Statutory Instrument 1997 No. 580 (L. 3)

      The Courts-Martial Appeal (Amendment) Rules 1997

      © Crown Copyright 1997

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STATUTORY INSTRUMENTS

1997 No. 580 (L. 3)

COURTS-MARTIAL (APPEALS)

The Courts-Martial Appeal (Amendment) Rules 1997

  Made 4th March 1997 
  Laid before Parliament 5th March 1997 
  Coming into force 1st April 1997 

The Lord Chief Justice of England, in exercise of the powers conferred on him by section 49 of the Courts-Martial (Appeals) Act 1968[1], and with the approval of the Lord Chancellor, hereby makes the following Rules - 

     1 . These Rules may be cited as the Courts-Martial Appeal (Amendment) Rules 1997 and shall come into force on 1st April 1997.

     2 . The Courts-Martial Appeal Rules 1968[2] shall be amended in accordance with the following provisions of these Rules and, in those provisions, any reference to a rule, Schedule or Form by number alone shall be construed as a reference to the rule, Schedule or Form so numbered in the 1968 Rules.

     3 . In the definition of 'prisoner of war' in rule 2, for the words from 'means' to 'Schedule 3 to' substitute 'has the same meaning as in section 7(1) of'.

     4 . For rule 3 substitute - 

     5 . For rule 4(3) substitute - 

     6 . For rule 6(1) substitute - 

     7 . For rule 6(3)(a) substitute - 

     8 . After rule 14 insert - 

     9 . In rule 17(iv), for 'Minister of Home Affairs' substitute 'Secretary of State'.

     10 . For rule 21 substitute - 

     11 . For Forms 1 and 2 in Schedule 1, substitute the Forms numbered 1 and 2 respectively in the Schedule to these Rules.

     12 . Omit Schedule 2.

     13 . Rule 6 and Form 1 shall apply to any appeal in relation to a conviction or sentence passed before 1st April 1997 as if the amendments set out in these Rules had not been made.

Bingham of Cornhill, C.J.

Dated 28th February 1997


Approved,

Mackay of Clashfern, C.

Dated 4th March 1997


SCHEDULE
Rule 4



Form 1

TO THE REGISTRAR OF THE COURTS-MARTIAL APPEAL COURT Royal Courts of Justice Strand London WC2A 2LL




NOTICE OF APPLICATION FOR LEAVE TO APPEAL
    (1) See Notes A and B at the end of this form.

 Name of Appellant
Number
    (2) If not in custody set out appellant's address in full.

 Unit or Ship
Rank or Rating
    (3) The reasons why you consider that your conviction should be quashed and/or that your sentence should be reduced should be set out in a separate document(s) and attached to this form. See Note C at the end of this form.

 Convicted by Court-Martial held at


Offence(s) of which convicted


Sentence


Date when sentence passed


Date when petition to Defence Council presented (1)


Date when notified that petition not granted (1)


Name of place of detention/address (2)


    (4) This notice must be signed by the appellant or by his representative. If the appellant cannot write he must affix his mark in the presence of a witness. The name and address of the attesting witness must be given.


I the above named applicant hereby give notice that I apply to the Courts-Martial Appeal Court for the following: (3)
  Extension of time within which to apply for leave to appeal (5) [     ]
  Leave to appeal against conviction [     ]
  Leave to appeal against sentence [     ]
  Leave to call a Witness (7) [     ]
  Leave to be present [     ]
  Legal aid [     ]
    (5) If this form is lodged more than 28 days after the appellant has become entitled to appeal it must be accompanied by the reasons why the application was delayed. To calculate whether an extension of time is required see Note A at the end of this form.BR>
 Signed (4)


Dated (5)


QUESTIONS (6)
     1. Do you desire the Court to exercise in your favour its power to direct that you are to be treated as not having lost your right of appeal notwithstanding your failure to present your petition to the Defence Council within the prescribed period? Yes/Not applicable (see note 8) If yes please set out or attach the grounds on which you submit the Court should give such a direction


    (6) The appellant must answer the questions.

 2. If you are applying for legal aid is any solicitor, solicitor advocate or Counsel now acting for you. YES/NO If so please give his/her name and address
    (7) If you are applying for leave to call a witness you must complete Form 5 and send it together with this form.

  
    (8) See Note B at the end of this form.

