(2)An officer who at any time between the date on which the accused was charged with the offence and the date of the trial has been the commanding officer of the accused, and any other officer who has investigated the charge against the accused, or who under this Act has held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of the charge against the accused, shall not sit as a member of a general or Supplementary provisions as to constitution of courts-martial.
\n
MALTA ARMED FORCES district court-martial or act as judge advocate at such a courtmartial.
\n
(3)Where (a) the officer convening a general or district court-martial appoints a captain to be president, either because it is not practicable to appoint a field officer or because he is of opinion that a field officer having suitable qualifications is not, with due regard to the public service, available; or (b) an officer directs that an offender shall be tried by a field general court-martial, being of opinion that it is not possible without serious detriment to the public service that the offender should be tried by a general or district court-martial, or the officer convening a field general court-martial appoints two officers only to be members of the court, being of opinion that three officers having suitable qualifications are not, without serious detriment to the public service, available, or appoints himself to be president, being of opinion that it is not practicable to appoint another officer as president, the order convening the court-martial shall contain a statement of the said reason or opinion, and that statement shall be conclusive.
\n
Place for sitting of courts martial.
\n
Art. 97
\n
97.(1) Subject to the provisions of this article, a court-martial shall sit at such place (whether within or outside Malta) as may be specified in the order convening the court; and the convening officer may convene it to sit at a place outside the limits of his command.
\n
(2)A court-martial sitting at any place shall if the convening officer directs it to sit at some other place, and may without any such direction if it appears to the court requisite in the interest of justice to sit at some other place, adjourn for the purpose of sitting at that other place.
\n
Courts-martial: Provisions relating to trial Challenges by accused.
\n
Art. 98
\n
98.(1) An accused about to be tried by any court-martial shall be entitled to object, on any reasonable grounds, to any member of the court, whether appointed originally or in lieu of another officer.
\n
(2)For the purpose of enabling the accused to avail himself of the right conferred by the last foregoing sub-article, the names of the members of the court shall be read over in the presence of the accused before they are sworn, and he shall be asked whether he objects to any of those officers.
\n
(3)Every objection made by an accused to any officer shall be considered by the other officers appointed members of the court.
\n
(4)If objection is made to the president and not less than onethird of the other members of the court allow it, the court shall adjourn and the convening officer shall appoint another president.
\n
(5)If objection is made to a member of the court other than the MALTA ARMED FORCES president and not less than one-half of the members entitled to vote allow it, the member objected to shall retire and the vacancy may, and if otherwise the number of members would be reduced below the legal minimum shall, be filled in the prescribed manner by another officer.
\n
Art. 99
\n
99.(1) An oath shall be administered to every member of a court-martial and to every person in attendance on a court-martial as judge advocate, officer under instruction, shorthand writer or interpreter.
\n
(2)oath:
\n
Administration of oaths.
\n
Every witness before a court-martial shall be examined on Provided that where any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if in the opinion of the court he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth, so however that when the evidence is given on behalf of the prosecution the accused shall not be liable to be convicted unless it is corroborated by some other material evidence in support thereof implicating the accused.
\n
(3)An oath required to be administered under this article shall be i n t he p r e s c r i b e d f o r m a n d s h a l l be ad m in i s t e r e d a t t h e prescribed time by the prescribed person and in the prescribed manner.
\n
Art. 100
\n
100.(1) Subject to the provisions of this article, a courtmartial shall sit in open court and in the presence of the accused.
\n
Courts-martial to sit in open court.
\n
(2)Nothing in the last foregoing sub-article shall affect the power of a court-martial to sit in camera on the ground that it is necessary or expedient in the interest of the administration of justice to do so; and without prejudice to that power a court-martial may order that, subject to any exceptions the court may specify, the public shall be excluded from all or any part of the proceedings of the court if it appears to the court that any evidence to be given or statement to be made in the course of the proceedings or that part, as the case may be, might otherwise lead to the disclosure of any information which would or might be directly or indirectly useful to an enemy.
\n
(3)A court-martial shall sit in closed court while deliberating on their finding or sentence on any charge.
\n
(4)A court-martial may sit in closed court on any other deliberation amongst the members.
\n
(5)Where a court-martial sits in closed court no person shall be present except the members of the court and such other persons as may be prescribed.
\n
Art. 101
\n
101.(1) Where, whether before or after the commencement of the trial, it appears to the convening officer necessary or expedient in the interests of the administration of justice that a court-martial should be dissolved, the convening officer may by order dissolve Dissolution of courts-martial.
\n
MALTA ARMED FORCES the court-martial.
\n
(2)Without prejudice to the generality of the last foregoing sub-article, if after the commencement of the trial a court-martial is, by reason of the death of one of the members or for any other reason, reduced below the legal minimum, it shall be dissolved.
\n
(3)If after the commencement of the trial the president dies or is otherwise unable to attend and the court is not reduced below the legal minimum, then (a) if the senior member of the court is of the rank of captain or is of higher rank, the convening officer may appoint him president and the trial shall proceed accordingly; but (b) if he is not, the court shall be dissolved.
\n
(4)Without prejudice to the generality of sub-article (1), if after the commencement of the trial it is represented to the convening officer that owing to the sickness or other incapacity of the accused it is impracticable having regard to all the circumstances to continue the trial within a reasonable time, the convening officer may dissolve the court.
\n
(5)Where a court-martial is dissolved under the foregoing provisions of this article the accused may be tried by another court.
\n
Decisions of courts-martial.
\n
Amended by:
\n
X.2000.7.
\n
Art. 102
\n
102.(1) Subject to the provisions of this article, every question to be determined on a trial by court-martial shall be determined by a majority of the votes of the members of the court.
\n
(2)In the case of an equality of votes on the finding the court shall acquit the accused.
\n
(3)A finding of guilty where the only punishment which the court can award is imprisonment for life shall not have effect unless it is reached with the concurrence of all the members of the court; and where on such a finding being come to by a majority of the members there is no such concurrence, the court shall be dissolved and the accused may be tried by another court.
\n
(4)Where an accused is found guilty and the court has power to sentence him either to imprisonment for life or to some less punishment, sentence of imprisonment for life shall not be passed without the concurrence of all the members of the court.
\n
(5)In the case of an equality of votes on the sentence, or on any question arising after the commencement of a trial, except the finding, the president shall have a second or casting vote.
\n
Finding and sentence.
\n
Art. 103
\n
103.(1) Without prejudice to the provisions of article 100, the finding of a court-martial on each charge shall be announced in open court.
\n
(2)A finding of guilty shall be, and be announced as being, subject to confirmation.
\n
(3)Any sentence of a court-martial, together with any recommendation to mercy, shall be announced in open court, and a sentence of a court-martial shall be, and be announced as being, MALTA ARMED FORCES subject to confirmation.
\n
Art. 104
\n
104.(1) An accused charged before a court-martial with an offence under this Act may, on failure of proof of the offence having been committed under circumstances involving a higher degree of punishment, be found guilty of the offence as having been committed under circumstances involving a less degree of punishment.
\n
Power to convict of offence other than that charged.
\n
(2)An accused charged before a court-martial with any offence under this Act may be found guilty of attempting to commit that offence or the corresponding civil offence; and if an accused is charged with attempting to commit an offence under this Act he may be convicted on that charge notwithstanding that it is proved that he actually committed the offence or the corresponding civil offence.
\n
(3)Where in relation to an offence under this Act it is prescribed that an accused charged before a court-martial with such offence may be found guilty of another offence which is prescribed in relation thereto, an accused charged as aforesaid may be found guilty of another offence prescribed as aforesaid in relation to an offence with which he is charged.
\n
Art. 105
\n
105.(1) The rules relating to evidence to be observed in proceedings before courts-martial shall, saving any provision of this Act and of any rules made thereunder, be the same as those observed in civil courts in Malta, and no person shall be required in proceedings before a court-martial to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings before a civil court in Malta.
\n
(2)For the purposes of this article an investigation carried out under this Act in respect of a charge shall be treated as an inquiry into a criminal offence held in accordance with the Criminal Code.
\n
Rules of evidence.
\n
(3)A court-martial shall take judicial notice of all matters of n o t o r i e t y, i n c l u d i n g a l l m a t t e r s w i t h i n t h e g e n e r a l s e r v i c e knowledge of the court, and of all other matters of which judicial notice would be taken in a civil court in Malta.
\n
Art. 106
\n
106.Where in Malta any person not subject to military law (a) having been duly summoned to attend as a witness before a court-martial, fails to comply with the summons; or (b) refuses to swear on oath when duly required by a court-martial to do so; or (c) refuses to produce any document in his custody or under his control which a court-martial has lawfully required him to produce; or (d) when a witness, refuses to answer any question which a court-martial has lawfully required him to answer; or (e) wilfully insults any person, being a member of a courtmartial or a witness or any other person whose duty it Offences by civilians in relation to courts-martial.
\n
Amended by:
\n
VIII. 1990.3.
\n
MALTA ARMED FORCES is to attend on or before the court, while that person is acting as a member thereof or is so attending, or wilfully insults any such person as aforesaid while that person is going to or returning from the proceedings of the court; or (f) wilfully interrupts the proceedings of a court-martial or otherwise misbehaves before the court; or (g) does anything which would, if the court-martial had been a court having power to commit for contempt, have been contempt of that court, the president of the court-martial may certify the offence of that person under his hand to the Court of Magistrates, and that court shall thereupon cause a charge to be issued against the person named in the certificate and deal with such person in respect of the alleged offence in like manner as if the offence were that of contempt of the said court.
\n
Offences: Procedure Rules of Procedure.
\n
Art. 107
\n
107.(1) Subject to the provisions of this article, the Minister may make rules (hereinafter referred to as Rules of Procedure) with respect to the procedure to be observed in, and any other matter r e l a t i ng to , th e in v e s t ig a t i on a n d t ri a l of , a n d a w a r d in g o f p u n i s h m e n t f o r, o f f e n c e s c o g n i z a b l e b y c o u r t s - m a r t i a l , commanding officers and appropriate superior authorities and the confirmation and revision of, and the appeals from, finding and sentences of courts-martial, as well as with respect to any matter which by Part III or by this Part of this Act is required or authorised to be prescribed:
\n
Provided that where the rules provide for the power to amend charges the rules shall secure that the accused shall not be thereby prejudiced in his defence and the power aforesaid shall not be exercisable by a court-martial (otherwise than for the purpose only of correcting a mistake in the name or description of the accused or a clerical error or omission) unless there is a judge advocate present at the trial.
\n
(2)Rules of Procedure may further make provision as to the exercise by a judge advocate of his functions at a trial by courtmartial and, without prejudice to the generality of the foregoing provisions of this sub-article, may make provision (a) as to the effect of advice or rulings given to the court by a judge advocate on questions of law (which expression in this sub-article includes questions as to the joinder of charges and as to the trial of persons jointly or separately); (b) for requiring or authorising the president of a courtmartial, in such cases as may be specified in the rules, to direct that questions of law shall be determined by a judge advocate in the absence of the president and other members of the court and any officers under instruction, and for applying to the judge advocate and his proceedings on any such determination such of the MALTA ARMED FORCES provisions of this Act relating to the court or its members and the proceedings thereof as may be specified in the rules.
\n
(3)Rules of Procedure may determine the cases in which and the extent to which courts-martial may, in sentencing the accused for any offence for which he is convicted, at the request of the accused take into consideration other offences against this Act committed by him, and empower the court, in such cases, to direct the making of such deductions from the offender’s pay as the court would have had the power to direct if he had been found guilty of the offence or offences taken into consideration as well as of the offence of which he was in fact found guilty.
\n
(4)The provisions of article 4(4) and (5) shall apply to rules made under this article as they apply to regulations or orders made under that article with the substitution of references to Rules of Procedure for references to regulations or orders made under the said article.
