The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

• (b) an application for extended powers for the purposes of section 133(1) or (2), 134, 135(1) or 136(1)(b) of that Act (extended powers of punishment).

• (2) The application, and any grant of the application or notification of its grant (whenever made), are to be treated as validly made if made in accordance with any provision of AFA 2006 or of rules under that Act that would apply if the application had been made after commencement.

• (3) Paragraph (4) applies where—

• (a) before commencement, an application for permission to award extended detention was made in accordance with regulation 30 of the Custody and Summary Dealing (Army) Regulations 2006 or regulation 17 of the Pre-Charge Custody and Summary Dealing (Royal Air Force) Regulations 2000 ; and

• (b) (before or after commencement) the application is treated by higher authority as an application under section 133(3) of AFA 2006 for extended powers for the purposes of section 133(1).

• (4) Any grant of those extended powers, or notification of their grant, in response to the application is to be treated as validly made if made in accordance with any provision of AFA 2006 or of rules under that Act that applies in relation to the grant of applications for such powers made after commencement.

• (5) Nothing in paragraphs (3) and (4) invalidates the treatment of the application as an application for permission to award extended detention under the regulations mentioned in paragraph (3)(a) (whether that treatment was as well as or instead of treating the application as mentioned in paragraph (3)(b)).

Permissions for purposes of AA 1955 or AFA 1955 to award extended detention

60

• (1) This article applies where—

• (a) permission to award extended detention was granted before commencement under regulation 30 of the Custody and Summary Dealing (Army) Regulations 2006 or regulation 17 of the Pre-Charge Custody and Summary Dealing (Royal Air Force) Regulations 2000;

• (b) article 55 does not apply; and

• (c) punishment is awarded after commencement under AFA 2006.

• (2) Where this article applies, the commanding officer is to be taken to have extended powers for the purposes of section 133(1) of AFA 2006.

Certain consequences of election for court-martial trial

61

• (1) This article applies to a charge allocated for Court Martial trial where—

• (a) the charge is so allocated by virtue of article 44 and the case to which it relates was referred to the prosecuting authority following an election for court-martial trial; or

• (b) the charge is so allocated by virtue of article 47(1)(c) and (2) (election for court-martial trial).

• (2) Section 130 of AFA 2006 (consequences of election for Court Martial trial) applies where this article applies to a charge, and in that section—

• (a) the reference in subsection (2)(a) to “that charge” includes a reference to a charge to which this article applies; and

• (b) subsection (2)(b) and (3) are to be read accordingly (but subject to paragraph (3) below).

• (3) Where a charge to which this article applies was brought under NDA 1957, and the charge is referred to a commanding officer under section 125(2)(e) of AFA 2006—

• (a) the commanding officer may apply for extended powers for the purposes of section 133(1) or (2), 134, 135(1) or 136(1)(b) of AFA 2006; and

• (b) if the commanding officer makes such an application and is notified that it has been granted, section 130(3) of AFA 2006 (which would prevent the accused from electing Court Martial trial of the charge) is to be taken to be disapplied.

CHAPTER 3 — Activation of SDA suspended sentence of service detention following civilian conviction

Activation where application for approval made before commencement

62

• (1) This article applies where at commencement—

• (a) an officer has made an application for approval, under regulation 49A of the Naval Summary Discipline Regulations (February) 2009, of an order which the officer proposes to make under section 91B of NDA 1957 (activation of sentence of detention by CO) by virtue of section 91B(1)(b) (conviction of offence in the British Islands); and

• (b) either—

• (i) no decision has been made on the application; or

• (ii) approval has been granted but the order has not been made.

• (2) In any such case an order under section 91B(1) of NDA 1957, with or without a direction under section 91B(6)(a), may be made as if NDA 1957 continued in force (and had done so since commencement); but this is subject to paragraph (3).

• (3) Paragraph (2) is subject to regulations 45A and 49A of the Naval Summary Discipline Regulations (February) 2009 (requirement for approval and for notification of order to offender), which shall continue in force for the purposes of this article.

• (4) Regulation 53A of those regulations (power to withdraw order etc) shall continue in force in relation to any order or direction made by virtue of this article.

CHAPTER 4 — The Summary Appeal Court

Right of appeal

63

• (1) In section 141(1) of AFA 2006 (right of appeal to Summary Appeal Court), the reference to a person in respect of whom a charge has been heard summarily and a finding that the charge has been proved has been recorded includes a person in respect of whom a charge was heard summarily, and a finding that the charge has been proved was recorded, under AA 1955, AFA 1955 or NDA 1957 before commencement.

• (2) Where, immediately before commencement, a period allowed by a summary appeal court under section 83ZE(2) of AA 1955 or AFA 1955 or section 52FK(2) of NDA 1957 (extra time for appeal) is current and an appeal for which the period was allowed has not yet been brought, the period is to be treated as allowed by the Summary Appeal Court under section 141(2)(b) of AFA 2006.

• (3) Where, immediately before commencement, a period allowed by a summary appeal court under section 83ZE(3) of AA 1955 or AFA 1955 or section 52FK(3) of NDA 1957 (extra time for appeal) is current and an appeal for which the period was allowed has not yet been brought, the period is to be treated as allowed by the Summary Appeal Court under section 141(3) of AFA 2006.

Appeal brought but not heard before commencement

64

• (1) This article applies where—

• (a) an appeal to a summary appeal court was brought before commencement; and

• (b) by commencement, the court had not begun to hear the appeal and the appeal had not been abandoned.

• (2) For the purposes of Chapter 2 of Part 6 of AFA 2006 (appeals to the Summary Appeal Court), the appeal is to be treated as an appeal brought to the Summary Appeal Court under section 141 of AFA 2006.

• (3) If before commencement a person was specified by or on behalf of the Judge Advocate General to be the judge advocate for the appeal, the specification has effect after commencement as a specification under section 142(3) of AFA 2006.

• (4) If before commencement a person was specified by or on behalf of a court administration officer to be a member of the court for the appeal, the specification has effect after commencement as a specification under section 142(4) of AFA 2006.

• (5) In this article “court administration officer” means a court administration officer within the meaning of section 83ZA of AA 1955 or AFA 1955 or section 52FF of NDA 1957.

Officers and warrant officers ineligible for membership of court

65

In section 144(1) of AFA 2006 (officers and warrant officers ineligible for membership of SAC in particular circumstances)—

• (a) in paragraph (a), “commanding officer”, in relation to times before commencement, means commanding officer within the meaning of Part 2 of AFA 2001;

• (b) in paragraph (c), the reference to a higher authority as mentioned there includes an officer who, in relation to the charge to which the appeal relates—

• (i) acted as the appropriate superior authority under section 76B of AA 1955 or AFA 1955 or section 52EE of NDA 1957;

• (ii) was the higher authority to whom a referral was made under section 76(5), 76AA(3) or 76B(4) of AA 1955 or AFA 1955 or section 52B(5) or 52D(3) or (5) of NDA 1957; or

• (iii) was asked, as higher authority, to approve the award of any punishment;

• (c) in paragraph (f), the reference to an inquiry includes—

• (i) an investigation conducted by a board of inquiry under section 135 of AA 1955 or AFA 1955;

• (ii) an inquiry held under section 137 of AA 1955 or AFA 1955;

• (iii) an inquiry held by the Royal Navy under the prerogative.

Punishments substituted for punishments imposed under AA 1955

66

• (1) This article applies to a rehearing as respects punishment held by virtue of section 146(1)(b) or (2) of AFA 2006 (rehearing by SAC) where the punishment to which the rehearing relates was imposed—

• (a) on a summary dealing under AA 1955; or

• (b) under article 55 in relation to a finding recorded under AA 1955.

• (2) If only one offence has been proved, section 147(3) of AFA 2006 (power to substitute punishment) has effect as if for paragraph (b) there were substituted—

(b) quash that punishment and award in substitution for it any punishment which— (i) would be available under Chapter 1 of this Part if a charge of the offence had just been found proved by the accused's commanding officer and that officer had extended powers for the purposes of section 133(1) or (2) (as the case may be), 134, 135(1) and 136(1)(b); and (ii) in the opinion of the court is neither more severe than the punishment originally awarded nor more severe than the most severe punishment which could have been awarded, for the offence for which the court is awarding punishment, by the officer who originally awarded punishment.

• (3) If two or more offences have been proved, section 147(3) of AFA 2006 has effect as if for paragraphs (a) and (b) there were substituted—

(a) confirm the punishments awarded; or (b) quash those punishments and award in substitution for them any punishment which— (i) would be available under Chapter 1 of this Part if charges of the offences had just been found proved by the accused's commanding officer and that officer had extended powers for the purposes of section 133(1) or (2) (as the case may be), 134, 135(1) and 136(1)(b); and (ii) in the opinion of the court is neither more severe than the punishments originally awarded nor more severe than the most severe punishments which could have been awarded, for the offences for which the court is awarding punishment, by the officer who originally awarded punishment.

