Armed Forces Act 1996

1For section 116 of each of the 1955 Acts (provisions where accused found insane) there shall be substituted the following sections—

“Findings of unfitness to stand trial and insanity

115AFitness to stand trial

(1)This section applies where on a trial by court-martial of a person the question arises (at the instance of the defence or otherwise) whether the accused is fit to stand trial.

(2)For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the [1964 c. 84.] Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales.

(3)If, having regard to the nature of the supposed disability, the court is of opinion that it is expedient to do so and in the interests of the accused, it may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence.

(4)If, before the question of fitness to stand trial falls to be determined, the court finds the accused not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined.

(5)Subject to subsections (3) and (4) above, the question of fitness to stand trial shall be determined as soon as it arises.

(6)The question of fitness to stand trial shall be determined by the court and—

(a)where it falls to be determined on the commencement of the trial and the trial proceeds, the accused shall be tried by a court-martial other than that which determined that question;

(b)where it falls to be determined at any later time, it shall be determined by a court-martial other than that by which the accused is being tried.

(7)A court shall not make a determination under subsection (6) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

115BFinding that the accused did the act or made the omission charged against him

(1)This section applies where in accordance with section 115A(6) above it is determined by a court-martial that the accused is unfit to stand trial.

(2)The trial shall not proceed or further proceed but it shall be determined by the court—

(a)on the evidence (if any) already given in the trial; and

(b)on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,

whether it is satisfied, as respects the charge or each of the charges on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.

(3)If as respects that charge or any of those charges the court is satisfied as mentioned in subsection (2) above, it shall make a finding that the accused did the act or made the omission charged against him.

(4)If as respects that charge or any of those charges the court is not so satisfied, the court shall find the accused not guilty as if on the charge in question the trial had proceeded to a conclusion.

(5)A determination under subsection (2) above shall be made—

(a)where the question of fitness to stand trial was determined on the commencement of the trial, by a court-martial other than that which determined that question; and

(b)where that question was determined at any later time, by the court-martial by whom the accused was being tried.

116Findings of insanity

(1)Where, on the trial of a person by court-martial, the court is satisfied, as respects the charge or any of the charges on which he is being tried, that the accused did the act or made the omission charged against him as the offence but that at the time of that act or omission he was insane, the court shall find that the accused was not guilty of that offence by reason of insanity.

(2)No finding under subsection (1) above shall be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

116APowers to deal with persons unfit to stand trial or not guilty by reason of insanity

(1)This section applies where, on a trial of a person by a court-martial—

(a)the accused is found to be unfit to stand trial and to have done the act or made the omission charged against him; or

(b)the accused is found not guilty by reason of insanity.

(2)Subject to subsections (3) and (4) below, the court shall make one of the following orders in respect of the accused, namely—

(a)an admission order;

(b)a guardianship order;

(c)a supervision and treatment order; or

(d)an order discharging him absolutely,

as the court thinks most suitable in all the circumstances of the case.

(3)The court may not make an order under subsection (2)(b), (c) or (d) above if the offence to which the finding relates is an offence the sentence for which is fixed by law.

(4)The court shall not make a guardianship order or a supervision and treatment order unless it has power to do so by virtue of section 116C or section 116D below.

(5)An order under subsection (2)(a), (b) or (c) above shall be treated as if it had been made by a civil court in England and Wales, Scotland or Northern Ireland, as the court may direct, and the appropriate mental health legislation shall apply accordingly with such modifications as may be prescribed.

116BAdmission orders

(1)In this Act “admission order” means an order that the person in respect of whom it is made be admitted, in accordance with regulations under subsection (3) below, to such hospital as may be specified by the Secretary of State.

(2)Where an admission order is made by a court-martial, the court may, in such circumstances as may be prescribed, direct the accused to be treated as if an order restricting his discharge had been made under the appropriate mental health legislation, either without limit of time or (if a civil court would have been permitted to do so under the legislation concerned) during such period as may be specified in the direction.

(3)The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an admission order has been made.

(4)Regulations under subsection (3) above may in particular make provision—

(a)for a person in respect of whom an admission order has been made to be conveyed to, and detained in, a place of safety pending his admission to the hospital;

(b)for the period within which such a person is to be admitted to the hospital;

(c)for the appropriate mental health legislation to apply, with such modifications as may be prescribed, in relation to admission orders as the legislation concerned applies in relation to hospital orders;

(d)for a person in respect of whom an admission order has been made to be remitted for trial in such circumstances as may be prescribed.

(5)In this section “hospital”, “hospital order” and “place of safety” have the same meanings as in the appropriate mental health legislation.

