Clause 169: Service supervision orders

422.     This clause defines "service supervision order", and sets out the conditions that must be satisfied for them to be made. It enables the Secretary of State to make further provisions in regulations in respect of service supervision orders.

423.     Subsection (1) provides that a "service supervision order" means an order whereby the person in respect of whom it is made is subject to the supervision of a

specified person, to known as the "supervising officer", for a period specified in the order.

424.     Subsection (3) provides that a court must, before making a service supervision order, be satisfied that: it is the most suitable way of dealing with the person; that the proposed supervising officer is willing to undertake the period of supervision; and that arrangements have been made in respect of the treatment that is to be carried out in accordance with the order.

425.     Subsection (4) enables a service supervision order to require, in accordance with the regulations made pursuant to subsection (5), a supervised person to submit to medical treatment.

Clause 170: Remission for trial

426.     Subsection (1) enables the Secretary of State to remit a person for trial by the Court Martial who has been made the subject of a clause 168 hospital order with a restriction order if, after having consulted the medical practitioner in charge of the person's treatment, that the person is no longer considered to be unfit to stand trial.

427.     Subsection (2) provides that where a person is remitted for trial under this section he must be transferred to service custody and he must as soon as practicable be brought before a judge advocate for a review of the requirement for him to continue to be kept in service custody. Subsection (2)(b) provides that any such review shall be conducted in like manner to a review pursuant to clause 108.

Clause 171: Provision supplementary to sections 165 and 167

428.     Subsection (1) provides that "duly approved" means for the purposes of clauses 165 and 167 approved by the Secretary of State for the purposes of section 12 of the 1983 Act in that the approved person has special experience in the diagnosis or treatment of mental disorder as defined within that Act.

429.     Subsection (2) provides that for the purposes of clauses 165 and 167, and subject to subsection (4), a report written by either a registered medical practitioner or a duly approved registered medical practitioner may be received into evidence without requiring any further proof of the signature or of the professional qualifications of the author of the report.

430.     Subsection (3) provides that the court may call the author of such a medical report to court to give evidence.

431.     Subsection (4) provides that where a written report of a medical practitioner is proposed to be given in evidence by someone other than the person or his representative: his legal representative must be given a copy of the report; if he is not legally represented, the contents of the report must be disclosed to him or, if he is aged under 18 years' old, to his parent or guardian; the person may require that the

author of the report be called to give oral evidence; and the person, or his representative, may call evidence to rebut the evidence contained in the report.

PART 8 - SENTENCING POWERS AND MANDATORY ETC SENTENCES

Chapter 1 - Definition etc of Certain Sentences

432.     This chapter defines, and makes further provision in relation to, some of the sentences that are available to the Court Martial for adult offenders (all of which are set out in the Table in clause 163). Some of the sentences dealt with in this Chapter are also available to a CO (see the Table in clause 131), to the Service Civilian Court (see the Table in clause 281) or both. One of them (the service supervision and punishment order) is unique to service law and may be imposed only on a person subject to service law. The rest are modelled on equivalent sentences available to civilian courts in England and Wales.

Service supervision and punishment orders

Clause 172: Service supervision and punishment orders

433.     This clause defines the service supervision and punishment order. This order is based on the minor punishment of reduction to the second class for conduct, currently available only under the Naval Discipline Act 1957. It must be imposed for a period of 90, 60 or 30 days initially, but that period may be shortened by the offender's CO on a review under clause 173. While the order is in force, it has two elements. First, the offender is subject to requirements prescribed in regulations made by the Defence Council, which can include (for example) extra work and drill or a requirement not to take leave entitlement. The regulations may give the CO, or another officer to whom he has delegated his functions in this respect, a discretion to determine the details of the activities that the offender must perform. Secondly, the offender forfeits 1/6th of his gross pay.

Clause 173: Review of service supervision and punishment orders

434.     This clause requires a CO to review a service supervision and punishment order made, either by the Court Martial or at a summary hearing, in respect of a serviceman under his command. The times when an order is to be reviewed are to be specified in Defence Council regulations. On a review, the CO must consider whether the order should remain in force. If he decides it should not remain in force, he must order that it shall immediately cease to have effect.

435.     Subsection (3) provides for the Defence Council to make regulations about the criteria that a CO must apply when reviewing an order.

