Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
125

(a)
mention any aggravating or mitigating factors which he (or it) has
regarded as being of particular importance;
(b)
if section 238 (guilty pleas) applies and as a result of taking into account
a matter mentioned in section 238(2) the officer or court has imposed a
punishment on the offender which is less severe than the punishment
5
that would otherwise have been imposed, state that fact;
(c)
where the sentence is one of service detention, state that he (or it) is of
the opinion mentioned in section 241(4) and why; and
(d)
where the sentence is one of forfeiture of seniority, reduction in rank or
disrating, state that he (or it) is of the opinion mentioned in section
10
247(4) and why.
(2)
In complying with section 251(1)(a) a court other than the Summary Appeal
Court must—
(a)
where guidelines indicate that a sentence of a particular kind, or within
a particular range, would normally be appropriate for the offence and
15
the sentence is of a different kind or is outside that range, state the
court’s reasons for deciding on a sentence of a different kind or outside
that range;
(b)
mention any aggravating or mitigating factors which the court has
regarded as being of particular importance;
20
(c)
if section 238 (guilty pleas) applies and as a result of taking into account
a matter mentioned in section 238(2) the court has imposed a
punishment on the offender which is less severe than the punishment
it would otherwise have imposed, state that fact;
(d)
where the sentence is a custodial sentence and section 259 applies (and
25
the case does not fall within section 259(3)), state that it is of the opinion
mentioned in section 259(2) and why;
(e)
where the sentence is one of dismissal or dismissal with disgrace, state
that it is of the opinion mentioned in section 264(1) and why;
(f)
where the sentence is one of service detention, state that it is of the
30
opinion mentioned in section 241(1) and why;
(g)
where the sentence is one of forfeiture of seniority, reduction in rank or
disrating, state that it is of the opinion mentioned in section 247(1) and
why; and
(h)
where the sentence consists of or includes a community punishment
35
(and the case does not fall within section 151(2) of the 2003 Act as
applied by section 269 of this Act), state that it is of the opinion
mentioned in section 269(1) and why.
(3)
In this section “guidelines” has the same meaning as in section 258.
Savings
40
253
Savings for powers to mitigate sentence etc
(1)
Nothing in any of sections 241, 242, 247, 248, 249, 255, 257, 259, 260, 264 and 269
prevents a court or officer from mitigating an offender’s sentence by taking
into account any such matters as, in the court’s or officer’s opinion, are relevant
in mitigation of sentence.
45
(2)
Nothing in those sections prevents a court or officer from mitigating any
punishment included in an offender’s sentence by taking into account any
other punishment included in that sentence.

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
126

(3)
Nothing in those sections or section 254 prevents a court, in the case of an
offender who is convicted of one or more other offences, from mitigating his
sentence by applying any rule of law as to the totality of sentences.
(4)
Subsections (2) and (3) do not affect the generality of subsection (1).
Chapter 2
5
Principles and Procedures applying to Service Courts Only
General
254
Individual sentence for each offence
Where the Court Martial or the Service Civilian Court convicts a person, the
court must pass a separate sentence in respect of each offence of which he is
10
convicted.
255
Pre-sentence reports
(1)
Subject to subsection (2), a court must obtain and consider a pre-sentence
report before—
(a)
forming any such opinion as is mentioned in—
15
section 241(1) or 242(2) (service detention);
section 259(2) or 260(2) (custodial sentence); or
section 264(1) (dismissal or dismissal with disgrace);
(b)
forming any such opinion as is mentioned in section 269(1) or (2)(b)
(community punishment) or any opinion as to the suitability for the
20
offender of the particular requirement or requirements to be included
in a community punishment; or
(c)
forming the required opinion for the purposes of section 218(2), 219(2),
220(2) or 221(1) (minimum sentences for dangerous offenders and
sexual or violent offences).
25
(2)
Subsection (1) does not apply if, in the circumstances of the case, the court is of
the opinion that it is unnecessary to obtain a pre-sentence report.
(3)
Where the offender is aged under 18, the court must not form the opinion
mentioned in subsection (2) unless—
(a)
there exists a previous pre-sentence report obtained in respect of the
30
offender; and
(b)
the court has had regard to the information contained in that report, or,
if there is more than one such report, the most recent report.
(4)
No sentence is invalidated by a failure of a court to obtain and consider a pre-
sentence report before doing any of the things mentioned in paragraphs (a) to
35
(c) of subsection (1).
(5)
However, any court on appeal against a custodial sentence in respect of a
service offence, a sentence of dismissal or dismissal with disgrace, a sentence
of service detention or a community punishment—
(a)
must (subject to subsection (6)) obtain a pre-sentence report if none was
40
obtained by the court below; and
(b)
must consider any such report obtained by it or by that court.

