The Armed Forces (Appeals Against Review of Sentence) Regulations 2024

Made: 7th May 2024

Laid before Parliament: 13th May 2024

Coming into force in accordance with regulation 1(2)

The Secretary of State makes these Regulations in exercise of the powers conferred by sections 304D(10) and (11), 304E(9) and (10), 373(5) and 380 of the Armed Forces Act 2006[^f00001].

Part 1 — Citation, commencement, extent and interpretation

Citation, commencement and extent

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• (1) These Regulations may be cited as the Armed Forces (Appeals Against Review of Sentence) Regulations 2024.

• (2) These Regulations come into force on the date on which sections 10 and 11 of the Armed Forces Act 2016[^f00002] come into force.

• (3) These Regulations extend to England and Wales, Scotland, Northern Ireland, the Isle of Man and the British overseas territories (except Gibraltar).

Interpretation

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In these Regulations—

• “the 1968 Act” means the Court Martial Appeals Act 1968[^f00003];

• “the 2006 Act” means the Armed Forces Act 2006;

• “advocacy services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right of audience in relation to any proceedings, or contemplated proceedings, to provide;

• “Appeal Court” means the Court Martial Appeal Court[^f00004];

• “appellant” means the person who applies for leave to appeal, or who is granted leave to appeal under Parts 2 or 3 of these Regulations;

• “Director of Service Prosecutions” has the meaning given by section 374 of the 2006 Act;

• “expert witness costs” means amounts payable in respect of the services of an expert witness, including amounts payable in connection with attendance by the witness at court or elsewhere;

• “legal costs” means fees, charges, disbursements and other amounts payable in respect of advocacy services or litigation services including, in particular, expert witness costs;

• “litigation services” means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to proceedings, or contemplated proceedings, to provide;

• “offender” means the person in respect of whom the referral under section 304D(4) or 304E(2) of the 2006 Act is made;

• “the registrar” means the registrar of the Appeal Court;

• “the Rules” means Rules of Court made under regulation 39;

• “sentence”, in relation to an offence, includes any order made by a court when dealing with an offender.

Part 2 — Appeals from the Court Martial under section 304D or 304E of the Armed Forces Act 2006

Chapter 1 — Initiating appeals

Application of these Regulations

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These Regulations apply to appeals against review of sentence, brought under sections 304D(8) or (9) (review of sentence following offer of assistance) or 304E(7) or (8) (review of sentence following failure to assist) of the 2006 Act.

Application for leave to appeal

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

• (2) The application must—

• (a) be in the form specified by the Rules;

• (b) specify—

• (i) the grounds on which leave to appeal is sought, and

• (ii) such other particulars, if any, as may be specified in the Rules.

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

• (4) The Rules may provide that an application which is lodged with a person other than the registrar is to be treated for the purposes of paragraph (1) as having been lodged with the registrar.

• (5) A person other than the registrar with whom an application is lodged in accordance with the Rules must—

• (a) forward the application to the registrar with as much expedition as practicable, and

• (b) if it appears to the person practicable to do so, and in all the circumstances expedient, forward the particulars of the application to the registrar before the registrar receives the application, as will enable the registrar to prepare a copy of it.

Consideration of application by Appeal Court

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In considering whether or not to give leave to appeal, the Appeal Court must have regard to any opinion expressed 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.

Detention of offender on appeal to Appeal Court

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• (1) This regulation applies where all of the following criteria apply—

• (a) the Court Martial has substituted a lesser sentence in accordance with section 304D(6) of the 2006 Act (the “decision under appeal”);

• (b) the Appeal Court has granted the Director of Service Prosecutions permission to appeal;

• (c) the Director of Service Prosecutions seeks a longer sentence than that substituted by the Court Martial; and

• (d) the effect of the substituted sentence is such that it is likely that the offender will be liable to be released prior to the conclusion of the appeal proceedings.

• (2) Where this regulations applies, the Appeal Court may make one of the following orders—

• (a) an order providing for the detention of the offender so long as the appeal is pending;

• (b) an order directing that, so long as the appeal is pending, the offender is not to be released except on bail.

• (3) Where an order under paragraph (2)(b) is made, the Appeal Court may grant the offender bail, from the end of the substituted sentence, pending the appeal.

• (4) An order under paragraph (2)(a) or (b), unless the appeal has previously been disposed of, is to cease to have effect at the expiration of the period for which the offender would have been liable to be detained but for the decision under appeal.

• (5) Where an order is made under this regulation for the detention of a person who, but for the decision under appeal, would be liable to be detained in pursuance of an order or direction under United Kingdom mental health legislation (see paragraph (6))—

• (a) the order must authorise that person’s continued detention in pursuance of that order or direction, and

• (b) the relevant provisions of that legislation with respect to persons liable to be detained under it (including provision as to the renewal of authority for detention and the removal or discharge of patients) apply accordingly.

• (6) The legislation referred to in paragraph (5) above is—

• (a) Part III of the Mental Health Act 1983;

• (b) the Mental Health (Care and Treatment) (Scotland) Act 2003[^f00005];

• (c) the Mental Health (Northern Ireland) Order 1986[^f00006].

• (7) The provisions of the Mental Health Act 1983[^f00007] with respect to community treatment orders (within the meaning of that Act) also apply for the purposes of paragraph (5).

• (8) The offender is not liable to be detained again as a result of the decision of the Appeal Court on appeal if the Appeal Court has made an order within paragraph (2)(a) or (b) but the order has ceased to have effect by virtue of paragraph (4) or the offender has been released or discharged by virtue of paragraph (5).

