House of Commons - Explanatory Note
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Application of provisions in the 2003 Act

Clause 195: Term of sentence etc

490.     Under section 181 of the 2003 Act, a sentence of imprisonment for less than 12 months passed by a civilian court in England and Wales must include an order requiring the offender to comply, after his release from custody, with one or more of the requirements listed in section 182 (a "custody plus" order), unless the sentence is one of intermittent custody or is suspended in accordance with section 189 (as to which, see clause 199 below). This clause extends these provisions (except those relating to intermittent custody) to service courts, subject to modifications made by the rest of this Chapter.

Imprisonment with or without "custody plus" order

Clause 196: Imprisonment with or without a custody plus order

491.     This clause modifies section 181 of the 2003 Act so as to enable a service court to pass an immediate (i.e. non-suspended) sentence of imprisonment for less than 12 months which does not include a custody plus order. An offender on whom such a sentence is passed will serve a period of custody determined by the court in accordance with section 181 of the 2003 Act, and following his release will be on licence and subject to licence conditions for the remainder of the sentence (the "licence period"), but will not be subject to any of the requirements in section 182 of the 2003 Act.

492.      Subsection (3) prohibits a court from including in a custody plus order a requirement to be complied with outside the UK. So, if the court passes an immediate sentence of imprisonment for less than 12 months and expects the offender to reside outside the UK during the licence period (e.g. because he is not being sentenced to dismissal from HM service, and is likely to be posted overseas following his release from custody), the court cannot include a custody plus order in the sentence.

Clause 197: Transfer to Scotland or Northern Ireland of custody plus order

493.      Paragraphs 2 and 9 of Schedule 11 to the 2003 Act enable a civilian court in England and Wales to make a custody plus order in respect of an offender who resides or will reside in Scotland or Northern Ireland. Subsections (1) and (2) of this clause enable service courts to do the same.

494.      Schedule 10 to the 2003 Act enables a civilian court in England and Wales to amend or revoke a custody plus order. Part 4 of Schedule 11 modifies Schedule 10 in relation to a custody plus order which requires compliance in Scotland or Northern Ireland (either because it was originally made so as to require such compliance or because it has been amended to that effect under Schedule 10). In certain circumstances the court that can exercise functions in relation to such an order is a court in England and Wales (rather than one in Scotland or Northern Ireland), which might be a magistrates' court. Where the order was originally made by a service court, however, subsection (3) ensures that the civilian court in England and Wales responsible for exercising these functions is the Crown Court.

Clause 198: Revocation and amendment of custody plus orders

495.     This clause modifies Schedule 10 to the 2003 Act (which enables a civilian court in England and Wales to amend or revoke a custody plus order) so that, in the case of a custody plus order made by a service court, the civilian court in England and Wales with power to amend or revoke the order is the Crown Court.

Suspended sentences of imprisonment

Clause 199: Suspended sentence orders with or without community requirements

496.      Section 189 of the 2003 Act allows a civilian court in England and Wales, when passing a sentence of imprisonment for less than 12 months, to make an order (a "suspended sentence order") that the sentence is not to take effect immediately, but can be brought into effect if the offender commits a further offence within a specified period (the "operational period") or fails to comply with one or more requirements ("community requirements") which the order must impose. The requirements available for this purpose include all those available for inclusion in a custody plus order, plus some additional options. This clause modifies section 189 so that a service court can not only make a suspended sentence order including community requirements, but (unlike a civilian court) can also make one without such requirements.

497.      Subsection (5) further modifies section 189 of the 2003 Act so that a suspended sentence order made by a service court can take effect not only if the offender fails to comply with the community requirements (if any) or commits a civilian offence during the operational period of the order, but also if he commits another service offence during that period.

498.      Subsection (6) prohibits a court from including a community requirement to be complied with outside the UK. So, if the court passes a suspended sentence of imprisonment and expects the offender to reside outside the UK, the order must be one without community requirements.

