Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Schedule 3 — Civilians etc: modifications of Court Martial sentencing powers
Part 1 — Civilian offenders
194

Schedule 3
Section 163

Civilians etc: modifications of Court Martial sentencing powers
Part 1
Civilian offenders
1     (1)
In relation to a civilian offender, section 163 (punishments available to Court
5
Martial) has effect as if subsections (4), (6) and (7) were omitted and as if for
the Table there were substituted—
“TABLE

Row
Punishment
Limitation

Number

10

1
imprisonment

2
a fine

3
a service community order
only if subsection (5) permits

(defined by section 177)

4
an overseas community order
only if it appears to the court

15

(defined by section 181)
that the offender will reside

outside the United Kingdom

when the order is in force

5
a conditional discharge (defined

by section 184)

20

6
an absolute discharge (defined

by section 184)

7
a service compensation order

(defined by section 174)”

      (2)
A person is a “civilian offender” for the purposes of this Part of this Schedule
25
if he has committed a service offence and—
(a)
he was a civilian when he committed the offence; and
(b)
he is a civilian when sentenced for the offence.
      (3)
In sub-paragraph (2) “a civilian” means a person who is—
(a)
not a member of the regular forces;
30
(b)
not a member of the reserve forces; and
(c)
not liable to recall.
      (4)
For the purposes of this paragraph a person is “liable to recall” if—
(a)
under section 65(1) of the Reserve Forces Act 1996 (c. 14) he is liable
to be recalled for service; or
35
(b)
he is liable to be recalled as mentioned in section 35(1) of the Reserve
Forces Act 1980 (c. 9).

Armed Forces Bill
Schedule 3 — Civilians etc: modifications of Court Martial sentencing powers
Part 2 — Ex-servicemen etc
195

2
For the purposes of determining the Court Martial’s powers when
sentencing a civilian offender for an offence under section 42, section 42(3)
(maximum penalties) has effect as if the reference to rows 5 to 12 were to
rows 2 to 7.
Part 2
5
Ex-servicemen etc
3     (1)
In relation to an offender to whom this Part of this Schedule applies, section
163 (punishments available to Court Martial) has effect as if subsections (6)
and (7) were omitted and as if for the Table there were substituted—
“TABLE
10

Row
Punishment
Limitation

Number

1
imprisonment

2
dismissal with disgrace from
only if the person being

Her Majesty’s service
sentenced is an officer or a

15

member of the reserve forces

3
dismissal from Her Majesty’s
only if the person being

service
sentenced is an officer or a

member of the reserve forces

4
detention for a term not
not if the person being sentenced

20

exceeding two years
is an officer, or was an officer

when last a member of Her

Majesty’s forces

5
reduction in rank, or disrating
only if the person being

sentenced is a warrant officer or

25

non-commissioned officer, and

not to an extent prohibited by

regulations under subsection (4)

6
a fine

7
a service community order
only if subsection (5) permits

30

(defined by section 177)

8
a severe reprimand or a
only if the person being

reprimand
sentenced is, or was at the time

of the offence, an officer, warrant

officer or non-commissioned

35

officer

9
an absolute discharge (defined

by section 184)

Armed Forces Bill
Schedule 4 — Unfitness and insanity: modifications of Mental Health Act 1983
196

Row
Punishment
Limitation

Number

10
a service compensation order

(defined by section 174)”

      (2)
A person is an offender to whom this Part of this Schedule applies if when
5
sentenced he is—
(a)
not subject to service law;
(b)
not a member of a volunteer reserve force;
(c)
not a member of an ex-regular reserve force who is subject to an
additional duties commitment; and
10
(d)
not a civilian offender for the purposes of Part 1 of this Schedule.
4
For the purposes of determining the Court Martial’s powers when
sentencing an offender to whom this Part of this Schedule applies—
(a)
section 25(2) (penalty for misapplying public property etc) has effect
as if the reference to rows 2 to 12 were to rows 2 to 10;
15
(b)
section 35(3) (penalty for annoyance by flying) has effect as if the
reference to rows 3 to 12 were to rows 3 to 10;
(c)
section 42(3) (penalties for criminal conduct offences) has effect as if
the reference to rows 5 to 12 were to rows 5 to 10;
(d)
any provision of regulations under section 325 (enlistment) which
20
provides that an offence is punishable by any punishment
mentioned in rows 2 to 12 of the Table in section 163 has effect as if
the reference to rows 2 to 12 were to rows 2 to 10;
(e)
any provision of regulations under section 337 (service inquiries)
which provides that an offence is punishable by any punishment
25
mentioned in rows 7 to 12 of the Table in section 163 has effect as if
the reference to rows 7 to 12 were to rows 6 to 10.
Schedule 4
Section 168