Punishments substituted for punishments imposed under AFA 1955

67

• (1) This article applies to a rehearing as respects punishment held by virtue of section 146(1)(b) or (2) of AFA 2006 (rehearing by SAC) where the punishment to which the rehearing relates was imposed—

• (a) on a summary dealing under AFA 1955; or

• (b) under article 55 in relation to a finding recorded under AFA 1955.

• (2) In its application to the rehearing, section 147(3) of AFA 2006 (power to substitute punishment) has effect as if for paragraph (b) there were substituted—

(b) quash that punishment and award in substitution for it any punishment which— (i) would be available under Chapter 1 of this Part if a charge of the offence (or charges of the offences) had just been found proved by the accused's commanding officer and that officer had extended powers for the purposes of section 133(1) or (2) (as the case may be), 134, 135(1) and 136(1)(b); and (ii) in the opinion of the court is neither more severe than the punishment originally awarded nor more severe than the most severe punishment which could have been awarded, for the offence or offences for which the court is awarding punishment, by the officer who originally awarded punishment.

Punishments substituted for punishments imposed under NDA 1957

68

• (1) This article applies to a rehearing as respects punishment held by virtue of section 146(1)(b) or (2) of AFA 2006 (rehearing by SAC) where the punishment to which the rehearing relates was imposed—

• (a) on a summary trial under NDA 1957; or

• (b) under article 55 in relation to a finding recorded under NDA 1957.

• (2) In its application to the rehearing, section 147(3) of AFA 2006 (power to substitute punishment) has effect as if for paragraph (b) there were substituted—

(b) quash that punishment and award in substitution for it any punishment which— (i) would be available under Chapter 1 of this Part if a charge of the offence (or charges of the offences) had just been found proved by the accused's commanding officer and that officer had extended powers for the purposes of section 133(1) or (2) (as the case may be), 134, 135(1) and 136(1)(b); and (ii) in the opinion of the court is neither more severe than the punishment originally awarded nor more severe than the most severe punishment which could have been awarded, for the offence or offences for which the court is awarding punishment, by the officer who originally awarded punishment.

• (3) For the purposes of section 147(3)(b) of AFA 2006 as substituted by paragraph (2) above, the punishments in the Table in section 132 of AFA 2006 are to be taken to include—

• (a) dismissal from Her Majesty's service;

• (b) (as an alternative to disrating or reduction in rank as permitted by row 3 of the Table) disrating, or reduction in rank, to an extent which was available to the officer who awarded punishment.

• (4) Nothing in section 138 of AFA 2006 prevents the Summary Appeal Court from awarding, by virtue of this article, dismissal from Her Majesty's service in addition to any punishment or combination of punishments permitted by that section.

• (5) For the purposes of section 147(3)(b)(i) of AFA 2006 as substituted by paragraph (2) above, it is to be assumed that the charge or charges are capable of being heard summarily under AFA 2006, even if they are not in fact so capable.

Appeals from decisions of a summary appeal court

69

• (1) The appellant may question any decision of a summary appeal court under AA 1955, AFA 1955 or NDA 1957 on the ground that it was wrong in law or was in excess of jurisdiction, by applying to the Summary Appeal Court to have a case stated for the opinion of the High Court in England and Wales.

• (2) Where, immediately before commencement, an application under section 83ZH(2) of AA 1955 or AFA 1955 or section 52FN(2) of NDA 1957 (application to a summary appeal court to have a case stated) has been made but a case has not been stated, the application has effect after commencement as an application to the Summary Appeal Court under paragraph (1).

CHAPTER 5 — Review of summary findings and punishments

Power to review summary findings and punishments

70

• (1) In section 152(1) of AFA 2006 (power to review summary finding or punishment), the reference to the case where a charge has been heard summarily and a finding that the charge has been proved has been recorded includes—

• (a) the case where a charge was heard summarily, and a finding that the charge has been proved was recorded, under AA 1955 or AFA 1955; and

• (b) the case where a charge was tried summarily, and a finding of guilt was recorded, under NDA 1957.

• (2) Where an order under section 91B(1) of NDA 1957 (activation by officer of suspended sentence of detention) has been made in respect of a sentence of detention passed by a court-martial, the order is to be treated for the purposes of section 152 of AFA 2006 as a punishment which may be reviewed under that section.

• (3) Paragraph (2) is without prejudice to section 195(1) of AFA 2006 as modified by article 98(1) (by virtue of which an order under section 91B(1) of NDA 1957 activating a suspended sentence of detention passed at a summary trial may be reviewed under section 152).

• (4) References in this article to an order under section 91B(1) of NDA 1957 include such an order made after commencement by virtue of article 55 or 62.

Power to complete review begun before commencement

71

• (1) In section 152(2) of AFA 2006 (persons who are to carry out review), any reference to a review under section 152 includes the completion of a pre-commencement review.

• (2) In this article a “pre-commencement review” means a review that had begun to be carried out before commencement under section 115 of AA 1955 or AFA 1955 or section 71B of NDA 1957 but was not completed by commencement.

• (3) In section 152(3) to (7) of AFA 2006 any reference to the carrying out of a review under section 152 includes the completion of a pre-commencement review by virtue of this article.

Powers on a review carried out or completed under AFA 2006

72

• (1) This article applies where a review is carried out, or completed, under section 152 of AFA 2006 in respect of—

• (a) a finding under AA 1955, AFA 1955 or NDA 1957;

• (b) a punishment awarded in respect of such a finding; or

• (c) an order under section 91B(1) of NDA 1957 (including such an order made after commencement by virtue of article 55 or 62).

• (2) Section 152(3) of AFA 2006 has effect as if for paragraph (b) there were substituted—

(b) the person to whom the review relates has not brought an appeal to a summary appeal court under section 83ZE of AA 1955 or AFA 1955 or section 52FK of NDA 1957 or an appeal to the Summary Appeal Court under section 141, and the period provided by section 141(2) has ended.

• (3) Section 152(5) of AFA 2006 has effect as if for paragraph (b) there were substituted—

(b) the person to whom the review relates has brought an appeal to a summary appeal court under section 83ZE of AA 1955 or AFA 1955 or section 52FK of NDA 1957 or an appeal to the Summary Appeal Court under section 141.

• (4) Where this article applies and an appeal was brought to a summary appeal court, section 152(6) of AFA 2006 has effect as if for paragraph (a) there were substituted—

(a) the appeal is in the course of being heard, or is to be heard, by the Summary Appeal Court, and

• (5) Where this article applies and an appeal was brought to a summary appeal court, section 152(7) of AFA 2006 has effect—

• (a) as if in paragraph (a) the reference to the Summary Appeal Court included a reference to a summary appeal court; and

• (b) in a case where the hearing of the appeal was completed by a summary appeal court, as if both references to “the court” in paragraph (b), and the second reference to “the court” in the words after that paragraph, were to the summary appeal court.

Powers where review completed before commencement

73

• (1) Paragraph (2) applies where—

• (a) before commencement, a review of a finding or punishment was carried out under section 115 of AA 1955 or AFA 1955 or section 71B of NDA 1957;

• (b) the finding or punishment was not quashed on the review; and

• (c) by commencement, no reference has been made under subsection (5A) or (5B) of section 115 of AA 1955 or AFA 1955 or of section 71B of NDA 1957.

• (2) Subsections (3) to (7) of section 152 of AFA 2006 shall apply (with the modifications made by article 72) as if the review had been carried out under that section.

• (3) Where, immediately before commencement, leave for a reference has been granted under subsection (5A) or (5B) of section 115 of AA 1955 or AFA 1955 or of section 71B of NDA 1957 but the reference has not been made, the leave has effect after commencement as leave granted by the Summary Appeal Court under section 152(4) or (7) of AFA 2006.

PART 11 — TRIAL BY COURT MARTIAL

CHAPTER 1 — Trial by Court Martial

Pre-commencement selection of members of Court Martial

74

• (1) If before commencement a person is specified by or on behalf of the Judge Advocate General to be the judge advocate for Court Martial proceedings intended to take place after commencement, the specification has effect after commencement as a specification under section 155(5) of AFA 2006.

• (2) If before commencement a person is specified by or on behalf of a court administration officer to be a lay member of the court for Court Martial proceedings intended to take place after commencement, the specification has effect after commencement as a specification under section 155(6) of AFA 2006.

• (3) If before commencement a judicial officer directs that the number of lay members of the court for Court Martial proceedings intended to take place after commencement must be more than the minimum required, the direction has effect after commencement as a direction under section 155(7) of AFA 2006.