\n
Confirmation, revision and review of proceedings of courts-martial
\n
Art. 108
\n
108.(1) Where a court-martial finds the accused guilty on any charge, the record of the proceedings of the court-martial shall be transmitted to a confirming officer for confirmation of the finding and sentence of the court on that charge.
\n
Confirmation of proceedings of courts-martial.
\n
(2)A finding of guilty or sentence of a court-martial shall not be treated as a finding or sentence of the court until confirmed:
\n
Provided that this sub-article shall not affect the keeping of the accused in custody pending confirmation or the operation of the two next following articles or the provisions of this Act as to confirmation or approval.
\n
Art. 109
\n
109.At any time after a court-martial has sentenced the accused, or has found the accused to be unfit to stand his trial or to be not guilty by reason of insanity, but not later than the prescribed time after confirmation is completed, the accused may in the prescribed manner present a petition against finding or sentence or both.
\n
Petitions against finding or sentence.
\n
Art. 110
\n
110.(1) A confirming officer may direct that a court-martial shall revise any finding of guilty come to by the court in any case where it appears to him - Revision of findings of courtsmartial. (a) that the finding was against the weight of the evidence; or (b) that some question of law determined at the trial and relevant to the finding was wrongly determined.
\n
(2)Any such direction shall be accompanied by the necessary directions for the re-assembly of the court, and shall contain a statement of the reasons for the direction.
\n
(3)On any revision of a finding the court shall reconsider the finding, and (unless the court adheres thereto) may substitute therefor either a finding of not guilty or any other finding to which MALTA ARMED FORCES the court could originally have come at the trial in lieu of the finding under revision.
\n
(4)On any such revision the court shall not have power to receive further evidence.
\n
(5)Where on any such revision the court either adheres to the original finding or substitutes therefor a finding of guilty of another offence, or of the same offence in different circumstances, the court may substitute a different sentence for the original sentence:
\n
Provided that the court shall not have power to substitute a sentence of a punishment greater than the punishment or greatest of the punishments awarded by the original sentence, or to substitute a sentence which in the opinion of the court is more severe than the original sentence.
\n
(6)The confirming officer shall not have power to direct the revision of any substituted finding come to by the court on a previous direction of the confirming officer, or the revision of the original finding if adhered to by the court on such a previous d irect io n; b ut sav e a s aforesai d th is Act sh all a ppl y to t he proceedings of the court on any such revision as it applies to their deliberations on the original finding or sentence, and any substituted finding or sentence shall be treated for all purposes as an original finding or sentence of the court:
\n
Provided that the decision of the court on the revision shall not be required to be announced in open court.
\n
Powers of confirming officers.
\n
Art. 111
\n
111.(1) Subject to the provisions of the last foregoing article and to the following provisions of this article, a confirming officer shall deal with the finding or sentence of a court-martial either by withholding confirmation, if of opinion that the finding of the court is under all the circumstances of the case unsafe or unsatisfactory or involves a wrong decision on a question of law or that there was material irregularity in the course of the trial, or by confirming the finding or sentence or referring the finding or sentence, or both, for confirmation to a higher confirming authority:
\n
Provided that the confirming officer may, notwithstanding that he is of opinion that he would apart from this proviso withhold confirmation of the finding, confirm the finding if he considers that no miscarriage of justice has actually occurred.
\n
(2)In lieu of withholding confirmation of the finding of a court-martial, a confirming officer may, if (a) some other finding of guilty could have been validly made by the court-martial on the charge before it, and (b) he is of opinion that the court-martial must have been satisfied of the facts necessary to justify that other finding, substitute that other finding, and if he does so he shall consider in what manner, if at all, the powers conferred by sub-article (4) should be exercised, or a confirming officer may, if he is of opinion that the case is not one where there should have been a finding of MALTA ARMED FORCES not guilty, but that there should have been a finding that the accused was unfit to stand his trial, substitute a finding that the accused was unfit to stand his trial.
\n
(3)Where it appears to a confirming officer that a sentence of a court-martial is invalid, he may in lieu of withholding confirmation of the sentence substitute therefor a sentence of any punishment or punishments which could have been awarded by the court, not being greater than the punishment or greatest of the punishments awarded by the court and not in his opinion more severe than that punishment or those punishments.
\n
(4)In confirming the sentence of a court-martial, a confirming officer may (a) remit in whole or in part any punishment awarded by the court; or (b) commute any such punishment for one or more punishments provided by this Act, being less than the punishment commuted.
\n
(5)In confirming any sentence, a confirming officer may postpone the carrying out of the sentence for such time as seems expedient, and a confirming officer may extend or terminate any postponement ordered under this sub-article.
\n
(6)A finding or sentence substituted by the confirming officer, or any sentence having effect after the confirming officer has remitted or commuted punishment, shall be treated for all purposes as a finding or sentence of the court duly confirmed.
\n
(7)The confirmation of a finding or sentence shall not be deemed to be completed until the finding or sentence has been promulgated; and in the event of any such substitution, remission or commutation as aforesaid the finding or sentence shall be promulgated as it has effect after the substitution, remission or commutation.
\n
(8)Where the confirming officer determines to withhold confirmation, the determination shall be promulgated and shall have effect as from the promulgation thereof.
\n
Art. 112
\n
112.(1) Subject to the provisions of this article, the following shall have power to confirm the finding and sentence of any courtmartial, that is to say: (a) the officer who convened the court-martial or any officer superior in command to that officer; (b) the successor of any such officer or superior officer, or any person for the time being exercising the functions of any such officer or superior officer; (c) failing any such officer as aforesaid, any person appointed by the Minister to act as confirming officer, whether for a particular case or for a specified class of cases.
\n
(2)The following shall not have power to confirm the finding or sentence of a court-martial, that is to say:
\n
Confirming officers.
\n
MALTA ARMED FORCES (a) any officer who was a member of the court-martial; or (b) any person who as commanding officer of the accused investigated the allegations against him or who is for the time being the commanding officer of the accused; or (c) any person who as appropriate superior authority investigated the allegations against the accused:
\n
Provided that a person excluded by the foregoing provisions of this sub-article may act as confirming officer for a field general court-martial, if otherwise having power to do so, where he is of opinion that it is not practicable, having due regard to the public service, to delay the case for the purpose of referring it to another confirming officer.
\n
(3)A warrant or authorisation empowering the convening of a general or district court-martial may reserve for confirmation by superior authority findings or sentences or both in such circumstances as may be specified by or under the warrant or authorisation, and the powers conferred by sub-article (1) shall be exercisable subject to any such reservation.
\n
Recommendation by court-martial on passing of sentence of imprisonment for life.
\n
Amended by:
\n
LVIII. 1974.68.
\n
Substituted by:
\n
X.2000.8.
\n
Amended by:
\n
XXI of 2020.
\n
Art. 113
\n
113.After sentencing any person to imprisonment for life, the court-martial may recommend in writing to the Commander within twenty-four hours the minimum period which in its view should lapse before the prisoner is released from prison. Such recommendation shall be made available to the person sentenced.
\n
Review of findings and sentences of courts-martial.
\n
Amended by:
\n
LVIII. 1974.68;
\n
L.N. 148 of 1975.
\n
Art. 114
\n
114.(1) A finding or sentence which has been confirmed may at any time be reviewed by a reviewing authority, and if after confirmation of a finding or sentence a petition is duly presented under article 109 against the finding or sentence then, subject to the provisions of this article, the finding or sentence shall be so reviewed as soon as may be after the presentation of the petition and after consideration of the matters alleged therein.
\n
(2)The reviewing authorities for the purposes of this Act are the following: (a) the President of Malta; (b) a judge designated for the purpose by the President of Malta.
\n
(3)If an appeal is lodged to the Court of Criminal Appeal, so much of sub-article (1) as requires the review of a finding or sentence against which the appeal has been made shall thereupon cease to apply to the finding to which the appeal relates and the sentence passed in consequence of that finding.
\n
(4)On a review under this article the reviewing authority may (a) in so far as the review is of a finding, quash the finding and, if the sentence relates only to the finding quashed, the sentence;
\n
MALTA ARMED FORCES (b) in so far as the review is of a sentence, quash the sentence; (c) in any case exercise the like powers of substituting findings, substituting valid for invalid sentences, and remitting or commuting punishment as are conferred on a confirming officer by article 111(2) to (4), and any substituted finding or sentence, or sentence having effect after the remission or commutation of punishment, shall be treated for all purposes as a finding or sentence of the court duly confirmed.
\n
(5)Where a reviewing authority exercises any of the powers conferred by the last foregoing sub-article, the determination of the authority shall be promulgated and shall have effect as from the promulgation thereof.
\n
(6)The provisions of article 508 of the Criminal Code shall apply in relation to a review by a reviewing authority under this article as they apply in relation to an appeal to the Court of Criminal Appeal, with such modifications and adaptations as are referred to in article 116.
\n
Art. 115
\n
Sentences of imprisonment and detention may be reconsidered by the Commander at any time after confirmation; and if on any such reconsideration it appears that the conduct of the offender since his conviction has been such as to justify remission of the sentence, whether in whole or in part, it shall be remitted accordingly.
\n
Reconsideration of sentences of imprisonment and detention.
\n
Appeals from courts-martial
\n
Art. 116
\n
116.(1) The Court of Criminal Appeal (hereinafter referred to as \"the Appeal Court\") constituted as provided in article 498(2) of the Criminal Code shall, in addition to the jurisdiction conferred on it by the Code, have jurisdiction to hear and determine appeals from courts-martial.
\n
Court of Criminal Appeal to be appeal court.
\n
Amended by:
\n
L.N. 148 of 1975.
\n
(2)Subject to the provisions of this Act, the provisions of the said Code relating to the Appeal Court and to appeals made to that court under Title V of Part I of Book Second of that Code shall apply to the Appeal Court in the exercise of its jurisdiction under this Act and to appeals made under this Act, and the provisions relating to a re-trial ordered by the said court shall, in so far as they refer to the Criminal Court, apply to a court-martial upon such a retrial, but shall so apply with such modifications and adaptations as are necessary to give effect to the provisions of this Act and in particular, but without prejudice to the generality of the foregoing, with the substitution of references to court-martial for references to jury or to Criminal Court, of references to charge for references to indictment, and of references to finding for references to verdict.
\n
Art. 117
\n
117.(1) Subject to the provisions of this Act, a person convicted by court-martial may appeal to the Appeal Court against his conviction or, except where the sentence is one fixed by law, against the sentence passed on his conviction.
\n
Right of appeal.
\n
MALTA ARMED FORCES
\n
(2)Subject as aforesaid, the person’s right of appeal shall not be exercisable (a) unless such person has (i) within forty days next following the day on which the finding of the court-martial was promulgated, if the court-martial was held in Malta; or (ii) in any other case, within sixty days next following the day on which the finding of the court was promulgated, presented a petition against finding or sentence or both in accordance with article 109; and (b) until either the period of thirty days (beginning with the day on which the petition is presented) expires or he is notified by the Commander that the petition has not been granted, whichever event first occurs.
\n
(3)If a person presents a petition for the purposes of subarticle (2)(a), but fails to do so within the period therein specified, and subsequently applies to the Appeal Court for leave to appeal, the Appeal Court may direct that he be treated as not having thereby lost his right of appeal if it is of the opinion that there is a reasonable explanation of the failure and that it is in the interests of justice that he should be so treated.
\n
Manner and time of lodging appeal.
\n
Amended by:
\n
LVIII. 1974.68.
\n
Art. 118
\n
118.(1) Subject to the provisions of this article, an appeal under this Part of this Act shall be brought before the Appeal Court by an application to be filed within thirty days next following the day on which either the period specified in article 117(2)(b) has expired or the person convicted is notified as provided in the said paragraph, whichever event first occurs.
