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Armed Forces BillPage 30

32 Commencement

(1) This section and sections 1, 31, 33 and 34 come into force on the day on which
this Act is passed.

(2) Section 28 comes into force at the end of the period of two months beginning
5with the day on which this Act is passed.

(3) The other provisions of this Act come into force on such day as the Secretary of
State may by order made by statutory instrument appoint (and different days
may be appointed for different purposes).

(4) An order under this section may contain transitional, transitory and saving
10provision.

(5) In particular, an order under this section may make provision, in connection
with the coming into force of any provision of this Act (“the provision in
question”), about the operation of Schedule 3A to AFA 2006 where an election
for Court Martial trial was made before the commencement of the provision in
15question.

33 Extent to Channel Islands, Isle of Man and British overseas territories

(1) Her Majesty may by Order in Council provide for any of the provisions of this
Act, except section 25, to extend to a territory mentioned in subsection (2) with
or without modifications.

(2) 20Those territories are—

(a) any of the Channel Islands;

(b) the Isle of Man;

(c) any of the British overseas territories.

(3) The provisions that may be extended under subsection (1) of section 15 of the
25Visiting Forces Act 1952 to a territory specified in subsection (3) of that section
include—

(a) section 9A of that Act (inserted by section 25 of this Act); and

(b) any Order in Council which—

(i) is made under section 1(2) of that Act in relation to section 9A
30of that Act; and

(ii) is in force at the coming into operation of any Order in Council
made under section 15(1) of that Act which extends section 9A.

34 Short title

This Act may be cited as the Armed Forces Act 2011.

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SCHEDULES

Section 14

SCHEDULE 1 Court Martial sentencing powers where election for trial by that court
instead of CO

Section 165

5Schedule 1 Court Martial sentencing powers where election for trial by that
court instead of CO

Part 1 Relevant offences

1 10For the purposes of this Schedule an offence is “relevant” if it falls
within any of cases A to D (see paragraphs 2 to 5); and references
in this Schedule to a particular case of offence are to be read
accordingly.

2 An offence of which a person is convicted falls within case A if the
15charge in respect of the offence is one in respect of which the
person elected Court Martial trial under section 129 (whether or
not the charge was amended after election).

3 An offence of which a person (“the accused”) is convicted falls
within case B if—

(a) 20the charge in respect of the offence was substituted under
section 125(2)(b) for a charge in respect of which the
accused elected Court Martial trial under section 129; and

(b) the substitution was not one for which the accused’s
written consent was required by section 130A(2).

4 25Where—

(a) a person (“the accused”) elects Court Martial trial under
section 129 in respect of a charge,

(b) at the time of the election, another charge brought against
the accused (“the relevant charge”) is regarded for the
30purposes of Part 5 as allocated for summary hearing,

(c) the relevant charge is referred to the Director of Service
Prosecutions under section 123(2)(e) without the accused
having been given the opportunity to elect Court Martial
trial of the charge, and

(d) 35the Court Martial convicts the accused of an offence
alleged in the relevant charge,

that offence falls within case C.

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5 Where—

(a) a person (“the accused”) is charged with an offence which,
if the accused were convicted of it, would fall within case
C,

(b) 5another charge (“the new charge”) is substituted under
section 125(2)(b) for the charge,

(c) the substitution is not one for which the accused’s written
consent is required by section 130A(2), and

(d) the Court Martial convicts the accused of an offence
10alleged in the new charge,

that offence falls within case D.

Part 2 Sentencing powers etc

Sentencing powers: single relevant offence

6 (1) 15This paragraph applies where—

(a) the Court Martial convicts a person (“the offender”) of a
case A offence or a case B offence; and

(b) paragraph 8 (multiple relevant offences) does not apply.

(2) The sentence passed in respect of the offence must be such that the
20offender’s commanding officer could have awarded the
punishments awarded by that sentence if the commanding
officer—

(a) had heard summarily the charge in respect of which the
offender elected Court Martial trial; and

(b) 25had recorded a finding that the charge had been proved.

7 (1) This paragraph applies where—

(a) the Court Martial convicts a person (“the offender”) of a
case C offence or a case D offence; and

(b) paragraph 8 does not apply.

(2) 30The sentence passed in respect of the offence must be such that the
offender’s commanding officer could have awarded the
punishments awarded by that sentence if the commanding
officer—

(a) had heard summarily the charge referred as mentioned in
35paragraph 4(c); and

(b) had recorded a finding that the charge had been proved.

Multiple relevant offences

8 (1) This paragraph applies where—

(a) the Court Martial convicts a person (“the offender”) of two
40or more relevant offences; and

(b) condition 1 or 2 is met in relation to any two or more of the
offences.