Clause 200: Order without community requirements: provisions not applying

499.     This clause ensures that the provisions of the 2003 Act relating to community requirements do not apply to a suspended sentence order without such requirements.

Clause 201: Order with community requirements: disapplication of certain provisions

500.     This clause prevents certain provisions of the 2003 Act, which would make no sense in relation to a suspended sentence order made by a service court, from applying to such an order.

Clause 202: Review of order with community requirements

501.     Section 191 of the 2003 Act enables a suspended sentence order to provide for the order to be periodically reviewed by a court. Subsection (1) of this clause modifies section 191 so that, where a service court makes a suspended sentence order which includes community requirements and provides for periodic review, the court required to review the order is the Crown Court.

502.      Section 210 of the 2003 Act enables, and in some cases requires, a suspended sentence order imposing a drug rehabilitation requirement to provide for that requirement to be periodically reviewed by a court. Subsection (2) modifies section 210 so that, where a service court makes a suspended sentence order which includes a drug rehabilitation requirement and provides for its periodic review, the court required to review it is the Crown Court.

503.      Section 211 of the 2003 Act provides for the powers of a court reviewing a drug rehabilitation requirement imposed under a suspended sentence order. In certain circumstances the court can re-sentence the offender for the original offence. Subsection (3) modifies section 211 so that the Crown Court can exercise its ordinary sentencing powers rather than those of the service court that made the order. Subsection (4) enables an offender re-sentenced by the Crown Court to appeal to the civilian Court of Appeal.

Clause 203: Transfer to Scotland or Northern Ireland of order with community requirements

504.     Paragraphs 1 and 6 of Schedule 13 to the 2003 Act enable a civilian court in England and Wales to make a suspended sentence order in respect of an offender who resides or will reside in Scotland or Northern Ireland. Subsections (1) and (2) of this clause extend this power to service courts.

505.      Schedule 12 to the 2003 Act enables a civilian court in England and Wales to make further orders in relation to a suspended sentence order where the offender has failed to comply with its requirements or has been convicted of a further offence, or to amend the order. Part 3 of Schedule 13 to the 2003 Act modifies Sch 12 in relation to a suspended sentence order which requires compliance in Scotland or Northern Ireland. In certain circumstances the court that can exercise functions in relation to such an order is a court in England and Wales (rather than one in Scotland or Northern Ireland), which might be a magistrates' court. Where the order was originally made by a service court, however, subsection (3) ensures that the civilian court in England and Wales responsible for exercising these functions is the Crown Court.

Clause 204: Amendment of order with community requirements

506.      This clause modifies Part 3 of Schedule 12 to the 2003 Act (which enables a civilian court in England and Wales to amend a suspended sentence order) so that, if the order was made by a service court and includes community requirements, the court with power to amend it is the Crown Court. When there is power to re-sentence the offender for the original offence, the Crown Court has its ordinary sentencing powers (subject to the limits on the powers of the SCC, if it was the SCC that made the order). Subsection (4) enables an offender re-sentenced by the Crown Court to appeal to the civilian Court of Appeal.

Clause 205: Suspended sentence: further conviction or breach of community requirement

507.     This clause gives effect to Schedule 7, which modifies Schedule 12 to the 2003 Act, which provides for the activation of a suspended sentence following a breach of the community requirements or a conviction of a further offence.

Supplementary

Clause 206: Definitions for purposes of Chapter

508.     This clause provides definitions of certain expressions used in Chapter 4 of Part 8 of the Bill.

Chapter 5 - Young Offenders: Custodial Sentences Available to Service Courts

509.     This Chapter provides for the custodial sentences available to service courts for offenders who are too young to be sentenced to imprisonment.