\n
(2)The Appeal Court may extend the period within which an appeal to it may be lodged, whether the period has expired or not.
\n
(3)A copy of the application shall be served on the Attorney General at least ten days before the day appointed for the hearing of the appeal, unless the Appeal Court shall in any case of urgency direct service with a shorter notice.
\n
Proceedings of the court-martial.
\n
Amended by:
\n
LVIII. 1974.68;
\n
XXIV.1995.362.
\n
Art. 119
\n
119.(1) On an appeal being lodged under this Part of this Act, the Registrar of Courts (hereinafter referred to as \"the registrar\") shall request the Attorney General to furnish to him the proceedings of the court-martial and any petition presented by the appellant under article 109.
\n
(2)After an appeal is finally determined or is abandoned, the registrar shall, subject to any order which the Appeal Court may make, return the proceedings of the court-martial and any petition to the Attorney General.
\n
(3)At any time after an appeal is lodged as aforesaid the appellant may, subject to sub-article (5), obtain from the registrar copies of any document in his possession for the purposes of the appeal.
\n
MALTA ARMED FORCES
\n
(4)Such copies shall be supplied by the registrar to the appellant on payment therefor of such reasonable charges as the registrar may fix, or, if the appellant has been allowed free legal aid, free of charge; provided that nothing in this article shall require the registrar to supply free of charge any copy of a document which he considers unnecessary for the purposes of the appeal.
\n
(5)If the Minister certifies that for reasons of security the whole or part of the court-martial proceedings or other document, or of any exhibit or other thing, ought not to be disclosed otherwise than to the Appeal Court, or ought to be disclosed only subject to such conditions as he may specify, the registrar shall permit inspection or supply a copy thereof only in pursuance of an order of the Appeal Court and subject to such conditions, if any, as that court may direct.
\n
Art. 120
\n
120.(1) A person who has been tried by court-martial for an offence and been found not guilty by reason of insanity may appeal to the Appeal Court against that finding; and the provisions of the four last foregoing articles shall apply to any such appeal.
\n
Appeal from finding of insanity and unfitness to stand trial.
\n
(2)A person found by a court-martial to be unfit to stand trial may appeal to the Appeal Court against the finding and, subject to the next following sub-articles, the provisions of the four last foregoing articles shall apply to any such appeal.
\n
(3)Where the question whether the accused was unfit to stand his trial was determined by the court-martial at a time later than on arraignment, the appeal may be allowed (notwithstanding that the finding was properly arrived to) if the Appeal Court is of the opinion that the case is one in which the court-martial should have before that time have come to a finding of not guilty.
\n
(4)If the Appeal Court is of that opinion, it shall substitute a finding of not guilty (but not a finding of not guilty by reason of insanity) and the appellant shall then not be liable to be tried by a court-martial or by any other court for the offence with which he was charged.
\n
(5)Where the appeal is allowed and the Appeal Court does not substitute a finding of not guilty, the appellant may be tried accordingly for the said offence; and if he is for the time being detained for reasons of mental health the court may make such order as appears to it to be necessary or expedient pending any such trial in respect of his detention.
\n
Review of summary findings and awards
\n
Art. 121
\n
121.(1) Where a charge has been dealt with summarily, otherwise than by the dismissal thereof, any officer superior in command to the officer who dealt summarily with the charge may at any time review the finding or award.
\n
(2)When on a review under this article it appears to the reviewing officer expedient so to do by reason of any mistake of law in the proceedings on the summary dealing with the charge or of anything occurring in those proceedings which in the opinion of Review of summary findings and awards.
\n
MALTA ARMED FORCES the reviewing officer involved substantial injustice, the said officer may quash the finding.
\n
(3)If a finding in any proceedings is quashed under the last foregoing sub-article and the award made in those proceedings relates only to the finding quashed the reviewing officer shall also quash the award; and if the award relates also to any other finding and it appears to the said officer that the award was not warranted by this Act in respect of that other finding, he may vary the award by substituting such punishment or punishments as he may think proper, being a punishment or punishments which could have been included in the original award in relation to that other finding, and not being in the opinion of the reviewing officer more severe than the punishment or punishments included in the original award.
\n
(4)Where on a review under this article it appears to the reviewing officer that a punishment awarded was invalid, or too severe, or, where the award included two or more punishments, that those punishments or some of them could not validly have been awarded in combination, or are, taken together, too severe, he may vary the award by substituting such punishment or punishments as he may think proper, being a punishment or punishments which could have been included in the original award and not being in the opinion of the reviewing officer more severe than the punishment or punishments included in the original award.
\n
Findings of insanity Provisions where accused found insane.
\n
Amended by:
\n
XVIII. 1976.52;
\n
X.2000.9.
\n
Art. 122
\n
122.(1) Where, on the trial of a person by court-martial, it appears to the court that the accused is unfit to stand his trial, the court shall so find; and if the finding is confirmed in accordance with the following provisions of this article the accused shall be kept in custody in Mount Carmel Hospital there to remain in custody and detained according to the provisions of the Mental Health Act, or any other provision of law or enactment applicable to the case, and those provisions shall apply to the accused accordingly. For the purposes of this sub-article \"unfit to stand trial\" means unfit to stand trial by reason of insanity.
\n
(2)Where, on trial of a person by court-martial, it appears to the court that the evidence is such as, apart from any question of insanity, to support a finding that the accused was guilty of any offence, but that at the time of the acts or omissions constituting that offence the accused was insane, the court shall find that the accused was not guilty of that offence by reason of insanity, and thereupon the accused shall be kept in custody in Mount Carmel Hospital there to remain in custody and detained according to the provisions of the Mental Health Act, or any other provision of law or enactment applicable to the case, and those provisions shall apply to the accused accordingly.
\n
(3)A finding under sub-article (1) shall not have effect unless and until the finding has been confirmed by an officer who would have had power to confirm a finding of guilty come to by the courtmartial in question and has been promulgated.
\n
(4)Where, on the trial of a person by court-martial, the MALTA ARMED FORCES question arises (at the instance of the defence or otherwise) whether the accused is unfit to stand his trial, the following provisions shall have effect: (a) the court, 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, may postpone consideration of the question until any time up to the opening of the case for the defence and if before the question falls to be determined by it, the court finds the accused not guilty of the charge or each of the charges on which he is being tried, the question shall not be determined; (b) subject to paragraph (a) above, the question shall be determined as soon as it arises; (c) where the accused is found unfit to stand his trial, the trial shall not proceed or further proceed, but if the question is determined at a time later than on arraignment the confirming officer or reviewing authority may substitute a finding of not guilty (other than finding of not guilty by reason of insanity), if of opinion that the court should before that time have come to such a finding.
\n
(5)The provisions of this Act as to revision, confirmation and review (and in particular the provisions of this Act which confer power to substitute for any finding any other finding which could have been come to by the court-martial in question) apply in relation to such findings as are provided for by sub-article (2) as those provisions apply in relation to findings of guilty.
\n
(6)Where the confirming officer or reviewing authority substitutes for a finding of not guilty by reason of insanity a finding of guilty of an offence, the confirming officer or reviewing authority shall have the like power of sentencing the accused and other powers as the court-martial would have had on the like finding of guilty, and any sentence imposed shall be promulgated and have effect as would a sentence duly substituted by the confirming officer or the reviewing authority for a sentence of the court-martial.
\n
(7)Where in pursuance of a finding of not guilty by reason of insanity a person is detained for reasons of mental health, and the reviewing authority quashes the finding (without substituting another finding) then, if the reviewing authority is of opinion (a) that the person in question is suffering from mental disorder of a nature or degree which warrants his detention in a hospital under observation (with or without other medical treatment) for at least a limited period; and (b) that he ought to be so detained in the interest of his own health or safety or with a view to the protection of other persons, the reviewing authority shall make an order for his continued MALTA ARMED FORCES detention; and the order shall be sufficient authority for him to be detained, and he shall be so detained according to the foregoing provisions of this article as if the findings had not been quashed.
\n
Functions of Attorney General in relation to courts-martial Functions of Attorney General in relation to courts-martial.
\n
Amended by:
\n
LVIII. 1974.68.
\n
Art. 123
\n
123.Regulations and rules made in pursuance of this Act and regulations made by the Minister by virtue of this article may confer on the Attorney General such functions of considering and reporting on the proceedings of courts-martial and such other functions in relation to such courts as the authority making the regulations or rules may deem proper; and nothing in the foregoing provisions of this Part of this Act shall prejudice the exercise of any such functions.
\n
Commencement, suspension and duration of sentences Commencement of sentences.
\n
Art. 124
\n
124.(1) A military sentence of imprisonment or detention or a sentence of field punishment shall, subject to the provisions of this article, begin to run from the beginning of the day on which sentence was originally pronounced by the court-martial trying the offender, or, as the case may be, was originally awarded by his commanding officer.
\n
(2)A sentence of imprisonment or detention passed by a courtmartial on a man of the force which is suspended in pursuance of article 126 before he has been committed to prison or other establishment shall not begin to run until the beginning of the day on which the suspension is determined:
\n
Provided that where the sentence is suspended by the confirming officer and the reviewing authority determines the suspension, the reviewing authority may direct that the sentence shall run from such earlier date, not earlier than the day on which sentence was originally pronounced by the court-martial, as the reviewing authority may specify.
\n
Duration of sentence of imprisonment and detention.
\n
Art. 125
\n
125.(1) Where a man of the force has been sentenced to imprisonment or detention by a court-martial, and the sentence is suspended in pursuance of the next following article after he has been committed to prison or other establishment, the currency of the sentence shall be suspended from the beginning of the day after the day on which he is released in accordance with the provisions of the next following article until the beginning of the day on which the suspension is determined.
\n
(2)Where any person serving a military sentence of imprisonment or detention becomes unlawfully at large during the currency of the sentence, then, in calculating the period for which he is liable to be imprisoned or detained in pursuance of the sentence, no account shall be taken of time elapsing during the period beginning with the day on which he became at large and ending with the day on which, as a person having become unlawfully at large, he is taken into military custody or the custody of a civil authority or (not having been taken into such custody) returns to the place in which he was imprisoned or detained before he became unlawfully at large:
\n
MALTA ARMED FORCES Provided that any time, during the last mentioned period, during which he proves to have been in the custody of a civil authority or of such other authority as respects which arrangements have been made under article 129, shall not be disregarded in calculating the period for which he is liable to be imprisoned or detained in pursuance of the military sentence.
\n
(3)Without prejudice to sub-article (2), where a person serving a military sentence of imprisonment or detention has lawfully been temporarily released on compassionate grounds, then, in calculating the period for which he is liable to be imprisoned or detained in pursuance of the sentence, no account shall be taken of time elapsing during the period beginning with the day after that on which he is released and ending with the day on which he is required to return to custody.
\n
(4)A person who for any period is released as mentioned in the last foregoing sub-article or who is otherwise lawfully allowed out of any military or other establishment or otherwise out of custody for any period or subject to any condition shall, on failure to return at the expiration of the period or to comply with the condition, be treated for the purposes of sub-article (2) as being unlawfully at large.
\n
Art. 126
\n
126.(1) Without prejudice to the provisions of sub-article (5) of article 111, in confirming a sentence of imprisonment or detention passed by a court-martial on a man of the force, the confirming officer may order that the sentence shall be suspended; and any such sentence which is not for the time being suspended m a y, o n t h e r e v i e w o r r e c o n s i d e r a t i o n o f t h e s e n t e n c e , b e suspended by order of the authority reviewing or reconsidering the sentence.
\n
(2)The suspension of any such sentence may (without prejudice to its being again suspended) be determined on the review or reconsideration of the sentence by an order of the said authority committing the person sentenced to imprisonment or detention, as the case may be.