Chapter 2 — Disposal of appeal

Appeals against review of sentence

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• (1) Where, on a single occasion, the Court Martial passes two or more sentences on an offender, an appeal or application for leave to appeal against a review of any of those sentences is to be treated as an appeal or application in respect of both or all of them.

• (2) On appeal against a review of sentence the Appeal Court may quash the sentence to which the appeal relates and pass in substitution for it any sentence that—

• (a) it thinks appropriate, and

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

• (3) But the Appeal Court may not exercise its powers under paragraph (2) to pass a sentence that exceeds—

• (a) if the appeal is made under section 304D(8) or (9) (review of sentence following offer of assistance) of the 2006 Act in relation to a referral under section 304D(4) of that Act, the sentence to which the referral relates, or

• (b) if the appeal is made under section 304E(7) or (8) (review of sentence following failure to assist) of the 2006 Act in relation to a referral under section 304E(2) of that Act, the sentence that the Court Martial would have passed but for the agreement to give assistance.

Terms of sentence passed under regulation 7

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Unless the Appeal Court otherwise directs, a sentence passed by it under regulation 7 takes effect from the beginning of the day on which the Court Martial passed sentence.

Chapter 3 — General procedural provisions

Right of offender to be present

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• (1) An offender (whether or not in custody) is entitled to be present at the hearing of the appeal.

• (2) Paragraph (1) does not apply to an offender in custody—

• (a) where the appeal is on a ground involving only a question of law,

• (b) on an application for leave to appeal, or

• (c) on any proceedings preliminary to or incidental to an appeal,

unless the Appeal Court gives the offender leave to be present.

Evidence

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• (1) This regulation applies in relation to an appeal or an application for leave to appeal.

• (2) In this regulation “respondent” includes a person who will be a respondent if leave to appeal is granted.

• (3) The Appeal Court may—

• (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to the Appeal Court necessary for the determination of the case;

• (b) order any witness to attend for examination and be examined before the Appeal Court (whether or not the witness was called in the proceedings from which the appeal lies);

• (c) receive any evidence which was not adduced in the proceedings from which the appeal lies.

• (4) The power conferred by paragraph (3)(a) may be exercised so as to require the production of any document, exhibit or other thing mentioned in that paragraph to—

• (a) the Appeal Court;

• (b) the appellant;

• (c) the respondent.

• (5) The Appeal Court, in considering whether to receive any evidence, must have regard in particular to—

• (a) whether the evidence appears to the Appeal Court to be capable of belief;

• (b) whether it appears to the Appeal Court that the evidence may afford any ground for allowing the appeal.

• (6) Paragraph (3)(c) applies to any evidence of a witness (including the offender) who is competent but not compellable.

• (7) For the purposes of an appeal or an application for leave to appeal, the Appeal Court may order the examination of any witness whose attendance may be required under paragraph (3)(b) to be conducted in accordance with the Rules before—

• (a) any judge of the Appeal Court, or

• (b) any other person appointed by the Appeal Court for that purpose,

and allow the admission of any depositions so taken as evidence before the Appeal Court.

Power to call for report by member of the Court Martial

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The Appeal Court may order the taking of such steps as are required to obtain from any member of the Court Martial in the proceedings from which the appeal lies, a report giving that member’s opinion on the case or on any point arising in it, or containing a statement as to any facts of which the ascertainment appears to the Appeal Court to be material for the purpose of determining the case.

Other powers for facilitating the disposal of appeal

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• (1) Where any question arising on an appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the Appeal Court conveniently be conducted before it, the Appeal Court may order the reference of the question, in the manner prescribed by the Rules, for inquiry and report to a special commissioner appointed by it, and act upon the report of the commissioner so far as the Appeal Court thinks fit to adopt it.

• (2) The Appeal Court may appoint a person with special expert knowledge to act as assessor to the Appeal Court in any case where it appears to it that such knowledge is required for the proper determination of the case.

• (3) Regulations made by the Lord Chancellor may provide for remuneration and travelling and subsistence allowances to be paid out of moneys provided by Parliament to—

• (a) a special commissioner to whom a question is referred under this regulation for an inquiry and report;

• (b) a person appointed as assessor to the Appeal Court.

Chapter 4 — Costs

Costs against the Secretary of State

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• (1) This regulation applies when the Appeal Court—

• (a) allows an appeal brought by an offender, or

• (b) dismisses an appeal or application for leave to appeal brought by the Director of Service Prosecutions.

• (2) Where this regulation applies, the Appeal Court may, if it thinks fit, direct the payment by the Secretary of State of costs to the offender.

• (3) The costs which may under this section be directed to be paid are such sums as appear to the Appeal Court reasonably sufficient to compensate the offender for any expenses properly incurred by the offender in the proceedings (in the Appeal Court and below), subject to paragraph (4), regulation 14 and regulations made under regulation 18.

• (4) Where the Appeal Court considers that there are circumstances that make it inappropriate for the offender to recover the whole of the sums mentioned in paragraph (3), a direction under this regulation must be made for the payment of such lesser sums as it considers just and reasonable.

• (5) The Appeal Court must fix the sums to be paid by the Secretary of State in the direction if the Appeal Court considers it appropriate to do so and—

• (a) the offender agrees the sums, or

• (b) paragraph (4) applies.

• (6) Where the Appeal Court does not fix the sums to be paid by the Secretary of State in the direction—

• (a) it must describe in the direction any reduction required under paragraph (4), and

• (b) the sums must be fixed by means of a determination made by or on behalf of the Appeal Court in accordance with procedures specified in regulations made by the Lord Chancellor under regulation 18.

Legal costs

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