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18 1954

DEFENCE ACT, 1954

Chapter VII.

Action on Findings and Sentences of Courts-martial.

Findings and sentences not to be valid unless confirmed.

215. —Subject to section 204, the finding and sentence of a court-martial shall not be valid except in so far as the same may be confirmed by a confirming authority under this Chapter.

Confirming authorities.

216. —(1) Each of the following authorities shall have power to confirm the findings and sentences of courts-martial—

(a) in the case of a general court-martial, any officer (holding the army rank of colonel or the naval rank of captain or higher commissioned rank) authorised by warrant of the Minister to confirm the findings and sentences of general courts-martial,

(b) in the case of a limited court-martial,

(i) any officer authorised by warrant of the Minister to confirm the findings and sentences of limited courts-martial,

(ii) any officer for the time being authorised to convene a limited court-martial.

(2) A warrant under this section may be made subject to such restrictions, reservations, exceptions and conditions as the Minister thinks fit.

(3) A warrant under this section may be addressed to an officer by name or by designation of his office or partly in one way and partly in another and may or may not, according to the terms thereof and the mode in which it is addressed, be limited to an officer named or be extended to a person for the time being performing the duties of the office named or be extended to the successors in office of an officer.

(4) An officer who was a member of a court-martial shall not have power to confirm the finding or the sentence of such court-martial.

(5) In this Act, the expression “confirming authority” when used in relation to a general court-martial or a limited court-martial, means a person authorised by virtue of this section to confirm the finding and sentence of such court-martial.

Reference of finding and sentence by confirming authority to superior confirming authority.

217. —An authority having power to confirm the finding and sentence of a court-martial may withhold his confirmation wholly or partly and refer such finding and sentence or the part not confirmed to any officer holding higher commissioned rank having power to confirm the findings and sentences of courts-martial of the like class, and in such case that officer shall for the purposes of this Act be, to the extent of such reference, the authority having power to confirm the finding and sentence of such court-martial.

Revision by courts-martial of findings and sentences.

218. —(1) An authority having power to confirm the finding and sentence of a court-martial may, once but once only, send back such finding and sentence or either of them for revision.

(2) Where an authority having power to confirm the finding and sentence of a court-martial sends back such finding and sentence or either of them for revision under this section, the following provisions shall have effect, that is to say:—

(a) the court-martial shall not on such revision receive any additional evidence;

(b) where the finding only is sent back for revision the court-martial may also revise the sentence;

(c) in no case shall the said authority recommend the increase of the sentence, nor shall the court-martial have power to increase the sentence originally awarded.

Powers of confirming authority as to confirmation.

219. —(1) Where a person has been found guilty of any charge by a court-martial, the confirming authority may confirm or refuse confirmation either in whole or in part of the original or revised finding or sentence.

(2) Where a confirming authority refuses confirmation of the finding of a court-martial on any charge, the confirming authority may direct that the accused be tried again by court-martial and may give directions as to the charge or charges on which the accused is to be tried again.

Additional powers of confirming authority in relation to sentences passed by courts-martial.

220. —(1) The following provisions shall apply in relation to any sentence passed by a court-martial—

(a) if the sentence is informally expressed, the confirming authority may, when confirming it, vary the form of the sentence so that it shall be properly expressed;

(b) if the punishment awarded by the sentence is invalid or in excess of that authorised by this Act—

(i) in case the offence in respect of which the punishment was awarded was an offence under section 139, the confirming authority may substitute for the sentence a sentence of dismissal with ignominy from the Defence Forces or any less punishment mentioned in the Scale to subsection (1) of section 209, and confirm the sentence so substituted,

(ii) in any other case, the confirming authority may substitute for the sentence a sentence of any other punishment which might have been awarded by the court-martial to the offender, and confirm the sentence so substituted.

(2) The following provisions shall apply in relation to a sentence of death passed by a court-martial—

(a) in case the offence in respect of which the sentence was passed was treason or murder, the confirming authority may substitute for the sentence a sentence of penal servitude or any less punishment mentioned, if the offender is an officer, in the Scale to subsection (1) of section 209 or, if the offender is a man, in the Scale to subsection (1) of section 210, and confirm the sentence so substituted;

(b) in any other case, the confirming authority may substitute for the sentence a sentence of any other punishment which might have been awarded by the court-martial to the offender, and confirm the sentence so substituted.

(3) The following provisions shall apply in relation to a sentence (other than a sentence of death) passed by a court-martial—

(a) the confirming authority may, when confirming the sentence, mitigate the punishment thereby awarded to a less amount of the same kind of punishment;

(b) the confirming authority may, when confirming the sentence, remit the punishment thereby awarded in whole or in part;

(c) if the offence in respect of which the sentence was passed was an offence under section 139, the confirming authority may substitute for the sentence a sentence of any less punishment mentioned in the Scale to subsection (1) of section 209, and confirm the sentence so substituted;

(d) if the offence in respect of which the sentence was passed was not an offence under section 139, the confirming authority may substitute for the sentence a sentence of any less punishment which might have been awarded by the court-martial to the offender, and confirm the sentence so substituted.

