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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;

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(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.

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(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.

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(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

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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.

 
 

 
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Revised 1 December 2005