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Criminal Justice Bill


Criminal Justice Bill
Schedule 5 — Evidence of bad character: armed forces

    225

 

Conspiracy

Conspiracy

  62       An offence under Article 9 of the Criminal Attempts and Conspiracy

(Northern Ireland) Order 1983 of conspiracy to commit an offence listed in

this Part of this Schedule.

5

Part 3

Supplementary

  63       A reference in this Schedule to an offence includes a reference to an offence

of aiding, abetting, counselling or procuring the commission of the offence.

  64       A reference in this Schedule to an enactment includes a reference to the

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enactment as enacted and as amended from time to time.

Schedule 5

Section 97

 

Evidence of bad character: armed forces

  1        Sections 81 to 90, 93, 94 and 96, in so far as they are not applied in relation to

proceedings before service courts by provision contained in or made under

15

any other Act, have effect in relation to such proceedings (whether in the

United Kingdom or elsewhere) as they have effect in relation to criminal

proceedings.

  2        Section 86, as it applies in relation to proceedings before service courts, has

effect with the substitution in subsection (1)(a) of “charge sheet” for “written

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charge or indictment”.

  3       (1)      Section 91 has effect in relation to proceedings before courts-martial

(whether in the United Kingdom or elsewhere) with the following

modifications.

          (2)      In subsection (1)—

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              (a)             for “judge and jury” substitute “court-martial”;

              (b)             for “the court is satisfied” substitute “the judge advocate is satisfied”;

              (c)             for the words after paragraph (b) substitute “the judge advocate

must either direct the court to acquit the defendant of the offence or,

if he considers that there ought to be a retrial, dissolve the court.”

30

          (3)      In subsection (2)—

              (a)             for “jury” substitute “court”;

              (b)             for “the court is satisfied” substitute “the judge advocate is satisfied”.

          (4)      In subsection (3)—

              (a)             for paragraph (a) substitute—

35

                           “(a)                             a court is required to determine under section 115B(2)

of the Army Act 1955, section 115B(2) of the Air Force

Act 1955 or section 62B(2) of the Naval Discipline Act

1957 whether a person charged with an offence did

the act or made the omission charged,”;

40

 

 

Criminal Justice Bill
Schedule 6 — Hearsay evidence: armed forces

    226

 

              (b)             for “the court is satisfied” substitute “the judge advocate is satisfied”;

              (c)             for the words after paragraph (c) substitute “the judge advocate must

either direct the court to acquit the defendant of the offence or, if he

considers that there ought to be a rehearing, dissolve the court.”

          (5)      For subsection (4) substitute—

5

              “(4)                This section does not prejudice any other power a judge advocate

may have to direct a court to acquit a person of an offence or to

dissolve a court.”

  4        Section 94, as it applies in relation to proceedings before service courts, has

effect with the substitution of the following for subsection (1)—

10

              “(1)                Where the court makes a relevant ruling—

                    (a)                   it must state in open court (but, in the case of a ruling by a

judge advocate in proceedings before a court-martial, in the

absence of the other members of the court) its reasons for the

ruling;

15

                    (b)                   if it is a Standing Civilian Court, it must cause the ruling and

the reasons for it to be entered in the note of the court’s

proceedings.”

  5        Section 95 has effect as if, in subsection (7), the definition of “rules of court”

included rules regulating the practice and procedure of service courts.

20

  6       (1)      In this Schedule, and in section 91 as applied by this Schedule, “court-

martial” means a court-martial constituted under the Army Act 1955

(3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval

Discipline Act 1957 (c. 53).

          (2)      In this Schedule “service court” means—

25

              (a)             a court-martial;

              (b)             a summary appeal court constituted under section 83ZA of the Army

Act 1955, section 83ZA of the Air Force Act 1955 or section 52FF of

the Naval Discipline Act 1957;

              (c)             the Courts-Martial Appeal Court;

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              (d)             a Standing Civilian Court.

Schedule 6

Section 118

 

Hearsay evidence: armed forces

Application to proceedings before service courts

  1        Sections 107 to 104, 106, 107, 109, 110 to 112 and 116 to 117, in so far as they

35

are not applied in relation to proceedings before service courts by provision

contained in or made under any other Act, have effect in relation to such

proceedings (whether in the United Kingdom or elsewhere) as they have

effect in relation to criminal proceedings.

  2       (1)      In their application to such proceedings those sections have effect with the

40

following modifications.

 

 

Criminal Justice Bill
Schedule 6 — Hearsay evidence: armed forces

    227

 

          (2)      In section 99(2)(c) for “United Kingdom” substitute “country where the court

is sitting”.

          (3)      In section 100 insert after subsection (7)—

              “(8)                In subsection (4) “criminal proceedings” includes summary

proceedings under section 76B of the Army Act 1955, section 76B of

5

the Air Force Act 1955 or section 52D of the Naval Discipline Act

1957; and the definition of “criminal proceedings” in section 117(1)

has effect accordingly.”

          (4)      In section 106(4) for paragraph (a) substitute—

                    “(a)                      in the case of proceedings before a court-martial, proceedings

10

held for the determination of the issue must take place before

the judge advocate in the absence of the other members of the

court;”.

