|
| |
|
| any unserved part of any service supervision and punishment order or minor |
| |
punishment awarded by the officer or the Summary Appeal Court is remitted |
| |
by the making of the order. |
| |
(6) | If it appears to the Court Martial— |
| |
(a) | that subsection (2)(a) and (b) apply, and |
| 5 |
(b) | that the offender has not been dealt with in respect of the suspended |
| |
| |
| the court may issue a summons requiring him to appear at the time and place |
| |
specified in it, or a warrant for his arrest. |
| |
(7) | In subsection (2)(a) the reference to the Court Martial includes— |
| 10 |
(a) | the Court Martial Appeal Court; and |
| |
(b) | the Supreme Court on an appeal brought from the Court Martial |
| |
| |
(8) | This section is subject to section 243 (limit on combined term of sentences of |
| |
| 15 |
191 | Activation by Court Martial: appeals |
| |
(1) | This section applies where an order under section 190 is made. |
| |
(2) | For the purposes of the Court Martial Appeals Act 1968 (c. 20)— |
| |
(a) | the order is to be treated as a sentence passed on the offender by the |
| |
Court Martial for the offence for which the suspended sentence was |
| 20 |
| |
(b) | if the offender was not convicted of that offence by the Court Martial, |
| |
he is to be treated for the purpose of enabling him to appeal against the |
| |
order as if he had been so convicted. |
| |
(3) | For the purposes of any appeal against the order references in section 16A of |
| 25 |
that Act to passing a sentence include making an order. |
| |
(4) | 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 |
| |
| |
192 | Activation by CO of suspended sentence of service detention |
| 30 |
(1) | This section applies in relation to a suspended sentence of service detention |
| |
passed on an offender by an officer or the Summary Appeal Court. |
| |
| |
(a) | an officer records a finding that a charge against the offender in respect |
| |
of an offence committed during the operational period of the |
| 35 |
suspended sentence is proved, or |
| |
(b) | the offender is convicted of an offence in the British Islands which was |
| |
committed during that operational period, and subsequently appears |
| |
before his commanding officer, |
| |
| the officer may (subject to section 193) make an order under subsection (3). |
| 40 |
(3) | An order under this subsection is an order— |
| |
(a) | that the suspended sentence shall take effect with the original term |
| |
| |
|
| |
|
| |
|
(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 |
| 5 |
sentence of service detention which has been passed on the offender on |
| |
a previous occasion or which the officer passes on the offender on the |
| |
same occasion as he makes the order. |
| |
193 | Activation by CO: maximum term |
| |
(1) | The term of a suspended sentence as it takes effect by virtue of an order under |
| 10 |
section 192 must not exceed 28 days unless the officer has extended powers for |
| |
the purposes of this section. |
| |
| |
(a) | section 192(2)(a) applies and the officer awards a term of service |
| |
detention in respect of the offence mentioned there (“the new |
| 15 |
| |
(b) | the officer makes an order under section 192 and the order provides for |
| |
the suspended sentence to take effect from the end of the new sentence, |
| |
| the aggregate of the terms of the two sentences must not exceed 28 days or, if |
| |
the officer has extended powers for the purposes of this section, 90 days. |
| 20 |
(3) | Nothing in subsection (2) affects section 132 (which determines the maximum |
| |
length etc of the new sentence). |
| |
(4) | An officer has extended powers for the purposes of this section if he has, before |
| |
| |
(a) | applied to higher authority for extended powers for the purposes of |
| 25 |
| |
(b) | been notified by higher authority that his application has been granted. |
| |
(5) | An officer also has extended powers for the purposes of this section if he is of |
| |
or above the rank of rear admiral, major-general or air vice-marshal. |
| |
(6) | In subsection (4) “the relevant time” means— |
| 30 |
(a) | where section 192(2)(a) applies, the beginning of the summary hearing |
| |
of the charge mentioned there; |
| |
(b) | where section 192(2)(b) applies, the beginning of the hearing as to |
| |
whether an order under section 192 should be made. |
| |
(7) | Section 192 is subject to section 243 (limit on combined term of sentences of |
| 35 |
| |
194 | Suspended sentences: powers of SAC |
| |
(1) | For the purposes of Chapters 2 and 3 of Part 6 (appeals and reviews), an order |
| |
under section 192 is to be treated as a punishment awarded for the offence for |
| |
which the suspended sentence was awarded. |
| 40 |
(2) | Where an order under section 192 was made by virtue of a finding within |
| |
| |
(a) | any appeal, or application for leave to appeal, against the finding or the |
| |
punishment awarded in respect of it is for the purposes of Chapter 2 of |
| |
|
| |
|
| |
|
Part 6 to be treated as also being an appeal or application for leave to |