436.     Subsection (4) ensures that, even if the CO terminates the order, the offender will still forfeit 1/6th of his gross pay for the period when the order was in force.

Service compensation orders

Clause 174: Service compensation orders

437.     Under the SDAs, a court martial or a CO may impose "stoppages" as a punishment on a serving member of the regular forces. Stoppages are an order to pay compensation for personal injury, loss, or damage resulting from an offence, and are enforced by deductions from the offender's pay. A court martial or standing civilian court can make a compensation order against a civilian offender. Stoppages and the compensation order are replaced in the Bill by the service compensation order, which is available for all offenders and is closely modelled on the compensation order available to civilian courts in England and Wales under section 130 of the Sentencing Act. The order is enforceable in the same way as a fine, which in the case of serving personnel may include deductions from pay under regulations made by virtue of clause 336.

Clause 175: Service compensation orders: appeals etc

438.     Subsection (1) ensures that compensation awarded in favour of a person need not be paid to him until the expiry of the period allowed for an appeal.

439.     Subsection (2) enables the Supreme Court to make a service compensation order if it restores a conviction.

440.     Subsection (3) ensures that, where a service compensation order is made in respect of an offence taken into consideration when sentencing a person for an offence of which he has been convicted, and the conviction is quashed on appeal, the order ceases to have effect. It also enables the offender to appeal against an order made in respect of an offence taken into consideration.

Clause 176: Review of service compensation orders

441.     This clause enables a service compensation order to be reviewed, on application by the person against whom it is made, by the Court Martial or (in the case of an order made at a summary hearing) by the person's CO. The court or CO can discharge the order or reduce the amount payable, but only on the grounds specified in subsection (3).

Service community orders (civilians and dismissed servicemen only)

Clause 177: Service community orders

442.     This clause defines the service community order. This punishment is available only for offenders aged 18 or over on conviction who are civilians, or will be civilians when the punishment takes effect because they are also being sentenced to dismissal, and are expected to live in the UK. It is broadly equivalent to a community order made under section 177 of the 2003 Act, and most of the provisions that apply to such orders are extended to service community orders.

443.     A court making a service community order must impose requirements of the kind available for community orders under the 2003 Act, and must specify the local justice area, locality or petty sessions district in the UK where the offender lives or will live.

444.     Subsection (2) makes the power to include requirements in a service community order subject to broadly the same restrictions as the power to include them in a community order under the 2003 Act.

445.     Subsections (3) to (6) apply further provisions in the 2003 Act on community orders to service community orders.

Clause 178: Periodic review etc of service community orders

446.     Section 210 of the 2003 Act enables, and in some cases requires, a community order imposing a drug rehabilitation requirement to provide for that requirement to be periodically reviewed by a court. This is one of the provisions extended to service community orders by clause 177, but subsection (1) of this clause modifies it so that the court required to review the drug rehabilitation requirement is the Crown Court.

447.     Section 211 of the 2003 Act provides for the powers of a court reviewing a drug rehabilitation requirement under a community order. After considering the responsible officer's report, the court can amend the requirement. It can do so only if the offender agrees to the amendment, but if he does not agree to it the court can re-sentence him for the original offence. This section is extended to service community orders by clause 177, but subsection (2) of this clause modifies it so that the Crown Court can exercise its ordinary sentencing powers rather than those of the service court that made the order.

448.     Subsection (3) provides a right of appeal where the offender is re-sentenced on review.

Clause 179: Transfer of service community order to Scotland or Northern Ireland

449.     Parts 1 and 2 of Schedule 9 to the 2003 Act enable a civilian court in England and Wales to make a community order where the offender lives or will live in Scotland or Northern Ireland. This clause extends those provisions so that in such circumstances a service court can make a service community order.

450.     Part 3 of Schedule 9 to the 2003 Act provides for the operation of a community order which requires compliance in Scotland or Northern Ireland. In some circumstances a Scottish or Northern Ireland court can send the offender back to be dealt with by a court in England and Wales, which might be a magistrates' court. In the case of a service community order, however, under subsection (3) the court dealing with the matter in England and Wales will be the Crown Court.

Clause 180: Breach, revocation or amendment of service community order

451.     Schedule 8 to the 2003 Act sets out the procedures relating to the enforcement, revocation and amendment of community orders. This clause gives effect to Part 1 of Schedule 5 to the Bill, which extends Schedule 8 to the 2003 Act so that, with some modifications, it applies to service community orders.