(4) Where under this section a new sentence is substituted for a sentence passed by a court-martial, the new sentence shall have force and effect as if it had been passed by the court-martial in the first instance and the provisions of this Act shall apply accordingly.

Mitigation, remission, etc., of sentences (other than death sentences) after confirmation.

221. —(1) Where a sentence (other than a sentence of death) passed by a court-martial has been confirmed, a superior authority may do any one or more of the following things, that is to say:—

(a) he may mitigate the punishment thereby awarded to a less amount of the same kind of punishment;

(b) he may remit such punishment in whole or in part;

(c) he may,—

(i) in case such punishment is dismissal with ignominy from the Defence Forces or dismissal from the Defence Forces awarded for an offence under section 139, substitute for it any less punishment mentioned in the Scale to subsection (1) of section 209,

(ii) in any other case, substitute for it any less punishment to which the offender might have been sentenced by the court-martial by which the sentence was passed.

(2) Where a sentence passed by a court-martial has been confirmed and is found for any reason to be invalid, a superior authority may pass a valid sentence and the sentence so passed shall have the same effect as if passed by the court-martial and duly confirmed, but the punishment awarded by that sentence shall not be higher in the Scale to subsection (1) of section 209, or subsection (1) of section 210 (whichever of those subsections is appropriate) than the punishment awarded by the invalid sentence nor, in the opinion of the said superior authority, be in excess of the last-mentioned punishment.

(3) Each of the following shall be a superior authority for the purposes of this section—

(a) the Minister,

(b) the Adjutant-General,

(c) any general or flag officer appointed by the Minister for the purpose.

Date of commencement of sentences of penal servitude, imprisonment or detention imposed by way of substitution.

222. —Where a sentence (in this section referred to as the original sentence) imposed by a court-martial has had substituted therefor another sentence (in this section referred to as the substituted sentence) of penal servitude, imprisonment or detention, the following provisions shall have effect, that is to say:—

(a) in case the original sentence was death, the substituted sentence shall be reckoned to commence on the day on which the original sentence was signed by the president of the court-martial;

(b) in any other case, the substituted sentence shall be reckoned to commence on the day on which the original sentence was signed by the president of the court-martial or such earlier date as the court-martial may have directed for the commencement of the original sentence.

Suspension of sentences of penal servitude, imprisonment or detention passed on men.

223. —(1) Where a man is sentenced to penal servitude, imprisonment or detention, the confirming authority to whom the sentence is submitted for confirmation may, when confirming the sentence, direct that the man be not committed to prison or a detention barrack until the orders of a superior authority have been obtained.

(2) A superior authority may in the case of a man sentenced to penal servitude, imprisonment or detention—

(a) direct that an order for committal to prison or a detention barrack shall not be issued until his orders have been obtained,

(b) suspend the sentence passed on the man, whether or not he has already been committed to prison or a detention barrack.

(3) Where a sentence of penal servitude, imprisonment or detention is suspended under this section before the man upon whom it was passed has been committed to prison or a detention barrack, he shall be released, and, notwithstanding anything in this Act, the sentence shall not begin to run until he is ordered to be committed to prison or a detention barrack under that sentence.

(4) Where a sentence of penal servitude, imprisonment or detention is suspended under this section after the man upon whom it was passed has been committed to prison or a detention barrack, he shall be released and the currency of his sentence shall be suspended from the day on which he is released until he is again ordered to be committed to prison or a detention barrack under the same sentence.

(5) Where a sentence has been suspended under this section, the case may at any time and shall, at intervals of not more than three months, be considered by a superior authority, and if on any such reconsideration it appears to the superior authority that the conduct of the man since his conviction has been such as to justify a remission of the sentence he shall remit it.

(6) A superior authority may, at any time while a sentence on a man has been suspended under this section, order that the man be committed to prison or a detention barrack and from the date of such order the sentence shall cease to be suspended.

(7) Where a man, while a sentence on him is suspended under this section, is sentenced to penal servitude, imprisonment or detention for any other offence, then, if that sentence is also suspended under this section, the superior authority ordering the suspension may direct that the two sentences shall run either concurrently or consecutively, so however that the aggregate term of imprisonment or detention shall not exceed two consecutive years, and where the sentence for such other offence is a sentence of penal servitude, then, whether or not that sentence is suspended, any previous sentence of imprisonment or detention which has been suspended shall be avoided.

(8) The powers conferred by this section shall be in addition to and not in derogation of any powers conferred by section 221.

(9) Each of the following shall be a superior authority for the purposes of this section—

(a) the Minister,

(b) the Adjutant-General,

(c) any general or flag officer appointed by the Minister for the purpose.