• (4) In this article—

• “court administration officer” means a court administration officer within the meaning of section 84A of AA 1955 or AFA 1955 or section 53A of NDA 1957;

• “judicial officer” means a judicial officer appointed under section 75L of AA 1955 or AFA 1955 or section 47M of NDA 1957;

• “the minimum required” has the meaning given by section 155(8) of AFA 2006.

Eligibility to be member of the court

75

In section 157(1) of AFA 2006 (officers and warrant officers ineligible for membership of Court Martial in particular circumstances)—

• (a) in paragraph (a), “commanding officer”, in relation to times before commencement, means commanding officer within the meaning of Part 2 of AFA 2001;

• (b) in paragraph (c), the reference to an inquiry includes—

• (i) an investigation conducted by a board of inquiry under section 135 of AA 1955 or AFA 1955;

• (ii) an inquiry held under section 137 of AA 1955 or AFA 1955;

• (iii) an inquiry held by the Royal Navy under the prerogative.

Arraignment before commencement

76

Court Martial rules may provide that a plea offered on arraignment at a hearing under section 91A of AA 1955 or AFA 1955 or section 58A of NDA 1957 is to be treated, for such purposes as may be specified, as having been offered on arraignment before the Court Martial.

Power to convict of alternative offences

77

• (1) This article applies in relation to a trial by the Court Martial, and is without prejudice to section 161 of AFA 2006.

• (2) Where the Court Martial acquits a person of an SDA 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—

• (a) another SDA offence, or

• (b) a service offence,

the court may convict the person of that other SDA offence or that service offence.

• (3) Where the Court Martial acquits a person of a service 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 an SDA offence, the court may convict him of the SDA offence.

• (4) For the purposes of this article—

• (a) an allegation of an offence under any of sections 24 to 66 or 69 of AA 1955 or AFA 1955 (“offence X”) is to be taken to include an allegation of an offence under section 68 of attempting to commit offence X;

• (b) an allegation of an offence under any of sections 2 to 39 of NDA 1957 (“offence Y”) is to be taken to include an allegation of an offence under section 40 of attempting to commit offence Y;

• (c) an allegation of a completed SDA civil offence is to be taken to include an allegation of an SDA civil offence of attempting to commit that offence.

• (5) Paragraphs (2) and (3) apply in relation to a charge sheet containing more than one charge as if each charge were contained in a separate charge sheet.

• (6) In this article a “completed SDA civil offence” means an offence that would be an offence to which section 1 of the Criminal Attempts Act 1981 applies if subsection (4) of that section had effect as modified by section 70(2A) of AA 1955 or AFA 1955 or section 42(2A) of NDA 1957.

Sentencing powers where election for Court Martial trial

78

• (1) An offence of which a person has been convicted or acquitted by the Court Martial is “relevant” for the purposes of section 165 of AFA 2006 (sentencing powers where election for Court Martial trial) if the person was tried for the offence in pursuance of an election for court-martial trial.

• (2) In section 165(1)(c) of AFA 2006, the reference to Court Martial trial includes court-martial trial.

• (3) Section 165(5) of AFA 2006 has effect as if the cases mentioned in paragraphs (a) and (b) included the following cases—

• (a) where the court convicts a person of an offence that is relevant by virtue of this article;

• (b) where the court convicts a person of two or more such relevant offences the charges in respect of which—

• (i) would have been dealt with or tried summarily together if no election for court-martial trial had been made; or

• (ii) are under Court Martial rules to be treated as if they would have been so dealt with or tried.

Appeals against pre-commencement orders restricting publicity etc

79

In section 163(9) of AFA 2006 (rules relating to certain appeals)—

• (a) the reference to rules made by virtue of section 163(3)(i) includes any Court Martial rules that make provision, corresponding to that mentioned in section 163(3)(i), in relation to orders and directions of courts-martial or orders or rulings made in proceedings preliminary to a court-martial trial; and

• (b) the reference to appeals made by virtue of section 163(3)(i) includes appeals made under such rules.

CHAPTER 2 — Unfitness to stand trial and insanity

Continuation of hospital orders etc made before commencement

80

• (1) Where immediately before commencement a hospital order or restriction order made by a court-martial by virtue of section 116A of AA 1955 or AFA 1955 or section 63A of NDA 1957 is in force, the order has effect after commencement as if made by the Court Martial by virtue of section 169 of AFA 2006.

• (2) Where immediately before commencement there is in force any other order under the Mental Health Act 1983 made by a court-martial by virtue of section 116B of AA 1955 or AFA 1955 or section 63B of NDA 1957, the order has effect after commencement as if made by the Court Martial by virtue of Schedule 4 to AFA 2006.

• (3) Where immediately before commencement a supervision order made by a court-martial under section 116A of AA 1955 or AFA 1955 or section 63A of NDA 1957 is in force, the order has effect after commencement as a service supervision order under section 169 of AFA 2006.

• (4) Paragraphs (5) to (7) apply where immediately before commencement a hospital order or restriction order made by the Appeal Court is in force.

• (5) If the order was made by virtue of section 16(2) of CMAA 1968, it has effect after commencement as if made by virtue of section 169 of AFA 2006 as applied by section 16(2) of CMAA 1968 (as substituted by AFA 2006).

• (6) If the order was made by virtue of section 23(2) of CMAA 1968, it has effect after commencement as if made by virtue of section 169 of AFA 2006 as applied by sections 16(2) and 22(3A) of CMAA 1968 (as substituted by AFA 2006).

• (7) If the order was made by virtue of section 25B of CMAA 1968, it has effect after commencement as if made by virtue of section 169 of AFA 2006 and section 25B of CMAA 1968 (as amended by AFA 2006).

• (8) Paragraphs (9) to (11) apply where immediately before commencement there is in force any other order under the Mental Health Act 1983 made by the Appeal Court.

• (9) If the order was made by virtue of section 116B of AA 1955 or AFA 1955 or section 63B of NDA 1957, as applied by section 16(4) of CMAA 1968, it has effect after commencement as if made by virtue of Schedule 4 to AFA 2006 as applied by section 16(2) of CMAA 1968 (as substituted by AFA 2006).

• (10) If the order was made by virtue of section 116B of AA 1955 or AFA 1955 or section 63B of NDA 1957, as applied by section 23(4) of CMAA 1968, it has effect after commencement as if made by virtue of Schedule 4 to AFA 2006 as applied by sections 16(2) and 22(3A) of CMAA 1968 (as substituted by AFA 2006).

• (11) If the order was made by virtue of section 25B of CMAA 1968, it has effect after commencement as if made by virtue of Schedule 4 to AFA 2006 and section 25B of CMAA 1968 (as amended by AFA 2006).

• (12) Paragraphs (13) to (15) apply where immediately before commencement a supervision order made by the Appeal Court was in force.

• (13) If the order was made by virtue of section 16(2) of CMAA 1968, it has effect after commencement as a service supervision order made by virtue of section 169 of AFA 2006 as applied by section 16(2) of CMAA 1968 (as substituted by AFA 2006).

• (14) If the order was made by virtue of section 23(2) of CMAA 1968, it has effect after commencement as a service supervision order made by virtue of section 169 of AFA 2006 as applied by sections 16(2) and 22(3A) of CMAA 1968 (as substituted by AFA 2006).

• (15) If the order was made by virtue of section 25B of CMAA 1968, it has effect after commencement as a service supervision order made by virtue of section 169 of AFA 2006 and section 25B of CMAA 1968 (as amended by AFA 2006).

• (16) In paragraphs (2) and (8) to (11) “order” includes a remand.

• (17) In this article references to an order made by the Appeal Court include an order made by the House of Lords or the Supreme Court on an appeal brought from a decision of the Appeal Court.

Remission for trial

81

• (1) Without prejudice to the generality of article 80, where a hospital order and restriction order made by virtue of section 116A(1)(a) of AA 1955 or AFA 1955 or section 63A(1)(a) of NDA 1957 are continued in effect by that article, the orders are to be treated for the purposes of section 171 of AFA 2006 (remission for trial) as a hospital order and restriction order made by the Court Martial which the Court Martial had power to make by virtue of section 169(1)(a).

• (2) Where—

• (a) a person has been remitted for court-martial trial under section 116B(5) of AA 1955 or AFA 1955 or section 63B(5) of NDA 1957, and

• (b) the trial has not begun by commencement,

the person is to be treated as having been remitted under section 171(1) of AFA 2006 for trial by the Court Martial.

• (3) The first reference in paragraph (1) to a hospital order and restriction order made as mentioned there includes—

• (a) a hospital order and restriction order made by virtue of section 16(1)(b) or 23(2)(a) of CMAA 1968;

• (b) a hospital order and restriction order made by virtue of section 25B(1) of that Act in a case in which a finding within section 116A(1)(a) of AA 1955 or AFA 1955 or section 63A(1)(a) of NDA 1957 was made by a court-martial.