Overseas community orders (civilians only)

Clause 181: Overseas community orders

452.     This clause defines the overseas community order, which is available only for civilian offenders living overseas. Like the service community order, it is broadly equivalent to a community order made under section 177 of the 2003 Act; but, unlike the service community order, it is enforceable by service courts. An overseas community order made in respect of an offender aged 18 or over on conviction can include any of the requirements that can be included in a community order under the 2003 Act (except an electronic monitoring requirement, which is excluded by clause 182). In the case of an offender aged under 18 on conviction, the requirements available are modified by Schedule 6.

Clause 182: Overseas community orders: modifications of 2003 Act

453.     This clause modifies Chapter 4 of Part 12 of the 2003 Act in its application to overseas community orders.

454.     Subsection (1) prevents certain provisions of the 2003 Act from applying to an overseas community order. These provisions include one which prevents a court from imposing a mental health requirement where the offender's mental condition would warrant the making of a hospital order or guardianship order (which are not available on conviction by a service court), those relating to periodic review of a drug rehabilitation requirement, and the power to impose an electronic monitoring requirement.

455.     Subsection (2) modifies certain provisions which require the approval of the local probation board for a particular area, so that the approval of any local probation board will suffice.

456.     Subsection (3) requires the court making an overseas community order to provide a copy of the order to specified persons in addition to persons specified in section 219 of the 2003 Act.

457.     Subsection (4) provides a definition of the "responsible officer" which is broadly similar to that in section 197 of the 2003 Act, but omits the reference to the officer being appointed for or assigned to a local justice area. Subsection (5) allows the Secretary of State to amend this definition in the same way as he can amend the definition in the 2003 Act.

Clause183: Breach, revocation or amendment of overseas community order

458.     Schedule 8 to the 2003 Act sets out the procedures relating to the enforcement, revocation and amendment of community orders. This clause gives effect to Part 2 of Schedule 5, which extends Schedule 8 to the 2003 Act so that, with some modifications, it applies to overseas community orders.

Conditional or absolute discharge (civilians only)

Clause 184: Conditional or absolute discharge

459.     This clause defines a conditional discharge and an absolute discharge. Conditional discharge is available only for civilian offenders (see Schedule 3, paragraph 1(1) for the sentencing powers of the Court Martial in relation to civilians, and clause 281 for those of the SCC). Absolute discharge is available for civilians and also for persons previously subject to service law (under Schedule 3, paragraph 3(1)).

460.     Subsection (1) defines a conditional discharge as an order discharging the offender on condition that he commits no further service offence during a specified period. Under subsection (2) the maximum period is the same as the maximum period for which a civilian court in England and Wales can impose a conditional discharge (currently three years).

461.     An absolute discharge is defined in subsection (3) as an order that discharges the offender absolutely (i.e. with no conditions attached).

462.     Subsection (4) prohibits a conditional or absolute discharge from being combined with any other punishment except a service compensation order.

Clause 185: Commission of further offence by person conditionally discharged

463.     This clause gives the Court Martial and the Service Civilian Court power to re-sentence an offender for the offence for which he was conditionally discharged, if he is convicted by either of those courts of a further offence committed during the period of discharge. Where the original conviction was by the Court Martial, the sentencing options available to each court are those that it would have if it had just convicted the offender of the original offence. Where the original conviction was by the SCC, neither court can pass a sentence that the SCC could not have passed.

464.     Subsection (5) provides a right of appeal against a sentence passed under the clause by the Court Martial where the original conviction was by the SCC, or vice versa.

Clause 186: Effect of discharge

465.     Under subsection (1), an offender who is conditionally or absolutely discharged is deemed not to have been convicted of an offence, except for the purposes of the proceedings in which the order was made and any re-sentencing of the

offender under clause 185. Under subsection (2) this does not apply if the offender was aged 18 or over when convicted and is later re-sentenced under clause 185.

466.     Under subsection (3), where a conditional or absolute discharge is imposed the conviction is also to be disregarded for the purposes of legislation imposing disqualifications and disabilities.

467.     Subsection (5) ensures that the clause does not affect the offender's right to appeal against the conviction, his right under the double jeopardy rules not to be tried again for the offence, or the restoration of any property in consequence of the conviction.