\n
(3)Where while any such sentence is suspended, the person sentenced is sentenced by a court-martial to imprisonment or detention from a fresh offence then (unless the balance of the earlier sentence is remitted by virtue of article 77(11) ) (a) the court may determine the suspension of the earlier sentence by an order committing the person sentenced to imprisonment or detention, as the case may be, and if so the court shall direct whether the two sentences are to run concurrently or consecutively; (b) if the court does not exercise the powers conferred by the last foregoing paragraph, the confirming officer may exercise those powers on the confirmation of the later sentence; (c) if neither the court nor the confirming officer exercises the said powers, a reviewing authority may exercise those powers on the review of the later sentence;
\n
Suspension of sentences.
\n
MALTA ARMED FORCES (d) where the said powers are exercised (whether by the court, the confirming officer or a reviewing authority) any power of suspension or remission exercisable in relation to the later sentence shall be exercisable also in relation to the earlier sentence:
\n
Provided that this sub-article has effect subject to the provisions of article 77 (12).
\n
(4)Without prejudice to the further suspension of the earlier sentence, an order under the last foregoing sub-article directing that the suspension of that sentence shall be determined shall not be affected by the later sentence not being confirmed or by its being quashed.
\n
(5)Where the sentence of a person in custody is suspended, he shall thereupon be released.
\n
Execution of sentences of imprisonment and detention Execution of sentences of death.
\n
Amended by:
\n
XI. 1977.2.
\n
Imprisonment and detention rules.
\n
Art. 127
\n
127.Repealed by Act X.2000.10.
\n
Art. 128
\n
128.(1) The Minister may make rules (in this Act referred to as Imprisonment and Detention Rules) with respect to all or any of the following matters: (a) the places in which and the establishments or forms of custody (whether military or not) in which persons may be required to serve the whole or any part of military sentences of imprisonment and detention passed on them; (b) the committal of persons under military sentences of imprisonment or detention to the appropriate establishment or form of custody, their removal from one country or place to another and from one establishment or form of custody to another and their release on the coming to an end of any term of imprisonment or detention; (c) the provision, classification, regulation management of military establishments; and (d) the classification, treatment, employment, discipline and control of persons serving military sentences of imprisonment or detention in military establishments or otherwise in military custody; (e) the temporary release on compassionate grounds of persons serving such sentences in such establishments or custody as aforesaid, the cases in which, periods for which and conditions subject to which they may be allowed out of any such establishment or custody and the remission of part of any such sentence for good conduct and industry; (f) the appointment, powers and duties of inspectors, visitors and governors, and of officers and other MALTA ARMED FORCES members of the staff, of military establishments.
\n
(2)Until Imprisonment and Detention Rules are made a sentence of imprisonment under this Act shall be served in the Civil Prisons, and a sentence of detention under this Act shall be served in a detention barrack or in military custody but not in a prison.
\n
(3)Subject to any provision contained in Imprisonment and Detention Rules, a military prisoner shall, while in a civil prison, be confined and otherwise dealt with in the same manner as a civil prisoner under a like sentence of imprisonment.
\n
(4)The provisions of article 4(5) and (6) shall apply to Imprisonment and Detention Rules as they apply to regulations and orders made under that article.
\n
Art. 129
\n
129.(1) The Minister may from time to time make arrangements with the authorities of any country or territory outside Malta whereby military sentences of imprisonment or detention may in accordance with Imprisonment and Detention Rules or in accordance with any such arrangements be served wholly or partly in establishments under the control of those authorities.
\n
Arrangements for serving of sentences outside Malta.
\n
(2)The powers conferred on the Minister by article 128 shall extend to the making of such provision as appears to him necessary or expedient for giving effect to any arrangements made under the last foregoing sub-article.
\n
Trial of persons ceasing to be subject to military law and time limits for trials
\n
Art. 130
\n
130.(1) Subject to the provisions of the next following article, where an offence under this Act triable by court-martial has been committed, or is reasonably suspected of having been committed, by any person while subject to military law, then in relation to that offence he shall be treated, for the purposes of the provisions of this Act relating to arrest, keeping in custody, investigation of c h a rg e s , t r i a l a n d p u n i s h m e n t b y c o u r t - m a r t i a l ( i n c l u d i n g confirm ati on, rev iew, reco nsid eration and suspension) and execution of sentences as continuing subject to military law notwithstanding his ceasing at any time to be subject thereto.
\n
(2)Where, while a person is in military custody by virtue of this article (whether before, during or after trial) he commits, or is reasonably suspected of having committed, an offence which if he were subject to military law would be an offence under this Act triable by court-martial, then in relation to that offence or suspected offence he shall be treated, for the purposes of the provisions of this Act mentioned in the last foregoing sub-article and the provisions thereof as to summary dealing with charges, as having been subject to military law when the offence was committed or is suspected of having been committed and as continuing subject to military law thereafter.
\n
(3)Where by virtue of either of the two last foregoing subarticles a person is treated as being at any time subject to military law for the purposes of any provision of this Act, that provision Trial and punishment of offences under military law notwithstanding offender ceasing to be subject to military law.
\n
MALTA ARMED FORCES shall apply to him (a) if he holds any military rank, as to a person having that rank; (b) otherwise as to a person having the rank which he had when last actually subject to military law:
\n
Provided that as respects any time after he has been sentenced for the offence in question and the sentence has been confirmed the said provision shall apply to him (in any case) as to a soldier.
\n
(4)Where apart from this sub-article any provision of this Act would under the last foregoing sub-article apply to a person, in relation to different offences, as to a person having different ranks, it shall apply to him as to a person having the lower or lowest of those ranks.
\n
Limitation of time for trial of offences under military law.
\n
Amended by:
\n
LVIII. 1974.68.
\n
Art. 131
\n
131.(1) No person shall be tried by court-martial for any offence, other than one against article 44 or 45 or desertion, unless the trial is begun within three years after the commission of the offence, there being disregarded any time during which he was a prisoner of war and any time during which he was illegally absent:
\n
Provided that (a) in the case of an offence against article 75 where proceedings for the corresponding civil offence must, by virtue of any enactment, be brought within a limited time, that limit of time shall apply to the trial of the offence under the said article 75 in substitution for the foregoing provisions of this sub-article; (b) subject to any such limit of time as is mentioned in the last foregoing paragraph, a person may be tried by court-martial for a civil offence notwithstanding that it was committed more than three years before the beginning of the trial, if the Attorney General consents to the trial.
\n
(2)Where a person who has committed an offence of desertion, other than desertion on active service, has since the offence served as a member of the regular force continuously in an exemplary manner for not less than three years, he shall not be tried for that offence.
\n
(3)A person shall not be triable by virtue of sub-article (1) of the last foregoing article unless his trial is begun within three months after he ceases to be subject to military law or the trial is for a civil offence and the Attorney General consents to the trial:
\n
Provided that this sub-article shall not apply to an offence against article 44 or 45 or desertion.
\n
(4)A person shall not be arrested or kept in custody by virtue of sub-article (1) of the last foregoing article for an offence at any time after he has ceased to be triable for the offence.
\n
Relations between military law and civil courts and finality of MALTA ARMED FORCES trials
\n
Art. 132
\n
132.(1) Where a person subject to military law (a) has been tried for an offence by a court-martial or has had an offence committed by him taken into consideration by a court-martial in sentencing him; or Jurisdiction of civil courts. (b) has been charged with an offence under this Act and has had the charge dealt with summarily by his commanding officer or the appropriate superior authority, a civil court shall be debarred from trying him subsequently for an offence substantially the same as that offence; but except as aforesaid nothing in this Act shall be construed as restricting the jurisdiction of any civil court to try a person subject to this Act for an offence.
\n
(2)For the purposes of this article (a) a person shall not be deemed to have been tried by a court-martial if confirmation is withheld of a finding by the court-martial that he is guilty of the offence, or of a finding by the court-martial that he is not guilty of the offence by reason of insanity; (b) a person shall not be deemed to have had an offence taken into consideration by a court-martial in sentencing him if confirmation of the sentence is withheld or the sentence is quashed; (c) a case shall be deemed to have been dealt with summarily by the commanding officer or appropriate superior authority notwithstanding that the finding of that officer or authority has been quashed, or the award of that officer or authority quashed or varied, on the review thereof.
\n
Art. 133
\n
133.(1) Where a person subject to military law (a) has been tried for an offence by a competent civil court, wherever situated, or a court-martial; or (b) has had an offence committed by him taken into consideration when being sentenced by a court-martial or by any such civil court as aforesaid; or (c) has been charged with an offence under this Act and has had the charge dismissed, or has been found guilty on the charge, by his commanding officer or the appropriate superior authority; or (d) has had an offence condoned by his commanding officer, he shall not be liable in respect of that offence to be tried by courtmartial or to have the case dealt with summarily by his commanding officer or the appropriate superior authority.
\n
(2)For the purposes of this article - Persons not to be tried under this Act for offences already disposed of.
\n
MALTA ARMED FORCES (a) a person shall not be deemed to have been tried by a court-martial if confirmation is withheld of a finding by the court-martial that he is guilty of the offence or of a finding by the court-martial that he is not guilty of the offence by reason of insanity; (b) a person shall not be deemed to have had an offence taken into consideration by a court-martial in sentencing him if confirmation of the sentence of the court is withheld or the sentence is quashed; (c) a case shall be deemed to have been dealt with summarily by the commanding officer or appropriate superior authority notwithstanding that the finding of that officer or authority has been quashed, or the award of that officer or authority quashed or varied, on the review thereof; (d) an offence shall be deemed to have been condoned by the commanding officer of a person alleged to have committed the offence if, and only if, that officer or any officer authorised by him to act in relation to the alleged offence has with knowledge of all relevant circumstances informed him that he will not be charged therewith; (e) a person ordered under article 64(2) to be imprisoned or to undergo detention for an offence against that article shall be deemed to have been tried by courtmartial for the offence.
\n
(3)Where confirmation of a finding of guilty of an offence or of a finding of not guilty of an offence by reason of insanity is withheld the accused shall not be tried again by court-martial for that offence unless the order convening the latter court is issued not later than twenty-eight days after the promulgation of the decision to withhold confirmation.
\n
(4)Save as provided in the foregoing provisions of this article, proceedings for an offence against this Act (whether before a commanding officer or appropriate superior authority or before a court-martial) shall not be barred on the ground of condonation.
\n
Inquiries Boards of Inquiry.
\n
Amended by:
\n
L.N. 148 of 1975.
\n
Art. 134
\n
134.(1) Subject to and in accordance with the provisions of rules made under this article (hereinafter referred to as \"Board of Inquiry Rules\"), the Commander or any officer of the force empowered by or under such rules so to do may convene a board of inquiry to investigate and report on the facts relating to (a) the absence of any person subject to military law; (b) the capture of any such person by the enemy; (c) the death of any person in a military establishment where an inquiry into the death is not required to be held by any civil authority; (d) any other matter of a class specified in such rules or MALTA ARMED FORCES referred to such a board by the Commander or any such officer as aforesaid, and a board of inquiry shall, if directed so to do, express their opinion on any question arising out of any matter referred to the board.
\n
(2)A board of inquiry shall consist of a president, who shall be an officer not below the rank of captain and be subject to military law and not less than two other members each of whom shall either be a person so subject or be a person not so subject who is in the service of the Government of Malta.
\n
(3)Subject to the provisions of this article, board of inquiry rules may make provision with respect to the convening, constitution and procedure of boards of inquiry and, without prejudice to the generality of the foregoing, may make provision with respect to all or any of the following matters: (a) the rules of evidence to be observed by boards of inquiry and the taking of evidence before such boards, so however that the rules shall provide for the taking of evidence on oath or affirmation except in circumstances such that if the evidence were being taken at a court-martial an oath could be dispensed with; (b) without prejudice to the provisions of the next following article, the making in service books of records of findings of boards of inquiry in such cases as may be provided by the rules; (c) such incidental and supplementary matters as appear requisite for the purpose of the rules.