Finding that defendant who is unfit to stand trial did the act or made the omission charged

82

• (1) Section 167 of AFA 2006 (duty to find whether defendant who is unfit to stand trial did the act or made the omission charged) applies (as well as in the case mentioned in subsection (1)) where—

• (a) under section 115A of AA 1955 or AFA 1955 or section 62A of NDA 1957 a person has been found to be unfit to stand trial; and

• (b) by commencement no determination had been made under section 115B of AA 1955 or AFA 1955 or section 62B of NDA 1957 (determination whether defendant did the act charged).

• (2) Where section 167 of AFA 2006 applies by reason of this article, the reference in subsection (2) to “the court” is to the Court Martial.

Powers to make hospital orders etc

83

• (1) Section 169 of AFA 2006 (Court Martial powers where person unfit to stand trial or not guilty by reason of insanity) applies (as well as in the case mentioned in subsection (1)) in the following cases—

• (a) where by virtue of article 82 the Court Martial finds that a defendant did the act (or made the omission) charged;

• (b) where on a trial by court-martial the defendant was found—

• (i) to be unfit to stand trial and to have done the act (or made the omission) charged, or

• (ii) to be not guilty by reason of insanity,

and by commencement the court had not made an order by virtue of section 116A(2) of AA 1955 or AFA 1955 or section 63A(2) of NDA 1957.

• (2) Where section 169 of AFA 2006 applies by reason of this article—

• (a) the reference in subsection (2) to “the court” is to the Court Martial;

• (b) subsection (6) is to be treated as omitted;

• (c) the functions referred to in subsection (6) are to be exercised by—

• (i) the judge advocate who was judge advocate for the court-martial; or

• (ii) if that judge advocate made an interim hospital order by virtue of section 116B of AA 1955 or AFA 1955 or section 63B of NDA 1957, that or any other judge advocate.

CHAPTER 3 — Variation of court-martial sentence

Variation of court-martial sentence

84

Where under Court Martial rules the Court Martial varies a court-martial sentence, the sentence as varied must be a sentence that the court-martial could have passed.

PART 12 — SENTENCING POWERS IN RELATION TO SDA OFFENCES

CHAPTER 1 — Consecutive sentences

Consecutive custodial sentences and consecutive service detention

85

• (1) In section 188 of AFA 2006 (consecutive custodial sentences), references to a service offence include an SDA offence.

• (2) The sentences referred to in subsection (4)(b) of that section are to be taken to include a determinate sentence of detention under section 71A(4) of AA 1955 or AFA 1955 or section 43A(4) of NDA 1957.

• (3) In section 189 of that Act (consecutive sentences of service detention), the references in subsections (1) and (3) to any other sentence of service detention include an SDA sentence of service detention.

CHAPTER 2 — Young offenders

Offenders under 18 convicted of certain serious SDA offences: power to detain for specified period

86

In section 209 of AFA 2006 (detention for person under 18 convicted of serious offence)—

• (a) references to an offence under section 42 of that Act include an SDA civil offence;

• (b) references to the corresponding offence under the law of England and Wales include the corresponding civil offence.

Offenders under 18: detention and training orders

87

• (1) In section 212 of AFA 2006 (term of detention and training order)—

• (a) subsection (1) has effect in relation to an SDA offence as if for the words “, 10, 12, 18 or 24 months” there were substituted “or 10 months”;

• (b) in subsection (2)—

• (i) the reference to an offence under section 42 of that Act includes an SDA civil offence;

• (ii) the reference to the corresponding offence under the law of England and Wales includes the corresponding civil offence.

• (2) Section 101(3) to (7) of the Powers of Criminal Courts (Sentencing) Act 2000 (which relate to consecutive terms of detention and training orders and are applied by section 213 of AFA 2006) have effect in relation to the sentencing of an offender by the Court Martial with the following modifications.

• (3) In subsection (3), the reference to any other detention and training order includes an SDA custodial order.

• (4) For the purposes of the references in each of subsections (4) and (5) to “detention and training orders”, an SDA custodial order is to be treated as a detention and training order.

• (5) In relation to the sentencing by the Court Martial of an offender for an SDA offence, subsections (4), (5) and (7) have effect as if the references to 24 months were to 12 months.

• (6) In section 213(3) of AFA 2006 (taking into account time spent in service custody), the reference to service custody is to be read, in relation to any time before commencement, as a reference to military custody, air-force custody or naval custody.

• (7) In this article an “SDA custodial order” means—

• (a) an order under section 71AA of, or paragraph 10 of Schedule 5A to, AA 1955 or AFA 1955; or

• (b) an order under section 43AA of, or paragraph 10 of Schedule 4A to, NDA 1957.

CHAPTER 3 — Mandatory etc sentences

Mandatory life imprisonment etc

88

In sections 217 and 218 of AFA 2006 (mandatory life imprisonment or detention at HM pleasure)—

• (a) references to an offence under section 42 of that Act include an SDA civil offence;

• (b) references to the corresponding offence under the law of England and Wales include the corresponding civil offence.

Sentences required by SDAs

89

• (1) This article applies where—

• (a) a person is convicted by the Court Martial of an SDA civil offence; and

• (b) if the person had been convicted of the offence by a court-martial immediately before commencement, that court would have been required by section 70(3A) of AA 1955 or AFA 1955 or section 42(1A) of NDA 1957 to impose the sentence required by section 109(2) of the Powers of Criminal Courts (Sentencing) Act 2000 unless of the opinion that there were exceptional circumstances which justified its not doing so.

• (2) Where this article applies, the Court Martial must impose a sentence of life imprisonment unless it is of the opinion that there are exceptional circumstances which justify its not doing so.

• (3) It is to be assumed for the purposes of this article that section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 remained in force for the purposes of section 70(3A) of AA 1955 and AFA 1955 and section 42(1A) of NDA 1957 until immediately before commencement.

• (4) Sections 237, 252, 260 and 261 of AFA 2006 do not apply to an offence for which a sentence of life imprisonment falls to be imposed under this article.

CHAPTER 4 — Court orders other than sentences

Service restraining orders

90

In section 230(3) of AFA 2006 (remission by Appeal Court of case to Court Martial), the reference to an appeal against conviction includes such an appeal brought from a court-martial.

Recognizances

91

• (1) In section 235(4) of AFA 2006 (variation or revocation of recognizance), the reference to an order under section 233 of that Act includes an order under paragraph 14 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

• (2) In section 236(1) of AFA 2006 (forfeiture of recognizance)—

• (a) the reference in paragraph (a) to a recognizance under section 233 of that Act includes a recognizance under paragraph 14(1) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957;

• (b) the reference in paragraph (b) to a service offence includes an SDA offence.

CHAPTER 5 — Miscellaneous

Power of Supreme Court to make service compensation order

92

Where the Supreme Court restores a conviction of an offence of which the offender was convicted by a court-martial, it may make any service compensation order which the Court Martial could have made if it had convicted the offender.

PART 13 — ACTIVATION OF SUSPENDED SENTENCES

CHAPTER 1 — Interpretation

Suspended sentences

93

• (1) References in this Part to a sentence which is for the time being suspended are to a sentence which—

• (a) on a date not more than one year ago (“the suspension date”) was suspended under section 120(2) or (3) of AA 1955 or AFA 1955 or section 90(1) or (2) of NDA 1957; and

• (b) has not been activated since that date.

• (2) For the purposes of paragraph (1)(b)—

• (a) a sentence of imprisonment is activated if an order in respect of it is made under section 120(5) of AA 1955 or AFA 1955, section 91(1) of NDA 1957 or article 94; and

• (b) an SDA sentence of service detention is activated if an order in respect of it is made under section 120(5) of AA 1955 or AFA 1955, section 91(1) or 91B(1) of NDA 1957 or (by virtue of any of articles 95 to 97) section 191(3) or 193(3) of AFA 2006.

• (3) In paragraph (1)(a) the reference to suspension under section 90(1) of NDA 1957 includes suspension after commencement by virtue of article 55.

• (4) In paragraph (2)(b) the reference to an order under section 91B(1) of NDA 1957 includes such an order made after commencement by virtue of article 55 or 62.

CHAPTER 2 — Activation of suspended SDA sentence by the Court Martial

Activation of suspended SDA sentence of imprisonment

94

• (1) Where—

• (a) a sentence of imprisonment passed on a person by a court-martial is for the time being suspended, and

• (b) the Court Martial convicts the person of an offence committed since the suspension date,

the court may make an order under this article determining the suspension of the sentence and committing the person to imprisonment.

• (2) Paragraph (1) is subject to any provision of Court Martial rules made by virtue of section 165(6) of AFA 2006 as modified by article 78(1) (powers of Court Martial where election for trial by that court or by court-martial).

• (3) An order under this article is an order—

• (a) that the suspended sentence shall take effect with the original term unaltered; or

• (b) that the suspended sentence shall take effect with the substitution of a lesser term for the original term.

