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 2 — Principles and Procedures applying to Service Courts Only
129

Custodial sentences and service detention
259
Discretionary custodial sentences: general restrictions
(1)
This section applies where a court is dealing with an offender for a service
offence punishable with a custodial sentence, other than an offence the
sentence for which—
5
(a)
is fixed by law; or
(b)
falls to be imposed as a result of subsection (2) of any of sections 218 to
221 and 224 to 226.
(2)
The court must not pass a custodial sentence unless it is of the opinion that the
offence, or the combination of the offence and one or more offences associated
10
with it, was so serious that no less severe sentence can be justified for the
offence.
(3)
Nothing in subsection (2) prevents the court from passing a custodial sentence
where—
(a)
the court had proposed to award a community punishment; and
15
(b)
the offender failed to express his willingness to comply with a
requirement which the court proposed to include in the community
punishment and which required an expression of such willingness.
(4)
In forming any such opinion as is mentioned in subsection (2) or section 260(2)
(length of sentence), a court must take into account all such information as is
20
available to it about the circumstances of the offence and any associated
offence, including any aggravating or mitigating factors.
(5)
For the purposes of this section a sentence falls to be imposed as a result of
subsection (2) of section 224, 225 or 226 if it is required by that subsection and
the court is not of the opinion there mentioned.
25
260
Length of discretionary custodial sentences: general provision
(1)
This section applies where a court passes a custodial sentence for a service
offence, other than a sentence fixed by law or falling to be imposed as a result
of section 218(2) or 220(2).
(2)
The custodial sentence must be for the shortest term (not exceeding the
30
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 with it.
(3)
Subsection (2) is subject to sections 219, 221, 224, 225 and 226 (required
minimum sentences for certain offences).
35
261
Power to recommend licence conditions
In section 238(1) of the 2003 Act (court imposing prison term of 12 months or
more may recommend licence conditions) “court” includes a court dealing
with an offender for a service offence.
262
Restriction on imposing custodial sentence or service detention on
40
unrepresented offender
(1)
A sentence of—

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
130

(a)
imprisonment, or
(b)
service detention,

must not be passed by the Court Martial or the Service Civilian Court, or
passed or confirmed by the Summary Appeal Court, in respect of an offender
who is not legally represented in that court.
5
(2)
Subsection (1) does not apply if the offender—
(a)
having been informed of his right to apply for legal representation and
having had the opportunity to do so, refused or failed to apply; or
(b)
was aged 21 or over when convicted, and has previously been
sentenced to imprisonment by a civilian court in any part of the United
10
Kingdom or for a service offence.
(3)
The Court Martial or the Service Civilian Court must not—
(a)
pass a sentence of detention under section 208 or 217 (young offenders’
detention), or
(b)
make an order under section 210 (detention and training),
15

on or in respect of an offender who is not legally represented in that court
unless the offender, having been informed of his right to apply for legal
representation and having had the opportunity to do so, refused or failed to
apply.
(4)
For the purposes of this section an offender is “legally represented” in the
20
Court Martial or the Service Civilian Court only if he has the assistance of
counsel or a solicitor to represent him in the proceedings in that court at some
time after he is found guilty and before he is sentenced.
(5)
For the purposes of this section an offender is “legally represented” in the
Summary Appeal Court—
25
(a)
in a case where his appeal was only against punishment, if he has the
assistance of counsel or a solicitor to represent him at some time during
the proceedings in that court;
(b)
in any other case, only if he has the assistance of counsel or a solicitor
to represent him in the proceedings in that court at some time after the
30
court confirms or substitutes the finding and before it confirms or
passes sentence.
(6)
For the purposes of subsection (2)(b)—
(a)
a previous sentence of imprisonment which has been suspended and
has not taken effect is to be disregarded;
35
(b)
“sentence of imprisonment” does not include a committal for contempt
of court or any kindred offence.
263
Effect of duties to pass custodial sentences on other powers of punishment
(1)
Where a provision of this Act requires a court to impose a particular custodial
sentence in respect of an offence, it is not to be taken to prevent the court from
40
including in its sentence for that offence any other authorised punishment.
(2)
In this section an “authorised punishment” means any punishment authorised
by this Act apart from—
service detention;
a service supervision and punishment order;
45
minor punishments;