          (5)      In section 110, for subsection (7) substitute—

              “(7)                The appropriate rules are those regulating the practice and

15

procedure of service courts.”

          (6)      In section 115(10), at the end of the definition of “rules of court” insert—

                                        “(d)                        rules regulating the practice and procedure of service

courts.”

          (7)      In section 117 insert after subsection (1)—

20

              “(1A)                In this Part “criminal investigation” includes any investigation

which may lead—

                    (a)                   to proceedings before a court-martial or Standing Civilian

Court, or

                    (b)                   to summary proceedings under section 76B of the Army Act

25

1955, section 76B of the Air Force Act 1955 or section 52D of

the Naval Discipline Act 1957.”

  3       (1)      Section 105 has effect in relation to proceedings before courts-martial

(whether in the United Kingdom or elsewhere) with the following

modifications.

30

          (2)      In subsection (1) for “judge and jury” substitute “court-martial”.

          (3)      In subsection (2)—

              (a)             for “jury when they retire to consider their” substitute “court when it

retires to consider its”.

              (b)             for “the court” in paragraph (a) substitute “the judge advocate”;

35

              (c)             for “the jury” in paragraph (b) substitute “the court”.

  4       (1)      Section 108 has effect in relation to proceedings before courts-martial

(whether in the United Kingdom or elsewhere) with the following

modifications.

          (2)      In subsection (1)—

40

              (a)             for “judge and jury” substitute “court-martial”;

              (b)             for “the court is satisfied” substitute “the judge advocate is satisfied”;

              (c)             for the words after paragraph (b) substitute “the judge advocate

must either direct the court to acquit the defendant of the offence or,

if he considers that there ought to be a retrial, dissolve the court.”

45

          (3)      In subsection (2)—

 

 

Criminal Justice Bill
Schedule 6 — Hearsay evidence: armed forces

    228

 

              (a)             for “jury” substitute “court”;

              (b)             for “the court is satisfied” substitute “the judge advocate is satisfied”.

          (4)      In subsection (3)—

              (a)             for paragraph (a) substitute—

                           “(a)                             a court is required to determine under section 115B(2)

5

of the Army Act 1955, section 115B(2) of the Air Force

Act 1955 or section 62B(2) of the Naval Discipline Act

1957 whether a person charged with an offence did

the act or made the omission charged,”;

              (b)             for “the court is satisfied” substitute “the judge advocate is satisfied”;

10

              (c)             for the words after paragraph (b) substitute “the judge advocate

must either direct the court to acquit the defendant of the offence or,

if he considers that there ought to be a rehearing, dissolve the court.”

          (5)      For subsection (4) substitute—

              “(4)                This section does not prejudice any other power a judge advocate

15

may have to direct a court to acquit a person of an offence or to

dissolve a court.”

Amendments

  5        For paragraph 1 of Schedule 1 to the Courts-Martial (Appeals) Act 1968

(c. 20) (use at retrial under Naval Discipline Act 1957 of record of evidence

20

given at original trial) substitute—

          “1                  Evidence given at the retrial of any person under section 19 of this

Act shall be given orally if it was given orally at the original trial,

unless—

                      (a)                     section 99 of the Criminal Justice Act 2003 applies

25

(admissibility of hearsay evidence where a witness is

unavailable); or

                      (b)                     the witness is unavailable to give evidence, otherwise than

as mentioned in subsection (2) of that section, and section

107(1)(d) of that Act applies (admission of hearsay

30

evidence under residual discretion).”

  6        For paragraph 3 of that Schedule (use at retrial under Army Act 1955 of

record of evidence given at original trial) substitute—

          “3                  Evidence given at the retrial of any person under section 19 of this

Act shall be given orally if it was given orally at the original trial,

35

unless—

                      (a)                     section 99 of the Criminal Justice Act 2003 applies

(admissibility of hearsay evidence where a witness is

unavailable); or

                      (b)                     the witness is unavailable to give evidence, otherwise than

40

as mentioned in subsection (2) of that section, and section

107(1)(d) of that Act applies (admission of hearsay

evidence under residual discretion).”

  7        For paragraph 5 of that Schedule (use at retrial under Air Force Act 1955 of

 

 

Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 1 — Preliminary

    229

 

record of evidence given at original trial) substitute—

          “5                  Evidence given at the retrial of any person under section 19 of this

Act shall be given orally if it was given orally at the original trial,

unless—

                      (a)                     section 99 of the Criminal Justice Act 2003 applies

5

(admissibility of hearsay evidence where a witness is

unavailable); or

                      (b)                     the witness is unavailable to give evidence, otherwise than

as mentioned in subsection (2) of that section, and section

107(1)(d) of that Act applies (admission of hearsay

10

evidence under residual discretion).”

Interpretation

  8        In this Schedule, and in any provision of this Part as applied by this

Schedule—

                    “court-martial” means a court-martial constituted under the Army Act

15

1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or

the Naval Discipline Act 1957 (c. 53);

                    “service court” means—

                    (a)                   a court-martial;

                    (b)                   a summary appeal court constituted under section 83ZA of

20

the Army Act 1955, section 83ZA of the Air Force Act 1955 or

section 52FF of the Naval Discipline Act 1957;

                    (c)                   the Courts-Martial Appeal Court;

                    (d)                   a Standing Civilian Court.