\n
(4)Board of Inquiry Rules shall contain provision for securing that any witness or other person who may be affected by the findings of a board of inquiry shall have an opportunity of being present, and represented, at the sittings of the board or such part thereof as may be specified by or under the rules.
\n
(5)Evidence given before a board of inquiry shall not be admissible against any person in proceedings before a courtmartial, commanding officer or appropriate superior authority, other than proceedings for an offence against article 65 or for an offence against article 75 where the corresponding civil offence is perjury.
\n
(6)The power to make Board of Inquiry Rules shall be exercised by the Minister; and the provisions of article 4(5) and (6) shall apply to such rules as they apply to regulations and orders made under that article.
\n
Art. 135
\n
135.(1) Where a board of inquiry inquiring into the absence of an officer or man of the force reports that he has been absent without leave or other sufficient cause for a period specified in the report, not being less than twenty-one days, a record of the report shall in accordance with the Board of Inquiry Rules be entered in the service books.
\n
Inquiries into absence.
\n
MALTA ARMED FORCES
\n
(2)A record entered in pursuance of the last foregoing subarticle shall, unless the absentee subsequently surrenders, or is arrested, or the report of the board of inquiry is annulled by the Commander or a subsequent board of inquiry, have the like effect as a conviction by court-martial for desertion.
\n
Regimental inquiries. Amended by:
\n
L.N. 148 of 1975.
\n
Art. 136
\n
136.(1) An officer of the force authorised in that behalf by or under regulations made by the Minister under this article may cause an inquiry to be held in such manner and by such person or persons as may be specified by or determined under such regulations (being a person or persons each of which is either subject to military law or, not being so subject, is in the service of the Government of Malta), into any matter so specified or determined:
\n
Provided that an inquiry shall not be held in pursuance of this article into: (a) the absence of a person subject to military law; or (b) the capture of any such person by the enemy.
\n
(2)Regulations under this article may make provision as to the rules of evidence to be observed at inquiries held in pursuance of this article and the taking of evidence at such inquiries, and may authorise the taking of evidence on oath or affirmation, and the administration of oaths, in such cases as may be specified by or under the regulations.
\n
(3)Article 134(4) and (5) shall apply in relation to inquiries held in pursuance of this article with the substitution of references to regulations under this article for references to Board of Inquiry Rules and of references to an inquiry held in pursuance of this article for references to a board of inquiry; and of article 4(5) and
\n
(6)shall apply to regulations made under this article as they apply to regulations made under that article.
\n
Miscellaneous provisions Appointment of judge advocates.
\n
Amended by:
\n
LVIII. 1974.68.
\n
Art. 137
\n
137.The appointment of a person to act as judge advocate at any court-martial shall be made by the Attorney General or on his behalf and, in cases where it is not practicable for him to do so, may be made by the convening officer.
\n
Promulgation.
\n
Art. 138
\n
138.Any finding, sentence, determination or other thing required by this Act to be promulgated shall be promulgated either by being communicated to the accused or in such other manner as may be prescribed or as the confirming officer or reviewing authority, as the case may be, may direct.
\n
Custody of proceedings of courts-martial and right of accused to a copy thereof.
\n
Amended by:
\n
LVIII. 1974.68.
\n
Art. 139
\n
139.(1) The record of the proceedings of a court-martial shall be kept in the custody of the Attorney General for not less than six years, being a period sufficient to ensure that the rights conferred by the two next following sub-articles shall be capable of being exercised.
\n
(2)Subject to the provisions of this article, any person tried by a court-martial shall be entitled to obtain from the Attorney General on demand at any time within the relevant period and on payment therefor at such rate as may be prescribed a copy of the MALTA ARMED FORCES record of the proceedings of the court.
\n
(3)Where a person tried by court-martial dies within the relevant period, his heirs, or any person who in the opinion of the Attorney General ought to be treated for the purposes of this subarticle as his heirs, shall, subject to the provisions of this article, be entitled to obtain from the Attorney General on demand at any time within the period of twelve months from the death and on payment therefor at the prescribed rate a copy of the record of the proceedings of the court.
\n
(4)If, on an application in pursuance of either of the two last foregoing sub-articles for a copy of the record of any proceedings, the Minister certifies that it is requisite for reasons of security that the proceedings or any part thereof should not be disclosed, the applicant shall not be entitled to a copy of the proceedings or part to which the certificate relates.
\n
(5)In this article \"the relevant period\", in relation to any person tried by court-martial, means the period of five years beginning with the date of his acquittal or, where he was convicted, of the promulgation of the findings and sentence or, where a finding of guilty was not confirmed, of the promulgation of the withholding of confirmation:
\n
Provided that where the proceedings relate to two or more charges and the person charged was acquitted on one or more of the charges and convicted on another or others, the relevant period shall be the period of five years beginning with the date of the promulgation of the finding or findings of guilty and the sentence thereon or of the withholding of confirmation of that finding or those findings.
\n
(6)Any reference in this article to the record of the proceedings of a court-martial includes a reference to the record of the proceedings with respect to the confirmation or revision of the findings and sentence of the court-martial.
\n
Art. 140
\n
140.No action shall lie in respect of anything done by any person in pursuance of a military sentence of imprisonment or detention if the doing thereof would have been lawful but for a defect in any warrant or other instrument made for the purposes of that sentence.
\n
Indemnity for prison officers, etc.
\n
Art. 141
\n
141.(1) Where any matter authorised or required by Part III or by this Part of this Act to be prescribed may not appropriately or conveniently be prescribed by the Rules of Procedure, any such matter may be prescribed by regulations under this article.
\n
Additional regulations.
\n
(2)Regulations under this article may be made by the Minister, and the provisions of article 4(5) and (6) shall apply to such regulations as they apply to regulations made under that article.
\n
Art. 142
\n
142.(1) The following provisions shall have effect where a person has been convicted by court-martial of an offence against articles 43, 57(1) or 58, or of a corresponding civil offence under article 75, or of otherwise unlawfully obtaining any property.
\n
Restitution or compensation for theft, etc.
\n
MALTA ARMED FORCES
\n
(2)If any property unlawfully obtained as aforesaid has been found in the possession of the offender, it may be ordered to be delivered or paid to the person appearing to be the owner thereof.
\n
(3)If there has been found in the possession of the offender any property (other than money) appearing to have been obtained by him by the conversion or exchange of any of the property unlawfully obtained as aforesaid, the property may be ordered to be delivered to the person appearing to be the owner of the property unlawfully obtained.
\n
(4)Where money is found in the possession of the offender, then whether or not it appears to have been obtained as aforesaid an order may be made that there shall be paid out of that money to the person appearing to be the owner of the property unlawfully obtained such sum as may be specified in the order as or towards compensation for the loss caused to the said person by the offence, in so far as not otherwise made good under this Act or by the recovery of the property unlawfully obtained.
\n
(5)Where any of the property unlawfully obtained as aforesaid has been sold or given in pawn to some other person who did not then know it to have been unlawfully obtained, an order may be made that, subject to the restitution to the owner thereof of the property sold or given as aforesaid, there shall be paid to the said other person, out of any money found in the possession of the offender (whether or not the money appears to be proceeds of the sale or giving in pawn), such sum as may be specified in the order as or towards compensation for the loss caused to him in consequence of the sale or giving in pawn.
\n
(6)Where any of the property unlawfully obtained as aforesaid has been given in exchange to some other person who did not then know it to have been unlawfully obtained, an order may be made that, subject to the restitution to the owner thereof of the property given as aforesaid, there shall be restored to the said other person the property taken in exchange for the property unlawfully obtained.
\n
(7)An order under this article may be made by the courtmartial by whom the offender is convicted, by the confirming officer, or by a revi ew ing autho rity; and in t his article the expression \"appearing\" means appearing to the court, officer or authority making the order.
\n
(8)An order under this article made by a court-martial shall not have effect until confirmed by the confirming officer; and the provisions of this Part of this Act as to confirmation and review of the proceedings of courts-martial shall apply to an order under this article as they apply to a sentence.
\n
(9)The operation of an order under this article shall be suspended (a) in any case, until the expiration of the period within which an appeal may be made under this Part of this Act to the Court of Criminal Appeal; (b) if such an appeal is duly lodged, until the appeal is MALTA ARMED FORCES determined or abandoned, and where the operation of such an order as aforesaid is suspended under this article (i) it shall not take effect if the conviction is quashed on appeal; (ii) the appeal court may by order annul or vary the order although the conviction is not quashed; (iii) such steps shall be taken for the safe custody, during the period during which the operation of the order is suspended, of the property ordered to be restored or handed over or the money to which the order relates as may be prescribed or as the appeal court may direct.
\n
(10)Notwithstanding anything in the last foregoing sub-article, an order under this article shall not, so far as it relates to the delivery of property to the person appearing to be the owner thereof, be suspended if the court, officer or authority making the order directs to the contrary in any case in which, in the opinion of the court, officer or authority, the title to the property is not in dispute.
\n
(11)An order under this article shall not bar the right of any person, other than the offender or a person claiming through him, to recover any property delivered or paid in pursuance of such an order from the person to whom it is delivered or paid.
\n
PART V
\n
FORFEITURES AND DEDUCTIONS AND ENFORCEMENT OF MAINTENANCE LIABILITIES
\n
Art. 143
\n
143.(1) No forfeiture of the pay of an officer or man of the regular force shall be imposed unless authorised by or under this Act or any other enactment.
\n
(2)Notwithstanding any deduction from the pay of an officer or man of the regular force, he shall (subject to any forfeiture) remain in receipt of pay at not less than such minimum rate as may be prescribed by order of the Minister.
\n
(3)Notwithstanding that forfeiture of a person’s pay for any period has been ordered in pursuance of this Act, he may remain in receipt of pay at such minimum rate as aforesaid; but the amount received for the period may be recovered from him by deduction from pay.
\n
(4)Any amount authorised to be deducted from the pay of an officer or man of the regular force may be deducted from any balance (whether or not representing pay) which may be due to him, and references in this Act to the making of deductions from pay shall be construed accordingly.
\n
General provisions.
\n
Forfeiture of pay for absence from duty.
\n
MALTA ARMED FORCES
\n
Art. 144
\n
144.(1) The pay of an officer or man of the regular force may be forfeited (a) for any day of absence in such circumstances as to constitute an offence under article 50 or 51 or, if the Commander or an officer authorised by him so directs, of other absence without leave; (b) for any day of imprisonment, detention or field punishment awarded under this Act by a court-martial or commanding officer, or of imprisonment or detention to which he is liable in consequence of a sentence of a civil court; (c) where he is found guilty (whether by court-martial, the appropriate superior authority or his commanding officer) of an offence under this Act, for any day (whether before or after he is found guilty) on which he is in hospital on account of sickness or injury certified by the proper medical officer to have been occasioned by the offence.
\n
(2)The pay of an officer or man of the regular force may be forfeited for any day of absence by reason of his having been made a prisoner of war if the Commander or an officer authorised by him is satisfied (a) that he was made a prisoner of war through disobedience to orders or wilful neglect of his duty; or (b) that having been made a prisoner of war he failed to take any reasonable steps available to him to rejoin the service; or (c) that having been made a prisoner of war he served with or aided the enemy in the prosecution of hostilities or measures calculated to influence the morale or in any other manner whatsoever not authorised by international usage, and nothing in paragraph (a) of the last foregoing sub-article shall apply to absence by reason of having been made a prisoner of war.