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
131

a community punishment;
a conditional or absolute discharge.
Dismissal
264
Dismissal: general restrictions
(1)
A court may not pass a sentence of dismissal or dismissal with disgrace in
5
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.
(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
10
circumstances of the offence and any associated offence, including any
aggravating or mitigating factors.
(3)
The Court Martial must not pass a sentence of dismissal or dismissal with
disgrace on an offender who is not legally represented in that court.
(4)
Subsection (3) does not apply if the offender, having been informed of his right
15
to apply for legal representation and having had the opportunity to do so,
refused or failed to apply.
(5)
For the purposes of this section an offender is “legally represented” in the
Court Martial only if he has the assistance of counsel or a solicitor to represent
him in the proceedings in that court at some time after he is found guilty and
20
before he is sentenced.
Financial punishments
265
Financial statement orders
(1)
Before sentencing a person who has been convicted of a service offence, a court
may make a financial statement order; but this does not apply to the Summary
25
Appeal Court.
(2)
A financial statement order is an order requiring the person to give to the court,
within such period as may be specified in the order, such a statement of his
financial circumstances as the court may require.
(3)
A person who without reasonable excuse fails to comply with a financial
30
statement order commits an offence and is liable to a fine not exceeding level 3
on the standard scale.
(4)
A person who in providing any statement in pursuance of a financial statement
order—
(a)
makes a statement which he knows to be false in a material particular,
35
(b)
recklessly provides a statement which is false in a material particular,
or
(c)
knowingly fails to disclose any material fact,

commits an offence and is liable to a fine not exceeding level 4 on the standard
scale.
40

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
132

266
Power of court to remit fine
(1)
This section applies where a court has, in fixing the amount of a fine in respect
of a service offence, determined the offender’s financial circumstances under
section 248(5).
(2)
If on subsequently inquiring into the offender’s financial circumstances the
5
court is satisfied that had it had the results of that inquiry when sentencing the
offender it would—
(a)
have fixed a smaller amount, or
(b)
not have fined him,
it may remit the whole or part of the fine.
10
267
Order for service parent or service guardian to pay fine or compensation
(1)
This section applies where—
(a)
a person aged under 18 is convicted of an offence by the Court Martial
or the Service Civilian Court;
(b)
he is a civilian subject to service discipline;
15
(c)
he has a service parent or service guardian; and
(d)
the court is of the opinion that the case would best be met by the
imposition of a fine or the making of a service compensation order
(with or without any other punishment).
(2)
The court may, and if the offender is under 16 when convicted must, order that
20
the fine or compensation awarded be paid by the service parent or service
guardian instead of by the offender himself; but this is subject to subsection (3).
(3)
Where (apart from this subsection) the court would be required by subsection
(2) to make an order against a service parent or service guardian, the court need
not make such an order if it is satisfied—
25
(a)
that no service parent or service guardian can be found; or
(b)
that it would be unreasonable to make such an order having regard to
the circumstances of the case.
(4)
No order may be made under this section without giving the parent or
guardian an opportunity of being heard, unless the parent or guardian has
30
failed to attend having been required to do so.
(5)
For the purposes of sections 284 to 286 (appeals from Service Civilian Court)
or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)—
(a)
an order under this section is to be treated as a sentence passed on the
parent or guardian for the offence; and
35
(b)
the parent or guardian is to be treated for the purpose of enabling him
to appeal against the order as if he had been convicted of the offence by
the court that made the order.
(6)
For the purposes of any appeal against the order, references in section 16A of
the Court Martial Appeals Act 1968 to passing a sentence include making an
40
order.
(7)
On an appeal against the order the Court Martial Appeal Court may (as an
alternative to exercising its powers under section 16A(2) of that Act) quash the
order.

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
133

(8)
A parent or guardian is a “service parent” or “service guardian” for the
purposes of this section if he is a person subject to service law or a civilian
subject to service discipline.
268
Fixing of fine or compensation to be paid by parent or guardian
(1)
For the purposes of any order under section 267 against the parent or guardian
5
of an offender—
(a)
section 248 (fixing of fine) has effect as if any reference to the offender’s
financial circumstances were to the parent’s or guardian’s financial
circumstances, and as if the reference in subsection (5)(b) to the
offender were to the parent or guardian;
10
(b)
section 249(1) (determination of service compensation order) has effect
as if any reference to the financial circumstances of the person against
whom the service compensation order is made were to the financial
circumstances of the parent or guardian;
(c)
section 249(2) (preference to be given to compensation if insufficient
15
means to pay both compensation and fine) has effect as if the reference
to the offender were to the parent or guardian;
(d)
section 266 (power to remit fine) has effect as if any reference to the
offender’s financial circumstances were to the parent’s or guardian’s
financial circumstances.
20
(2)
Before making an order under section 267 against a parent or guardian, the
court may make a financial statement order with respect to him.
(3)
In subsection (2) “financial statement order” has the meaning given by
subsection (2) of section 265, and subsections (3) and (4) of that section apply
in relation to a financial statement order made under this section as they apply
25
in relation to such an order made under that section.
Community punishments
269
Community punishments: general restrictions etc
(1)
A court must not award a community punishment in respect of an offence
unless it is of the opinion that the offence, or the combination of the offence and
30
one or more offences associated with it, was serious enough to warrant such a
punishment.
(2)
Where a court awards a community punishment—
(a)
the particular requirement (or requirements) included in the order
must be such as the court considers the most suitable for the offender;
35
and
(b)
the restrictions on liberty imposed by the order must be such as in the
opinion of the court are commensurate with the seriousness of the
offence, or the combination of the offence and one or more offences
associated with it.
40
(3)
In forming any such opinion as is mentioned in subsection (1) or (2)(b), 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.