Schedule 7

25

Section 161

 

Breach, revocation or amendment of community order

Part 1

Preliminary

Interpretation

  1        In this Schedule—

30

                    “the offender”, in relation to a community order, means the person in

respect of whom the order is made;

                    “the petty sessions area concerned”, in relation to a community order,

means the petty sessions area for the time being specified in the

order;

35

                    “the responsible officer” has the meaning given by section 179.

  2        In this Schedule—

              (a)             references to a drug rehabilitation requirement of a community

order being subject to review are references to that requirement

being subject to review in accordance with section 192(1)(b);

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Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 2 — Breach of requirement of order

    230

 

              (b)             references to the court responsible for a community order imposing

a drug rehabilitation requirement which is subject to review are to be

construed in accordance with section 192(4).

  3        For the purposes of this Schedule—

              (a)             a requirement falling within any paragraph of section 159(1) is of the

5

same kind as any other requirement falling within that paragraph,

and

              (b)             an electronic monitoring requirement is a requirement of the same

kind as any requirement falling within section 159(1) to which it

relates.

10

Orders made on appeal

  4        Where a community order has been made on appeal, it is to be taken for the

purposes of this Schedule to have been made by the Crown Court.

Part 2

Breach of requirement of order

15

Duty to give warning

  5       (1)      If the responsible officer is of the opinion that the offender has failed without

reasonable excuse to comply with any of the requirements of a community

order, the officer must give him a warning under this paragraph unless—

              (a)             the offender has within the previous twelve months been given a

20

warning under this paragraph in relation to a failure to comply with

any of the requirements of the order, or

              (b)             the officer causes an information to be laid before a justice of the

peace in respect of the failure.

          (2)      A warning under this paragraph must—

25

              (a)             describe the circumstances of the failure,

              (b)             state that the failure is unacceptable, and

              (c)             inform the offender that if within the next twelve months he again

fails to comply with any requirement of the order, he will be liable to

be brought before a court.

30

          (3)      The responsible officer must, as soon as practicable after the warning has

been given, record that fact.

          (4)      In relation to any community order which was made by the Crown Court

and does not include a direction that any failure to comply with the

requirements of the order is to be dealt with by a magistrates’ court, the

35

reference in sub-paragraph (1)(b) to a justice of the peace is to be read as a

reference to the Crown Court.

Breach of order after warning

  6       (1)      If—

              (a)             the responsible officer has given a warning under paragraph 5 to the

40

offender in respect of a community order, and

              (b)             at any time within the twelve months beginning with the date on

which the warning was given, the responsible officer is of the

 

 

Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 2 — Breach of requirement of order

    231

 

opinion that the offender has since that date failed without

reasonable excuse to comply with any of the requirements of the

order,

                   the officer must cause an information to be laid before a justice of the peace

in respect of the failure in question.

5

          (2)      In relation to any community order which was made by the Crown Court

and does not include a direction that any failure to comply with the

requirements of the order is to be dealt with by a magistrates’ court, the

reference in sub-paragraph (1) to a justice of the peace is to be read as a

reference to the Crown Court.

10

Issue of summons or warrant by justice of the peace

  7       (1)      This paragraph applies to—

              (a)             a community order made by a magistrates’ court, or

              (b)             any community order which was made by the Crown Court and

includes a direction that any failure to comply with the requirements

15

of the order is to be dealt with by a magistrates’ court.

          (2)      If at any time while a community order to which this paragraph applies is in

force it appears on information to a justice of the peace acting for the petty

sessions area concerned that the offender has failed to comply with any of

the requirements of the order, the justice may—

20

              (a)             issue a summons requiring the offender to appear at the place and

time specified in it, or

              (b)             if the information is in writing and on oath, issue a warrant for his

arrest.

          (3)      Any summons or warrant issued under this paragraph must direct the

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offender to appear or be brought—

              (a)             in the case of a community order imposing a drug rehabilitation

requirement which is subject to review, before the magistrates’ court

responsible for the order, or

              (b)             in any other case, before a magistrates’ court acting for the petty

30

sessions area concerned.

          (4)      Where a summons issued under sub-paragraph (2)(a) requires the offender

to appear before a magistrates’ court and the offender does not appear in

answer to the summons, the magistrates’ court may issue a warrant for the

arrest of the offender.

35

Issue of summons or warrant by Crown Court

  8       (1)      This paragraph applies to a community order made by the Crown Court

which does not include a direction that any failure to comply with the

requirements of the order is to be dealt with by a magistrates’ court.

          (2)      If at any time while a community order to which this paragraph applies is in

40

force it appears on information to the Crown Court that the offender has

failed to comply with any of the requirements of the order, the Crown Court

may—

              (a)             issue a summons requiring the offender to appear at the place and

time specified in it, or

45

              (b)             if the information is in writing and on oath, issue a warrant for his

arrest.

 

 

 
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