\n
(3)For the purposes of the foregoing provisions of this article the number of days that a person is absent or is in hospital shall be computed as follows: (a) the number of days shall be reckoned from the time when the absence or, as the case may be, the time spent in hospital commences; (b) each period of twenty-four hours shall be reckoned as one day and, save as hereinafter provided, a part of a day shall be reckoned as one day; (c) when the total period of the absence or time spent in hospital is less than six hours, no account shall be taken thereof unless the person was, by reason of his being absent or in hospital, prevented from performing a military duty which was thereby thrown on some other person.
\n
MALTA ARMED FORCES
\n
Art. 145
\n
145.Where a person sentenced or ordered by a civil court (whether in or outside Malta) to pay a sum by way of fine, penalty, damages, compensation or costs in consequence of being charged before the court with an offence is at the time of the sentence or order, or subsequently becomes a member of the regular force, then if the whole or any part of that sum is met by a payment made by or on behalf of any military authority, the amount of the payment may be deducted from his pay.
\n
Deductions for payment of civil penalties.
\n
Art. 146
\n
146.(1) Without prejudice to the provisions of this Act as to the imposition of stoppages as a punishment, where, after such investigation as may be prescribed it appears to the Commander or an officer authorised by him that any loss of, or damage to, public or service property has been occasioned by any wrongful act or negligence of an officer or man of the regular force (hereinafter referred to as \"the person responsible\"), the Commander or authorised officer may, subject to sub-article (2), order the person responsible (whether or not he is a member of the regular force at t h e t i m e w h e n t h e o r d e r i s m a d e ) t o p a y, a s o r t o w a r d s compensation for the loss or damage, such sum as may be specified in the order; and any such sum, in so far as not otherwise paid by the person responsible, may be deducted from his pay.
\n
Compensation for loss occasioned by wrongful act or negligence.
\n
(2)No order shall be made under the last foregoing sub-article if, in proceedings before a court-martial, the appropriate superior authority or the commanding officer of the person responsible, that person (a) has been acquitted in circumstances involving a finding that he was not guilty of the wrongful act or negligence in question; or (b) has been awarded stoppages in respect of the same loss or damage, but save as aforesaid, the fact that any such proceedings have been brought in respect of the wrongful act or negligence in question shall not prevent the making of an order or deductions under the last foregoing sub-article.
\n
Art. 147
\n
147.(1) Where damage occurs to any premises in which one or more units of the regular force or parts of such units are quartered or billeted, or any fixtures, furniture or effects in or belonging to such premises are damaged or lost, then if it appears on such investigation as may be prescribed that the damage or loss was occasioned by the wrongful act or negligence of persons belonging to any of the units or parts of units in occupation of the premises and was so occasioned at a time when they were in occupation thereof, but that the said persons cannot be identified, any person belonging to the said units or parts of units may be required to constitute towards compensation for the damage or loss such amount as may in manner prescribed be determined to be just, and the amount may be deducted from his pay.
\n
(2)The last foregoing sub-article shall extend to ships, trains and aircraft in which units or parts of units of the regular force are being transported, and references to premises, quartering and occupation shall be construed accordingly.
\n
Deductions for barrack damage.
\n
MALTA ARMED FORCES Remission of forfeitures and deductions.
\n
Art. 148
\n
148.Any forfeiture or deduction imposed under the four last foregoing articles may be remitted by the Commander or in such manner and by such authority as may be prescribed.
\n
Enforcement of maintenance and affiliation orders by deduction from pay.
\n
Art. 149
\n
149.(1) Where by virtue of a judgement, decree or order which is enforceable in Malta an order has been made against any person (hereinafter referred to as \"the defendant\") for the payment of any periodical or other sum specified therein for or in respect of (a) the maintenance of his wife, child or ascendant; or (b) any costs incurred in any proceedings relating to any such order by or on behalf of the person in whose favour the order has been made, and the defendant is an officer or man of the regular force, then (whether or not he was a member of that force when the said order was made) the Commander or any officer authorised by him may order such sum to be deducted from the pay of the defendant and appropriated in or towards satisfaction of the payment due under the order of the court as the Commander or officer thinks fit.
\n
(2)Where to the knowledge of the court making an order in pursuance of article 381(3) of the Code of Organization and Civil Procedure, or varying or revoking any such order, the defendant is an officer or man of the regular force the court shall cause the registrar of the court to send a copy of the order to the Commander or an officer authorised by him.
\n
(3)The Commander or an officer authorised by him may by order vary or revoke any order previously made under this article, and may treat any order made under this article as being in suspense at any time while the person against whom the order was made is absent as mentioned in article 144(1)(a).
\n
Deductions from pay for maintenance of wife or child.
\n
Art. 150
\n
150.(1) Where the Commander or an officer authorised by him is satisfied that an officer or man of the regular force is neglecting, without reasonable cause, to maintain his wife or any child of his under the age of eighteen years the Commander or officer may order such sum to be deducted from his pay and appropriated towards the maintenance of his wife or child as the Commander or officer thinks fit.
\n
(2)On an application made to the Commander or an officer authorised by him for an order under the last foregoing sub-article the Commander or officer, if satisfied that a prima facie case has been made out for the making of such an order, may make an interim order for such deduction and appropriation as is mentioned in the last foregoing sub-article to take effect pending the further examination of the case.
\n
(3)Where an order is in force under sub-article (1) of the last foregoing article for the making of deductions in favour of any person from the pay of an officer or man of the regular force, no deductions from his pay in favour of the same person shall be ordered under the foregoing provisions of this article.
\n
(4)The Commander or officer authorised by him may by order MALTA ARMED FORCES vary or revoke any order previously made under this article, and may treat any order made under this article as being in suspense at any time while the person against whom the order was made is absent as mentioned in article 144(1)(a).
\n
Art. 151
\n
151.(1) The sums deducted under the two last foregoing articles shall not together exceed (a) in the case of an officer, three-sevenths of his pay; (b) in the case of a warrant officer or non-commissioned officer not below the rank of sergeant, two-thirds of his pay;
\n
Limit of deductions under foregoing articles and effect on forfeiture. (c) in the case of any other man of the force, three-fourths of his pay.
\n
(2)Where any deductions have been ordered under either of the two last foregoing articles from a person’s pay and (whether before or after the deductions have been ordered) he incurs a forfeiture of pay by or in consequence of the finding or sentence of a courtmartial or the finding or award of the appropriate superior authority or his commanding officer, it shall apply only to so much of his pay as remains after the deductions have been made.
\n
(3)For the purposes of sub-article (1)(b) and (c) a person having acting rank shall be treated as of that rank.
\n
PART VI
\n
RANGES, TRAINING AND TRESPASS Use of land and sea areas for ranges
\n
Art. 152
\n
152.(1) Where any land belonging to or administered by the Government (whether held by the Government or not) or held by the Government under any title whatsoever, or where any area of the sea within the territorial or internal waters of Malta, other than the Grand Harbour, Marsamxett Harbour and Marsaxlokk Bay, or where both such land or such area of sea, is appropriated for a weapon firing range or for training or practice in the use of any weapons of war or for experiments connected with any weapons of war, the Minister may make regulations for the use of such land or sea for the purposes for which it is appropriated and for securing the public against danger arising from such use.
\n
(2)Regulations made under this article may prohibit all intrusion on the said lands or sea and all obstruction of the said use Regulations as to use of land and sea areas for ranges and like purposes.
\n
Amended by:
\n
XIII. 1983.4;
\n
L.N. 411 of 2007.
\n
MALTA ARMED FORCES thereof; but no restriction of the use of the sea under this article shall be imposed further or otherwise than is necessary for the purpose to which an area of the sea is appropriated or in such way as to interfere unreasonably with any public right.
\n
(3)Where by or under any regulation made under this article the public is allowed to use any of the said lands, regulations under this article may also provide for the government of such lands and the regulation of their use when so used by the public, for the preservation of order and the prevention of nuisances, obstructions, encampments, and encroachments thereon, and for the prevention of any injury to the same.
\n
(4)Nothing in any regulation made under this article shall restrict the free exercise by any person of his rights of ownership or of user over any immovable property, or of other rights annexed thereto.
\n
(5)In this article the expression \"public right\" means any right of navigation, anchoring, grounding, fishing, bathing, crossing, walking or recreation.
\n
(6)Any person who contravenes any provision of regulations made under this article shall be liable on conviction to a fine (ammenda) not exceeding twenty-three euro and twenty-nine cents (23.29).
\n
(7)Article 4(5) and (6) shall apply to regulations made under this article as they apply to regulations made under that article.
\n
Right of compensation.
\n
Art. 153
\n
153.Where in consequence of any regulation made under the last foregoing article the private rights of any person are injuriously affected or obstructed, fair compensation shall be payable by the Government, and such compensation shall, in case of difference, be determined by the competent court.
\n
Use of land for training of the force Notice of training.
\n
Art. 154
\n
154.(1) The Minister may from time to time by notice in the Gazette declare that training or combined training of the force or part of the force will take place in Malta.
\n
(2)Any such notice shall be so published at least six clear days before the training is due to take place and shall contain the following particulars: (a) the police district or districts and the parish or parishes (hereinafter referred to as \"the training area\") in which the training will take place; (b) the period of time in which the training will take place; (c) the names of any villages situate within the training area; (d) any place or area within the training area which shall be out of bounds for the members of the force engaged in the training; (e) such other particulars as to the seashore, highways or footpaths to be used in the course of training as may MALTA ARMED FORCES seem to the Minister necessary for the purpose of giving to persons who may suffer damage or injury by reason, or in the course of, or in consequence of such training reasonable certainty as to the training area.
\n
Art. 155
\n
155.(1) Subject to the provisions of this Act and of any regulations made under article 158 thereof, in and about the course of any training of which notice has been given in accordance with the last foregoing article, members of the force may freely land from the sea on, enter and pass and repass over and dig trenches in and erect defences or other works on land in any training area specified in the said notice; but they shall not enter, pass or repass over, dig trenches in or erect any defences or other works on - Right of members of force to use land. (a) any dwelling house, place of worship, school, shop, workshop, stores or other premises used in any trade or business (other than agriculture), farmyard, garden, orchard, nursery, burial-ground or ground forming part of the enclosure of any place of worship or school; (b) any place or property declared by the notice aforesaid to be out of bounds.
\n
(2)No firing with live shells or cartridges shall take place during any such training.
\n
Art. 156
\n
156.(1) Subject to the provisions of this Act and of any regulations made under article 158 thereof, there shall be paid by the Government fair compensation in respect of any damage or injury caused in the course, or by reason, or in consequence of any training carried out in pursuance of the two last foregoing articles.
\n
Compensation for, and making good, damage.
\n
(2)Without prejudice to the provisions of the last foregoing sub-article, at the conclusion of any training the members of the force shall fill in any trenches dug by them in the course of such training and remove all defences and other works erected in the course of the same, and restore the land used for such trenches, defences and works so far as possible to the state in which it was before such use.
\n
(3)Save as aforesaid, no action for trespass, damage or injury shall lie in respect of anything done or omitted to be done by reason, or in the course, or in consequence of any training of which notice has been given in accordance with article 154.
\n
Art. 157
\n
157.No person shall obstruct or interfere with any member of the force in the course of any training as aforesaid; and any person who contravenes the provision of this article shall be liable to the punishments established for contraventions.
\n
Prohibition of obstruction.
\n
Art. 158
\n
158.(1) The Minister may make regulations to give effect to any of the provisions of the four last foregoing articles and, without prejudice to the generality of the foregoing, may by such regulations - Regulations in respect of training of force. (a) require payment of compensation under article 156 to be made against claims duly submitted; (b) regulate the manner in which and the time within MALTA ARMED FORCES which claims for compensation shall be submitted, and the evidence and other information to be supplied by the claimant; (c) regulate the manner in which and the authorities by whom claims for compensation shall be dealt with and, in case of difference, settled; (d) require or authorise the requiring of members of the Police force to accompany members of the force during the training, and prescribe the duties and functions of any such Police officers; (e) modify any of the provisions of the four last foregoing articles in so far as they are extended to visiting forces under the Visiting Forces Act, 1966, * and make different provisions in regulations made under this article in respect of any such visiting forces; (f) provide for such incidental and supplementary matters as appear requisite for the purpose of the regulations.
