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Provision affected
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Amendment
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(1)
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(2)
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Section 13
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(a) Delete “(when confirmed)”.
(b) Renumber the existing provision as subsection (1) of that section.
(c) Insert the following subsection:
“(2) A person in respect of whom a finding or order of committal is made under section 202 or 203 of the Act of 1954 may appeal that finding or order of committal to the Court.”.
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Section 17
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(a) In subsection (1), substitute “military judge presiding at the court-martial” for “president or the judge-advocate of the court-martial”.
(b) Delete subsection (2).
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Section 19
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Insert “(other than an appeal under sections 203B to 203D (inserted by the Defence (Amendment) Act 2007) of the Act of 1954)” after “If on any appeal”.
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New sections
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Insert the following sections after section 19:
“Appeals (mental disorder at time of trial).
19A.—Where an appeal is made to the Court under section 203B (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 from a finding by a court-martial pursuant to section 202 of that Act, the Court shall, if it allows the appeal, order that the appellant be tried or retried, as the case may be, by court-martial for the offence alleged.
Appeals (mental disorder at time of commission of offence).
19B.—(1) A person tried for an offence by court-martial and found not guilty by reason of insanity may appeal to the Court against the finding on all or any of the following grounds:
(a) that it was not proved that the person did the act or made the omission in question;
(b) that the person was not, at the time when he did the act or made the omission, suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954;
(c) that the military judge ought to have made a finding in respect of the person that he was unfit to take his trial.
(2) If on an appeal to the Court on the ground referred to in subsection (1)(a) of this section, the Court is satisfied that it was not established that the appellant did the act or made the omission in question it shall order that the appellant be acquitted.
(3) If, on an appeal to the Court on the ground referred to in subsection (1)(b) of this section, the Court is satisfied that the appellant did the act or made the omission alleged but having considered the evidence or any new evidence relating to the mental condition of the appellant given by a consultant psychiatrist is satisfied that he was not suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954, the Court shall substitute a verdict of guilty of the offence charged or of any other offence of which it is satisfied that the person could (by virtue of the charge) and ought to have been convicted, and shall have the like powers of punishing or otherwise dealing with the person as the court-martial concerned would have had if the person had been convicted of the offence in respect of which the verdict of guilty has been so substituted.
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(4) If, on appeal to the Court on the ground set out at subsection (1)(c) of this section, the Court is satisfied that the appellant ought to have been found unfit to take his trial it shall make a finding to that effect and, in that case the provisions of section 202(1)(b) of the Act of 1954 shall apply.
(5) If on appeal to the Court, the Court is satisfied, having considered the evidence or any new evidence relating to the mental condition of the appellant, that he was at the time that the offence alleged was committed suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954 and that but for that disorder the appellant would have been found guilty of the offence charged or of another offence of which the person could have been found guilty by virtue of the charge, the Court shall dismiss the appeal.
(6) In this section and in section 19C of this Act ‘consultant psychiatrist’ has the same meaning as in the
Mental Health Act 2001
.
Appeals (supplementary provisions).
19C.—(1) Where an appeal is made to the Court against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or 203(2) of the Act of 1954, the Court may, having considered the evidence or any new evidence relating to the mental condition of the person charged given by a consultant psychiatrist, make such order, being an order that it was open to the court-martial to make, as it considers appropriate and, without prejudice to the provisions of
section 13
of the
Criminal Law (Insanity) Act 2006
relating to the review of orders of committal, no further appeal shall lie from an order made on an appeal under this section.
(2) Where the Court allows an appeal against a conviction or against a verdict of not guilty by reason of insanity on the ground that the appellant ought to have been found unfit to take his trial, or allows an appeal against a conviction on the ground that the appellant ought to have been found not guilty by reason of insanity, it shall have the same powers to deal with the appellant as the court-martial concerned would have had under section 202 or 203 of the Act of 1954 if it had come to the same conclusion.
(3) All ancillary and procedural provisions contained in a statute or an instrument made under statute relating to appeals against convictions, including provisions relating to leave to appeal, shall apply with the necessary modifications to appeals under sections 19A and 19B of this Act and subsection (1) of this section.