Restriction on imposing imprisonment on persons under 18

Clause 207: Prohibition on imposing imprisonment on person under 18

510.     This clause provides that an offender who is aged under 18 at the date of conviction cannot be sentenced to imprisonment. This mirrors the equivalent provision for criminal courts found in section 89(1) of the Sentencing Act. The minimum age set by that section is currently 21, but is lowered to 18 by the Criminal Justice and Court Services Act 2000 (though the relevant provision is not yet in force).

Detention for certain serious offences

Clause 208: Offenders under 18 convicted of certain serious offences: power to detain for specified period

511.     This clause applies where a court convicts a person aged under 18 of an offence punishable (in the case of an adult) with 14 years' imprisonment, or one of certain other specified offences, and the court considers that no other available sentence is suitable. In that case, the court may pass a sentence of detention for any period up to the maximum term of imprisonment for an adult.

512.     This sentence corresponds broadly to the civilian sentence of detention under section 91 of the Sentencing Act.

Clause 209: Detention under section 208: place of detention etc

513.     This clause allows a person sentenced under clause 208 to be detained in a place determined by, or under the authority of, the Secretary of State.

Detention and training orders

Clause 210: Offenders under 18: detention and training orders

514.     This clause enables the Court Martial and the Service Civilian Court to pass a sentence corresponding to the detention and training order available to civilian courts under section 100 of the Sentencing Act. This sentence consists of a period of detention and training followed by a period of supervision, and supersedes the "custodial order" which, under the SDAs as amended, is available for offenders aged 17. (The maximum age for a custodial order is reduced from 21 to 18 by a provision of the Criminal Justice and Court Services Act 2000 which is not yet in force.)

515.     Subsection (1) allows a detention and training order to be made only if the court considers that the offence is so serious that only a custodial sentence can be justified, or the offender will not agree to comply with a community punishment.

516.     If the offender is aged under 15 at the time of the conviction, the court may only make an order under this clause if it is of the opinion that he is a persistent offender. If he is under 12, an order cannot be made until an order has been made under section 100(2) of the Sentencing Act allowing civilian courts to make orders for offenders under 12, and the court must also be of the opinion that only a custodial sentence would be adequate to protect the public from his further offending.

Clause 211: Term of detention and training order: general

517.     This clause sets limits on the term of any detention and training order made under clause 210. The term must be one of 4, 6, 8, 10, 12, 18 or 24 months, but cannot exceed the maximum term of imprisonment which the offence carries in respect of offenders aged 18 or over. Where the offence is an offence under clause 42 corresponding to a summary civilian offence punishable with 51 weeks' imprisonment, the maximum is 6 months.

Clause 212: Application of provisions relating to civilian detention and training orders

518.     This clause applies certain provisions of the Sentencing Act dealing with civilian detention and training orders to orders made under clause 210. These include the power to impose consecutive terms, the requirement to take into account periods of remand, and provisions on the period of detention and training and subsequent supervision. In particular, the clause enables a civilian court in the UK (but not a service court) to deal with an offender who, following his release from custody, fails to comply with the supervision requirements imposed by the order.

Clause 213: Offences during currency of detention and training order

519.     This clause applies where a person who is subject to an order under clause 210 is convicted of an offence punishable with imprisonment (whether a service or civilian offence) which he committed during the period of supervision. In these circumstances the Court Martial can make an order for the offender's detention for a further period, up to the period of supervision that remained outstanding at the date of the new offence. Any sentence imposed for the new offence may be made consecutive to the additional period of detention ordered, or concurrent with it. The Service Civilian Court can also make such an order if the offender is convicted of the new offence by that court. If it was a CO or a civilian court that convicted the offender of the new offence, the Court Martial can issue a summons or an arrest warrant to secure the offender's attendance so that the court can consider whether to make an order under this clause.

Clause 214: Section 213: definitions etc

520.     This clause applies to clause 213 certain definitions used in the provisions of the Sentencing Act relating to civilian detention and training orders.

Clause 215: Appeals against orders under section 213

521.     This clause enables the offender to appeal against an order made under clause 213 as if it were a new sentence, except that in this case the appeal court can quash the order without substituting a different one.

