First Group of Parts – Discipline
Part 10 – Court Martial Decisions: Appeal and Review
Chapter 1 – Appeals from Court Martial
Section 272: Appeals to the Court Martial Appeal Court
531.This section renames the Courts-Martial Appeal Court as the Court Martial Appeal Court (“CMAC”), in consequence of the creation of the Court Martial by section 154.
532.The section also gives effect to Schedule 8. That Schedule makes a number of amendments to the Courts-Martial (Appeals) Act 1968, including renaming it as the Court Martial (Appeals) Act 1968.
Chapter 2 – Review of Court Martial Sentence
Section 273: Review of unduly lenient sentence by Court Martial Appeal Court
533.This section gives the Attorney General the power, equivalent to that which he has in respect of sentences passed by the Crown Court, to refer a case to the CMAC if he considers that the sentence passed by the Court Martial in respect of the offence is unduly lenient. This power is exercisable only in relation to criminal conduct offences and is subject to the leave of the CMAC. One of two conditions must be satisfied: either the corresponding offence under civilian law would, if committed by an adult, be capable of being tried only on indictment; or the offence is one specified in an order made by the Secretary of State.
534.On such a reference the CMAC may quash the original sentence and substitute for it another sentence that would have been available to the Court Martial.
535.The section specifies certain circumstances in which the Attorney General may consider the original sentence to have been unduly lenient; and it provides that, where the reference to the CMAC relates to an order setting a minimum term for a life sentence, the CMAC may not, in deciding what order is appropriate, allow for the fact that the offender is being sentenced for the second time.
Section 274: Reference of point of law to Supreme Court
536.This section applies where the CMAC has concluded its review of a case under section 273 (1). It allows the Attorney General or the offender to refer to the Supreme Court a point of law involved in any sentence passed in the proceedings. The reference cannot be made without leave of the CMAC or the Supreme Court and the conditions for granting leave are specified. When the Supreme Court has given its opinion on the point of law referred to it, it may then refer the case back to the CMAC to be dealt with, or deal with the case itself, in which case it may exercise any of the powers that would have been available to the CMAC.
Section 275: Power to make supplementary provision about review of sentence
537.This section enables the Secretary of State to make provision by regulations with respect to references under sections 273 and 274, including provision on applications and procedure.
Chapter 3 – Compensation for Miscarriages of Justice
Section 276: Compensation for miscarriages of justice
538.This section makes provision for the payment of compensation to a person who has been subject to a miscarriage of justice by the Court Martial. It mirrors the civilian equivalent in section 133 of the Criminal Justice Act 1988.
539.Compensation payments are made by the Secretary of State, but this is subject to subsections (2) and (3). Subsection (2) provides that if the conviction was the result of the applicant failing to disclose, wholly or in part, the “unknown fact” which led to the miscarriage of justice, he is not entitled to compensation under this section. Subsection (3) provides that compensation is not payable under this provision unless an application for such compensation has been made to the Secretary of State.
540.The Secretary of State has the power to determine whether there is a right to compensation under subsection (4). Where he determines that there is such a right, subsection (5) provides that the amount of compensation is to be assessed by an assessor (appointed by the Secretary of State).
541.Subsection (6) requires the assessor to have regard to certain factors in assessing the amount of compensation, and subsection (7) explains what constitutes a “conviction having been reversed” for the purpose of this section. This will include a case in which the CMAC quashes a conviction following a reference by the Criminal Cases Review Commission (which is given power to make such references by section 321 and Schedule 11).
542.Subsection (8) gives effect to Schedule 9, which deals with the appointment of assessors etc.