• (4) In paragraph (1)(a) the reference to a sentence passed by a court-martial includes a sentence passed—

• (a) by the Appeal Court before commencement; or

• (b) by the House of Lords or the Supreme Court before commencement, on an appeal brought from a decision of the Appeal Court.

Activation of suspended SDA sentence of service detention on conviction by Court Martial

95

• (1) Where—

• (a) an SDA sentence of service detention passed on a person is for the time being suspended, and

• (b) the Court Martial convicts the person of an offence committed since the suspension date,

the court may make an order under section 191(3) of AFA 2006 in respect of the sentence.

• (2) This article is subject to section 244 of AFA 2006 (limit on combined term of sentences) as modified by article 104.

Activation of suspended NDA 1957 sentence of service detention following conviction by another court or a CO

96

• (1) Where—

• (a) an SDA sentence of service detention passed on a person by a court-martial under NDA 1957 is for the time being suspended,

• (b) the person—

• (i) has been convicted of a service offence,

• (ii) has been convicted since commencement of an SDA offence, or

• (iii) has been convicted of an offence in the British Islands,

• (c) the offence was committed since the suspension date, and

• (d) the person appears or is brought before the Court Martial following the issue of a summons or warrant under paragraph (8),

the court may make an order under section 191(3) of AFA 2006 in respect of the sentence.

• (2) Paragraphs (3) to (6) apply where—

• (a) by virtue of this article the Court Martial makes an order under section 191(3) of AFA 2006 in respect of a sentence for a term of more than 90 days; and

• (b) the sentence is not one to which paragraph (5) applies (by virtue of a previous order under section 191(3) of AFA 2006).

• (3) The order must be an order that the suspended sentence shall take effect with the substitution for the original term of a specified term, which must be 90 days or less.

• (4) For the purposes of section 244 of AFA 2006 (limitation of combined term of sentences) the term of the sentence is to be treated as the term specified in the order.

• (5) For the purposes of this Part, the part of the sentence that exceeds 90 days (“the excess”) is to be treated as a sentence passed by a court-martial under NDA 1957 and suspended under section 90(1) of NDA 1957 on the date when the order under section 191(3) of AFA 2006 was made; but this is subject to paragraph (6).

• (6) The court may order that paragraph (5)—

• (a) shall not apply; or

• (b) shall apply only in relation to a specified part of the excess.

• (7) Where—

• (a) the Court Martial makes an order under section 191(3) of AFA 2006 by virtue of this article, and

• (b) the conviction mentioned in paragraph (1)(b) is a conviction by an officer or the Summary Appeal Court,

any unserved part of any service supervision and punishment order or minor punishment awarded by the officer or the Summary Appeal Court is remitted by the making of the order.

• (8) If it appears to the Court Martial—

• (a) that paragraph (1)(a) to (c) apply, and

• (b) that the offender has not been dealt with in respect of the sentence mentioned in paragraph (1)(a),

the court may issue a summons requiring him to appear at the time and place specified in it, or a warrant for his arrest.

• (9) This article is subject to section 244 of AFA 2006 (limit on combined term of sentences) as modified by article 104 and (where it applies) paragraph (4).

• (10) In paragraph (1)(a) the reference to a sentence passed by a court-martial under NDA 1957 includes a sentence passed—

• (a) by the Appeal Court before commencement, on appeal from a court-martial under that Act; or

• (b) by the House of Lords or the Supreme Court before commencement, on an appeal brought from a decision of the Appeal Court where the appeal to that court was from a court-martial under that Act.

CHAPTER 3 — Activation of suspended NDA 1957 sentence of service detention by CO or SAC

Activation by CO

97

• (1) Where—

• (a) an SDA sentence of service detention passed on a person by an officer under NDA 1957, or the summary appeal court under that Act, is for the time being suspended, and

• (b) an officer records a finding after commencement that a charge against the person is proved in respect of an offence committed since the suspension date,

the officer may make an order under section 193(3) of AFA 2006 in respect of the sentence.

• (2) Where—

• (a) an SDA sentence of service detention passed on a person by an officer under NDA 1957, or the summary appeal court under that Act, is for the time being suspended,

• (b) the person has been convicted of an offence in the British Islands committed since the suspension date, and subsequently appears before his commanding officer, and

• (c) article 62 (activation under section 91B of NDA 1957 where application for approval made before commencement) does not apply,

the officer may make an order under section 193(3) of AFA 2006 in respect of the sentence.

• (3) Where an officer makes an order under section 193(3) of AFA 2006 by virtue of this article, section 194(1) to (6) of AFA 2006 (maximum term of suspended sentence of service detention activated by CO) do not apply.

• (4) Rules made under section 153 of AFA 2006 (rules as to summary hearings and the activation of suspended sentences by commanding officers) may make provision requiring an order under section 193(3) of AFA 2006 to be approved before it may be made by virtue of this article.

• (5) This article is subject to section 244 of AFA 2006 (limit on combined terms of sentences) as modified by article 104.

Powers of SAC

98

• (1) In section 195(1) of AFA 2006 (order activating suspended sentence to be treated as punishment for purposes of provisions about appeals and reviews) the reference to an order under section 193 includes an order under section 91B(1) of NDA 1957 (activation of suspended sentence).

• (2) In section 195(2) of AFA 2006, the reference to the case where an order under section 193 was made by virtue of a finding within section 193(2)(a) includes the case where an order under section 91B(1) of NDA 1957 was made by virtue of a finding within section 91B(1)(a) of NDA 1957.

• (3) On an appeal against an order under section 91B(1) of NDA 1957, the Summary Appeal Court may—

• (a) if no direction under section 91B(6) of NDA 1957 was given in respect of the sentence to which the order relates—

• (i) quash the order;

• (ii) confirm the order; or

• (iii) make, in substitution for the order, an order under section 193(3) of AFA 2006;

• (b) if a direction under section 91B(6) of NDA 1957 was given in respect of the sentence to which the order relates—

• (i) quash the order (and the direction);

• (ii) confirm the order and the direction;

• (iii) confirm the order and quash the direction; or

• (iv) make, in substitution for the order and direction, an order under section 193(3) of AFA 2006.

• (4) Section 195(9) of AFA 2006 (period of suspended sentence served to be taken into account) applies in relation to the Summary Appeal Court's powers under paragraph (3) to substitute an order under section 193(3).

• (5) The Summary Appeal Court may make an order under section 193(3) of AFA 2006 on an appeal to that court in a case in which—

• (a) section 91B(1)(a) of NDA 1957 applied; and

• (b) the officer who awarded punishment did not make an order under section 91B(1).

• (6) On an appeal to the Summary Appeal Court in a case in which section 91B(1)(a) of NDA 1957 applied—

• (a) section 147(3) of AFA 2006 has effect, as regards the Summary Appeal Court's powers of punishment in respect of the officer's finding (or any substituted finding), as if any requirement that the punishment be no more severe than the punishment originally awarded were omitted; but

• (b) the court may not exercise its powers under section 147(3) or paragraph (3) or (5) above in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the officer.

• (7) On an appeal against an order under section 91B(1) of NDA 1957 made by virtue of section 91B(1)(b), the Summary Appeal Court may not exercise its powers under paragraph (3) above in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the officer.

• (8) References in this article and article 99 to an order under section 91B(1) of NDA 1957 include such an order made after commencement by virtue of article 55 or 62.

SAC powers where suspended sentence of more than 90 days

99

• (1) This article applies where by virtue of article 98(3) the Summary Appeal Court substitutes an order under section 193(3) of AFA 2006 for an order under section 91B(1) of NDA 1957 in respect of a sentence for a term of more than 90 days.

• (2) The order must be an order that the suspended sentence shall take effect with the substitution for the original term of a specified term, which must be 90 days or less.

• (3) For the purposes of section 244 of AFA 2006 (limitation of combined term of sentences) the term of the sentence is to be treated as the term specified in the order under section 193(3).

• (4) For the purposes of this Part, the part of the sentence that exceeds 90 days is to be treated as a sentence passed by a court-martial under NDA 1957 and suspended under section 90(1) of NDA 1957 on the date when the order under section 91B(1) of NDA 1957 was made.

CHAPTER 4 — Consecutive activated sentences

Activated SDA sentence of imprisonment

100

• (1) An order under article 94 (activation of suspended SDA sentence of imprisonment) may provide that the sentence to which it relates shall take effect—

• (a) immediately;

• (b) from the end of another term of imprisonment which the court passes on the offender on the same occasion; or

• (c) from the end of another term of imprisonment which has been passed on the offender on a previous occasion.

• (2) In paragraph (1)(c) the reference to another term of imprisonment which has been passed on the offender does not include a term from which he has been released early under Part 2 of the Criminal Justice Act 1991 or Chapter 6 of Part 12 of the Criminal Justice Act 2003 .

