Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 1 — Definition etc of Certain Sentences
89

section 178 (power to provide for court review of community orders);
Chapter 4 of Part 12 (further provision about orders).
(4)
In those provisions in their application in relation to a service community order
under this Act, “court” includes a relevant service court.
(5)
The following provisions of the 2003 Act do not apply in relation to a service
5
community order under this Act—
section 207(3)(a)(ii) (condition for mental health treatment requirement);
section 219(3) (requirement to give copy of order to magistrates’ court).
(6)
For the purposes of this section each of the following is a relevant service
court—
10
(a)
the Court Martial;
(b)
the Service Civilian Court;
(c)
the Court Martial Appeal Court;
(d)
the Supreme Court on an appeal brought from the Court Martial
Appeal Court.
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178
Periodic review etc of service community orders
(1)
In section 210 of the 2003 Act (provision for periodic reviews of drug
rehabilitation requirement) as it applies to a service community order under
this Act—
(a)
“the court responsible for the order” means the Crown Court; and
20
(b)
subsections (2) to (4) shall be treated as omitted.
(2)
Section 211 of that Act (periodic reviews of drug rehabilitation requirement)
has effect in its application to such an order as if for subsections (3) to (5) there
were substituted—
“(3A)
If the offender fails to express his willingness to comply with the drug
25
rehabilitation requirement as proposed to be amended by the court, the
court may revoke the service community order and deal with him, 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 it could deal with him if he had just been
30
convicted before the court of an offence punishable with
imprisonment;
(b)
if it is not an offence punishable with imprisonment, in any way
in which it could deal with him if he had just been convicted
before the court of an offence not punishable with
35
imprisonment.
(3B)
In dealing with the offender under subsection (3A) the court—
(a)
must take into account the extent to which the offender has
complied with the requirements of the order, and
(b)
where subsection (3A)(a) applies, may impose a sentence of
40
imprisonment notwithstanding anything in section 152(2).
(3C)
A term of imprisonment or fine imposed under subsection (3A)—
(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
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not exceed—

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 1 — Definition etc of Certain Sentences
90

(i)
in the case of a term of imprisonment, 12 months;
(ii)
in the case of a fine, the prescribed sum within the
meaning of section 32 of the Magistrates’ Courts Act
1980 (c. 43).”
(3)
Where a sentence is passed under section 211(3A) of the 2003 Act as substituted
5
by subsection (2) 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.
179
Transfer of service community order to Scotland or Northern Ireland
(1)
In Schedule 9 to the 2003 Act (transfer of community orders to Scotland or
10
Northern Ireland)—
(a)
“community order” includes a service community order under this Act;
and
(b)
in the provisions mentioned in subsection (2), “court” includes a
relevant service court.
15
(2)
Those provisions are paragraphs 1(1) and (5), 2(1), 3(1), 4(1), 6, 9 (except 9(b))
and 10(c) and (d).
(3)
In its application to a service community order under this Act, that Schedule
has effect as if—
(a)
the reference in paragraph 9(c) to the powers of the court making or
20
amending the order were to the powers of the Crown Court;
(b)
the reference in paragraph 11 to a community order made in England
and Wales included a service community order made (anywhere)
under this Act;
(c)
the reference in paragraph 11 to the court which made the order or the
25
court which last amended the order in England and Wales were to the
Crown Court; and
(d)
the reference in paragraph 15 to the court which made the order were
to the Crown Court.
(4)
In this section “relevant service court” has the meaning given by section 177(6).
30
180
Breach, revocation or amendment of service community order
Part 1 of Schedule 5 (application of Schedule 8 to the 2003 Act to service
community orders) has effect.
Overseas community orders (civilians only)
181
Overseas community orders
35
(1)
An overseas community order is an order—
(a)
imposing on the offender one or more of the requirements mentioned
in section 177(1) of the 2003 Act (community orders under that Act);
and
(b)
not specifying anywhere as an area where the offender resides or will
40
reside.

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 1 — Definition etc of Certain Sentences
91