\n
(2)Article 4(5) and (6) shall apply to regulations made under this article as they apply to regulations made under that article.
\n
Trespass upon land held by the force Trespass to constitute contravention.
\n
Art. 159
\n
159.(1) If any person, without authority, enters or is found in or upon any place, which is held by any authority of the force for the purposes of the force, or the access to which by the public has been for the time being prohibited by the Minister by notice in the Gazette, such person shall be guilty of a contravention and may, without any warrant or other authority, be apprehended and detained by any Police officer.
\n
(2)In the absence of a Police officer it shall be lawful for an officer of the force or of a man of the force of a rank not inferior to that of a lance-corporal or lance-bombardier, wearing the uniform of his rank, to apprehend and detain such person, if he finds it necessary to do so for the identification of that person by the Police, and no longer than it may be necessary for such purpose.
\n
PART VII
\n
GENERAL PROVISIONS Redress of complaints Complaints by officers.
\n
Amended by:
\n
LVIII. 1974.68.
\n
Art. 160
\n
160.(1) If an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Commander.
\n
(2)On receiving any such complaint it shall be the duty of the *Repealed by Act IX of 1982.
\n
MALTA ARMED FORCES Commander to investigate the complaint and to grant any redress which appears to him to be necessary or, if the complainant so requires, the Commander shall through the Minister make his report on the complaint to the President of Malta in order to receive the directions of the President of Malta thereon.
\n
Art. 161
\n
161.(1) If a man of the force thinks himself wronged in any matter by any officer other than his commanding officer or man of the force, he may make a complaint with respect to that matter to his commanding officer.
\n
Complaints by men of the force.
\n
(2)If a man of the force thinks himself wronged in any matter by his commanding officer, either by reason of redress not being given to his satisfaction on a complaint under the last foregoing sub-article or for any other reason, he may make a complaint with respect thereto to the Commander.
\n
(3)It shall be the duty of the Commander or of the commanding officer to have any complaint received by him under this article investigated and to take any steps for redressing the matter complained of which appear to him to be necessary.
\n
Provisions relating to deserters and absentees without leave
\n
Art. 162
\n
162.(1) A Police officer may arrest any person to whom he has reasonable cause to suspect of being an officer or man of the regular force who has deserted or is absent without leave.
\n
(2)Where no Police officer is available, any officer or man of the regular force, or any other person, may arrest any person whom he has reasonable cause to suspect as aforesaid.
\n
Arrest of deserters and absentees without leave.
\n
Amended by:
\n
VIII. 1990.3.
\n
(3)Any Magistrate, if satisfied by evidence on oath that there is, or is reasonably suspected of being, within his jurisdiction an officer or man of the regular force who has deserted or is absent without leave or is reasonably suspected of having deserted or of being absent without leave, may issue a warrant authorising his arrest.
\n
(4)Any person in custody in pursuance of this article shall be brought before the Court Magistrates within forty-eight hours after his arrest.
\n
Art. 163
\n
163.(1) Where a person who is brought before the Court of Magistrates is alleged to be an officer or man of the regular force who has deserted or is absent witho ut leave, the fol lowing provisions shall have effect.
\n
(2)If he admits that he is illegally absent from the regular force and the court is satisfied of the truth of the admission, then (a) unless he is in custody for some other cause the court shall, and (b) notwithstanding that he is in custody for some other cause, the court may, forthwith either cause him to be delivered into military custody in such manner as the court may think fit or commit him to some Proceedings before civil court where persons suspected of illegal absence.
\n
Amended by:
\n
VIII. 1990.3.
\n
MALTA ARMED FORCES prison, Police station or other place provided for the confinement of persons in custody, to be kept there for such reasonable time as the court may specify (not exceeding such time as appears to the court reasonably necessary for the purpose of enabling him to be delivered into military custody) or until sooner delivered into such custody:
\n
Provided that any time specified by the court may be extended by the court from time to time if it appears to the court reasonably necessary so to do for the purpose aforesaid.
\n
(3)If he does not admit that he is illegally absent as aforesaid, or if the court is not satisfied of the truth of the admission, the court shall consider the evidence and any statement of the accused, and if satisfied that he is subject to military law and if of opinion that there is sufficient evidence to justify his being tried under this Act for an offence of desertion or absence without leave then, unless he is in custody for some other cause, the court shall cause him to be delivered into military custody or commit him as aforesaid, but otherwise shall discharge him:
\n
Provided that if he is in custody for some other cause the court shal l have power, but sh all not be req uired, to act in accordance with this sub-article.
\n
Deserters or absentees without leave surrendering to Police.
\n
Amended by:
\n
VIII. 1990.3.
\n
Certificates of arrest or surrender of deserters and absentees.
\n
Amended by:
\n
VIII. 1990.3.
\n
Art. 164
\n
164.(1) Where a person surrenders himself to a Police officer as being illegally absent from the regular force, the Police officer shall (unless he surrenders himself at a Police station) bring him to a Police station.
\n
(2)The Police officer in charge of a Police station at which a person has surrendered himself as aforesaid, or to which a person who has so surrendered himself is brought, shall forthwith inquire into the case, and if it appears to that officer that the said person is illegally absent as aforesaid he may cause him to be delivered into m i l it a r y cu s t od y w i th o ut br i n gi n g h i m b e f o r e th e C ou r t o f Magistrates or may bring him before such court.
\n
Art. 165
\n
165.(1) Where the Court of Magistrates in pursuance of article 163 deals with a person as illegally absent, then when that person is delivered into military custody there shall be handed over with him a certificate signed by the presiding magistrate containing the particulars as to his arrest or surrender and the proceedings before the court.
\n
(2)Where under the last foregoing article a person is delivered into military custody without being brought before a court, there shall be handed over with him a certificate signed by the Police officer who causes him to be delivered into military custody containing the particulars relating to his surrender.
\n
(3)In any proceedings for an offence under article 50 or 51 (a) a document purporting to be a certificate under either of the two last foregoing sub-articles and to be signed thereby as required, shall be evidence of the matters stated in the document;
\n
MALTA ARMED FORCES (b) where the proceedings are against a person who has been taken into military custody on arrest or surrender, a certificate purporting to be signed by a provost officer or by any officer in charge of a guardroom or other place where that person was confined on being taken into custody, stating the fact, date, time and place of arrest or surrender shall be evidence of the matters stated in the certificate.
\n
Offences relating to military matters punishable by civil courts
\n
Art. 166
\n
166.Any person who falsely represents himself to any military or civil authority to be a deserter from the regular force shall be liable on summary conviction to a fine (multa) not exceeding one hundred and sixteen euro and forty-seven cents (116.47) or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment.
\n
Art. 167
\n
167.Any person who whether in or outside Malta (a) procures or persuades any officer or man of the regular force to desert or to absent himself without leave; or (b) knowing that any such officer or man is about to desert or absent himself without leave, assists him in doing so; or Punishment for pretending to be a deserter.
\n
Amended by:
\n
XIII. 1983.5;
\n
L.N. 411 of 2007.
\n
Punishment for procuring and assisting desertion.
\n
Amended by:
\n
XIII. 1983.5;
\n
L.N. 411 of 2007. (c) knowing any person to be a deserter or absentee without leave from the regular force, procures or persuades or assists him to remain such a deserter or absentee, or assists in his rescue from custody, shall be liable on summary conviction to a fine (multa) not exceeding one hundred and sixteen euro and forty-seven cents (116.47) or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment.
\n
Art. 168
\n
168.Any person who wilfully obstructs or interferes with any officer or man of the regular force acting in the execution of his duty shall be liable on summary conviction to a fine (multa) not exceeding one hundred and sixteen euro and forty-seven cents (116.47) or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment.
\n
Art. 169
\n
169.Any person who, whether in or outside Malta (a) produces in an officer or man of the regular force any sickness or disability; or (b) supplies to or for him any drug or preparation calculated or likely to render him, or lead to the belief that he is, permanently or temporarily unfit for service, with a view to enabling him to avoid military service, whether permanently or temporarily, shall be liable on summary conviction to a fine (multa) not exceeding two hundred and thirty-two euro and ninety-four cents (232.94) or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment.
\n
Punishment for obstructing members of regular force in execution of duty.
\n
Amended by:
\n
XIII. 1983.5;
\n
L.N. 411 of 2007.
\n
Punishment for aiding malingering.
\n
Amended by:
\n
XIII. 1983.5;
\n
L.N. 411 of 2007.
\n
Wrongful sale, etc. of public property.
\n
Amended by:
\n
XIII. 1983.5;
\n
VIII. 1990.3;
\n
L.N. 411 of 2007.
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MALTA ARMED FORCES
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Art. 170
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170.Any person who designedly makes away with, sells, pawns, or otherwise disposes of, or wrongfully destroys or damages, or negligently loses, anything issued to him as an officer or man of the territorial force, or wrongfully refuses or neglects to deliver up on demand anything issued to him as an officer or man of the territorial force, shall be liable, on summary conviction, to a fine not exceeding forty-six euro and fifty-nine cents (46.59); and the Court of Magistrates shall, at the request of the Commissioner of Police, order the person convicted as aforesaid to pay the value of any such thing in respect of which he is convicted (a) if he is serving in the force at the time he is convicted, to his commanding officer; or (b) if he is not serving in the force at the time aforesaid, to the officer who is for the time being commanding the unit with which he was last serving, and any order as aforesaid shall have the same effect as a judgement of that court in its civil jurisdiction.
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Unlawful purchase, etc., of military stores.
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Amended by:
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XIII. 1983.5;
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L.N. 411 of 2007.
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Art. 171
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171.(1) Any person who, whether in or outside Malta, acquires any military stores or solicits or procures any person to dispose of any military stores, or acts for any person in the disposing of any military stores, shall be guilty of an offence against this article unless he proves either (a) that he did not know, and could not reasonably be expected to know, that the things in question were military stores, or (b) that those things had (by the transaction with which he is charged or some earlier transaction) been disposed of by order or with the consent of the Commander or some person or authority who had, or whom he had reasonable cause to believe to have, power to give the order or consent, or (c) that those things had become the property of an officer who had retired or ceased to be an officer, or of a man of the force who had been discharged, or of the heirs or legatees of a person who had died.
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(2)A person guilty of an offence against this article shall be liable on summary conviction to a fine (multa) not exceeding two hundred and thirty-two euro and ninety-four cents (232.94) or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment.
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(3)In this article - \" a c q u i r e \" m e a n s b u y, t a k e i n e x c h a n g e , t a k e i n p a w n o r otherwise receive (whether apart from this article the receiving is lawful or not); \"dispose\" means sell, give in exchange, pledge or otherwise hand over (whether apart from this article the handing over is lawful or not); \"military stores\" means any thing of any description belonging to the Government which has been issued for use for military MALTA ARMED FORCES purposes or is held in store for the purpose of being so issued when required, and includes any thing which had belonged, and had been issued or held, as aforesaid at some past time.
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Provisions as to evidence
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Art. 172
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172.(1) The following provisions shall have effect with respect to evidence in proceedings under this Act, whether before a court-martial, a civil court or otherwise.
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(2)A document purporting to be a copy of the attestation paper signed by any person and to be certified to be a true copy by a person stated in the certificate to have the custody of the attestation paper shall be evidence of the enlistment of the person attested.
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(3)The attestation paper purporting to be signed by a person on his enlistment shall be evidence of his having given the answers to questions which he is therein recorded as having given.
