Courts-Martial (Appeals) Act 1968

Part I — THE COURT MARTIAL APPEAL COURT

The Court and its jurisdiction

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• (1) The Court Martial Appeal Court shall continue in existence and is in this Act referred to either as “the Appeal Court” or as “the Court”.

• (2) The Appeal Court shall be a superior court of record and shall, for the purposes of this Act and subject to its provisions, have full power to determine, in accordance with this Act, any question necessary to be determined for the purpose of doing justice in any case before the Court.

• (3) The powers of the Appeal Court shall be exercisable by them so far as they think it necessary or expedient in the interests of justice that they should be exercised, and the Court may issue any warrants necessary for enforcing their orders or sentences.

• (4) Except as provided by Part III of this Act, no appeal shall lie from any decision of the Appeal Court.

Judges

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• (1) The following shall be judges of the Appeal Court:—

• (a) the ex officio and ordinary judges of the Court of Appeal and such of the judges . . . of the High Court as the Lord Chief Justice may, . . . , from time to time nominate for the purpose;

• (b) such of the Lords Commissioners of Justiciary as the Lord Justice General may from time to time nominate for the purpose; and

• (c) such of the judges of Her Majesty’s Court of Judicature of Northern Ireland as the Lord Chief Justice of Northern Ireland may from time to time nominate for the purpose.

• (2) The Lord Chancellor may appoint other persons, being persons of legal experience, to be judges of the Appeal Court and—

• (a) the appointment of a person under this subsection shall be for such term as may be determined by the Lord Chancellor, with the approval of the Treasury, before his appointment and shall be subject to such conditions as may be so determined; and

• (b) a person so appointed who ceases to hold office as a judge of the Appeal Court shall be eligible for reappointment.

• (3) There may be paid out of moneys provided by Parliament to the persons appointed under subsection (2) of this section to be judges of the Appeal Court such remuneration, and to all the judges of the Court such ... allowances, as the Lord Chancellor may, with the approval of the Treasury, determine.

Other senior judges who may exercise powers of Appeal Court

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Any power under this Act which is exercisable by a judge of the Appeal Court may also be exercised—

• (a) by any judge . . . of the High Court;

• (b) by any Lord Commissioner of Justiciary;

• (c) by any judge of Her Majesty’s Court of Judicature of Northern Ireland,

notwithstanding that he is not for the time being a judge of the Appeal Court; and references in this Act to a judge of the Court shall be construed accordingly.

Sittings

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• (1) For the purpose of hearing and determining appeals under this Act, or any matter preliminary or incidental to an appeal, the Appeal Court shall be summoned in accordance with directions given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) The Appeal Court shall sit at such place as such directions may provide, whether within or outside the United Kingdom.

Constitution of Court for particular sittings

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• (1) Subject to subsection (4) below, the Appeal Court shall be duly constituted if it consists of an uneven number of judges not less than three.

• (2) Where—

• (a) part of any proceedings before the Appeal Court has been heard by an uneven number of judges greater than three; and

• (b) one or more members of the Court as constituted for the purpose of those proceedings are unable to continue,

then, subject to subsection (4) below, the Court shall remain duly constituted for the purpose of those proceedings so long as the number of members (whether even or uneven) is not reduced to less than three.

• (3) Subject to subsection (4) below, the Appeal Court shall, if it consists of two judges, be duly constituted for every purpose except—

• (a) determining an appeal against—

• (i) conviction; or

• (ii) a finding of not guilty by reason of insanity; or

• (iii) a finding of unfitness to stand trial or that the defendant did the act or made the omission charged against him;

• (b) determining an application for leave to appeal to the Supreme Court; and

• (c) refusing an application for leave to appeal to the Appeal Court against conviction or any such finding as is mentioned in paragraph (a)(ii) or (iii), other than an application which has been refused by a single judge.

• (4) At least one of the judges of which the Appeal Court consists at any sitting must be a judge of the Court by virtue of section 2(1) of this Act, except that where the Court is directed to sit at a place outside the United Kingdom the Lord Chancellor may, if he thinks it expedient to do so after consulting the Lord Chief Justice, direct that this provision shall not apply to the Court while sitting at that place.