(2)
The order may include a particular requirement mentioned in section 177(1) of
the 2003 Act only if the court is satisfied—
(a)
that the requirement, and the arrangements (if any are needed) that will
be made in connection with it, are such that the offender will be able to
comply with the requirement in the area where he resides or will reside;
5
and
(b)
that arrangements will be made for the supervision of his compliance
with the requirement.
(3)
The power to include in the order one or more of the requirements mentioned
in section 177(1) of the 2003 Act is also subject to—
10
(a)
the provisions mentioned in the paragraphs of section 177(2) of that
Act; and
(b)
Schedule 6 to this Act (special provisions for young offenders).
(4)
Subject to section 182 below, in the following provisions of the 2003 Act
“community order” includes an overseas order—
15
section 177(5) and (6) (provision about the making of community orders);
Chapter 4 of Part 12 (further provision about orders).
(5)
In those provisions in their application in relation to an overseas community
order, “court” includes a relevant service court.
(6)
For the purposes of this section each of the following is a relevant service
20
court—
(a)
the Court Martial;
(b)
the Service Civilian Court;
(c)
the Court Martial Appeal Court;
(d)
the Supreme Court on an appeal brought from the Court Martial
25
Appeal Court.
182
Overseas community orders: modifications of 2003 Act
(1)
The following provisions of Chapter 4 of Part 12 of the 2003 Act do not apply
in relation to overseas community orders—
section 197(1) and (2) (meaning of “the responsible officer”);
30
section 207(3)(a)(ii) (condition for mental health treatment requirement);
sections 210 and 211 (periodic review of drug rehabilitation requirement);
section 215 (electronic monitoring requirement);
section 216 (requirement to specify local justice area);
section 218 (availability of arrangements in local justice area etc).
35
(2)
The references in sections 201(7) and 202(7) of the 2003 Act to the local
probation board for the area in which the premises are situated are to be read
in relation to an overseas community order as references to a local probation
board.
(3)
The court by which an overseas community order is made must (as well as
40
complying with so much as is applicable of section 219 of the 2003 Act) provide
a copy of the order without delay—
(a)
to the offender’s commanding officer;
(b)
if the offender is aged under 14, to his parent or guardian; and
(c)
if the order imposes an education requirement under Schedule 6 to this
45
Act, to Service Children’s Education.

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 1 — Definition etc of Certain Sentences
92

(4)
For the purposes of Part 12 of the 2003 Act “the responsible officer”, in relation
to an offender to whom an overseas community order relates, means the officer
of a local probation board who, as respects the offender, is for the time being
responsible for discharging the functions conferred by that Part on the
responsible officer.
5
(5)
The power conferred on the Secretary of State by section 197(3)(a) of the 2003
Act includes power to amend subsection (4) above.
183
Breach, revocation or amendment of overseas community order
Part 2 of Schedule 5 (application of Schedule 8 to the 2003 Act to overseas
community orders) has effect.
10
Conditional or absolute discharge (civilians only)
184
Conditional or absolute discharge
(1)
A conditional discharge is an order discharging the offender subject to the
condition that he commits no service offence during a period specified in the
order.
15
(2)
The period specified in the order (“the period of conditional discharge”)
must—
(a)
begin with the date of the order; and
(b)
not exceed the maximum period for the time being specified in section
12(1)(b) of the Sentencing Act (maximum period of civilian conditional
20
discharge).
(3)
An absolute discharge is an order discharging the offender absolutely.
(4)
Where by virtue of section 281 or Schedule 3 a court sentences an offender by
conditionally or absolutely discharging him, the sentence must not include any
other punishment except a service compensation order.
25
185
Commission of further offence by person conditionally discharged
(1)
This section applies where a person who has been conditionally discharged by
virtue of section 281 or Schedule 3 is convicted by the Court Martial or the
Service Civilian Court (“the convicting court”) of an offence committed during
the period of conditional discharge.
30
(2)
If the convicting court is the Court Martial, it may deal with him for the offence
for which he was conditionally discharged in any way in which the court that
conditionally discharged him could deal with him if it had just convicted him
of that offence.
(3)
If the convicting court is the Service Civilian Court, it may deal with him for
35
the offence for which he was conditionally discharged in any way in which it
could deal with him if it had just convicted him of that offence.
(4)
If a person conditionally discharged is subsequently dealt with under this
section for the offence in respect of which the order conditionally discharging
him was made, that order ceases to have effect.
40
(5)
A person who—

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 2 — Consecutive Sentences
93

(a)
is sentenced by a court under subsection (2) or (3) for an offence for
which he was conditionally discharged, and
(b)
was not convicted of that offence by that court,

is to be treated, for the purpose of enabling him to appeal against the sentence
under section 284 or the Court Martial Appeals Act 1968 (c. 20), as if he had
5
been so convicted.
(6)
Where subsection (3) applies and the offence for which the person was
conditionally discharged is not one that the Service Civilian Court would have
jurisdiction to try, it shall be assumed for the purposes of that subsection that
it could have convicted him of the offence.
10
186
Effect of discharge
(1)
A conviction of an offence for which an order under section 184 discharging the
offender absolutely or conditionally is made shall be deemed not to be a
conviction for any purpose other than the purposes of the proceedings in
which the order is made and of any subsequent proceedings which may be
15
taken against the offender under section 185.
(2)
Where the offender was aged 18 or over at the time of his conviction of the
offence in question and is subsequently dealt with under section 185 for that
offence, subsection (1) ceases to apply to the conviction.
(3)
Without prejudice to subsections (1) and (2), a conviction of an offence for
20
which an order under section 184 discharging the offender absolutely or
conditionally is made is in any event to be disregarded for the purposes of any
enactment or instrument which—
(a)
imposes any disqualification or disability on convicted persons; or
(b)
authorises or requires the imposition of any such disqualification or
25
disability.
(4)
In subsection (3)—
“enactment” includes an enactment contained in an Act of the Scottish
Parliament, in Northern Ireland legislation or in a local Act;
“instrument” means an instrument having effect by virtue of an Act or
30
Northern Ireland legislation (and “Act” here includes an Act of the
Scottish Parliament).
(5)
Subsections (1) to (4) do not affect—
(a)
any appeal, whether against conviction or otherwise;
(b)
any right of the offender to rely on his conviction in bar of any
35
subsequent proceedings for the same offence; or
(c)
the restoration of any property in consequence of the conviction.
Chapter 2
Consecutive Sentences
187
Consecutive custodial sentences
40
(1)
This section applies where a court passes a qualifying custodial sentence on a
person in respect of a service offence.
(2)
In this section “qualifying custodial sentence” means—