Unfitness and insanity: modifications of Mental Health Act 1983
Hospital orders
30
1
For the purposes of section 168(2)(a) of this Act, section 37 of the Mental
Health Act 1983 (c. 20) (“the 1983 Act”) has effect as if—
(a)
for subsection (1) there were substituted—
“(1)
Where—
(a)
section 168 of the Armed Forces Act 2006 applies,
35
(b)
the offence to which the finding relates is an offence
punishable with imprisonment, and
(c)
the conditions in subsection (2) below are satisfied,

the court may by order authorise the defendant’s admission
to and detention in such hospital as may be specified in the
40
order.”;
(b)
subsections (1A), (1B), (3), (5), (6) and (8) were omitted;

Armed Forces Bill
Schedule 4 — Unfitness and insanity: modifications of Mental Health Act 1983
197

(c)
in subsection (2)(a) there were omitted—
(i)
the word “either” before sub-paragraph (i);
(ii)
the word “or” at the end of that sub-paragraph; and
(iii)
sub-paragraph (ii) (but not the word “and” at the end of it);
(d)
for subsection (4) there were substituted—
5
“(4)
Where an order is made under this section requiring a person
to be admitted to a hospital (“a hospital order”), it shall be the
duty of the managers of the hospital specified in the order to
admit him in accordance with it.”;
(e)
in subsection (7) the reference to a guardianship order were omitted;
10
and
(f)
any reference to the offender were to the defendant (the reference in
subsection (2)(b) to the offence being construed accordingly).
Restriction orders
2
For the purposes of section 168(2)(a) of this Act, section 41(1) of the 1983 Act
15
(power to make a restriction order) has effect as if—
(a)
the reference to the Crown Court were to the Court Martial; and
(b)
any reference to an offender were to a person in whose case section
168 applies (references to an offence being construed accordingly).
Remand orders
20
3
In relation to a case where section 168 applies but the court has not yet made
one of the disposals mentioned in section 168(2), section 35 of the 1983 Act
(remand to hospital for report on mental condition) has effect as if—
(a)
the reference in subsection (1) to the Crown Court or a magistrates’
court were to the Court Martial;
25
(b)
for the purposes of that section an “accused person” meant a person
in whose case this paragraph applies;
(c)
subsection (2) and the words after paragraph (b) in subsection (3)
were omitted;
(d)
in subsection (3)(b) for the words “if he were remanded on bail” there
30
were substituted “if he were not remanded under this section”;
(e)
in subsection (4) the reference to a place of safety were to any place
that the court may direct; and
(f)
the reference in subsection (10) to a constable included a reference to
a service policeman.
35
4
In relation to a case where section 168 applies but the court has not yet made
one of the disposals mentioned in section 168(2), section 36 of the 1983 Act
(remand to hospital for treatment) has effect as if—
(a)
in subsection (1) for the words “the Crown Court may, instead of
remanding an accused person in custody, remand him” there were
40
substituted “the Court Martial may remand an accused person”;
(b)
for the purposes of that section an “accused person” meant a person
in whose case this paragraph applies;
(c)
subsection (2) were omitted; and
(d)
in subsection (3) the reference to a place of safety were to any place
45
that the court may direct.

Armed Forces Bill
Schedule 5 — Breach, revocation and amendment of community punishments
Part 1 — Service community orders
198

Interim hospital orders
5     (1)
In relation to a case where section 168 applies but the court has not yet made
one of the disposals mentioned in section 168(2), section 38 of the 1983 Act
(interim hospital orders) has effect as if—
(a)
in subsection (1) for the words from the beginning to “he is
5
convicted” there were substituted “Where section 168 of the Armed
Forces Act 2006 applies, the offence to which the finding relates is an
offence punishable with imprisonment and the court”;
(b)
any reference to an offender were to a person in whose case this
paragraph applies;
10
(c)
in subsection (4) the reference to a place of safety were to any place
that the court may direct; and
(d)
in subsection (7) the reference to a constable included a service
policeman.
      (2)
Where an interim hospital order is made under section 38 of the 1983 Act as
15
modified by this paragraph, the references in section 40(3) of that Act to an
offender are to be read in accordance with sub-paragraph (1)(b) above.
Schedule 5
Sections 180, 183

Breach, revocation and amendment of community punishments
Part 1
20
Service community orders
General
1     (1)
In Schedule 8 to the 2003 Act (breach, revocation or amendment of
community order), “community order” includes a service community order
under this Act.
25
      (2)
In its application to such an order, that Schedule has effect as if paragraphs
2(b), 4, 5(4), 6(2), 7, 9, 12, 13, 15, 16(5), 17(5) and (6), 18(4), 20(2), 21 and
27(1)(b)(ii) and (d), (2) and (3)(a) were omitted.
Breach of requirement of order
2
Paragraphs 5(1)(b) and 6(1) of that Schedule (warning and laying of
30
information) have effect in relation to a service community order under this
Act as if the references to a justice of the peace were to the Crown Court.
3
Paragraph 8 of that Schedule (issue of summons or warrant for breach)
applies to such an order as it applies to an order mentioned in sub-
paragraph (1) of that paragraph.
35
Revocation of order
4
Paragraph 14 of that Schedule (Crown Court’s powers of revocation) has
effect as if the reference in sub-paragraph (1)(a) to a community order as
there mentioned included a service community order under this Act.

