Armed Forces Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
118

(b)
must state in open court that the offence was so aggravated.
(3)
This section does not apply in relation to an offence under section 42 as respects
which the corresponding offence under the law of England and Wales is an
offence under any of sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37)
(racially or religiously aggravated assaults, criminal damage, public order
5
offences and harassment etc).
(4)
Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or
religiously aggravated”) applies for the purposes of this section as it applies for
the purposes of sections 29 to 32 of that Act.
240
Increase in sentence for aggravation related to disability or sexual orientation
10
(1)
This section applies where a court or officer dealing with an offender for a
service offence within subsection (2) is considering the seriousness of the
offence.
(2)
A service offence is within this subsection if—
(a)
at the time of committing the offence, or immediately before or after
15
doing so, the offender demonstrated towards the victim of the offence
hostility based on—
(i)
the sexual orientation (or presumed sexual orientation) of the
victim; or
(ii)
a disability (or presumed disability) of the victim; or
20
(b)
the offence is motivated (wholly or partly)—
(i)
by hostility towards persons who are of a particular sexual
orientation; or
(ii)
by hostility towards persons who have a disability or a
particular disability.
25
(3)
The court or officer—
(a)
must treat as an aggravating factor the fact that the offence was
committed in any of the circumstances mentioned in paragraph (a) or
(b) of subsection (2); and
(b)
must state in open court that the offence was committed in such
30
circumstances.
(4)
It is immaterial for the purposes of paragraph (a) or (b) of subsection (2)
whether the offender’s hostility is also based to any extent on any other factor
not mentioned in that paragraph.
(5)
In this section “disability” means any physical or mental impairment.
35
Service detention and custodial sentences
241
Service detention: general restriction
(1)
A court may not pass a sentence of service detention in respect of an offence
unless it is of the opinion that the offence, or the combination of the offence and
one or more offences associated with it, was serious enough to warrant such a
40
sentence.
(2)
In forming any such opinion as is mentioned in subsection (1) or section 242(2)
(length of sentence), a court must take into account all such information as is

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
119

available to it about the circumstances of the offence and any associated
offence, including any aggravating or mitigating factors.
(3)
In subsections (1) and (2) “court” does not include the Summary Appeal Court.
(4)
A sentence of service detention may not be—
(a)
passed by an officer at a summary hearing, or
5
(b)
passed or confirmed by the Summary Appeal Court,

unless the officer or court is of the opinion that the offence it is in respect of (or,
if it is in respect of two or more offences, the combination of them) was serious
enough to warrant such a sentence.
(5)
In forming any such opinion as is mentioned in subsection (4) or section 242(3)
10
(length of sentence), an officer or the Summary Appeal Court must take into
account all such information as is available to him or it about the circumstances
of the offence (or offences), including any aggravating or mitigating factors.
242
Length of term of service detention: general provision
(1)
This section applies where a sentence of service detention is passed in respect
15
of a service offence.
(2)
Where the detention is imposed by a court other than the Summary Appeal
Court, it must be for the shortest term (not exceeding the permitted maximum)
that in the opinion of the court is commensurate with the seriousness of the
offence or the combination of the offence and one or more offences associated
20
with it.
(3)
Where the detention is imposed by an officer at a summary hearing or by the
Summary Appeal Court, it must be for the shortest term (not exceeding the
permitted maximum) that in the opinion of the officer or court is
commensurate with the seriousness of the offence (or, if it is imposed in respect
25
of two or more offences, the seriousness of them taken together).
243
Limit on combined term of sentences of service detention
(1)
A court or officer may not—
(a)
pass a sentence of service detention,
(b)
make a direction under section 188 (consecutive terms of service
30
detention), or
(c)
make an order under section 190 or 192 (activation of suspended
sentence of service detention),

whose effect would be that a person would (at the relevant time) be subject to
sentences of service detention the combined term of which exceeds two years.
35
(2)
In subsection (1) “the relevant time” is the time immediately after the passing
of the sentence or the making of the direction or order.
(3)
For the purposes of this section, the combined term of sentences of service
detention is—
(a)
if none of the sentences overlap, the aggregate of the terms of the
40
sentences;
(b)
otherwise, the aggregate of—
(i)
the period (or periods) during which any of the sentences
overlaps any other of them; and