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 2 — Consecutive Sentences
94

(a)
a determinate sentence of imprisonment;
(b)
a determinate sentence of detention under section 208; or
(c)
a sentence of detention under section 228 of the 2003 Act passed as a
result of section 221 of this Act.
(3)
The court may direct—
5
(a)
that the sentence shall take effect from the end of any other qualifying
custodial sentence that the court passes on the person on the same
occasion;
(b)
that the sentence shall take effect from the end of any sentence to which
this paragraph applies that was passed on the person on a previous
10
occasion; or
(c)
that the sentence shall take effect from the date when the person is (or
but for the direction would be) released from custody under any
sentence to which this paragraph applies that was passed on him on a
previous occasion.
15
(4)
Subsection (3)(b) applies to any of the following sentences, other than one from
which the person has already been released early under Chapter 6 of Part 12 of
the 2003 Act—
(a)
a determinate sentence of imprisonment passed in respect of a service
offence or by a civilian court in England and Wales;
20
(b)
a determinate sentence of detention under section 208 of this Act or
section 91 of the Sentencing Act;
(c)
a sentence of detention under section 228 of the 2003 Act (whether or
not passed as a result of section 221 of this Act).
(5)
Subsection (3)(c) applies to any of the following sentences (wherever passed)—
25
(a)
a determinate sentence of imprisonment not falling within subsection
(4)(a);
(b)
a sentence not falling within subsection (4)(b) or (c) but corresponding
to such a sentence.
(6)
In subsection (1) “court” does not include a civilian court.
30
188
Consecutive sentences of service detention
(1)
A court which passes a sentence of service detention on a person may direct
that the sentence shall take effect from the end of any other sentence of service
detention—
(a)
that has been passed on him on a previous occasion; or
35
(b)
that the court passes on him on the same occasion.
(2)
In subsection (1) “court” does not include the Summary Appeal Court.
(3)
Where an officer or the Summary Appeal Court awards a person a term of
service detention, the officer or court may direct that the award shall take effect
from the end of any other sentence of service detention that has been passed on
40
him on a previous occasion.
(4)
This section is subject to section 243 (limit on combined term of sentences of
service detention).

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 3 — Suspended Sentence of Service Detention
95

Chapter 3
Suspended Sentence of Service Detention
189
Suspension of sentence of service detention
(1)
A court which, or officer who, passes a sentence of service detention may order
that the sentence shall not have effect unless—
5
(a)
during a period specified in the order (“the operational period”) the
offender commits another service offence or an offence in the British
Islands; and
(b)
a court or officer orders under section 190 or 192 that the sentence shall
take effect.
10
(2)
The operational period must be a period of at least three months and not more
than twelve months beginning with the date of the order made under this
section.
(3)
In this Act “suspended sentence of service detention” means a sentence to
which an order under this section relates.
15
190
Activation by Court Martial of suspended sentence of service detention
(1)
The Court Martial may make an order under subsection (3) where it convicts a
person of an offence committed during the operational period of a suspended
sentence of service detention passed on him.
(2)
The Court Martial may also make an order under subsection (3) if—
20
(a)
the Court Martial has passed a suspended sentence of service detention
on a person;
(b)
the person has been convicted of another service offence, or an offence
in the British Islands, committed during the operational period of the
suspended sentence; and
25
(c)
the person appears or is brought before the Court Martial following the
issue of a summons or warrant under subsection (6).
(3)
An order under this subsection is an order—
(a)
that the suspended sentence shall take effect with the original term
unaltered; or
30
(b)
that the suspended sentence shall take effect with the substitution of a
lesser term for the original term.
(4)
An order under subsection (3) may provide either—
(a)
that the suspended sentence shall take effect immediately; or
(b)
that the suspended sentence shall take effect from the end of another
35
sentence of service detention which has been passed on the person on
a previous occasion or which the court passes on the person on the
same occasion as it makes the order.
(5)
Where—
(a)
by virtue of subsection (2) the Court Martial orders that a suspended
40
sentence shall take effect, and
(b)
the conviction mentioned in subsection (2)(b) is a conviction by an
officer or the Summary Appeal Court,