The Court Martial Appeal Court (Bail) Order 2009
| Jurisdiction | UK Non-devolved |
| Citation | SI 2009/992 |
2009 No. 992
Defence
The Court Martial Appeal Court (Bail) Order 2009
Made 14th April 2009
Laid before Parliament 20th April 2009
Coming into force 31th October 2009
The Secretary of State makes the following Order in exercise of the powers conferred upon him by section 30 of the Armed Forces Act 20011:
Citation and commencement
1. This Order may be cited as the Court Martial Appeal Court (Bail) Order 2009 and shall come into force on 31st October 2009.
Interpretation
2. In this Order—
“the 1955 Acts” means the Army Act 19552and the Air Force Act 19553;
“the 1957 Act” means the Naval Discipline Act 19574;
“the 1994 Act” means the Criminal Justice and Public Order Act 19945;
“the 2006 Act” means the Armed Forces Act 20066;
“appeal” means an appeal under section 8(1) of the Court Martial Appeals Act 19687, and “appellant” has a corresponding meaning;
“bail” means release from custody subject to conditions, and “released on bail” and other cognate expressions shall be construed accordingly;
“child” means a person under the age of fourteen;
“Court” means the Court Martial Appeal Court;
“court-martial” means a court-martial constituted under either of the 1955 Acts or the 1957 Act;
“custodian” means the governor, keeper or commandant of the prison or other place of detention in which the appellant is detained;
“Director of Service Prosecutions” means the person appointed under section 364 of the 2006 Act;
“registrar” means the registrar of the Court appointed under section 7(1) of the Court Martial Appeals Act 1968;
“surrender to custody” means, in relation to a person released on bail, surrendering himself into the custody of the Court or a person (according to the requirements of the grant of bail) at the time and place for the time being appointed for him to do so;
“vary” in relation to bail, means imposing further conditions after bail is granted, or varying or rescinding conditions; and
“young person” means (except in article 4) a person who has attained the age of fourteen but is under the age of seventeen.
Grant of bail by the Court
3.—(1) Subject to article 4, the Court may, if they think fit—
(a)
(a) grant an appellant bail pending the determination of his appeal;
(b)
(b) revoke bail granted to an appellant in the exercise of the power conferred by sub-paragraph (a); or
(c)
(c) vary conditions of bail granted to an appellant in the exercise of the power conferred by sub-paragraph (a).
(2) The powers conferred by paragraph (1) may be exercised—
(a)
(a) on the application of the appellant or, in the case of the powers conferred by paragraph (1)(b) and (c), of the Director of Service Prosecutions or a surety; or
(b)
(b) on a reference to the Court by the registrar.
(3) The powers conferred by paragraph (1) may, subject to paragraph (4), be exercised by any judge of the Court.
(4) If under paragraph (3) a single judge refuses an application on the part of an appellant to exercise in his favour any of the powers under paragraph (1), the appellant shall be entitled to have the application determined by the Court as duly constituted for the purpose under section 5 of the Court Martial Appeals Act 19688.
No bail for defendants convicted of certain offences after previous conviction of such offences
4.—(1) An appellant who in any proceedings has been convicted of an offence to which this article applies in circumstances to which it applies shall be granted bail under article 3 only if the Court considering the grant of bail is satisfied that there are exceptional circumstances which justify it.
(2) This article applies, subject to paragraph (3)—
(a)
(a) to an offence under section 70 of either of the 1955 Acts or section 42 of the 1957 Act for which the corresponding civil offence, within the meaning of those Acts, is an offence specified in section 25(2) of the 1994 Act9; and
(b)
(b) to an offence under section 42 of the 2006 Act for which the corresponding offence under the law of England and Wales, within the meaning of that section, is an offence specified in section 25(2) of the 1994 Act.
(3) This article applies to an appellant convicted of any such offence only if he has been previously convicted—
(a)
(a) by a court-martial or the Court Martial of any such offence, or
(b)
(b) by or before a court in any part of the United Kingdom of an offence specified in section 25(2) of the 1994 Act or of culpable homicide, and
in the case of a relevant previous conviction, if he was then sentenced to imprisonment or, if he was then a child or young person, to long-term detention under any of the relevant enactments.