| |
appeal against the order; |
| |
(b) | any appeal, or application for leave to appeal, against the order is for |
| |
those purposes to be treated as also being an appeal or application for |
| |
leave to appeal against the punishment. |
| 5 |
(3) | Subsections (4) to (7) apply on an appeal to the Summary Appeal Court in a |
| |
case in which section 192(2)(a) applied (power of CO to activate suspended |
| |
sentence following finding of guilt). |
| |
(4) | If the officer made an order under section 192, the Summary Appeal Court may |
| |
(as an alternative to confirming the order)— |
| 10 |
| |
(b) | make, in substitution for the order, any order under that section that the |
| |
| |
(5) | If the officer did not make an order under that section, the Summary Appeal |
| |
Court may make any order under that section that the officer could have made. |
| 15 |
(6) | Section 146(3) has effect, as regards the Summary Appeal Court’s powers of |
| |
punishment in respect of the officer’s finding (or any substituted finding), as if |
| |
paragraph (b)(ii) were omitted. |
| |
(7) | But the court may not exercise its powers under section 146(3) or subsection (4) |
| |
or (5) above in such a way that, taking the case as a whole, the appellant is dealt |
| 20 |
with more severely on appeal than he was dealt with by the officer. |
| |
(8) | On an appeal against an order under section 192 made by virtue of section |
| |
192(2)(b), the Summary Appeal Court may (as an alternative to confirming the |
| |
| |
| 25 |
(b) | make, in substitution for the order, any order under section 192 that— |
| |
(i) | the officer could have made; and |
| |
(ii) | is no more severe than the order appealed against. |
| |
| |
Imprisonment for Term of Under 12 Months |
| 30 |
Application of provisions in the 2003 Act |
| |
| |
(1) | In the following provisions of the 2003 Act, “court” includes a relevant service |
| |
| |
sections 181 and 182 (imprisonment for under 12 months: term of sentence |
| 35 |
and “custody plus” orders); |
| |
sections 189 and 190 (suspended sentences of imprisonment); |
| |
Chapter 4 of Part 12 (further provision about orders) in its application in |
| |
relation to a custody plus order or suspended sentence order. |
| |
(2) | For the purposes of this Chapter, each of the following is a relevant service |
| 40 |
| |
| |
|
| |
|
| |
|
(b) | the Service Civilian Court; |
| |
(c) | the Court Martial Appeal Court; |
| |
(d) | the Supreme Court on an appeal brought from the Court Martial |
| |
| |
Imprisonment with or without "custody plus" order |
| 5 |
196 | Imprisonment with or without a custody plus order |
| |
(1) | Subsection (2) applies where a relevant service court— |
| |
(a) | imposes a sentence of imprisonment on an offender; and |
| |
(b) | would (apart from this section) be required by section 181(3)(b) of the |
| |
2003 Act to make a custody plus order. |
| 10 |
(2) | Section 181(3)(b) of the 2003 Act shall be read as conferring on the court a |
| |
power rather than a duty to make a custody plus order (but this does not affect |
| |
the duty of the court under section 181(3)(a) of that Act). |
| |
(3) | A relevant service court may not specify in a custody plus order a requirement |
| |
to be complied with outside the United Kingdom. |
| 15 |
(4) | Section 219(3) of the 2003 Act (requirement to give copy of order to |
| |
magistrates’ court) does not apply in relation to a custody plus order made by |
| |
a relevant service court. |
| |
197 | Transfer to Scotland or Northern Ireland of custody plus order |
| |
(1) | In paragraphs 2(1) and (2) and 9(1) and (2) of Schedule 11 to the 2003 Act (court |
| 20 |
making custody plus order may require compliance in Scotland or Northern |
| |
Ireland), “court” includes a relevant service court. |
| |
(2) | In paragraphs 4, 6 and 12 of that Schedule (ancillary provisions) “court” (where |
| |
the context allows) includes a relevant service court. |
| |
(3) | Where Part 4 of that Schedule applies to a custody plus order made by a |
| 25 |
relevant service court, references in that Part to “the original court” are to be |
| |
read as references to the Crown Court. |
| |
(4) | Paragraph 22(7)(b) of that Schedule (requirement to give copy of amending |
| |
order etc to magistrates’ court) does not apply in relation to a custody plus |
| |
order made by a relevant service court. |
| 30 |
198 | Revocation and amendment of custody plus orders |
| |
(1) | In Schedule 10 to the 2003 Act (revocation and amendment) as it applies to a |
| |
custody plus order made by a relevant service court— |
| |
(a) | “the appropriate court” means the Crown Court; and |
| |
(b) | the following shall be treated as omitted— |
| 35 |
(i) | the definition of “the appropriate court” in paragraph 1(1); |
| |
| |
(2) | Paragraph 9(1)(b)(ii) and (2) of that Schedule (requirement to give copy of |
| |
revoking or amending order etc to magistrates’ court) do not apply in relation |
| |
to a custody plus order made by a relevant service court. |
| 40 |
|
| |
|