Armed Forces Bill
Part 10 — Court Martial Decisions: Appeals and Review
Chapter 1 — Appeals from Court Martial
134

(4)
In forming an opinion for the purposes of subsection (2)(a) the court may take
into account any information about the offender which is before it.
(5)
In determining the restrictions on liberty to be imposed by a community
punishment in respect of an offence, the court may have regard to any period
for which the offender has, since being charged with the offence or any related
5
offence, been kept in service custody in connection with the offence or any
related offence.
(6)
In subsection (5) “related offence” has the meaning given by section 246.
(7)
Section 151 of the 2003 Act (community order for persistent offender
previously fined) applies to a court dealing with an offender for a service
10
offence as it applies to a civilian court in England and Wales, but as if—
(a)
in subsection (1)(c), the reference to a community sentence were to a
community punishment and the reference to section 143(2) of that Act
were to section 237(1)(b) of this Act;
(b)
in subsection (2), the reference to making a community order were to
15
awarding a community punishment and the words “instead of
imposing a fine” were omitted; and
(c)
in subsection (7), the reference to section 143(2) of that Act were to
section 237(1)(b) and (2) of this Act.
(8)
Accordingly, subsections (1) and (2)(b) above are subject to section 151(2) of the
20
2003 Act as applied by this section.
Chapter 3
Supplementary
270
Civilian courts dealing with service offences
(1)
Nothing in this Part affects a civilian court dealing with an offender for a
25
service offence.
(2)
The Secretary of State may by regulations modify—
(a)
any provision of Chapter 1 of Part 12 of the 2003 Act (sentencing
principles etc for civilian courts),
(b)
any other enactment that confers functions on sentencing courts,
30
in its application to a civilian court dealing with an offender for a service
offence.
Part 10
Court Martial Decisions: Appeals and Review
Chapter 1
35
Appeals from Court Martial
271
Appeals to the Court Martial Appeal Court
(1)
The Courts-Martial Appeal Court is renamed the Court Martial Appeal Court.
(2)
Schedule 8 (amendment of the Courts-Martial (Appeals) Act 1968) has effect.

Armed Forces Bill
Part 10 — Court Martial Decisions: Appeals and Review
Chapter 2 — Review of Court Martial Sentence
135

Chapter 2
Review of Court Martial Sentence
272
Review of unduly lenient sentence by Court Martial Appeal Court
(1)
If the Attorney General considers—
(a)
that a sentence passed by the Court Martial in respect of an offence
5
under section 42 (criminal conduct) is unduly lenient, and
(b)
that condition A or B is satisfied,

he may refer the case to the Court Martial Appeal Court for it to review the
sentencing of the offender.
(2)
Condition A is that the corresponding offence under the law of England and
10
Wales is under that law an offence which, if committed by an adult, is triable
only on indictment.
(3)
Condition B is that the case is of a description specified for the purposes of this
subsection in an order made by the Secretary of State.
(4)
A reference under subsection (1) may not be made without the leave of the
15
Court Martial Appeal Court.
(5)
On a reference under subsection (1), the Court Martial Appeal Court may—
(a)
quash the sentence passed by the Court Martial; and
(b)
pass in substitution for it any sentence which the Court Martial Appeal
Court thinks appropriate and which is a sentence that the Court Martial
20
had power to pass in respect of the offence.
(6)
For the purposes of subsection (1)(a), the Attorney General may consider that
a sentence passed by the Court Martial is unduly lenient if he considers—
(a)
that the Court Martial erred in law as to its powers of sentencing; or
(b)
that the sentence is not that required by section 218, 219, 220, 221, 224,
25
225 or 226;

but nothing in this subsection limits subsection (1)(a).
(7)
Where a reference under subsection (1) relates to an order under section 269(2)
of the 2003 Act (determination of minimum term in relation to mandatory life
sentence), the Court Martial Appeal Court may not, in deciding what order
30
under section 269 of that Act is appropriate for the case, make any allowance
for the fact that the offender is being sentenced for a second time.
(8)
The reference in subsection (1)(a) to a sentence passed by the Court Martial
does not include one passed on an appeal under section 284 (appeal from
Service Civilian Court).
35
(9)
In this section and section 273 “sentence” includes any order made by a court
when dealing with an offender.
273
Reference of point of law to Supreme Court
(1)
Where the Court Martial Appeal Court has concluded its review of a case
referred to it under section 272(1), the Attorney General or the offender may
40
refer to the Supreme Court a point of law involved in any sentence passed on
the offender in the proceedings.