(4) In this article—
(a)
(a) “conviction” includes—
(i) a finding that a person is not guilty by reason of insanity,
(ii) a finding under section 4A(3) of the Criminal Procedure (Insanity) Act 196410, section 115B(2) of the 1955 Acts, section 62B(2) of the 1957 Act11or section 167(2) of the 2006 Act (cases of unfitness to plead) that a person did the act or made the omission charged against him, and
(iii) a conviction of an offence for which an order is made discharging the offender absolutely or conditionally,
and “convicted” shall be construed accordingly;
(b)
(b) “relevant enactments” has the same meaning as in section 25(5) of the 1994 Act;
(c)
(c) “relevant previous conviction” means a previous conviction for—
(i) manslaughter;
(ii) an offence under section 70 of either of the 1955 Acts or section 42 of the 1957 Act for which the corresponding civil offence, within the meaning of those Acts, is an offence of manslaughter;
(iii) an offence under section 42 of the 2006 Act for which the corresponding offence under the law of England and Wales, within the meaning of that section, is an offence of manslaughter; or
(iv) culpable homicide; and
(d)
(d) “young person” means a person who has attained the age of fourteen but is under the age of eighteen.
Effect of bail on term of imprisonment or detention
5.—(1) The time during which an appellant is released on bail under this Order shall not count as time served by him as part of any relevant sentence to which he is subject for the time being.
(2) In paragraph (1) “relevant sentence” means a sentence of imprisonment, of service detention within the meaning of the 2006 Act or of detention under either of the 1955 Acts or under the 1957 Act.
Applications
6.—(1) This article applies where a person referred to in article 3(2)(a) wants to make an application to the court under article 3(2).
(2) The person shall serve an application in the form set out as form 1a in the Schedule on the registrar and on each other person referred to in article 3(2)(a).
(3) The Court shall not decide the application without giving each other person referred to in article 3(2)(a) an opportunity to make representations, including representations about any condition or surety proposed by the applicant.
Conditions of bail – general provisions
7.—(1) A person granted bail under this Order shall be under a duty to surrender to custody, and that duty is enforceable in accordance with article 10.
(2) No recognizance for his surrender to custody shall be taken from him.
(3) Except as provided by this article—
(a)
(a) no security for his surrender to custody shall be taken from him;
(b)
(b) he shall not be required to provide a surety or sureties for his surrender to custody; and
(c)
(c) no other requirement shall be imposed on him as a condition of bail.
(4) He may be required, before release on bail, to—
(a)
(a) provide a surety or sureties to secure his surrender to custody;
(b)
(b) give (or have given on his behalf) security for his surrender to custody.
(5) He may be required to comply, before release on bail or later, with such requirements as appear to the Court to be necessary—
(a)
(a) to secure that he surrenders to custody at an appointed time and place;
(b)
(b) to secure that he does not commit an offence while on bail;
(c)
(c) to secure that he does not obstruct the course of justice whether in relation to himself or any other person;
(d)
(d) for his own protection or, if he is a child or young person, for his own welfare or in his own interests;
(e)
(e) to secure that he makes himself available for the purpose of enabling inquiries or a report to be made to assist a court in dealing with him;
(f)
(f) to secure that before the time appointed for him to surrender to custody, he attends an interview with a legal adviser.
(6) If a parent or guardian of a child or young person consents to be surety for the child or young person for the purposes of this paragraph, the parent or guardian may be required to secure that the child or young person complies with any requirement imposed on him by virtue of paragraph (5) but—
(a)
(a) no requirement shall be imposed on the parent or the guardian of a young person by virtue of this paragraph where it appears that the young person will attain the age of seventeen before the time to be appointed for him to surrender to custody; and
(b)
(b) the parent or guardian shall not be required to secure compliance with any requirement to which his consent does not extend and shall not, in respect of those requirements to which his consent does extend, be bound in a greater sum than £50.
Bail - conditions and directions
8.—(1) This article applies where the Court grants the appellant bail subject to a condition that shall be met before the appellant is released.
(2) The court may direct how the condition shall be met.
(3) The registrar shall serve a certificate in the form set out as form 1b in the Schedule recording the condition and any such direction on—
(a)
(a) the appellant;
(b)
(b) the custodian; and
(c)
(c) any other person...
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