Activated sentence of service detention

101

In sections 191(4) and 193(4) of AFA 2006 (powers to make activated sentence of service detention consecutive to another sentence) references to any other sentence of service detention that has been passed on a person on a previous occasion include an SDA sentence of service detention.

PART 14 — SENTENCING PRINCIPLES AND PROCEDURES

Sentencing principles and procedures: references to “service offence”, “service custody”, etc

102

In Part 9 of AFA 2006 (sentencing: principles and procedures)—

• (a) any reference to a service offence (except the reference in section 237(1)(c)) includes an SDA offence;

• (b) any reference to service custody is to be read, in relation to any time before commencement, as a reference to military custody, air-force custody or naval custody;

• (c) any reference to a person's being “charged” with an offence includes a person's being informed in accordance with regulations of the Defence Council that a charge is to be reported to the person's commanding officer under section 76(1) of AA 1955 or AFA 1955 or section 52B(1) of NDA 1957.

Increase in sentence for racial or religious aggravation

103

In section 240(3) of AFA 2006 (offences to which section 240 does not apply)—

• (a) the reference to an offence under section 42 of that Act includes an SDA civil offence;

• (b) the reference to the corresponding offence under the law of England and Wales includes the corresponding civil offence.

Limit on combined term of service detention

104

• (1) Section 244 of AFA 2006 (limit on combined term of sentences of service detention) is modified as follows.

• (2) For the purposes of the references in subsections (1) and (3) to “sentences of service detention”, an SDA sentence of service detention is to be treated as a sentence of service detention.

• (3) In subsection (4) the reference to a sentence of service detention includes an SDA sentence of service detention.

Limit on combined term: supplementary

105

• (1) Paragraphs (2) and (3) below apply, in addition to section 245 of AFA 2006, for the purposes of section 244 of that Act as modified by article 104.

• (2) A person is to be regarded as not subject to an SDA sentence of service detention if the sentence is for the time being suspended, within the meaning given by article 93.

• (3) Subject to paragraph (2), a person is to be regarded as subject to any SDA sentence of service detention that has been passed on him but—

• (a) has not taken effect; or

• (b) has ceased to have effect as a result of a relevant provision and has not resumed effect.

• (4) In paragraph (3) “a relevant provision” means—

• (a) section 118ZA(3) or (4) of AA 1955 or AFA 1955;

• (b) section 85A(4) or (5) of NDA 1957; or

• (c) section 290(5) or (6) or 291(6) or (7) of AFA 2006.

• (5) Section 245 of AFA 2006 (provision supplementary to section 244) is modified as follows.

• (6) For the purposes of the reference in subsection (5) to two or more sentences of service detention, an SDA sentence of service detention is to be treated as a sentence of service detention.

• (7) The reference in subsection (6) to section 290(3), (5) or (6) or 291(5), (6) or (7) includes a reference to section 118ZA(3) or (4) of AA 1955 or AFA 1955 or section 85A(4) or (5) of NDA 1957.

Crediting of time in service custody

106

• (1) In section 246 of AFA 2006 (crediting of time in service custody), the reference in subsection (3)(a)(i) to a sentence of service detention includes an SDA sentence of service detention.

• (2) In section 247 of AFA 2006 (crediting of time in service custody: supplementary), in subsection (3), the reference to a suspended sentence of imprisonment or a suspended sentence of service detention includes a sentence of imprisonment, or an SDA sentence of service detention, which (until an order that it shall take effect is made) is suspended within the meaning given by article 93.

• (3) For the purposes of the references in subsection (5) of that section to consecutive terms of service detention and terms of service detention which are wholly or partly concurrent, an SDA sentence of service detention is to be treated as a term of service detention.

PART 15 — APPEALS AND REFERENCES TO THE COURT MARTIAL APPEAL COURT

Interpretation

107

In this Part, “sentence” has the same meaning as in CMAA 1968.

Right of appeal against conviction or sentence by court-martial

108

• (1) In section 8(1) of CMAA 1968 the reference to the Court Martial includes a court-martial.

• (2) Where—

• (a) a court-martial dealt with a person—

• (i) under paragraph 3(2) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 for an offence in respect of which an order for conditional discharge had previously been made, or

• (ii) under paragraph 4(8) of any of those Schedules for an offence in respect of which a community supervision order had previously been made, and

• (b) the person was convicted of the offence by a Standing Civilian Court,

he is to be treated for the purposes of section 8(1) of CMAA 1968 as if he had been convicted of the offence by the court-martial.

• (3) In subsection (5) of section 268 of AFA 2006 (order that fine or compensation be paid by service parent or guardian) the reference to an order under that section includes an order made by a court-martial under paragraph 13 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

• (4) No appeal shall lie from—

• (a) an order by a court-martial under paragraph 14 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 requiring an offender's service parent or guardian to enter into a recognisance; or

• (b) a declaration by a court-martial that such a recognisance is forfeited (in whole or in part).

Right of appeal against activation of suspended SDA sentence by Court Martial or court-martial

109

• (1) Section 192 of AFA 2006 applies in relation to an order under article 94 (activation of suspended SDA sentence of imprisonment by Court Martial) as it applies in relation to an order under section 191 of AFA 2006.

• (2) Section 192(1) to (3) of AFA 2006 apply in relation to an order under section 120(5) of AA 1955 or AFA 1955 or section 91(1) of NDA 1957 (activation of suspended sentence of imprisonment or detention by court-martial) as they apply in relation to an order under section 191 of AFA 2006.

Application for leave to appeal against sentence by court-martial where previous conviction set aside

110

Section 228(3) of AFA 2006 applies, notwithstanding anything in section 9(1) of CMAA 1968, where—

• (a) a court-martial has sentenced a person for an SDA civil offence;

• (b) the corresponding civil offence was one to which section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 would apply;

• (c) the court imposed a sentence of life imprisonment or custody for life in accordance with section 70(3A) of AA 1955 or AFA 1955 or section 42(1A) of NDA 1957; and

• (d) any previous conviction of the person's without which section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 would not have applied to the corresponding civil offence has been subsequently set aside on appeal.

Quashing of conviction by court-martial

111

In section 12(1)(a) of CMAA 1968 (duty to allow appeal against unsafe conviction), the reference to the Court Martial includes a court-martial.

Power to re-sentence when some but not all convictions successfully appealed

112

• (1) This article applies, and section 13 of CMAA 1968 does not apply, where—

• (a) on a single occasion a person was sentenced by a court-martial in respect of two or more offences; and

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

• (2) If the appellant remains convicted of only one of the offences, the Appeal Court may pass a sentence in substitution for the sentence passed by the court-martial in respect of that offence.

• (3) If—

• (a) the appellant remains convicted of two or more of the offences,

• (b) the court-martial passed more than one sentence in respect of the offences of which he remains convicted, and

• (c) any of those sentences was in respect of only one of those offences,

the Appeal Court may pass a sentence in substitution for that sentence.

• (4) If—

• (a) the appellant remains convicted of two or more of the offences, and

• (b) any sentence passed by the court-martial was in respect of more than one of the offences of which he remains convicted,

the Appeal Court may pass, in substitution for that sentence, separate sentences in respect of both or all of the offences of which he remains convicted and in respect of which that sentence was passed.

• (5) A sentence passed under this article in respect of an offence must be a sentence that—

• (a) the court thinks appropriate; and

• (b) the Court Martial would have had power to pass in respect of the offence if Parts 1 to 13 of AFA 2006 had been in force and that court had convicted the appellant of the offence.

• (6) But the Appeal Court may not exercise its powers under this article in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the court-martial.

Substitution of conviction on different charge otherwise than after guilty plea

113

• (1) This article applies, and section 14 of CMAA 1968 does not apply, where—

• (a) an appellant has been convicted by a court-martial of an offence to which he did not plead guilty (“offence A”);

• (b) the court-martial could lawfully have found him guilty of some other offence (“offence B”); 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 offence B.

• (2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the finding in relation to offence A a finding of guilty of offence B.

• (3) Where the Appeal Court exercises the power conferred by paragraph (2), it may exercise any power that it would have had if—

• (a) the court-martial had convicted the appellant of offence B instead of offence A;

• (b) the court-martial had passed, in respect of offence B (and any other offence in respect of which the sentence in respect of offence A was passed), the sentence that it passed in respect of offence A; and

• (c) the appellant had appealed against that sentence.

Substitution of conviction on different charge after guilty plea

114

• (1) This article applies, and section 14A of CMAA 1968 does not apply, where—

• (a) an appellant has been convicted by a court-martial of an offence to which he pleaded guilty (“offence A”);

• (b) if he had not so pleaded, he could lawfully have pleaded guilty to, or been found guilty of, some other offence (“offence B”); and

• (c) it appears to the Appeal Court on an appeal against conviction that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of offence B.

• (2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the appellant's plea of guilty a plea of guilty of offence B.