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
127

(6)
Subsection (5)(a) does not apply if the court is of the opinion—
(a)
that the court below was justified in forming an opinion that it was
unnecessary to obtain a pre-sentence report; or
(b)
that, although the court below was not justified in forming that opinion,
in the circumstances of the case at the time it is before the court it is
5
unnecessary to obtain a pre-sentence report.
(7)
Where the offender is aged under 18, the court must not form the opinion
mentioned in subsection (6) unless—
(a)
there exists a previous pre-sentence report obtained in respect of the
offender; and
10
(b)
the court has had regard to the information contained in that report or,
if there is more than one such report, the most recent report.
(8)
Subsections (5) to (7) do not apply to the Summary Appeal Court on an appeal
to it.
(9)
Subsections (1) to (4) do apply to the Summary Appeal Court in relation to a
15
sentence of service detention, but as if the opinions referred to in subsection
(1)(a) were any such opinion as is mentioned in section 241(4) or 242(3).
256
Pre-sentence reports: supplementary
(1)
In section 255 and this section “pre-sentence report” has the meaning given by
section 158(1) of the 2003 Act.
20
(2)
In section 158(1) of that Act as applied by this section, “an appropriate officer”
includes any registered social worker (as well as any person who is an
appropriate officer within the meaning given by section 158(2) of that Act).
(3)
In this section “registered social worker” means a person registered as a social
worker in a register maintained by—
25
(a)
the General Social Care Council;
(b)
the Care Council for Wales;
(c)
the Scottish Social Services Council; or
(d)
the Northern Ireland Social Care Council.
(4)
Section 159(1) to (3) and (5) of the 2003 Act (disclosure of reports) apply in
30
relation to a pre-sentence report obtained by a court for the purposes of section
255 of this Act as they apply in relation to a report obtained by a court for the
purposes of section 156 of that Act.
257
Mentally disordered offenders: requirement for medical report
(1)
Subject to subsection (2), before passing a custodial sentence for a service
35
offence on an offender who is or appears to be mentally disordered, a court
must obtain and consider a medical report.
(2)
Subsection (1) does not apply if, in the circumstances of the case, the court is of
the opinion that it is unnecessary to obtain a medical report.
(3)
Before passing a custodial sentence for a service offence on an offender who is
40
or appears to be mentally disordered, a court must consider—
(a)
any information before it which relates to his mental condition
(whether given in a medical report, a pre-sentence report or otherwise);
and

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
128

(b)
the likely effect of such a sentence on that condition and on any
treatment which may be available for it.
(4)
No custodial sentence which is passed in a case to which subsection (1) applies
is invalidated by a failure of a court to comply with that subsection, but any
court on an appeal against such a sentence—
5
(a)
must obtain a medical report if none was obtained by the court below;
and
(b)
must consider any such report obtained by it or by that court.
(5)
In this section—
“custodial sentence” does not include a custodial sentence fixed by law;
10
“medical report” means a report as to an offender’s mental condition
made or submitted orally or in writing by a registered medical
practitioner who is approved for the purposes of section 12 of the
Mental Health Act 1983 (c. 20) by the Secretary of State as having
special experience in the diagnosis or treatment of mental disorder.
15
(6)
Nothing in this section is to be taken to limit the generality of—
section 255 (pre-sentence reports); or
section 259(4) (information to be taken into account).
258
Sentencing guidelines
(1)
A court must—
20
(a)
in sentencing an offender for a service offence, have regard to any
guidelines that are relevant to the offender’s case; and
(b)
in exercising any other function relating to the sentencing of offenders
for service offences, have regard to any guidelines which are relevant
to the exercise of the function.
25
(2)
However, the court may depart from the guidelines mentioned in subsection
(1)(a) or (b) if in its opinion the departure is justified by any features of service
life or of the service disciplinary system that are relevant to the case.
(3)
Subsection (2) does not limit any power existing apart from that subsection to
depart from guidelines.
30
(4)
References in subsection (1)(a) and (b) to sentencing an offender for a service
offence include making any order when dealing with an offender in respect of
such an offence.
(5)
In this section—
“guidelines” means sentencing guidelines issued by the Sentencing
35
Guidelines Council under section 170(9) of the 2003 Act as definitive
guidelines, as revised by subsequent guidelines so issued;
“sentencing guidelines” has the meaning given by section 170(1) of that
Act.