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(4) The powers of the Court in an appeal under section 19A or 19B of this Act or subsection (1) of this section shall include the power to make any such order as may be necessary for the purpose of doing justice in accordance with the provisions of this Act and the
Criminal Law (Insanity) Act 2006
.”.
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Section 22
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Substitute “the Director of Military Prosecutions” for “the person who convened the court-martial by which the appellant was tried or by his successor in office duly empowered to convene courts-martial”.
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New sections
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Insert the following sections after section 22:
“Case stated for the Court on question of law.
22A.—Where an appeal is made to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954, the military judge—
(a) shall, if requested by the appellant or the respondent, unless the military judge considers the request frivolous, and
(b) may, without request,
refer any question of law arising in that appeal to the Court for determination in accordance with this Act.
Review of certain sentences.
22B.—(1) An application by the Director of Military Prosecutions under section 212B (inserted by the Defence (Amendment) Act 2007) of the
Defence Act 1954
to review a sentence awarded by a court-martial shall be made, on notice given to the convicted person, within 28 days or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on which the sentence was awarded.
(2) On such an application, the Court may either—
(a) quash the sentence and in its place award to the convicted person the sentence it considers appropriate, being a sentence which could have been awarded to him by the court-martial concerned, or
(b) refuse the application.”.
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Section 26
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Substitute the following for paragraph (b):
“(b) any of the provisions of the Act of 1954 or any instrument made under that Act permit the accused to be represented by counsel or by a solicitor at the investigation of the charge or the taking down of the evidence pursuant to any such provisions or instrument (or at both such investigation and such taking down of evidence),”.
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Section 27
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(a) In subsection (1)—
(i) substitute the following for paragraph (a):
“(a) a person (in this section referred to as ‘the accused’)—
(i) is, at the direction of the Director of Military Prosecutions, to be tried by court-martial, or
(ii) appeals to the summary court-martial pursuant to section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954,
and”,
and
(ii) insert “or of his appeal, as the case may be,” after “the trial”.
(b) In subsection (2)(c)(ii)—
(i) insert “or appeal, as the case may be” after “set up”, and
(ii) insert “or of his appeal, as the case may be” after “trial”.
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New section
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Insert the following section after section 27:
“Legal aid (case stated) certificate.
27A.—(1) Where—
(a) a person appeals to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 and the military judge before whom the appeal is heard refers a question of law arising in the proceedings to the Court pursuant to section 22A of this Act, and
(b) a certificate for free legal aid (in this Part of this Act referred to as ‘a legal aid (case stated) certificate’) is granted in respect of the person by the prescribed authority or under subsection (3) of this section,
the person shall be entitled to free legal aid in the preparation and conduct of his case in relation to the case stated and to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.
(2) A legal aid (case stated) certificate shall be granted in respect of the person concerned if (but only if)—
(a) application is made therefor,
(b) it appears to the prescribed authority that the means of the person are insufficient to enable him to obtain legal aid, and
(c) it appears to the prescribed authority that, by reason of the serious nature of the offence with which the person is charged or of exceptional circumstances, it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person.
(3) Where, in relation to a case stated, a person is refused a legal aid (case stated) certificate by the prescribed authority, he may apply for the certificate to the Court either—
(a) by letter addressed to the registrar of the Court setting out the facts of the case and the grounds of the application, or
(b) to the Court itself,
and the Court shall grant the certificate if (but only if)—
(i) it appears to the Court that the means of the person are insufficient to enable him to obtain legal aid, and
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(ii) it appears to the Court that, by reason of the serious nature of the offence with which the person is charged or of exceptional circumstances, it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person.
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Section 28(1)
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(a) Substitute the following for paragraph (a):
“(a) a person (in this section referred to as ‘the accused’)—
(i) is convicted by a court-martial, or
(ii) is found to be unfit to take his trial pursuant to section 202 of the Act of 1954, or
(iii) is found not guilty by reason of insanity pursuant to section 203 of the Act of 1954,
and”.
(b) Insert “or against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or section 203(2) of the Act of 1954” after “and such sentence”.
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Section 34
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In subsection (1), substitute “€2,000” for “£100”.
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