(2) Condition 1, in relation to any two or more offences, is that—

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(a) each of the offences is a case A offence or a case B offence;
and

(b) the relevant charges would have been heard summarily
together if the offender had not elected Court Martial trial.

(3) 5In sub-paragraph (2) “relevant charge” means—

(a) in relation to a case A offence, the charge in respect of that
offence; and

(b) in relation to a case B offence, the charge in respect of
which the offender elected Court Martial trial and for
10which the charge in respect of the case B offence was
substituted.

(4) Condition 2, in relation to any two or more offences, is that—

(a) each of the offences is a case C offence or a case D offence;
and

(b) 15the referred charges would have been heard summarily
together if they had not been referred as mentioned in
paragraph 4(c).

(5) In sub-paragraph (4) “referred charge” means—

(a) in relation to a case C offence, the charge in respect of that
20offence; and

(b) in relation to a case D offence, the charge referred as
mentioned in paragraph 4(c) for which the charge in
respect of the case D offence was substituted.

Sentencing powers: multiple relevant offences

9 (1) 25This paragraph applies where paragraph 8 applies by virtue of a
condition in that paragraph being met in relation to any two or
more relevant offences.

(2) The offences in relation to which the condition is met (“the joined
offences”) are to be treated for the purposes of section 255
30(individual sentence for each offence) as a single offence; and
references in this paragraph to “the sentence” are to the sentence
passed by the Court Martial in respect of the joined offences.

(3) Where condition 1 in paragraph 8 is met in relation to the joined
offences, the sentence must be such that the offender’s
35commanding officer could have awarded the punishments
awarded by that sentence if the commanding officer—

(a) had heard the relevant charges (as defined by paragraph
8(3)) summarily together; and

(b) had recorded findings that the charges had been proved.

(4) 40Where condition 2 in paragraph 8 is met in relation to the joined
offences, the sentence must be such that the offender’s
commanding officer could have awarded the punishments
awarded by that sentence if the commanding officer—

(a) had heard the referred charges (as defined by paragraph
458(5)) summarily together; and

(b) had recorded findings that the charges had been proved.

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Further provision about sentencing

10 Where paragraph 9 applies, the following provisions apply in
relation to the sentence as if it were a sentence being passed by an
officer at a summary hearing—

11 Where the Court Martial is dealing with an offender for an offence
10with which a relevant offence is associated, the offences are to be
treated for the purposes of Part 9 (sentencing: principles and
procedures) as not being associated.

Activation of suspended sentence of detention

12 (1) This paragraph applies where—

(a) 15the Court Martial, on convicting a person (“the offender”)
of a relevant offence, makes an order under section 191(3)
in relation to a suspended sentence of service detention
passed on the offender; and

(b) the suspended sentence was passed by an officer or the
20Summary Appeal Court.

(2) The term of the suspended sentence as it takes effect by virtue of
the order must not exceed 28 days unless the offender’s
commanding officer would have had extended powers for the
purposes of section 194 if—

(a) 25where the offence is a case A offence or a case B offence, the
offender had not elected Court Martial trial; or

(b) where the offence is a case C offence or a case D offence, the
charge referred as mentioned in paragraph 4(c) had not
been so referred.

(3) 30If—

(a) the Court Martial awards a term of service detention (“the
new sentence”) in respect of the offence (or, where
paragraph 9 applies, in respect of the offence and one or
more other relevant offences), and

(b) 35the order under section 191(3) provides for the suspended
sentence to take effect from the end of the new sentence,

the aggregate of the terms of the two sentences must not exceed 28
days or, where the extended powers condition is met, 90 days.

(4) The extended powers condition is—

(a) 40where the offence is a case A offence or a case B offence,
that the offender’s commanding officer would have had
extended powers for the purposes of section 194 if the
offender had not elected Court Martial trial;

(b) where the offence is a case C offence or a case D offence,
45that the offender’s commanding officer would have had
extended powers for the purposes of section 194 if the

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charge referred as mentioned in paragraph 4(c) had not
been so referred.

(5) In determining for the purposes of sub-paragraph (2) or (4)
whether the offender’s commanding officer would have had
5extended powers for the purposes of section 194 if, as the case may
be—

(a) the offender had not elected Court Martial trial, or

(b) the charge referred as mentioned in paragraph 4(c) had not
been so referred,

10no account is to be taken of any of the matters mentioned in sub-
paragraph (6).