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(4)A letter, return or other document stating that any person (a) was or was not serving at any specified time or during any specified period in any part of the force or was discharged from any part of the force at or before any specified time; or (b) held or did not hold at any specified time any specified rank or appointment in any part of the force, or had at or before any specified time been, attached, posted or transferred to any part of the force, or at any specified time or during any specified period was or was not serving or held or did not hold any rank or appointment in any particular country or place, shall, if purporting to be issued by or on behalf of the Commander, or by a person authorised by him be evidence of the matters stated in the document.
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(5)A record made in any service book or other document, being a record made in pursuance of this Act or of any regulations, rules or orders made thereunder, or otherwise in pursuance of military duty, and purporting to be signed by the commanding officer or by any person whose duty it was to make the record, shall be evidence of the facts stated therein; and a copy of a record (including the signature thereto) in any such book or other document as aforesaid, purporting to be certified to be a true copy by a person stated in the certificate to have the custody of the book or other document, shall be evidence of the record.
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(6)A document purporting to be issued by order of the Commander and to contain instructions or orders given by the Commander shall be evidence of the giving of the instructions or orders and of their contents.
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(7)A certificate purporting to be signed by a person’s commanding officer or any officer authorised by him to give the certificate, and stating the contents of, or of any part of, standing orders or other routine orders of a continuing nature made for (a) any formation or unit or body of troops or any area General provisions as to evidence.
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MALTA ARMED FORCES garrison or place, or (b) any ship, train or aircraft, shall in proceedings against the said person be evidence of the matters stated in the certificate.
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Proof of outcome of civil trial.
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Amended by:
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XXIV.1995.360.
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Art. 173
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173.(1) Where a person subject to military law has been tried by a civil court (whether at the time of the trial he was subject to military law or not), a certificate signed by the registrar of the court and stating all or any of the following matters (a) that the said person has been tried before the court for an offence specified in the certificate; (b) the result of the trial; (c) what judgment or order was given or made by the court; (d) that other offences specified in the certificate were taken into consideration at the trial, shall for the purposes of this Act be evidence of the matters stated in the certificate.
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(2)The registrar of the court shall, if required by the commanding officer of the person in question or any other officer, furnish a certificate under this article.
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(3)A document purporting to be a certificate under this article and to be signed by the registrar of the court shall, unless the contrary is shown, be deemed to be such a certificate.
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Evidence of proceedings of court-martial.
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Amended by:
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LVIII. 1974.68;
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XXIV.1995.360.
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(4)Reference in this article to the registrar of the court include reference to any of the officers mentioned in article 57(2)(a) of the Code of Organization and Civil Procedure.
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Art. 174
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174.(1) The original proceedings of a court-martial purporting to be signed by the president of the court and being in the custody of the Attorney General or of any person having the l a w f u l c u s t o d y t h e r e o f s h a l l b e a d m i ss i b l e i n e v i d e n c e o n production from that custody.
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(2)A document purporting to be a copy of the original proceedings of a court-martial or any part thereof and to be certified by the Attorney General or any person authorised by him, or by any other person having the lawful custody of the proceedings, to be a true copy shall be evidence of the contents of the proceedings or the part to which the document relates, as the case may be.
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(3)This article applies to evidence given in any court in Malta, whether civil or criminal.
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Miscellaneous provisions Restrictions on reduction in rank of warrant officers and N.C.Os.
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Art. 175
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175.(1) A warrant officer or non-commissioned officer of the regular force (other than a lance-corporal or lance-bombardier) shall not be reduced in rank except by sentence of a court-martial under this Act or by order of the Commander.
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(2)For the purposes of this article reduction in rank does not MALTA ARMED FORCES include reversion from acting rank.
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Art. 176
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176.Where a person is in military custody when charged with, or with a view to being charged with an offence against Part III of this Act, it shall be the duty of the Director of Civil Prisons or the person in charge of a Police station or other place in which prisoners may be lawfully detained, upon delivery to him of a written order purporting to be signed by the commanding officer of the person in custody to receive him into his custody for a period not exceeding seven days.
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Temporary reception in civil custody of persons under escort.
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Art. 177
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177.(1) An officer of the regular forces of a rank not below that of major (hereinafter referred to as an \"authorised officer\") may, at any place outside Malta, take affidavits and declarations from any person subject to military law and from any such other person as the Minister may by order specify.
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Power of certain officers to take affidavits and declarations.
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(2)A document purporting to have subscribed thereto the signature of an authorised officer in testimony of an affidavit or declaration being taken before him in pursuance of this article and containing in the jurat or attestation a statement of the date on which and the place at which the affidavit or declaration was taken and the full name and rank of that officer shall be admitted in evidence without proof of the signature being the signature of that officer or of the facts so stated.
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PART VIII
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APPLICATION OF ACT AND SUPPLEMENTAL PROVISIONS Persons subject to military law
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Art. 178
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178.(1) The following persons are subject to military law: (a) every officer holding a commission (other than a commission in the territorial force)and for the time being employed, or recalled for employment, in the service in any capacity in which he can be required to be employed as the holder of his commission; (b) every officer as aforesaid who for the time being is not employed, or not employed as mentioned in paragraph (a), but is liable (otherwise than in specified circumstances only) to be recalled to military service; (c) every officer, not subject to military law under the foregoing provisions of this article, who being the holder of a commission as aforesaid is employed in government service in employment of which it is an express condition that while employed therein he is to be subject to military law;
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Persons subject to military law: general provision.
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MALTA ARMED FORCES (d) every officer, not subject to military law under the foregoing provisions of this article, who, with the approval of the Minister given subject to an express condition that while in that employment he is to be subject to military law, is employed otherwise than in government service; (e) every officer holding a commission in the territorial force who is on the active list (as defined by the regulations for or applicable to the territorial force) or on the permanent staff of the territorial force, or who is not on the said list but is called out on permanent service or is otherwise serving (whether in pursuance of an obligation or not) with a body of troops for the time being subject to military law; (f) every man of the regular force; (g) every man of the reserve when called out on permanent service or when undergoing annual or other training (whether in pursuance of an obligation or not), or when otherwise employed in government service as mentioned in paragraph (c); (h) every man of the territorial force when embodied or called out on special service, when undergoing training or attending drills or parades (whether in pursuance of an obligation or not), or when serving on the permanent staff of the territorial force; (i) every person in receipt of a pension in respect of service in the regular force, or of such service and other service, who is employed in government service as mentioned in paragraph (c).
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(2)For the purposes of paragraph (d) of the last foregoing subarticle a certificate of the Minister that approval to a person’s employment was given subject to the condition mentioned in that paragraph shall be conclusive evidence of the facts stated in the certificate.
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(3)References in this article to an officer holding a commission include references to a person entitled to have a commission issued to him.
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Application of Act to civilians.
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Amended by:
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XIII. 1983.5;
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L.N. 411 of 2007.
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Art. 179
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179.(1) Subject to the modifications hereinafter specified, where any body of the regular forces is on active service, Parts III and IV of this Act shall apply to any person who is employed in the service of that body of the force or any part or member thereof, or accompanies the said body or any part thereof, and is not subject to military law apart from this article, as the said Parts III and IV apply to persons subject to military law.
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(2)Subject to the modifications hereinafter specified, Parts III and IV of this Act shall at all times apply to a person of such description as may be prescribed by order made under article 4 who is within the limits of the command of any officer commanding a body of the regular force outside Malta, and is not subject to military law apart from this article, as the said Parts III and IV MALTA ARMED FORCES apply to persons subject to military law:
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Provided that none of the provisions contained in articles 37 to 74 shall apply to a person by virtue only of this sub-article except article 42(3), articles 48 and 49, articles 62 to 65, and article 73 so far as it relates to that sub-article and those articles.
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(3)The said modifications are the following: (a) the punishments that may be awarded by a courtmartial shall not include any punishment less than imprisonment except a fine; (b) the punishment which may be awarded where a charge is dealt with summarily shall, in the case of any offence, be a fine not exceeding fifty-eight euro and twenty-three cents (58.23), but no other punishment; (c) the following provision shall have effect in substitution for article 80(2) to (4), that is to say that a person may be arrested by a provost officer, by any warrant officer or non-commissioned officer legally exercising authority under a provost officer or on his behalf, or by order of any officer of the regular force; (d) where a charge is being dealt with summarily and it has been determined that the accused is guilty, a finding shall not be recorded until the accused has been afforded an opportunity of electing to be tried by court-martial, and if the accused so elects a finding shall not be recorded but such steps shall be taken with a view to the charge being tried by court-martial as may be prescribed by the Rules of Procedure; (e) the provisions of this Act relating to the investigation of, and summary dealing with, offences shall, save as otherwise expressly provided, apply as they apply to officers and warrant officers; (f) for references in articles 130 and 131 to being, continuing, or ceasing to be subject to military law there shall be substituted references to being, continuing to be or ceasing to be in such circumstances that the said Parts III and IV apply, and article 130(3) shall not apply.
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(4)Any fine awarded by virtue of this article, whether by a court-martial or the appropriate superior authority, shall be recoverable in Malta as a civil debt due to the Government.
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Art. 180
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180.(1) Subject to the provisions of this article, references in Parts III to VII of this Act to the regular force shall include references to the following persons, that is to say: (a) officers of any reserve of officers while subject to military law, and officers who have retired but are for the time being subject to military law, and (b) officers holding commissions in the territorial force while the part of the territorial force to which they Application of certain parts of Act to reserve and territorial force.
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MALTA ARMED FORCES belong is embodied or while they are called out for special service or are undergoing training, and (c) men of the reserve and of the territorial force while subject to military law, and references to officers, warrant officers, non-commissioned officers or soldiers, or to men, or to members or a body, of the regular force or to illegal absence from that force shall be construed accordingly.
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(2)Article 16(1) and (5) shall apply to men of the reserve and of the territorial force as they apply to men of the regular force.
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(3)The power conferred by article 50(3) and article 87(3) to direct the forfeiture of an offender’s previous service shall not be exercisable in relation to men of the reserve or of the territorial force.
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(4)Article 50(2)(b), articles 149 to 151, and except in so far as they may be applied by regulations made under this Act, the provisions of Parts III and IV of this Act relating to the award of stoppages and the provisions of articles 143 to 148, shall not apply (a) to officers of any reserve of officers who are not in actual service; (b) to men of the army reserve except when called out on permanent service; (c) to officers and men of the territorial force except when the part of the territorial force to which they belong is embodied or they are called out for special service.
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(5)In the last foregoing sub-article the expression \"actual service\", in relation to an officer of a reserve of officers, means that he is serving (otherwise than when he is undergoing training) with a body of the regular force, or of the army reserve when called out on permanent service, or with members of the territorial forces in pursuance of any regulations made under article 4.
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(6)In the case of a non-commissioned officer or soldier of the territorial force found guilty of an offence by a court-martial or his commanding officer, Parts III and IV of this Act shall apply as if in the scale set out in article 77(2) immediately before paragraph (g) thereof there were inserted the following paragraph: \"(ff) dismissal from the territorial force\", and as if the punishments specified in article 84(3) included dismissal from the territorial force:
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Provided that if the commanding officer awards such dismissal he shall not award any other punishment.
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Supplemental Provisions Jurisdiction.
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Art. 181
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181.(1) Offences under Part III of this Act shall be triable by court-martial or otherwise dealt with as provided by this Act whether they are committed in Malta or outside Malta, and the MALTA ARMED FORCES jurisdiction and powers conferred by this Act to courts-martial, officers and authorities (other than civil courts) in respect of such offences shall be exercisable both in Malta and outside Malta.
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(2)In Malta a civil court having jurisdiction in the place where the offender is for the time being shall have jurisdiction to try him of an offence under this Act triable by a civil court notwithstanding that the offence was committed outside the jurisdiction of the court or the offender does not reside within its jurisdiction.