• (5) Where an appeal has been heard by the Appeal Court and the Court as constituted for that purpose consists of an even number of judges, then, if those judges are equally divided, the case shall be re-argued before and determined by an uneven number of judges not less than three.

• (6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.

Power of Master of the Rolls to act for Lord Chief Justice

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The Master of the Rolls may exercise the powers conferred on the Lord Chief Justice by sections 2 and 4 above if at any time the Lord Chief Justice is unable to exercise them himself or there is a vacancy in the office of Lord Chief Justice.

Court staff, salaries and pensions

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• (1) There shall be a registrar of the Appeal Court (in this Act referred to as “the registrar”) to be appointed by the Lord Chancellor, and the Lord Chancellor may appoint such other officers and servants of the Court as he may, with the approval of the Treasury as to numbers, determine.

• (2) The remuneration of the officers and servants of the Appeal Court shall be such as the Lord Chancellor may, with the approval of the Treasury, determine, and the principal civil service pension scheme within the meaning of section 2 of the Superannuation Act 1972 and for the time being in force shall, with the necessary adaptations, apply to officers and servants of the Court as it applies to other persons employed in the civil service of the State.

• (3) The remuneration of the officers and servants of the Appeal Court and such other expenses of the Court as the Treasury may sanction shall be defrayed out of moneys provided by Parliament.

Part II — APPEALS FROM THE COURT MARTIAL

Right of appeal and initiating procedure

Right of appeal

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• (1) Subject to the provisions of this Act, a person convicted by the Court Martial may, with the leave of the Appeal Court, appeal to the Court —

• (a) against his conviction; and

• (b) against any sentence (not being a sentence fixed by law) passed on him for the offence for which he was convicted, whether passed on conviction or in subsequent proceedings.

• (1ZA) In subsection (1) above, the reference to a sentence fixed by law does not include a reference to an order made under section 321 of the Sentencing Code in relation to a life sentence (as defined in section 324 of that Code) that is fixed by law.

• (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application for leave to appeal

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• (1) Leave to appeal to the Appeal Court shall not be given except on an application in that behalf made by or on behalf of the appellant and lodged, within the prescribed period, with the registrar.

• (2) The application must be in the prescribed form and specify the grounds on which leave to appeal is sought and such other particulars, if any, as may be prescribed.

• (3) The Appeal Court may extend the period within which an application for leave to appeal must be lodged, whether the period has expired or not.

• (4) Rules of court may provide that, in such circumstances as may be specified in the rules, an application which is lodged with a person (other than the registrar) specified in the rules shall be treated for purposes of subsection (1) above as having been lodged with the registrar; and it shall be the duty of the specified person, if an application is lodged with him in accordance with the rules, to act as follows:—

• (a) he shall forward the application to the registrar with as much expedition as practicable; and

• (b) if it appears to him practicable to do so, and in all the circumstances expedient, he shall forthwith furnish the registrar (before the receipt by the latter of the application) with such particulars of the application as will enable the registrar to prepare a copy of it.

Alternative procedure for appeal from court-martial abroad

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Consideration of application by Appeal Court

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• (1) In considering whether or not to give leave to appeal the Appeal Court shall have regard to any expression of opinion made by ... the Judge Advocate General that the case is a fit one for appeal, and if any such expression is so made they may, without more, give leave to appeal.

• (2) Where the Appeal Court dismiss an application for leave to appeal they may, if they consider the application to have been frivolous or vexatious, order that any sentence passed upon the applicant in the proceedings from which it was sought to bring the appeal shall begin to run from the day on which the Appeal Court dismiss the application.

Disposal of appeal

Power to quash conviction as wrong in law, etc.

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• (1) The Appeal Court—

• (a) shall allow an appeal against conviction by the Court Martial if they think that the conviction is unsafe; and

• (b) shall dismiss such an appeal in any other case.

• (2) If the Appeal Court allow an appeal against conviction, they shall quash the conviction.

• (3) Where the Appeal Court quash a conviction, the appellant is to be treated as if he had been acquitted by the Court Martial; but this does not apply if an order under section 19 authorising the appellant to be retried is made.