Chapter 2 - Consecutive Sentences

Clause 187: Consecutive custodial sentences

468.     This clause enables a service court, when passing a sentence of imprisonment or other custodial sentence for a fixed period, to make that sentence consecutive to another sentence. The other sentence may be one that the court passes on the same occasion, or one previously passed on him by any service court or a civilian court (including a court outside England and Wales).

Clause 188: Consecutive sentences of service detention

469.     This clause enables a service court or CO, when passing a sentence of service detention, to make that sentence consecutive to another sentence of service detention, provided that this does not take the total period of the sentences above two years (see clause 243). The other sentence may be one that the court passes on the same occasion (courts have power to pass a separate sentence for each offence, whereas COs pass one sentence for all offences) or one previously passed by a court or CO.

Chapter 3 - Suspended Sentence of Service Detention

Clause 189: Suspension of sentence of service detention

470.     This clause enables a court or CO, when passing a sentence of service detention, to suspend that sentence. In that case the offender does not actually undergo a period of detention unless he commits another offence (whether service or civilian) during a specified period of between three and twelve months ("the operational period") and a court or CO then "activates" the sentence. (This is distinct from the rule that a sentence of detention passed by a CO, even if not suspended, does not take effect until the offender has had a chance to appeal: see clauses 289 and 290.)

Clause 190: Activation by Court Martial of suspended sentence of service detention

471.     Subsection (1) enables the Court Martial to activate a suspended sentence of service detention, including one passed at a summary hearing, if it convicts the offender of another offence committed during the operational period.

472.     Subsection (2) further enables the Court Martial to activate a suspended sentence of service detention passed by (or on appeal from) that court if the offender has been convicted of another offence (whether service or civilian) committed during the operational period. In this case the Court Martial may issue a summons requiring the offender to appear before it, or a warrant for his arrest.

473.     Where the Court Martial activates a suspended sentence, under subsection (3) it can order that the offender must serve the entire period of the original sentence or some shorter term. Under subsection (4) it can also make the sentence consecutive to another sentence of service detention (whether passed on the same or a previous occasion), provided that this does not take the total period of the sentences above two years (see clause 243).

474.     Where the Court Martial activates a suspended sentence on the basis of a conviction by the offender's CO or the SAC, and the CO or the SAC awarded the offender a service supervision and punishment order or a minor punishment in respect of that conviction, under subsection (5) any outstanding part of that punishment is cancelled.

Clause 191: Activation by Court Martial: appeals

475.      Where the Court Martial activates a suspended sentence of service detention, this clause enables the offender to appeal to the Court Martial Appeal Court against the order activating the sentence as if it were a sentence. The Court Martial Appeal Court can substitute an order activating the sentence for a shorter term than that ordered by the Court Martial, or can quash the Court Martial's order altogether.

Clause 192: Activation by CO of suspended sentence of service detention

476.     This clause enables a CO to activate a suspended sentence of service detention passed at a summary hearing or by the SAC (but not by the Court Martial), where the CO finds the offender to have committed a further service offence during the operational period or the offender has been convicted of a civilian offence committed during that period.

477.      Where a CO activates a suspended sentence, under subsection (3) he can order that the offender must serve the entire period of the original sentence or some shorter term. Under subsection (4) he can also make the sentence consecutive to another sentence of service detention (whether passed on the same or a previous occasion). But these powers are subject to the restrictions imposed by clauses 193 and 243.

Clause 193: Activation by CO: maximum term

478.     This clause prevents a CO from activating a suspended sentence of service detention for more than 28 days, or making it consecutive to another sentence so that the total term of detention exceeds 28 days, unless he has been granted extended powers by higher authority or is of senior rank. He cannot in any event make the

activated sentence consecutive to another sentence passed by him so that the total term exceeds 90 days.

Clause 194: Suspended sentences: powers of SAC

479.     This clause applies where a CO has activated a suspended sentence of service detention under clause 192. It enables the offender to appeal against the order activating the sentence, and the order to be reviewed under clause 151, as if the order were a punishment awarded for the original offence.

480.     Where the CO activated the suspended sentence upon finding the offender guilty of another offence, under subsection (2) an appeal against that finding or the punishment awarded for that offence counts as an appeal against the activation order, and an appeal against the order counts as an appeal against the punishment. Under subsection (4) the SAC can quash the activation order or substitute an order activating the sentence for some other period, whether shorter or longer than that for which the CO activated the sentence; but the orders made and punishments awarded by the SAC, in combination, must be no more severe than those made or awarded by the CO.