• (3) Where the Appeal Court exercises the power conferred by paragraph (2), it may exercise any power that it would have had if—

• (a) the appellant had been charged with, and had pleaded guilty to, offence B instead of offence A;

• (b) the court-martial had passed, in respect of offence B (and any other offence in respect of which the sentence in respect of offence A was passed), the sentence that it passed in respect of offence A; and

• (c) the appellant had appealed against that sentence.

Variation of conviction so as to attract different sentence

115

• (1) On an appeal against conviction by court-martial, section 15(1) and (2) of CMAA 1968 apply notwithstanding their repeal by AFA 2006.

• (2) Where the Appeal Court exercises the power conferred by section 15(1) of CMAA 1968, article 113 or 114 (as the case may be) applies as if references to guilt of offence B were to guilt of offence A in circumstances involving the lower of the two degrees of punishment mentioned in that subsection.

• (3) Where the Appeal Court exercises the power conferred by section 15(2) of CMAA 1968, article 113 or 114 (as the case may be) applies as if references to guilt of offence B were to guilt of offence A subject to the exceptions or variations to which the finding substituted by the court is subject.

Effect of appeal, or application for leave to appeal, against sentence

116

Section 16A(1) of CMAA 1968 (appeal, or application for leave to appeal, against one sentence treated as appeal or application in respect of other sentences) applies where a court-martial passed two or more sentences on a person on the same occasion.

Powers of Appeal Court on appeal against sentence

117

• (1) This article applies, and section 16A(2) and (3) of CMAA 1968 do not apply, on an appeal against one or more sentences passed by a court-martial.

• (2) If the appeal is against a sentence passed in respect of one offence, the Appeal Court may pass a sentence in substitution for that sentence.

• (3) If the appeal is against a sentence passed in respect of two or more offences, the Appeal Court may pass, in substitution for that sentence, separate sentences in respect of both or all the offences.

• (4) If the appeal is against two or more sentences, paragraph (2) or (3) (as the case may be) applies in relation to each of the sentences.

• (5) A sentence passed under this article in respect of an offence must be a sentence that—

• (a) the court thinks appropriate; and

• (b) the Court Martial would have had power to pass in respect of the offence if Parts 1 to 13 of AFA 2006 had been in force and that court had convicted the appellant of the offence.

• (6) But the Appeal Court may not exercise its powers under this article in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the court-martial.

• (7) If the sentence (or any of the sentences) passed by the court-martial included an order under section 120(5) of AA 1955 or AFA 1955 or section 91(1) of NDA 1957 (activation of suspended sentence), paragraphs (2) and (3) do not apply in relation to the order; but the Appeal Court may—

• (a) substitute for the order any order which the Court Martial would have had power to make under article 94 or (by virtue of article 95 or 96) section 191 of AFA 2006 if—

• (i) Parts 1 to 13 of that Act, and this Order, had been in force at the time of the conviction by virtue of which the court-martial made the order, and

• (ii) that conviction had been by the Court Martial;

• (b) quash the order; or

• (c) if the court-martial gave a direction under section 120(5B) of AA 1955 or AFA 1955 or section 91(2) of NDA 1957 (activated sentence to run from the end of another sentence), quash the direction.

• (8) In relation to an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 (failure to comply with requirements of a community supervision order) as respects which the court-martial imposed a fine under paragraph 4(10) of that Schedule, any reference in this article to a sentence which the Court Martial would have had power to pass in respect of the offence is to be read as a reference to any punishment in rows 2 to 7 of the Table in Part 1 of Schedule 3 to AFA 2006.

Term of sentence

118

• (1) In section 17(1) of CMAA 1968 (term of sentence) the reference to a sentence passed by the Appeal Court under section 13, 14, 14A or 16A of that Act includes a sentence passed under article 112, 113, 114 or 117.

• (2) In relation to a sentence passed by the Appeal Court in substitution for a sentence passed by a court-martial, the reference in section 17(1) of CMAA 1968 to the day on which the Court Martial passed sentence is to the day on which the court-martial passed sentence.

Retrial authorised by Appeal Court

119

• (1) Where the Appeal Court has made (whether before or after commencement) an order under section 19 of CMAA 1968 (power to authorise retrial) on quashing a conviction by court-martial, subsection (3) of that section applies without the amendments made by AFA 2006.

• (2) In paragraph (1), the reference to a conviction by court-martial includes a finding of not guilty by reason of insanity.

• (3) Where—

• (a) before commencement, the Appeal Court made an order under section 19 of CMAA 1968 for the retrial of a person on a charge, and

• (b) the charge is current at commencement,

the charge is to be regarded for the purposes of Part 5 of AFA 2006 as allocated for Court Martial trial.

• (4) For the purposes of this article a charge is “current at commencement” if, at commencement—

• (a) neither article 25 of this Order (saving of existing bars to service proceedings) nor Chapter 3 of Part 2 of AFA 2006 (double jeopardy) as modified by this Order prohibits the trial of the person by the Court Martial for the offence to which the charge relates;

• (b) proceedings on the charge have not been stayed; and

• (c) proceedings on the charge have not been discontinued under section 83B(8) of AA 1955 or AFA 1955 or section 52I(7) of NDA 1957, and no other charge has been substituted for it.

• (5) In section 20(1) of CMAA 1968 (requirement of leave for arraignment more than three months after making of order for retrial) the reference to an order under section 19 of that Act includes one made before commencement.

Appeal against finding of not guilty by reason of insanity

120

• (1) In section 21(1) of CMAA 1968 (appeal against finding of not guilty by reason of insanity) the reference to the Court Martial includes a court-martial.

• (2) In relation to an appeal brought by virtue of paragraph (1), the references to the Court Martial in section 22(2) and (3A) of CMAA 1968 are to be read as references to the court-martial.

• (3) Paragraph (4) applies, and section 22(3) of CMAA 1968 does not apply, where the Appeal Court substitutes a finding of guilty of an offence for a finding by court-martial of not guilty by reason of insanity.

• (4) The Appeal Court shall have the like powers of sentencing the appellant, and other powers, as the Court Martial would have had if Parts 1 to 13 of AFA 2006 had been in force and that court had convicted the appellant of the offence on the date when the court-martial found him not guilty by reason of insanity; and section 17 of CMAA 1968 applies as in the case of a sentence passed by the Appeal Court under article 112, 113, 114 or 117.

Appeal against finding of unfitness to stand trial

121

• (1) In section 24(1) of CMAA 1968 (appeal against finding of unfitness to stand trial) the reference to the Court Martial includes a court-martial.

• (2) Where, before commencement, the Appeal Court allowed an appeal under section 24 of CMAA 1968, paragraph (b) of section 25(2) of that Act applies as if the court had made an order under paragraph (a) of that subsection.

• (3) Where section 20 of CMAA 1968 applies by virtue of paragraph (2) above—

• (a) the Appeal Court is to be regarded for the purposes of that section as having made an order under section 25(2)(a) of that Act on the date on which the court allowed the appeal; and

• (b) references in that section to the setting aside of the order under section 19 of that Act are to be read as references to a direction by the Appeal Court that paragraph (2) above shall cease to apply.

Appeal against order made in cases of insanity or unfitness to stand trial

122

• (1) In section 25A(1) of CMAA 1968 (appeal against hospital order etc) the reference to the Court Martial includes a court-martial.

• (2) For the purposes of that subsection as it applies in relation to an order made by a court-martial, the reference in section 25A(2) of CMAA 1968 to a service supervision order is to be read as a reference to a supervision order.

• (3) In relation to an appeal under section 25A of CMAA 1968 by virtue of paragraphs (1) and (2) above, references in section 25B(1) of that Act to the Court Martial are to be read as references to the court-martial.

• (4) For the purposes of section 25B(1) of CMAA 1968 (disposal of appeal against hospital order etc) as modified by paragraph (3) above, the court-martial shall be regarded as having had power to make a service supervision order (as defined by section 170 of AFA 2006) if it had power to make a supervision order.

• (5) In section 25B(4) of CMAA 1968, the reference to a service supervision order includes a supervision order.

• (6) In this article, “supervision order” has the meaning given by section 116A(6) of AA 1955 or AFA 1955 or section 63A(6) of NDA 1957, as the case may be.

Costs of successful appeal

123

In relation to an appeal from a court-martial, section 31 of CMAA 1968 applies without the amendment made by AFA 2006.

Reference of cases by Service authorities

124

• (1) In section 34(1) of CMAA 1968, the first reference to the Court Martial includes a court-martial.

• (2) In relation to a person convicted by a court-martial, other references in section 34 of that Act to the Court Martial are to be read as references to the court-martial.

• (3) Section 34(1) and (2) of CMAA 1968 apply in relation to a finding by a court-martial of not guilty by reason of insanity as they apply in relation to a conviction by court-martial.