Chapter 6 - Mandatory etc Custodial Sentences for Certain Offences

522.     These clauses reflect civilian legislation and require the Court Martial to impose certain custodial sentences in specified circumstances.

Mandatory Sentences

Clause 216: Mandatory life imprisonment

523.      This clause requires the Court Martial to sentence a person to imprisonment for life when it convicts him of an offence under clause 42 and the corresponding offence under the law of England and Wales is one which carries a mandatory life

sentence (such as murder). This does not apply if the offender was under 18 at the time of the offence: in this case clause 217 applies.

Clause 217: Offenders who commit murder etc when under 18: mandatory detention at Her Majesty's pleasure

524.     Where a person is convicted of an offence carrying a mandatory life sentence (such as murder) but was under 18 at the time of the offence, this clause requires him to be sentenced to be detained during Her Majesty's pleasure.

Required sentences

525.     Clauses 218 to 223 apply Chapter 5 of Part 12 of the 2003 Act, which requires certain sentences to be imposed on a person convicted of specified certain violent or sexual offences if the court considers that there is a significant risk of his causing serious harm by committing further specified offences.

Clause 218: Dangerous offenders aged 18 or over

526.     Where the offender is 18 or over and the conviction is of an offence specified in Schedule 15 to the 2003 Act which carries imprisonment for life or for at least 10 years, this clause requires him to be sentenced either to life imprisonment or to imprisonment for public protection (another form of indeterminate sentence).

Clause 219: Certain violent or sexual offences: offenders aged 18 or over

527.     Where the offender is 18 or over and the conviction is of any other offence specified in Schedule 15 to the 2003 Act, this clause requires the court to pass an "extended sentence of imprisonment". This consists of an appropriate custodial term of at least 12 months, plus an extension period of up to 5 years in the case of a violent offence, or 8 years in the case of a sexual offence, during which the offender is on licence.

Clause 220: Dangerous offenders aged under 18

528.     Where the offender is under 18 and the conviction is of an offence specified in Schedule 15 to the 2003 Act which carries imprisonment for life or for at least 10 years, this clause requires him to be sentenced either to detention for life under clause 208 or to "detention for public protection" (another form of indeterminate sentence), unless the court considers that an extended sentence (see clause 221) would be adequate for the protection of the public.

Clause 221: Offenders aged under 18: certain violent or sexual offences

529.     Where the offender is under 18 and the conviction is of any other offence specified in Schedule 15 to the 2003 Act, or it is of an offence carrying life or 10 years' imprisonment but the court does not think that a sentence of detention for public protection is necessary, this clause requires the court to pass an "extended sentence of detention". This consists of an appropriate custodial term of at least 12 months, plus an extension period during which the offender is on licence.

Clause 222: "The required opinion" for purposes of sections 218 to 221

530.     This clause applies the criteria in the 2003 Act for determining whether the restrictions in clauses 218 to 221 apply. In particular, if the offender is an adult and has previous convictions for specified offences the court must assume that there is a significant risk of his causing serious harm by committing such offences in future, unless it thinks this would be an unreasonable conclusion.

Clause 223: Place of detention under certain sentences

531.     This clause allows a person sentenced to detention for public protection or an extended sentence of detention to be detained in a place determined by, or under the authority of, the Secretary of State.

Clause 224: Third drug trafficking offence

532.     This clause in effect applies section 110 of the Sentencing Act, which requires an adult convicted of a third class A drug trafficking offence to be sentenced to at least seven years' imprisonment unless there are particular circumstances which would make this unjust.

Clause 225: Third domestic burglary

533.     This clause in effect applies section 111 of the Sentencing Act, which requires an adult convicted of a third domestic burglary to be sentenced to at least three years' imprisonment unless there are particular circumstances which would make this unjust.