481.     If a CO finds an offence proved and has power to activate a suspended sentence but does not do so, and the offender appeals, subsection (5) enables the SAC to activate the suspended sentence—but only if the activation order, in combination with the punishments awarded by the SAC, is no more severe than the punishments awarded by the CO.

482.     If a CO activates a suspended sentence on the basis that the offender has been convicted of a civilian offence, and the offender appeals, subsection (8) enables the SAC to quash the order or to substitute another order under clause 192 which is no more severe.

Chapter 4 - Imprisonment for Term of Under 12 Months

483.     This chapter is concerned with sentences of imprisonment of under 12 months imposed by a service court. It applies with modifications some of the provisions of the 2003 Act to give the Court Martial and the Service Civilian Court some of the sentencing powers in Chapters 3 and 4 of the 2003 Act. In particular, clauses 195 to 205 of the Bill give the courts the power to impose sentences of custody plus (but not intermittent custody) and suspended sentences of imprisonment.

484.     Chapters 3 and 4 of the 2003 Act make new provisions in relation to prison sentences of less than 12 months. Previously an offender serving such a prison sentence was released automatically at the half way point of the sentence, and the second half of the sentence was not subject to any licence conditions. Following a review, the Halliday Report ² 'Making Punishments Work', proposed new sentences of less than 12 months to provide a more effective framework within which to address the offence and the needs of the offender.

² Published in July 2001

485.     Sections 181 and 182 of the 2003 Act provide for the new sentence (described in the Halliday report as "custody plus") to replace all existing prison sentences of less than 12 months (with the exception of intermittent custody for which this Bill makes no provision). It comprises a short period in custody of up to 3 months (to fulfil the punishment purpose of the sentence) followed by a longer period under supervision in the community (to fulfil the reparation and crime reduction purposes of the sentence) of a minimum of 6 months. When sentencing, the court will specify the lengths of the two parts and attach specific requirements, based upon those available under the generic community sentence, to the supervision part of the sentence so as to address the rehabilitative needs of the offender.

486.     Sections 189 to 194 of the 2003 Act deal with suspended sentences. At present a custodial sentence can be suspended for between one and two years provided that the offence warrants custody and the suspension is justified by the "exceptional circumstances" of the case. A suspended sentence can be combined with a fine or compensation order, but not with a community sentence (although a supervision order can be attached). The custodial sentence is activated by the committal of another imprisonable offence. The 2003 Act replaces this sentence with one designed to be more widely available and more effective in correcting offending behaviour.

487.     The key change is that the court may suspend a short custodial sentence (as described in section 181 of the 2003 Act) for between six months and two years on condition that the offender undertakes activities in the community. These activities are chosen by the court from the list available under the generic community sentence. If the offender breaches the terms of the suspension the suspended sentence will be activated. The commission of a further offence during the period of suspension will also count as a breach, and the offender's existing suspended sentence will normally be activated when the court sentences him for the new offence. The provisions dealing with breaches of suspended sentences are set out in Schedule 12 to the 2003 Act and arrangements for their transfer to Scotland or Northern Ireland in Schedule 13 to the 2003 Act.

488.     The 2003 Act also provides the courts with a discretionary power to review an offender's progress under a suspended sentence in the same way as it already has a power to review drug treatment and testing orders. And this power allows the court to amend any of the requirements under the order based on the offender's progress. This more general power of review is limited to the new suspended sentence in the 2003 Act but may be extended further if it proves successful.

489.     Finally, Chapter 4 of the 2003 Act contains the provisions common to community sentences and short prison sentences. These relate to the duties of the "responsible officer" who has overall control of an offender on a community sentence or the licence period of a custodial sentence. The Chapter makes further provision about the requirements available in relation to community orders, custody plus orders and suspended sentence orders. Section 215 provides that electronic monitoring can be attached to any of the requirements. Sections 216 to 220 set out general procedural requirements for community orders and short prison sentences, such as ensuring that people receive relevant information concerning each order. Sections 221 to 223 set out the powers of the Secretary of State in relation to various requirements, including provisions as to whom copies of relevant orders should be provided, the details of which are set out in Schedule 14.