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
120

(ii)
the period (or periods) for which none of the sentences overlap.
(4)
Where subsection (1) is contravened, any part of any sentence of service
detention which would (apart from this subsection) have effect after the end of
the permitted period is remitted by virtue of this subsection.
(5)
In subsection (4) “permitted period” means the period—
5
(a)
beginning with the date of contravention; and
(b)
equal in length to the longest sentence of service detention that could
have been passed on that date without contravening subsection (1).
(6)
For the purposes of the reference in subsection (4) to a part of a sentence which
would have effect after the end of the permitted period, any prospect of early
10
release is to be disregarded.
(7)
In subsection (1)(a) “sentence of service detention” does not include a
suspended sentence of service detention.
244
Section 243: supplementary
(1)
Subsections (2) to (5) apply for the purposes of section 243.
15
(2)
A person is to be regarded as not subject to any sentence from which he has
been released early.
(3)
A person is to be regarded as not subject to a suspended sentence of service
detention unless an order that the sentence shall take effect has been made.
(4)
Subject to subsection (3), a person is to be regarded as subject to any sentence
20
of service detention that has been passed on him but—
(a)
has not taken effect; or
(b)
as a result of section 289(5) or (6) or 290(6) or (7), has ceased to have
effect and has not resumed effect.
(5)
A person who has been detained continuously pursuant to two or more
25
sentences of service detention is to be regarded as subject to all of those
sentences (whether or not any of them has been served in full).
(6)
For the purposes of subsection (5), any periods of detention which would be
continuous but for section 289(3), (5) or (6) or 290(5), (6) or (7) are to be treated
as continuous.
30
245
Crediting of time in service custody: terms of imprisonment and detention
(1)
This section applies where—
(a)
a court or officer sentences an offender to a term of imprisonment or
service detention in respect of a service offence (“the offence in
question”); and
35
(b)
the offender has been kept in service custody, in connection with the
offence in question or any related offence, for any period since being
charged with the offence in question or any related offence.
(2)
The court must direct that the number of days for which the offender has been
kept in service custody since being so charged is to count as time served by him
40
as part of the sentence.
(3)
Subsection (2) does not apply if and to the extent that—

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
121

(a)
rules made by the Secretary of State so provide in the case of—
(i)
a period of service custody which is wholly or partly concurrent
with a sentence of imprisonment or service detention; or
(ii)
sentences of imprisonment or service detention for consecutive
terms or for terms which are wholly or partly concurrent; or
5
(b)
it is in the opinion of the court just in all the circumstances not to give a
direction under that subsection.
(4)
Where the court gives a direction under subsection (2) it must state in open
court—
(a)
the number of days for which the offender was kept in service custody
10
as mentioned in that subsection; and
(b)
the number of days in relation to which the direction is given.
(5)
Where the court does not give a direction under subsection (2), or gives such a
direction in relation to a number of days less than that for which the offender
was kept in service custody as mentioned in that subsection, it must state in
15
open court—
(a)
that its decision is in accordance with rules made under paragraph (a)
of subsection (3); or
(b)
that it is of the opinion mentioned in paragraph (b) of that subsection
and what the circumstances are.
20
(6)
This section applies to—
(a)
a determinate sentence of detention under section 208, and
(b)
a sentence of detention under section 228 of the 2003 Act passed as a
result of section 221 of this Act,

as it applies to an equivalent sentence of imprisonment.
25
(7)
References in this section to “the court” are to the court or officer mentioned in
subsection (1).
246
Crediting of time in service custody: supplementary
(1)
For the purposes of section 245(1) offences are related if the charges for them
were founded on the same facts or evidence.
30
(2)
It is immaterial for the purposes of section 245(1) whether the offender has also
been kept in service custody in connection with other offences, or has also been
detained in connection with other matters.
(3)
For the purposes of section 245 a suspended sentence of imprisonment or a
suspended sentence of service detention—
35
(a)
is to be treated as a sentence of imprisonment or (as the case may be)
service detention when it takes effect; and
(b)
is to be treated as being imposed by the order under which it takes
effect.
(4)
Subsections (5) to (7) apply for the purposes of the reference in section 245(2)
40
to the term of imprisonment or detention to which a person has been sentenced
(that is to say, the reference to his “sentence”).
(5)
Consecutive terms of service detention, and terms of service detention which
are wholly or partly concurrent, are to be treated as a single term.

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
122

(6)
Consecutive relevant custodial terms, and relevant custodial terms which are
wholly or partly concurrent, are to be treated as a single term if—
(a)
the sentences were passed on the same occasion; or
(b)
where they were passed on different occasions, the person has not been
released under Chapter 6 of Part 12 of the 2003 Act at any time during
5
the period beginning with the first and ending with the last of those
occasions.
(7)
For the purposes of subsection (6) any sentence within paragraph (a), (b) or (c)
of section 187(4) is a relevant custodial term.
Forfeiture of seniority and reduction in rank
10
247
Forfeiture of seniority and reduction in rank or disrating: general restriction
(1)
A court may not pass a sentence of forfeiture of seniority, reduction in rank or
disrating in respect of an offence unless it is of the opinion that the offence, or
the combination of the offence and one or more offences associated with it, was
serious enough to warrant such a sentence.
15
(2)
In forming any such opinion as is mentioned in subsection (1), a court must
take into account all such information as is available to it about the
circumstances of the offence and any associated offence, including any
aggravating or mitigating factors.
(3)
In subsections (1) and (2) “court” does not include the Summary Appeal Court.
20
(4)
A sentence of forfeiture of seniority, reduction in rank or disrating may not
be—
(a)
passed by an officer at a summary hearing, or
(b)
passed or confirmed by the Summary Appeal Court,