(6) Those matters are—

(a) any change in the commanding officer’s rank after the
election or referral;

(b) 15in the case of sub-paragraph (2)(a) or (4)(a), any possibility
that, if the offender had declined Court Martial trial, the
commanding officer might subsequently have been
granted extended powers for the purposes of section 194;
and

(c) 20in the case of sub-paragraph (2)(b) or (4)(b), any possibility
that, if the charge referred as mentioned in paragraph 4(c)
had not been so referred, the commanding officer might
have been granted extended powers for those purposes
after the time when the charge was in fact referred.

25Court orders other than sentences

13 (1) The Court Martial may not make an order under section 229
(service restraining order) by virtue of—

(a) convicting a person of a relevant offence; or

(b) acquitting a person of an offence which would be a
30relevant offence if the person were convicted of it.

(2) The Court Martial may not make an order under section 232A
(service sexual offences prevention order) by virtue of dealing
with a person in respect of—

(a) a relevant offence of which the person has been convicted;
35or

(b) a relevant finding in relation to an offence which, if the
person were convicted of it, would be a relevant offence.

(3) In sub-paragraph (2) “relevant finding” has the same meaning as
in section 232A.

40Review of unduly lenient sentences

14 In section 273 (review of unduly lenient sentence by Court Martial
Appeal Court), the reference in subsection (1)(a) to an offence
under section 42 does not include a relevant offence.

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Appeals: application of Court Martial Appeals Act 1968 to multiple relevant offences

15 (1) This paragraph applies where, by virtue of paragraph 9(2), the
Court Martial passed a single sentence in respect of two or more
relevant offences (“the joined offences”); and references in this
5paragraph to “the 1968 Act” are to the Court Martial Appeals Act
1968.

(2) Where—

(a) section 13 of the 1968 Act (power to re-sentence when some
but not all convictions successfully appealed) applies in
10relation to the sentence, but

(b) the appellant remains convicted of two or more of the
joined offences,

those offences are to be treated for the purposes of section 13(2) of
the 1968 Act as a single offence.

(3) 15Sub-paragraph (4) applies where section 14 of the 1968 Act
(substitution of conviction on different charge after plea of not
guilty) applies in relation to a conviction of any of the joined
offences.

(4) The reference in section 14(2)(b) to a sentence that the Court
20Martial would have had power to pass in respect of the offence
mentioned in section 14(1)(b) is to be read as a reference to a
sentence that the Court Martial would have had power to pass in
respect of all the applicable offences.

(5) For the purposes of sub-paragraph (4) an offence is an “applicable
25offence” if it is—

(a) a joined offence of which the appellant remains convicted;

(b) an offence a finding of guilty of which has been substituted
under section 14 of the 1968 Act for a finding of guilty of a
joined offence; or

(c) 30an offence a plea of guilty of which has been substituted
under section 14A of that Act for a plea of guilty of a joined
offence.

(6) Sub-paragraph (7) applies where—

(a) section 14A of the 1968 Act (substitution of conviction on
35different charge after guilty plea) applies in relation to a
conviction of any of the joined offences; and

(b) section 14 of that Act does not so apply.

(7) The reference in section 14A(2)(b) to a sentence that the Court
Martial would have had power to pass in respect of the offence
40mentioned in section 14A(1)(b) is to be read as a reference to a
sentence that the Court Martial would have had power to pass in
respect of—

(a) all the joined offences of which the appellant remains
convicted; and

(b) 45the offence a plea of guilty of which has been substituted
under section 14A for a plea of guilty of a joined offence.

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(8) Where sub-paragraph (4) or (7) applies and the case also falls
within section 13(1) of the 1968 Act, section 13 of that Act shall not
apply.

(9) In section 16A of the 1968 Act (appeals against sentence), the
5reference in subsection (2)(b) to the offence is to be read as a
reference to the joined offences.

Part 3 Interpretation

“Commanding officer”

16 (1) 10References in this Schedule to a person’s commanding officer are
to the person’s commanding officer at the time the person elected
Court Martial trial.

(2) In determining for the purposes of paragraph 6(2), 7(2) or 9(3) or
(4) the punishments that a person’s commanding officer could
15have awarded in respect of a charge or charges, no account is to be
taken of—

(a) any change in the commanding officer’s rank after the
person elected Court Martial trial or (as the case may be)
after the charge or charges referred as mentioned in
20paragraph 4(c) were so referred;

(b) in the case of paragraph 6(2) or 9(3), any possibility that, if
the person had declined Court Martial trial, the
commanding officer might subsequently have been
granted extended powers for the purposes of any
25provision of Chapter 1 of Part 6; or

(c) in the case of paragraph 7(2) or 9(4), any possibility that, if
the charge or charges referred as mentioned in paragraph
4(c) had not been so referred, the commanding officer
might have been granted extended powers for the
30purposes of any provision of Chapter 1 of Part 6 after the
time when the referral in fact took place.