116CGuardianship orders

(1)In this Act “guardianship order” means an order placing the accused under the guardianship of—

(a)in a case where the order is treated as if it had been made by a civil court in England and Wales, a local social services authority or such other person approved by a local social services authority as may be specified in the order;

(b)in a case where the order is treated as if it had been made by a civil court in Scotland, a local authority or such other person approved by a local authority as may be specified in the order;

(c)in a case where the order is treated as if it had been made by a civil court in Northern Ireland, a Board or an authorised HSS trust or such other person approved by a Board or an authorised HSS trust as may be specified in the order.

(2)In subsection (1) above—

• “authorised HSS trust” and “Board” have the same meanings as in the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986;

• “local authority” has the same meaning as in the [1984 c. 36.] Mental Health (Scotland) Act 1984; and

• “local social services authority” has the same meaning as in the [1983 c. 20.] Mental Health Act 1983.

(3)A court-martial shall not make a guardianship order unless—

(a)the court is satisfied, on the written or oral evidence of two registered medical practitioners, that—

(i)the accused is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and

(ii)the mental disorder is of a nature or degree which warrants his reception into guardianship; and

(b)the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the accused and the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a guardianship order.

(4)A court-martial shall not make a guardianship order unless it is also satisfied that the authority or other person intended to be specified in the order is willing to receive the accused into guardianship.

(5)A guardianship order shall specify the form or forms of mental disorder referred to in subsection (3)(a) above from which, upon the evidence taken into account under that subsection, the accused is found by the court to be suffering; and a guardianship order shall not be made unless the accused is described by each of the practitioners whose evidence is taken into account under that subsection as suffering from the same one of those forms of mental disorder, whether or not he is also described by either of them as suffering from another of those forms of mental disorder.

(6)The appropriate mental health legislation shall apply, with such modifications as may be prescribed, in relation to guardianship orders under this section as it applies to guardianship orders under the legislation concerned.

(7)In this section “mental disorder”, “mental impairment”, “psychopathic disorder” and “severe mental impairment” have the same meanings as in the [1983 c. 20.] Mental Health Act 1983.

116DSupervision and treatment orders

(1)In this Act “supervision and treatment order” means an order requiring the person in respect of whom it is made (“the supervised person”)—

(a)to be under the supervision of a person (“the supervising officer”) specified in the order for a period specified in the order of not more than two years;

(b)to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner at a place specified in the order with a view to the improvement of his mental condition; and

(c)to comply with such other requirements as may be specified in the order.

(2)The Secretary of State may by order direct that subsection (1)(a) above shall be amended by substituting, for the period for the time being specified in that paragraph such other period as may be specified in the order.

(3)A court-martial shall not make a supervision and treatment order unless it is satisfied—

(a)that, having regard to all the circumstances of the case, the making of such an order is the most suitable means of dealing with the accused;

(b)on the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved, that the mental condition of the accused—

(i)is such as requires and may be susceptible to treatment; but

(ii)is not such as to warrant the making of an admission order or a guardianship order.

(4)The court shall not make a supervision and treatment order unless it is also satisfied—

(a)that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

(b)that arrangements have been made for the treatment intended to be specified in the order (including arrangements for the reception of the accused where he is to be required to submit to treatment as a resident patient).

(5)The Secretary of State may by regulations make further provision in relation to supervision and treatment orders.

(6)Regulations under subsection (5) above may in particular make provision—

(a)as to the procedure to be followed by a court-martial making a supervision and treatment order;

(b)as to the requirements which may be specified in such an order;

(c)as to the descriptions of supervising officer who may be so specified;

(d)for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated;

(e)for the amendment and revocation of any supervision and treatment order.

116EProvisions supplementary to sections 115A to 116D

(1)In this section and sections 115A to 116D above—

• “the appropriate mental health legislation” means—

  (a)

  in a case where an order is treated as if it had been made by a civil court in England and Wales, the [1983 c. 20.] Mental Health Act 1983;

  (b)

  in a case where an order is treated as if it had been made by a civil court in Scotland, the [1984 c. 36.] Mental Health (Scotland) Act 1984 and Part VI of the [1995 c. 43.] Criminal Procedure (Scotland) Act 1995;

  (c)

  in a case where an order is treated as if it had been made by a civil court in Northern Ireland, the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986;

• “duly approved” means—

  (a)

  approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);

  (b)

  approved for the purposes of section 20 or 39 of the [1984 c. 36.] Mental Health (Scotland) Act 1984 by a Health Board as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act); or

  (c)

  appointed for the purposes of Part II of the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986 by the Mental Health Commission for Northern Ireland;

• “prescribed” means prescribed by regulations made by the Secretary of State.

(2)For the purposes of the provisions of sections 115A, 116, 116C and 116D of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence.

(3)Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then—

(a)if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b)if the accused is not so represented, the substance of the report shall be disclosed to him; and

(c)the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf.

(4)The power of the Secretary of State to make regulations under sections 116A, 116B, 116C and 116D above, and orders under section 116D(2) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”