Armed Forces Bill
Schedule 5 — Breach, revocation and amendment of community punishments
Part 1 — Service community orders
199

Amendment of order
5
In Part 4 of that Schedule (amendment of order) as it applies to a service
community order under this Act, “the appropriate court” means the Crown
Court.
6
In paragraph 19 of that Schedule (amendment in relation to review of drug
5
rehabilitation requirement) as it applies to such an order, “the court
responsible for the order” means the Crown Court.
Powers of civilian courts in relation to order following subsequent conviction
7
Paragraph 22 of that Schedule (committal to Crown Court on subsequent
conviction by magistrates’ court in England or Wales) has effect as if the
10
reference in sub-paragraph (1) to a community order made by the Crown
Court included a service community order under this Act.
Re-sentencing powers
8     (1)
This paragraph applies for the purposes of construing the powers conferred
on the Crown Court by paragraphs 10(1)(b), 14(2)(b)(ii), 17(3)(b) and
15
23(2)(b)(ii) of Schedule 8 to the 2003 Act to deal with the offender, for the
offence in respect of which the order was made, in any way in which he
could have been dealt with for that offence by the court which made the
order.
      (2)
Each of those powers shall be construed in relation to a service community
20
order under this Act as a power to deal with the offender, for the offence in
respect of which the order was made—
(a)
if that offence is an offence punishable with imprisonment, in any
way in which the Crown Court could deal with him if he had just
been convicted before that court of an offence punishable with
25
imprisonment;
(b)
if it is not an offence punishable with imprisonment, in any way in
which the Crown Court could deal with him if he had just been
convicted before that court of an offence not punishable with
imprisonment.
30
      (3)
A term of imprisonment or fine imposed by virtue of this paragraph—
(a)
must not exceed the maximum permitted for the offence in respect of
which the order was made; and
(b)
where the order was made by the Service Civilian Court, must not
exceed—
35
(i)
in the case of a term of imprisonment, 12 months;
(ii)
in the case of a fine, the prescribed sum.
      (4)
In relation to a service community order under this Act, the references in
paragraphs 10(4) and 17(4)(b) of that Schedule to a custodial sentence are to
be read as references to a sentence of imprisonment.
40
9
Where a sentence is passed by virtue of paragraph 8 above, section 9 of the
Criminal Appeal Act 1968 (c. 19) (appeal against sentence) applies as if the
offender had been convicted on indictment of the offence for which the
sentence was passed.

Armed Forces Bill
Schedule 5 — Breach, revocation and amendment of community punishments
Part 2 — Overseas community orders
200

Part 2
Overseas community orders
General
10    (1)
In Schedule 8 to the 2003 Act (breach, revocation or amendment of
community order), “community order” includes an overseas community
5
order.
      (2)
In its application to such an order, that Schedule has effect as if there were
omitted—
(a)
in paragraph 1, the definitions of “the local justice area concerned”
and “the responsible officer”; and
10
(b)
paragraphs 2, 3(b), 4, 5(4), 6(2), 7, 9, 10(6), 12, 13, 15, 16, 17(5) and (6),
18(4), 19, 20(2), 21(4), 22 and 23(1)(a)(ii).
11    (1)
For the purposes of that Schedule as it applies in relation to an overseas
community order, “court” includes—
(a)
the Court Martial;
15
(b)
the Service Civilian Court.
      (2)
For the purposes of that Schedule as it applies in relation to such an order,
and for the purposes of this Part of this Schedule, an overseas community
order made on appeal is to be treated as having been made by the Court
Martial.
20
Breach of requirement of order
12
Paragraphs 5(1)(b) and 6(1) of that Schedule (warning and laying of
information) have effect in relation to an overseas community order as if the
references to causing an information to be laid before a justice of the peace
in respect of the failure were references to applying to the court that made
25
the order for the exercise of its powers in relation to the failure.
13
Paragraph 8 of that Schedule (issue of summons or warrant for breach) has
effect in relation to such an order as if for it and the cross-heading before it
there were substituted—
“Issue of summons or warrant
30
8     (1)
If at any time while an overseas community order under the
Armed Forces Act 2006 is in force it appears to the appropriate
court, on an application by the responsible officer, that the
offender has failed to comply with any of the requirements of the
order, that court may—
35
(a)
issue a summons requiring the offender to appear at the
time and place specified in it, or
(b)
issue a warrant for his arrest.
      (2)
In sub-paragraph (1) “the appropriate court” means the court that
made the order.
40
      (3)
Any summons or warrant issued under this paragraph must
direct the offender to appear or be brought before the court issuing
the summons or warrant.