Provision of record of proceedings of court-martial

125

In relation to an appeal or application for leave to appeal from a court-martial, section 37 of CMAA 1968 has effect as if for the words “a record of the proceedings of the Court Martial” there were substituted “a record of the proceedings of the court-martial and any petition presented by the appellant or applicant”.

Appeal to House of Lords or Supreme Court

126

• (1) In relation to an appeal brought from a decision of the Appeal Court before commencement, the reference in section 41(3) of CMAA 1968 (powers of the Supreme Court) to the powers of the Appeal Court is to be read as to the powers that the Appeal Court would have had if it had heard the appeal after commencement.

• (2) Where—

• (a) the Secretary of State made an application before commencement for leave to appeal to the House of Lords or the Supreme Court, and

• (b) the Appeal Court, the House of Lords or the Supreme Court dismisses the application,

section 47(1) of CMAA 1968 applies as if the application had been made by the Director of Service Prosecutions.

• (3) In relation to an appeal from a decision of the Appeal Court where the appeal to that court was brought from a court-martial, section 47(3) of CMAA 1968 applies without the amendment made by AFA 2006.

Duties of registrar with respect to appeals etc

127

In relation to an appeal or application for leave to appeal from a court-martial, section 50(1) of CMAA 1968 (duties of registrar with respect to appeals etc) applies without the amendment made by AFA 2006.

Saving for prerogative

128

In section 54(1) of CMAA 1968 (saving for right of Her Majesty to quash a conviction) the reference to the Court Martial includes a court-martial.

Review of unduly lenient sentence for SDA offence

129

• (1) Where, immediately before commencement, a reference has been made under section 113C(1) of AA 1955 or AFA 1955 or section 71AC(1) of NDA 1957 (review of unduly lenient sentence by Appeal Court) but the Appeal Court has not concluded its review of the case, the reference has effect after commencement as a reference under section 273(1) of AFA 2006.

• (2) In section 273(1)(a) of AFA 2006—

• (a) the reference to a sentence passed by the Court Martial—

• (i) includes a sentence passed by a court-martial;

• (ii) does not include a sentence passed on an appeal under paragraph 18 of Schedule 3 to AFA 1976 or by virtue of article 134 (appeal from Standing Civilian Court);

• (b) the reference to an offence under section 42 of AFA 2006 includes an SDA civil offence.

• (3) In relation to a sentence passed by the Court Martial in respect of an SDA civil offence, the reference in section 273(2) of AFA 2006 to the corresponding offence under the law of England and Wales is to be read as a reference to the corresponding civil offence.

• (4) In relation to a sentence passed by a court-martial, section 273(1) of AFA 2006 has effect as if for paragraph (b) there were substituted—

(b) that section 113C of the Army Act 1955 (c. 18) or the Air Force Act 1955 (c. 19) or section 71AC of the Naval Discipline Act 1957 (c. 53) applied to the case,

; and section 273(2) and (3) of AFA 2006 do not apply.

• (5) For the purposes of section 273(1)(a) of AFA 2006, the Attorney General may consider that a sentence passed by the Court Martial is unduly lenient if he considers that the sentence is not that required by article 89 (sentences required by SDAs); but this paragraph is without prejudice to section 273(6) of AFA 2006, and nothing in it limits section 273(1)(a).

• (6) For the purposes of section 273(1)(a) of AFA 2006, the Attorney General may consider that a sentence passed by a court-martial is unduly lenient if he considers—

• (a) that the court-martial erred in law as to its powers of sentencing; or

• (b) that the sentence is not that required by section 70(3A) of AA 1955 or AFA 1955 or section 42(1A) of NDA 1957;

but nothing in this paragraph limits section 273(1)(a) of AFA 2006.

• (7) Where, immediately before commencement, leave for a reference has been granted under section 113C(1) of AA 1955 or AFA 1955 or section 71AC(1) of NDA 1957 but the reference has not been made, the leave has effect after commencement as leave granted under section 273(4) of AFA 2006.

• (8) Paragraphs (9) to (11) apply, and section 273(5) of AFA 2006 does not apply, on a reference under section 273(1) of that Act of a case in which sentence was passed by a court-martial (including a reference which by virtue of paragraph (1) above has effect as a reference under that subsection).

• (9) If the court-martial passed sentence in respect of one offence, article 117(2) applies as if the reference were an appeal against the sentence; but article 117(6) does not apply.

• (10) If the court-martial passed one sentence in respect of two or more offences, article 117(3) applies as if the reference were an appeal against the sentence; but article 117(6) does not apply.

• (11) If the court-martial passed two or more sentences, article 117(4) applies as if the reference were an appeal against the sentences; but article 117(6) does not apply.

• (12) On—

• (a) a reference which by virtue of paragraph (1) has effect as a reference under section 273(1) of AFA 2006, or

• (b) a reference under that subsection of a case in which sentence was passed by a court-martial, where the Attorney General applied for leave to refer the case under section 113C(1) of AA 1955 or AFA 1955 or section 71AC(1) of NDA 1957 before commencement,

section 273(7) of AFA 2006 applies as enacted.

• (13) In section 274(1) of AFA 2006 (reference of point of law to Supreme Court), the reference to a case referred to the Appeal Court under section 273(1) of that Act includes a case referred to the Appeal Court under section 113C(1) of AA 1955 or AFA 1955 or section 71AC(1) of NDA 1957.

• (14) Where—

• (a) a point of law has been referred to the House of Lords or the Supreme Court under section 113C(4) of AA 1955 or AFA 1955 or section 71AC(4) of NDA 1957, and

• (b) neither the House of Lords nor the Supreme Court has exercised its powers under that subsection,

section 274(4) and (5) of AFA 2006 apply as if the point of law had been referred under section 274(1).

Compensation for miscarriages of justice

130

• (1) For the purposes of section 276 of AFA 2006 (compensation for miscarriages of justice) a person who was convicted by a court-martial is to be regarded as having been convicted by the Court Martial; but that section does not apply in relation to such a person if—

• (a) any compensation assessed to be payable to him under section 10 of AFA 1991 was paid in full before commencement; or

• (b) the Secretary of State determined under section 10(3) of that Act that there was no right to such compensation.

• (2) Section 276(7A) of AFA 2006 does not apply in relation to a conviction as respects which an application for compensation was made under section 10 of AFA 1991 before commencement.

• (3) In relation to a conviction which was reversed before commencement, or a pardon which was given before commencement, the reference in section 276(3) of AFA 2006 to the date on which the conviction is reversed, or the person concerned is pardoned, is to be read as a reference to commencement.

• (4) Where an application for compensation under section 10 of AFA 1991 was made before commencement but the Secretary of State did not determine under section 10(3) of that Act whether there was a right to compensation, the application is to be regarded as an application for compensation under section 276 of AFA 2006.

• (5) Where the Secretary of State determined that there was a right to compensation under section 10 of AFA 1991 but the amount payable was not assessed—

• (a) the Secretary of State is to be regarded as having determined that there is a right to compensation under section 276 of AFA 2006;

• (b) any person appointed under section 10(4) of AFA 1991 to assess the amount payable is to be regarded as having been appointed under section 276(5) of AFA 2006;

• (c) section 276(6) of AFA 2006 applies as if the substitution made by the Criminal Justice and Immigration Act 2008 had not been made; and

• (d) sections 276A and 276B of AFA 2006 do not apply.

• (6) Where the amount of any compensation payable under section 10 of AFA 1991 was assessed under that section but the compensation so assessed was not paid in full before commencement—

• (a) the amount so assessed is the amount payable under section 276 of AFA 2006, and subsection (5) of that section does not apply; and

• (b) any sums paid in pursuance of the assessment are to be regarded as having been paid under that section.

PART 16 — STANDING CIVILIAN COURTS AND THE SERVICE CIVILIAN COURT

Constitution of the Service Civilian Court

131

If before commencement a person is specified by or on behalf of the Judge Advocate General to be the judge advocate for Service Civilian Court proceedings intended to take place after commencement, the specification has effect after commencement as a specification under section 278(2) of AFA 2006.

Arraignment before a Standing Civilian Court

132

• (1) SCC rules may provide that a plea offered on arraignment before a Standing Civilian Court is to be treated, for such purposes as may be specified, as having been offered on arraignment before the Service Civilian Court.

• (2) Section 279 of AFA 2006 (consideration of whether trial by Court Martial more appropriate) does not apply in relation to a charge on which the defendant was arraigned before a Standing Civilian Court.

Maximum fine for SDA civil offence

133

In section 284(2) of AFA 2006 (maximum fine by Service Civilian Court for criminal conduct offence)—

• (a) the reference to an offence under section 42 of that Act includes an SDA civil offence;

• (b) the reference to the corresponding offence under the law of England and Wales includes the corresponding civil offence.

Appeal against conviction or sentence by Standing Civilian Court

134