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Criminal Justice Bill


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

242

 

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

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

5

modifications.

      (2)  

In subsection (1)—

(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

10

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.”

      (3)  

In subsection (2)—

(a)   

for “jury” substitute “court”;

(b)   

for “the court is satisfied” substitute “the judge advocate is satisfied”.

15

      (4)  

In subsection (3)—

(a)   

for paragraph (a) substitute—

“(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

20

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”;

(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

25

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

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

dissolve a court.”

30

4          

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

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

“(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

35

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

ruling;

(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.”

40

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.

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

45

Discipline Act 1957 (c. 53).

      (2)  

In this Schedule “service court” means—

 

 

Criminal Justice Bill
Schedule 6 — Hearsay evidence: armed forces

243

 

(a)   

a court-martial;

(b)   

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

Act 1955 (3 & 4 Eliz. 2 c. 18), section 83ZA of the Air Force Act 1955

(3 & 4 Eliz. 2 c. 19) or section 52FF of the Naval Discipline Act 1957

(c. 53);

5

(c)   

the Courts-Martial Appeal Court;

(d)   

a Standing Civilian Court.

Schedule 6

Section 107

 

Hearsay evidence: armed forces

Application to proceedings before service courts

10

1          

Sections 107 to 93, 95, 96, 98, 99 to 101 and 105 to 106, in so far as they 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.

15

2     (1)  

In their application to such proceedings those sections have effect with the

following modifications.

      (2)  

In section 88(2)(c) for “United Kingdom” substitute “country where the court

is sitting”.

      (3)  

In section 89 insert after subsection (7)—

20

“(8)   

In subsection (4) “criminal proceedings” includes summary

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

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

1957; and the definition of “criminal proceedings” in section 106(1)

has effect accordingly.”

25

      (4)  

In section 95(4) for paragraph (a) substitute—

“(a)   

in the case of proceedings before a court-martial, proceedings

held for the determination of the issue must take place before

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

court;”.

30

      (5)  

In section 99, for subsection (7) substitute—

“(7)   

The appropriate rules are those regulating the practice and

procedure of service courts.”

      (6)  

In section 104(10), at the end of the definition of “rules of court” insert—

     “(d)  

rules regulating the practice and procedure of service

35

courts.”

      (7)  

In section 106 insert after subsection (1)—

“(1A)   

In this Part “criminal investigation” includes any investigation

which may lead—

(a)   

to proceedings before a court-martial or Standing Civilian

40

Court, or

 

 

Criminal Justice Bill
Schedule 6 — Hearsay evidence: armed forces

244

 

(b)   

to summary proceedings under section 76B of the Army Act

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

the Naval Discipline Act 1957.”

3     (1)  

Section 94 has effect in relation to proceedings before courts-martial

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

5

modifications.

      (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”.

10

(b)   

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

(c)   

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

4     (1)  

Section 97 has effect in relation to proceedings before courts-martial

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

modifications.

15

      (2)  

In subsection (1)—

(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,

20

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

      (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)—

25

(a)   

for paragraph (a) substitute—

“(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

30

the act or made the omission charged,”;

(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 rehearing, dissolve the court.”

35

      (5)  

For subsection (4) substitute—

“(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.”

Amendments

40

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

 

 

Criminal Justice Bill
Schedule 6 — Hearsay evidence: armed forces

245

 

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 88 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).”

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,

15

unless—

(a)   

section 88 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

20

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

record of evidence given at original trial) substitute—

25

“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 88 of the Criminal Justice Act 2003 applies

(admissibility of hearsay evidence where a witness is

30

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

evidence under residual discretion).”

35

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

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

40

the Naval Discipline Act 1957 (c. 53);

           

“service court” means—

(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

45

section 52FF of the Naval Discipline Act 1957;

(c)   

the Courts-Martial Appeal Court;

 

 

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

246

 

(d)   

a Standing Civilian Court.

Schedule 7

Section 151

 

Breach, revocation or amendment of community order

Part 1

Preliminary

5

Interpretation

1          

In this Schedule—

           

“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,

10

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

order;

           

“the responsible officer” has the meaning given by section 169.

2          

In this Schedule—

(a)   

references to a drug rehabilitation requirement of a community

15

order being subject to review are references to that requirement

being subject to review in accordance with section 182(1)(b);

(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 182(4).

20

3          

For the purposes of this Schedule—

(a)   

a requirement falling within any paragraph of section 149(1) is of the

same kind as any other requirement falling within that paragraph,

and

(b)   

an electronic monitoring requirement is a requirement of the same

25

kind as any requirement falling within section 149(1) to which it

relates.

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.

30

Part 2

Breach of requirement of order

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

35

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

 

 

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

247

 

(a)   

the offender has within the previous twelve months been given a

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.

5

      (2)  

A warning under this paragraph must—

(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

10

be brought before a court.

      (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

15

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

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—

20

(a)   

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

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

opinion that the offender has since that date failed without

25

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.

      (2)  

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

30

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.

Issue of summons or warrant by justice of the peace

35

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

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

40

      (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—

(a)   

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

45

time specified in it, or

 

 

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

248

 

(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

offender to appear or be brought—

(a)   

in the case of a community order imposing a drug rehabilitation

5

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

sessions area concerned.

      (4)  

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

10

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.

Issue of summons or warrant by Crown Court

8     (1)  

This paragraph applies to a community order made by the Crown Court

15

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

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

20

may—

(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.

25

      (3)  

Any summons or warrant issued under this paragraph must direct the

offender to appear or be brought before the Crown Court.

      (4)  

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

to appear before the Crown Court and the offender does not appear in

answer to the summons, the Crown Court may issue a warrant for the arrest

30

of the offender.

Powers of magistrates’ court

9     (1)  

If it is proved to the satisfaction of a magistrates’ court before which an

offender appears or is brought under paragraph 7 that he has failed without

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

35

order, the court must deal with him in respect of the failure in any one of the

following ways—

(a)   

by amending the terms of the community order so as to impose more

onerous requirements which the court could include if it were then

making the order;

40

(b)   

where the community order was made by a magistrates’ court, by

dealing with him, for the offence in respect of which the order was

made, in any way in which the court could deal with him if he had

just been convicted by it of the offence;

(c)   

where—

45

(i)   

the community order was made by a magistrates’ court,

 

 

 
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