HL Deb 02 November 2004 vol 666 cc284-8

(1) In this section and sections 62A to 63C above—

(2) For the purposes of the provisions of sections 62A and 63 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—

  1. (a) if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;
  2. (b) if the accused is not so represented, the substance of the report shall be disclosed to him; and
  3. (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 63A to 63C above, and orders under section 63C(3) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."

4 In the proviso to section 56(3) of that Act (court-martial not to be adjourned for more than six days), after "except with the consent of the accused and the prosecuting authority" insert ",or for the purpose of exercising powers under section 63A of this Act,".

5 In section 135(1) of that Act (general provisions as to interpretation) insert at the appropriate places—

Courts-Martial (Appeals) Act 1968 (c. 20)

6 The Courts-Martial (Appeals) Act 1968 is amended as follows.

7 For section 16 substitute—

"16 SUBSTITUTION OF FINDING OF INSANITY OR FINDINGS OF UNFITNESS TO STAND TRIAL ETC.

(1) This section applies where, on an appeal against conviction, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion—

  1. (a) that the proper finding would have been one of not guilty by reason of insanity; or
  2. (b) that the case is not one where there should have been a finding of not guilty, but that there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

(2) The Appeal Court shall make in respect of the appellant—

  1. (a) a hospital order (with or without a restriction order);
  2. (b) a supervision order: or
  3. (c) an order for his absolute discharge.

(3) Where—

  1. (a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and
  2. (b) the Appeal Court have power to make a hospital order,
the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.

The sections are—

  1. (a) where the relevant Service Act is the Army Act, sections 116B to 116D of that Act;
  2. (b) where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act;
  3. (c) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.

(5) Where the Appeal Court make an interim hospital order by virtue of this section—

  1. (a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and
  2. (b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(6) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court."

8 In section 21 (appeal against finding of not guilty by reason of insanity), in subsection (1), after "except" insert "section 8(2) and".

9 In section 22 (consequences where appeal under section 21 allowed), at the beginning of subsection (4) insert "Subject to section 23 below,".

10 For section 23 substitute—

"23 SUBSTITUTION OF FINDINGS OF UNFITNESS TO STAND TRIAL ETC.

(1) This section applies where, on an appeal under section 21 of this Act, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion that—

  1. (a) the case is not one where there should have been a finding of not guilty; but
  2. (b) there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

(2) The Appeal Court shall make in respect of the appellant—

  1. (a) a hospital order (with or without a restriction order);
  2. (b) a supervision order; or
  3. (c) an order for his absolute discharge.

(3) Where—

  1. (a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and
  2. (b) the Appeal Court have power to make a hospital order,
the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.

The sections are—

  1. (a) where the relevant Service Act is the Army Act, sections 116B to 116D of that Act;
  2. (b) where the relevant Service Act is the Air Force Act, sections 116B to 116D) of that Act;
  3. (c) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.

(5) Where the Appeal Court make an interim hospital order by virtue of this section—

  1. (a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer arid not by the Appeal Court; and
  2. (b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(6) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court."

11 (1) Section 24 (appeal against finding of unfitness to stand trial) is amended as follows.

(2) In subsection (1)—

  1. (a) for "his trial" substitute "trial and to have done the act or made the omission charged against him";
  2. (b) for "the finding" substitute "either or both of those findings".

(3) In subsection (2), after "except" insert "section 8(2) and".

12 For section 25 substitute—

"25 DISPOSAL OF APPEAL UNDER S. 24

(1) This section applies to appeals under section 24 of this Act.

(2) Where the Appeal Court allow an appeal against a finding that the appellant is unfit to stand trial—

  1. (a) the appellant may be tried accordingly for the offence with which he was charged; and
  2. (b) the Court may make such orders as appear to them necessary or expedient pending any such trial for the custody, release or continued detention of the appellant.

(3) Where, otherwise than in a case falling within subsection (2) above, the Appeal Court allow an appeal against a finding that the appellant did the act or made the omission charged against him, the Court shall, in addition to quashing the finding, direct a finding of not guilty to be recorded (but not a finding of not guilty by reason of insanity)."

13 After that section insert—

"Appeal against order made in cases of insanity or unfitness to stand trial

25A RIGHT OF APPEAL AGAINST HOSPITAL ORDER ETC.

(1) A person in whose case a court-martial—

  1. (a) makes a hospital order or interim hospital order by virtue of the relevant Service Act, or
  2. (b) makes a supervision order under the relevant Service Act, may appeal to the Appeal Court against the order.

(2) An appeal under this section lies only with the leave of the Appeal Court.

25B DISPOSAL OF APPEAL UNDER S.25A

(1) If on an appeal under section 25A of this Act the Appeal Court consider that the appellant should be dealt with differently from the way in which the court below dealt with him—

  1. (a) they may quash any order which is the subject of the appeal; and
  2. (b) they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the court below had power to make.

(2) The fact that an appeal is pending against an interim hospital order under the Mental Health Act 1983 shall not affect the power of the court below to renew or terminate the order or deal with the appellant on its termination.

(3) Where the Appeal Court make an interim hospital order by virtue of this section—

  1. (a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and
  2. (b) section 38(7) of the said Act of 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(4) The fact that an appeal is pending against a supervision order under the relevant Service Act shall not affect any power conferred on any other court to revoke or amend the order.

(5) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court."

14 (1) Section 57 (interpretation) is amended as follows.

(2) In subsection (1) insert at the relevant places—

(3) After subsection (2) insert—

"(2A) For the purposes of the provisions of sections 16 and 23 of this Act which permit the Appeal 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 (2B) 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 Appeal Court may require the signatory of any such report to be called to give oral evidence.

(2B) Where, in pursuance of a direction of the Appeal Court, any such report is tendered in evidence otherwise than by or on behalf of the appellant, then—

  1. (a) if the appellant is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;
  2. (b) if the appellant is not so represented, the substance of the report shall be disclosed to him; and
  3. (c) the appellant 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 appellant or on his behalf."

15 (1) Schedule 3 (modifications in relation to prisoners of war) is amended as follows.

(2) In paragraph 3—

  1. (a) in paragraph (a), for "or 15" substitute ",14A, 15 or 25A";
  2. (b) omit paragraph (b).

(3) After paragraph 3 insert— 3A In relation to a protected prisoner of war, sections 16 and 23 of this Act shall each have effect as if the following subsection were substituted for subsection (4)— (4) The provisions of a Royal Warrant shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial."

Baroness Scotland of Asthal

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 60 and 61, to which I have spoken with Amendments Nos. 12 and 14.

Moved, That the House do agree with the Commons in their Amendments Nos. 60 and 61.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.