  

NOTE A
Under section 8(2) of the Court-Martial (Appeals) Act 1968, a person convicted by court-martial does not (save in the case of a sentence of death) become entitled to apply for leave to appeal until - 

    (a) he has presented to the Defence Council a petition praying that his conviction or, as the case may be, his sentence be quashed, and

    (b) either - 

      (i) 40 (or, if the court-martial was held abroad, 60) days have passed since the petition was presented, or

      (ii) he has been notified that the petition has not been granted,

    whichever occurs first.

From the day on which a convicted person becomes entitled to apply for leave to appeal, he has 28 days in which to give notice of application to the Court. If he fails to give notice within this time, he must apply (on Form 3) for an extension of time.

A person convicted by court-martial and sentenced to death becomes entitled to apply for leave to appeal when the sentence is passed and the 28 days run from then. In such a case, the court has no power to extend the time.

NOTE B
A petition to the Defence Council, such as is mentioned in Note A, above, must be presented within the period prescribed by the Courts-Martial Appeal Rules and that period cannot be extended.

Nevertheless, the Court has (under section 8(3) of the Courts-Martial (Appeals) Act 1968) power to direct that a person who has presented such a petition, but has done so out of time, and who subsequently applies for leave to appeal, is to be treated as not having lost his right of appeal if the Court thinks that there is a reasonable explanation of his failure to present his petition in time and that it is in the interests of justice that he should be so treated.

The period prescribed by the Court-Martial Appeal Rules for the presentation of a petition to the Defence Council is 28 days from the day on which sentence is passed.

NOTE C
Grounds of appeal.

Where grounds have been settled by counsel they must be signed by counsel and attached to this form. There is no obligation to include a copy of counsel's advice although in some cases it may be helpful to do so. Grounds must be settled with sufficient detail to enable matters relied upon to be clearly identified. Wording such as "the conviction is unsafe and unsatisfactory" or "the sentence is in all the circumstances too severe" will be ineffective as grounds and an extension of time may have to be applied for.



Form 2

TO THE REGISTRAR OF THE COURTS-MARTIAL APPEAL COURT Royal Courts of Justice Strand, London WC2A 2LL


NOTICE OF ABANDONMENT
Name of Apellant
Number
Unit or Ship
Rank or Rating
Convicted by Court-Martial held at
Offence(s) of which convicted
Name of prison or place of detention (1)
    (1) If not in custody, set out appellant's address in full.
I, the above-named Appellant, having been convicted as above stated and having duly sent to the registrar of the court notice that I desired to appeal DO NOW HEREBY GIVE NOTICE that I do not intend further to prosecute my appeal against conviction and/or sentence (2) but THAT I HEREBY ABANDON all proceedings in regard to such appeal as from the date hereof.

         Dated ....................................19...............

     (2) Where appeal is against both conviction and sentence, indicate whether abandonment is in part only.
(Signed)(3)


Appellant.    

This notice was signed by the above-named appellant on the day above stated in my presence.

Signature of Witness


Address of Witness


    (3) This notice must be signed by the appellant personally in the presence of a witness. If the appellant is insane, it may be signed by his representative.



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Rules amend the Courts-Martial Appeal Rules 1968. They change the time limit for presentation of a petition before the exercise of a right of appeal to 28 days in all cases, consequent on the abolition of the requirement for findings of army and air force courts-martial to be confirmed by the appropriate officer. They also make provision for applications under section 32(1) of the Criminal Justice Act 1988 (evidence through television links where witness is outside the country where the court is sitting and such evidence by child witnesses) and section 32A of that Act (video recordings of testimony from child witnesses). Rights of audience in the Courts-Martial Appeal Court have been extended to include all those who have rights of audience in the Criminal Division of the Court of Appeal. Some minor drafting changes have been made.

The Rules substitute Forms 1 and 2. The new forms reflect the fact that an appeal can now be made by servicemen against sentence as well as conviction and have been generally updated.

The new provisions relating to time limits for presenting a petition and the new Form 1 shall not apply to appeals where the conviction has taken place or sentence passed before 1st April 1997.

Notes:

 [1] 1968 c. 20. back

[2] S.I. 1968/1071, amended by S.I. 1972/798. back

[3] 1988 c. 33. Sections 32(1) to (3), 32A and 34A were applied to Service courts, with modifications, by the Criminal Justice Act 1988 (Application to Service Courts) (Evidence) Order 1996 (S.I. 1996/2592). back

[4] S.I. 1996/2592 back

[5] 1990 c. 41. back


ISBN 0 11 064090 X


 

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Prepared 7 April 1997