Substituted charges

17 References in this Schedule to a charge substituted under section
125(2)(b) for another charge (“the original charge”) include—

(a) 35a charge substituted for a charge that was itself substituted
for the original charge,

(b) a charge substituted for a charge within paragraph (a),

and so on.

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Section 26

SCHEDULE 2 Judge advocates sitting in civilian courts

Part 1 Amendments conferring jurisdiction on judge advocates

5Senior Courts Act 1981 (c. 54)1981 (c. 54)

1 (1) Section 8 of the Senior Courts Act 1981 (persons who may exercise the
jurisdiction of the Crown Court) is amended as follows.

(2) In subsection (1)(b), for “, Recorder or District Judge (Magistrates’ Courts)”
substitute “, Recorder, qualifying judge advocate or District Judge
10(Magistrates’ Courts)”.

(3) In subsection (1)(c), for “or Recorder” substitute “, Recorder or qualifying
judge advocate”.

(4) After subsection (1) insert—

(1A) The jurisdiction of the Crown Court exercisable by a qualifying judge
15advocate by virtue of subsection (1) is the jurisdiction of the Court in
relation to any criminal cause or matter other than an appeal from a
youth court.

(5) In subsection (3), for “, Circuit judge, Recorder or District Judge
(Magistrates’ Courts)” substitute “, Circuit judge, Recorder, qualifying judge
20advocate or District Judge (Magistrates’ Courts)”.

(6) After subsection (3) insert—

(4) Subsection (1A) does not affect the jurisdiction of the Crown Court
exercisable by a person who holds an office mentioned in subsection
(1)(a) or (b) where that person is also a qualifying judge advocate.

2 25In section 73(2) and (3) of that Act (general provisions relating to Crown
Court proceedings), for “or Recorder” (wherever it occurs) substitute “,
Recorder or qualifying judge advocate”.

3 In section 74 of that Act (Crown Court proceedings on appeals)—

(a) in subsection (1), after “Recorder” insert “or a qualifying judge
30advocate”; and

(b) in subsection (3), for “or Recorder,” substitute “, Recorder or
qualifying judge advocate,”.

4 In section 75(1) of that Act (allocation of cases and distribution of cases in
Crown Court), for “, Circuit judge, Recorder or District Judge (Magistrates’
35Courts)” substitute “, Circuit judge, Recorder, qualifying judge advocate or
District Judge (Magistrates’ Courts)”.

5 In section 151(1) of that Act (interpretation), at the appropriate place insert—

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Courts Act 2003 (c. 39)Courts Act 2003 (c. 39)

6 In section 66 of the Courts Act 2003 (judges having powers of District Judges
(Magistrates’ Courts))—

(a) after subsection (2) insert—

(2A) 5A qualifying judge advocate has the powers of a justice of the
peace who is a District Judge (Magistrates’ Courts) in relation
to criminal causes and matters.; and

(b) after subsection (4) insert—

(5) In this section “qualifying judge advocate” means—

(a) 10the Judge Advocate General; or

(b) a person appointed under section 30(1)(a) or (b) of the
Courts-Martial (Appeals) Act 1951 (assistants to the
Judge Advocate General).

(6) Subsection (2A) is without prejudice to the powers conferred
15by this section on a person within subsection (2) where that
person is also a qualifying judge advocate.

Part 2 Related amendments

Criminal Justice Act 1967 (c. 80)Criminal Justice Act 1967 (c. 80)

7 20In section 9(5) of the Criminal Justice Act 1967 (application for court
attendance of person who has provided a written statement), after
paragraph (d) insert—

(e) subject to subsection (5A), a qualifying judge advocate
(within the meaning of the Senior Courts Act 1981).

(5A) 25Subsection (5)(e) applies only where the application in question is to
the Crown Court.;

but this paragraph is subject to paragraph 8.

8 (1) This paragraph applies if the amendment made to section 9(5) of the
Criminal Justice Act 1967 by paragraph 1 of Schedule 4 to the Courts Act
302003 has not come into force before the commencement of paragraph 1 of
this Schedule.

(2) Until the coming into force of that amendment—

(a) paragraph 7 above does not apply; and

(b) section 9(5) of the Criminal Justice Act 1967 is amended as follows.

(3) 35The words from “by a puisne judge” to the end become paragraph (a).

(4) After paragraph (a) insert ; or

(b) subject to subsection (5A), by a qualifying judge advocate
(within the meaning of the Senior Courts Act 1981) sitting
alone.

(5A) 40Subsection (5)(b) applies only where the application in question is to
the Crown Court.

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