Clause 226: Firearms offences

534.     This clause in effect applies section 51A of the Firearms Act 1968, which requires an adult convicted of certain offences under that Act to be sentenced to at least five years' imprisonment (or three if he was under 18 at the time of the offence) unless there are exceptional circumstances which justify not passing such a sentence. If the offender is aged 16 or 17, the sentence required (subject to that exception) is one of three years' detention under clause 208.

Clause 227: Appeals where previous convictions set aside

535.     This clause allows an offender extra time to appeal against his sentence if, for the purpose of the clauses in this Chapter, the court took account of a previous conviction of his which has since been set aside on appeal.

Chapter 7 - Court Orders Other Than Sentences

536.     This Chapter provides for certain orders which the Court Martial and the Service Civilian Court may make on convicting a person of an offence, but which are not punishments within the meaning of the Bill. One of these orders, the service restraining order, is available even if the defendant is acquitted.

Service restraining orders

Clause 228: Service restraining orders

537.     This clause enables the Court Martial and the Service Civilian Court to make an order similar to a restraining order under the Protection from Harassment Act 1997, on convicting or acquitting a person of an offence. The order prohibits the defendant from doing specified things for a fixed period or until further order. It can only be made for the purpose of protecting a person from harassment. Breach of the order (without reasonable excuse) is a service offence punishable with five years' imprisonment.

Clause 229: Service restraining orders: supplementary

538.     Subsection (1) applies the interpretation provisions of the Protection from Harassment Act 1997 for the purposes of clause 228.

539.     Subsection (2) applies section 12 of that Act, which prevents conduct from being treated as a breach of a restraining order if it is certified to have related to national security, the UK's economic well-being or the prevention or detection of serious crime. "Serious crime" is extended for this purpose so as to include serious service offences and serious crime under the law of other countries.

540.     Subsection (3) enables the Court Martial Appeal Court, on allowing an appeal against conviction, to send the case back to the Court Martial so that that court can consider whether to make a restraining order.

Clause 230: Service restraining orders: appeals

541.     This clause enables a person to appeal against the making of a service restraining order where he was acquitted, or where the order was made after he had successfully appealed against conviction. The clause does not deal with cases where the order is made on conviction since there is a right of appeal in such cases.

Clause 231: Service restraining orders: variation and revocation

542.     This clause enables the Court Martial to vary or revoke a service restraining order, and enables the Court Martial or the SCC to do so on convicting the person against whom it was made of an offence under clause 228.

Order for parent or guardian to enter into recognizance

Clause 232: Order for service parent or service guardian to enter into recognizance

543.     This clause enables, and in some cases requires, the Court Martial or the SCC to exercise powers similar to those conferred on civilian courts by section 150 of the Sentencing Act. These powers can be exercised where a civilian aged under 18 is convicted of an offence and has a parent or guardian who is subject to service law or is a civilian subject to service discipline. The court can ask the parent or guardian to enter into a recognizance to take proper care of the offender and exercise proper control over him. This involves undertaking to pay a specified sum if the offender commits another offence within a specified period. If the parent or guardian unreasonably refuses to enter into a recognizance, the court can fine him.

544.     If the offender is under 16 when convicted, the court must exercise these powers if satisfied that this would be desirable in the interests of preventing him from committing more offences, and must state its reasons if it does not do so.

Clause 233: Recognizances and fines under section 232: further provisions

545.     Subsection (1) restricts the amount for which a parent or guardian may be required to enter into a recognizance, and subsection (2) restricts the period for which he may be entered to do so.

546.     Subsection (3) requires the court to take into account the parent or guardian's means, in the same way as when imposing a fine (see clause 248).

547.     If the court has also passed an overseas community order on the offender, subsection (4) allows the recognizance to require his parent or guardian to ensure that he complies with that order.

548.     Subsection (5) applies other provisions of the Bill, relating to fines imposed on offenders, to a fine imposed on a parent or guardian for refusing to enter into a recognizance.

 
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Prepared: 6 December 2005