Adjustment of sentence in case of conviction on two or more charges

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• (1) This section applies where—

• (a) on a single occasion a person is sentenced by the Court Martial in respect of two or more offences; and

• (b) the Appeal Court allow an appeal against conviction in respect of some but not all of the offences.

• (2) The Court may in respect of any offence of which the appellant remains convicted pass, in substitution for the sentence passed by the Court Martial, any sentence that—

• (a) they think appropriate; and

• (b) is a sentence that the Court Martial had power to pass.

• (3) But the Court may not exercise their powers under subsection (2) in such a way that the appellant's sentences (taken together) for all the offences of which he remains convicted are more severe than the sentences (taken together) passed on him by the Court Martial on the occasion mentioned in subsection (1)(a).

• (4) The reference in subsection (3) to the sentences passed by the Court Martial includes those passed by that court in respect of offences as respects which appeals against conviction have been allowed.

Substitution of conviction on different charge

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• (1) This section applies where—

• (a) an appellant has been convicted of an offence to which he did not plead guilty;

• (b) the Court Martial could lawfully have found him guilty of some other offence; and

• (c) it appears to the Appeal Court on an appeal against conviction that the Court Martial must have been satisfied of facts which prove him guilty of that other offence.

• (2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the finding of the Court Martial a finding of guilty of the other offence, and may pass on the appellant, in substitution for the sentence passed on him by the Court Martial, any sentence that—

• (a) they think appropriate;

• (b) is a sentence that the Court Martial would have had power to pass in respect of that other offence; and

• (c) is not more severe than the sentence passed by the Court Martial.

Variation of conviction so as to attract different sentence

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Substitution of finding of insanity or unfitness to plead

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• (1) This section applies where, on an appeal against conviction, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of the opinion—

• (a) that the proper finding would have been one of not guilty by reason of insanity; or

• (b) that the case is not one where there should have been a finding of not guilty, but that there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

• (1A) The Appeal Court shall, instead of allowing or dismissing the appeal, substitute for the finding appealed against—

• (a) a finding of not guilty by reason of insanity; or

• (b) findings that the appellant was unfit to stand trial and that he did the act or made the omission charged against him.

• (2) Sections 169(2) to (5) and 170 of, and Schedule 4 to, the 2006 Act apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to the Court Martial in a case in which section 169 of that Act applies.

• (3) Section 172 of that Act (meaning of “duly approved” etc) applies for the purposes of this section (and references there to the defendant are to be read as references to the appellant).

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Term of sentence passed under s. 13, 14 or 15

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• (1) Unless the Court otherwise direct, a sentence passed by the Appeal Court under section 13, 14, 14A or 16A takes effect from the beginning of the day on which the Court Martial passed sentence.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Retrial

Retrial generally excluded

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Power to authorise retrial in certain cases

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• (1) The Appeal Court shall have the power, on quashing a conviction, to make an order authorising the appellant to be retried by the Court Martial, but shall only exercise this power when . . . it appears to the Court that the interests of justice require that an order under this section should be made.

• (2) This section has effect notwithstanding section 63 of the 2006 Act (service proceedings barring subsequent service proceedings).

• (3) An order under this section may authorise the appellant to be retried for —

• (a) the offence of which he was convicted by the Court Martial and in respect of which his appeal is allowed as mentioned in subsection (1) above;

• (b) any offence of which he could have been convicted by the Court Martial on a charge of the first-mentioned offence; or

• (c) any offence charged in the alternative in respect of which the Court Martial recorded no finding in consequence of convicting him of the first-mentioned offence.

• (4) A person who is to be retried under this section for an offence shall, if the Appeal Court so directs, be retried on a fresh charge or charges specified in the direction; if any such direction is made the Director of Service Prosecutions must bring the charge or charges so specified (which are to be regarded for the purposes of Part 5 of the 2006 Act as allocated for Court Martial trial).

• (5) Section 125 of the 2006 Act (powers of DSP after charge) has effect in relation to a charge on which a person is to be retried under this section (whether or not a fresh charge) subject to such modifications as may be contained in Court Martial rules (within the meaning of that Act).

Implementation of authority for retrial, and supplementary orders of Appeal Court

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• (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—