that the Court Martial is to apply in relation to—

(i) the sentencing of an offender for one or more relevant offences; or

(ii) the sentencing of an offender for an offence with which a relevant offence is associated;

(b) restricting the orders that the court may make by virtue of a conviction or acquittal of a relevant offence, including provision—

(i) preventing the court from making an order of a particular kind;

(ii) restricting the provision that may be made by an order of a particular kind;

(c) in relation to any case where a person is convicted of a relevant offence,—

(i) as respects appeals;

(ii) excluding or restricting powers relating to review of sentence.

(7) Rules made by virtue of this section may modify or exclude—

(a) any provision of or made under this Act (including section 255);

(b) any provision of the Court Martial Appeals Act 1968.

Chapter 4 Findings of Unfitness to Stand Trial and Insanity

166 Fitness to stand trial

(1) This section applies where on a trial by the Court Martial the question arises (at the instance of the defence or otherwise) whether the defendant is fit to stand trial.

(2) For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 (c. 84) it would constitute a bar to his being tried on indictment in England and Wales.

(3) Subject to subsections (5) and (6), the question of fitness to stand trial must be determined as soon as it arises.

(4) The question of fitness to stand trial is to be determined by the judge advocate.

(5) If having regard to the nature of the supposed disability the judge advocate is of the opinion that it is expedient to do so and in the interests of the defendant, he may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence.

(6) If before the question of fitness to stand trial falls to be determined the court finds the defendant not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined.

(7) A judge advocate may not make a determination under subsection (4) except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved within the meaning given by section 172.

167 Finding that defendant did the act or made the omission charged

(1) This section applies where in accordance with section 166(4) it is determined by the judge advocate that the defendant is unfit to stand trial.

(2) The trial shall not proceed or further proceed but the court must, as respects the charge or each of the charges on which the defendant was to be or was being tried, determine whether it is satisfied that he did the act charged against him as the offence.

(3) If as respects that charge or any of those charges the court is so satisfied, it must make a finding that the defendant did the act charged against him.

(4) If as respects that charge or any of those charges the court is not so satisfied, it must find the defendant not guilty as if on the charge in question the trial had proceeded to a conclusion.

(5) A determination under subsection (2) must be made—

(a) on the evidence (if any) already given in the trial; and

(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed under this section by the judge advocate to put the case for the defence.

(6) Section 160 (Court Martial decisions) does not apply to a determination or finding under this section, but as respects any charge to which subsection (2) above applies—

(a) the question whether the court is satisfied as mentioned in that subsection is to be determined by the members of the court other than the judge advocate (“the lay members”); and

(b) the court is so satisfied if, on a vote on the question whether they are so satisfied, a majority of the lay members are in favour.

(7) In this section “act” includes an omission and references to the doing of an act are to be read accordingly.

168 Findings of insanity

(1) This section applies where on the trial of a person by the Court Martial the court is satisfied, as respects the charge or any of the charges on which he is being tried, that—

(a) the defendant did the act charged against him as the offence; but

(b) at the time of that act he was insane.

(2) The court must find that the defendant was not guilty of that offence by reason of insanity.

(3) No finding under this section may be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved within the meaning given by section 172.

(4) Section 160 (Court Martial decisions) does not apply to a determination or finding under this section, but—

(a) the question whether the court is satisfied as mentioned in subsection (1) above is to be determined by the members of the court other than the judge advocate (“the lay members”); and

(b) the court is so satisfied if, on a vote on the question whether they are so satisfied, a majority of the lay members are in favour.

(5) In this section “act” includes an omission and references to the doing of an act are to be read accordingly.