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Armed Forces Bill


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

96

 

   

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

sentence,

   

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

Appeal Court.

(8)   

This section is subject to section 243 (limit on combined term of sentences of

service detention).

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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

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passed; and

(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

order.

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.

(2)   

If—

(a)   

an officer records a finding that a charge against the offender in respect

of an offence committed during the operational period of the

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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

unaltered; or

 
 

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

97

 

(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.

(2)   

If—

(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

sentence”), and

(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.

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(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

the relevant time—

(a)   

applied to higher authority for extended powers for the purposes of

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this section; and

(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

service detention).

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.

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(2)   

Where an order under section 192 was made by virtue of a finding within

section 192(2)(a)—

(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

 
 

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 4 — Imprisonment for Term of Under 12 Months

98

 

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

(a)   

quash the order; or

(b)   

make, in substitution for the order, any order under that section that the

officer could have made.

(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

order)—

(a)   

quash the order; or

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.

Chapter 4

Imprisonment for Term of Under 12 Months

30

Application of provisions in the 2003 Act

195     

Term of sentence etc

(1)   

In the following provisions of the 2003 Act, “court” includes a relevant service

court—

sections 181 and 182 (imprisonment for under 12 months: term of sentence

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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

court—

(a)   

the Court Martial;

 
 

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 4 — Imprisonment for Term of Under 12 Months

99

 

(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.

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

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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

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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.

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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);

(ii)   

paragraph 2.

(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.

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Revised 1 December 2005