unless the officer or court is of the opinion that the offence it is in respect of (or,
25
if it is in respect of two or more offences, the combination of them) was serious
enough to warrant such a sentence.
(5)
In forming any such opinion as is mentioned in subsection (4), an officer or the
Summary Appeal Court must take into account all such information as is
available to him or it about the circumstances of the offence (or offences),
30
including any aggravating or mitigating factors.
Financial punishments
248
Fixing of fines
(1)
A court or officer fixing a fine to be imposed on an offender in respect of a
service offence must, before fixing the amount of the fine, inquire into the
35
offender’s financial circumstances.
(2)
The amount of any fine fixed by a court or officer in respect of a service offence
must be such as, in the opinion of the court or officer, reflects the seriousness
of the offence.
(3)
In fixing the amount of any fine to be imposed on an offender in respect of a
40
service offence, a court or officer must take into account the circumstances of

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
123

the case including, among other things, the offender’s financial circumstances
so far as they are known, or appear, to the court or officer.
(4)
Subsection (3) applies whether taking into account the offender’s financial
circumstances has the effect of increasing or reducing the amount of the fine.
(5)
Where—
5
(a)
the court has inquired into the offender’s financial circumstances as
required by this section,
(b)
the offender has failed to co-operate with the court in its inquiry
(whether by failing to comply with a financial statement order under
section 265 or otherwise), and
10
(c)
the court considers that it has insufficient information to make a proper
determination of the offender’s financial circumstances,

the court may make such determination of his financial circumstances as it
considers appropriate.
(6)
References in subsection (5) to “the court” are to the court or officer fixing a fine
15
in respect of a service offence.
249
Determination of service compensation order
(1)
In determining whether to make a service compensation order against any
person, and in determining the amount to be paid by any person under such
an order, a court or officer must have regard to that person’s financial
20
circumstances so far as they appear or are known to the court or officer.
(2)
Where the court or officer considers—
(a)
that it would be appropriate both to impose a fine and to make a service
compensation order, but
(b)
that the offender has insufficient means to pay both an appropriate fine
25
and appropriate compensation,
the court or officer must give preference to compensation (but may impose a
fine as well).
250
Power to allow payment of fine or service compensation order by instalments
(1)
A court or officer awarding a fine or service compensation order in respect of
30
a service offence may make an order under this section.
(2)
An order under this section is an order—
(a)
allowing time for payment of the amount due in respect of the fine or
service compensation order (“the amount due”); or
(b)
directing payment of that amount by instalments of such amounts and
35
on such dates as may be specified in the order.
(3)
If no order under this section is made when the fine or service compensation
order is imposed, at any later time the appropriate court may make such an
order on the application of the person by whom the amount due is payable
(“the relevant person”).
40
(4)
The appropriate court may on the application of the relevant person vary an
order made under this section.
(5)
In this section “the appropriate court” means—

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
124

(a)
if the fine or service compensation order was imposed by an officer and
subsection (6) applies, the commanding officer of the relevant person;
(b)
if the fine or service compensation order was imposed by a court and
subsection (6) or (7) applies, the Court Martial.
(6)
This subsection applies if the relevant person is for the time being—
5
(a)
subject to service law;
(b)
a member of a volunteer reserve force; or
(c)
a member of an ex-regular reserve force who is subject to an additional
duties commitment.
(7)
This subsection applies if the relevant person is for the time being a civilian
10
subject to service discipline.
Reasons
251
Duty to give reasons and explain sentence
(1)
Any court or officer passing sentence on an offender for a service offence—
(a)
must state in open court, in ordinary language and in general terms and
15
in accordance with section 252, its (or his) reasons for deciding on the
sentence passed; and
(b)
must explain to the offender in ordinary language—
(i)
the effect of the sentence;
(ii)
where the offender is required to comply with any order
20
forming part of the sentence, the effects of non-compliance with
the order;
(iii)
any power, on the application of the offender or any other
person, to vary or review any order forming part of the
sentence; and
25
(iv)
where the sentence consists of or includes a fine, the effects of
failure to pay the fine.
(2)
Subsection (1)(a) does not apply—
(a)
to an offence the sentence for which is fixed by law; or
(b)
to an offence the sentence for which, as a result of subsection (2) of
30
section 224, 225 or 226 of this Act (required custodial sentences), falls to
be imposed under section 110(2) or 111(2) of the Sentencing Act or
section 51A(2) of the Firearms Act 1968 (c. 27).
(3)
The Secretary of State may by order—
(a)
prescribe cases in which subsection (1)(a) or (b) does not apply;
35
(b)
prescribe cases in which the statement referred to in subsection (1)(a) or
the explanation referred to in subsection (1)(b) may be made in the
absence of the offender, or may be provided in written form.
(4)
In this section and section 252 “sentence” includes any order made when
dealing with the offender in respect of his offence.
40
252
Duties in complying with section 251
(1)
In complying with section 251(1)(a) an officer or the Summary Appeal Court
must—