Quashing of finding of court-martial.

224. —(1) Where the finding and sentence of a court-martial in respect of an accused person have been confirmed and it appears to the Minister that the proceedings of the court-martial were illegal, the Minister shall quash the finding, and thereupon the following provisions shall have effect:—

(a) the whole of the sentence passed by the court-martial shall cease to have effect;

(b) the Minister may at the same time direct that the accused be tried again for the offence which was the subject of the finding, and in such case the accused may, notwithstanding anything in this Act or any rule of law, be tried by court-martial for such offence and if found guilty punished therefor.

(2) Where the finding and sentence of a court-martial in respect of an accused person have been confirmed and it appears to the Minister that the accused was wrongfully convicted, the Minister may quash the finding of guilty, and thereupon the following provisions shall have effect:—

(a) if no other finding of guilty by the court-martial in respect of the accused remains, the whole of the sentence passed by the court-martial shall cease to have effect;

(b) if—

(i) another finding (in this subsection referred to as the remaining finding) of guilty by the court-martial in respect of the accused remains, and

(ii) any punishment (in this subsection referred to as the original punishment) included in the sentence passed by the court-martial is in excess of the punishment authorised by this Act in respect of the remaining finding or is, in the opinion of the Minister, unduly severe, he may, subject to paragraph (c) of this subsection, substitute another punishment (in this subsection referred to as the substituted punishment) and the substituted punishment shall have effect as if it had been awarded by the court-martial and had been duly confirmed;

(c) the following provisions shall apply in relation to the substituted punishment:—

(i) it shall not be a punishment which could not have been awarded by the court-martial to the accused in respect of the remaining finding,

(ii) it shall not be higher in the Scale to subsection (1) of section 209 or subsection (1) of section 210 (whichever of those subsections is appropriate) than the original punishment,

(iii) if the sentence passed by the court-martial included penal servitude, the substituted punishment, if penal servitude, shall not involve a period of penal servitude exceeding the period comprised in the sentence,

(iv) if the sentence passed by such court-martial included imprisonment, the substituted punishment, if imprisonment or detention, shall not involve a period of imprisonment or detention exceeding the period comprised in the sentence,

(v) if the sentence passed by such court-martial included detention, the substituted punishment, if detention shall not involve a period of detention exceeding the period comprised in the sentence,

(vi) where the substituted punishment is detention and the original punishment is imprisonment, the term of detention from the date of substitution shall in no case exceed the term of imprisonment remaining to be served.

Restitution of stolen property.

225. —(1) For the purposes of this section, property shall be deemed to have been unlawfully obtained if it was obtained by the commission of an offence against military law.

(2) Where a person has been convicted by court-martial of having unlawfully obtained any property and the property or any part thereof is found in the possession of the offender, the authority confirming the finding and sentence of such court-martial or the Minister may order the property so found to be restored to the person appearing to be the lawful owner thereof.

(3) A like order may be made with respect to any property found in the possession of such offender which appears to the confirming authority or the Minister to have been obtained by the conversion or exchange of any of the property unlawfully obtained.

(4) Moreover where it appears to the confirming authority or the Minister from the evidence given before the court-martial that any part of the property unlawfully obtained was sold to or pawned with any person without any guilty knowledge of the person purchasing or taking in pawn the property, the confirming authority or the Minister may, on the application of that person and on the restitution of the said property to the owner thereof, order that out of the money (if any) found in the possession of the offender a sum (not exceeding the amount of the proceeds of the said sale or pawning) shall be paid to the said person purchasing or taking in pawn.

(5) An order under this section shall not bar the right of any person, other than the offender or any one claiming through him, to recover any property or money delivered or paid in pursuance of an order under this section from the person to whom the same is so delivered or paid.

Right to copy of proceedings of court-martial.

226. —(1) Any person tried by court-martial shall be entitled on demand at any time, in the case of a general court-martial, within seven years and, in the case of a limited court-martial, within three years after the confirmation of the finding and sentence of the court-martial or after his acquittal, to obtain from the officer or person having the custody of the proceedings of such court-martial, a copy of such proceedings or any specified part thereof upon payment for the same at the prescribed rate, not exceeding four pence for every folio of seventy words or, in such circumstances as may be prescribed, free of charge.

(2) When a person tried by court-martial dies, in the case of a general court-martial, within seven years or, in the case of a limited court-martial, three years after the confirmation of the finding and sentence of the court-martial or after his acquittal, his next of kin shall, within twelve months after his death, be entitled on demand to obtain from the officer or person having the custody of the proceedings of the court-martial a copy of such proceedings or any specified part thereof, upon payment for the same at the rate mentioned in subsection (1) of this section.

(3) The proceedings of a court-martial shall be preserved in the prescribed manner.

(4) For the purposes of this section, the proceedings of a court-martial include the proceedings with respect to revision and confirmation and exhibits.