House of Commons - Explanatory Note
Armed Forces Bill - continued          House of Commons

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Clause 234: Recognizances: appeals, variation and revocation

549.     Subsections (1) and (2) enable a parent or guardian to appeal against an order requiring him to enter into a recognizance or to pay a fine for refusing to do so.

550.     Subsection (3) enables the Court Martial to vary or revoke such an order.

Clause 235: Forfeiture of recognizance

551.     This clause allows a recognizance to be forfeited if the offender commits another service offence during the period of the recognizance. Provided that the parent or guardian is still subject to service law or a civilian subject to service discipline, the Court Martial or the SCC on convicting the offender of the new offence can require the parent or guardian to pay any sum up to the full amount of the recognizance, or remit that amount.

552.     When declaring that a recognizance is to be forfeited, the court can make an order under clause 250 allowing the parent or guardian time to pay, or directing that he pay in instalments.

PART 9 - SENTENCING: PRINCIPLES AND PROCEDURES

553.     This Part sets out the principles to be applied, and the procedures to be followed, when sentencing a person for a service offence. It is largely modelled on the provisions dealing with these matters in civilian courts—chiefly provisions of the Sentencing Act and the 2003 Act. Chapter 1 applies both to service courts and to summary hearings. Chapter 2 applies only to service courts.

Chapter 1 - Principles and Procedures applying to Service Courts and Summary Hearings

General sentencing principles

Clause 236: Duty to have regard to purposes of sentencing

554.     Subsection (1) sets out the purposes of sentencing for service offences, and requires a court or CO to have regard to them. These purposes reflect those set out in section 142 of the 2003 Act, plus an extra one: the maintenance of discipline.

555.     If the offender is under 18, subsection (2) also requires the court or CO to have regard to his welfare. This corresponds to section 44 of the Children and Young Persons Act 1933.

556.     Subsection (3) dispenses with these requirements where the sentence is fixed by law, and where Chapter 6 of Part 8 requires a particular sentence to be imposed.

Clause 237: Deciding the seriousness of the offence

557.     This clause sets out certain matters which a court or CO is required to take into account when considering the seriousness of an offence. These matters are essentially the same as those set out in section 143 of the 2003 Act.

Clause 238: Reduction in sentences for guilty pleas

558.     This clause deals with the sentencing of offenders who have pleaded guilty (or, at a summary hearing, admitted the offence). It reflects section 144 of the 2003 Act.

559.     Subsections (1) to (3) require the court or CO to take account of how early in the proceedings the offender indicated his intention to admit the offence, and the circumstances in which he did so.

560.     Where the offender pleaded guilty to an offence to which clause 224 or 225 applies (third drug trafficking and third domestic burglary offences), subsections (4) and (5) allow the court to reduce by up to 20 per cent the minimum sentence that would otherwise be required.

Clause 239: Increase in sentence for racial or religious aggravation

561.     This clause requires a court or CO to treat as an aggravating factor the fact that the offence was racially or religiously aggravated—except where the offence is one of those under the Crime and Disorder Act 1998 which are defined in terms of such aggravation, and carry a heavier sentence for that reason—and to state in open court (or, at a summary hearing, in the offender's presence: see clause 366(5)) that the offence was so aggravated. The clause reflects section 145 of the 2003 Act.

Clause 240: Increase in sentence for aggravation related to disability or sexual orientation

562.     This clause requires a court or CO to treat as an aggravating factor the fact that the offender demonstrated hostility based on the victim's sexual orientation or disability, or that the offence was motivated by hostility towards persons of a particular sexual orientation or persons with a disability, and to state in open court (or, at a summary hearing, in the offender's presence) that this is the case. The clause reflects section 146 of the 2003 Act.

Service detention and custodial sentences

Clause 241: Service detention: general restriction

563.     Subsections (1) and (4) prohibit a court or CO from passing a sentence of service detention unless the offence (or offences) taken into account in sentencing is (or are taken together) serious enough to warrant such a sentence. These provisions apply to service detention a principle laid down in relation to custodial sentences by section 152 of the 2003 Act.

564.     Subsections (2) and (5) require a court or CO, when deciding whether an offence is serious enough to warrant a sentence of service detention, or how long a sentence it warrants, to take into account all available information about the circumstances of the offence (and any other offence for which the offender is sentenced at the same time, or which is taken into consideration). These provisions apply to service detention a principle laid down in relation to custodial sentences by section 156(1) of the 2003 Act.

Clause 242: Length of term of service detention: general provision

565.     This clause requires a sentence of service detention to be for the shortest term commensurate with the seriousness of the offence (and that of any other offence for which the offender is sentenced at the same time, or which is taken into consideration). It applies to service detention a principle laid down in relation to custodial sentences by section 153 of the 2003 Act.

Clause 243: Limit on combined term of sentences of service detention

566.     This clause prohibits a court or CO from sentencing an offender, or activating a suspended sentence previously passed on him, in such a way that he would be

subject to sentences of service detention amounting to more than two years in total. If a court or CO purports to do this, the excess period is remitted.

Clause 244: Section 243: supplementary

567.     This clause is supplementary to the previous clause.

568.     Subsection (2) ensures that where an offender has been released from a sentence of service detention, the sentence does not count towards the two year maximum.

569.     Subsection (3) ensures that a suspended sentence of detention does not count for the purposes of the two-year limit unless it has been activated under clause 190 or 192.

570.     Subsection (4) ensures that a sentence of detention passed by a CO counts for the purposes of the two-year limit even if the offender is not currently in custody because of the rules in clause 289 or 290 (which allow him to delay starting the sentence until he has had a chance to appeal).

571.     Subsection (5) ensures that, where a person has been detained continuously under two or more sentences of detention (because one was made consecutive to another, or they were concurrent but one was for a longer period than another), both or all of those sentences count for the purposes of the two-year limit.

Clause 245: Crediting of time in service custody: terms of imprisonment and detention

572.     Where a custodial sentence for a fixed term or a sentence of service detention is passed on an offender who has been kept in service custody for any of the period since he was charged, this clause requires the court or CO to direct that the time he has spent in custody should count towards the sentence, unless the court or CO thinks it just not to do so. This requirement may be relaxed by rules in certain cases. A court or CO deciding not to make such a direction must say why not. The clause reflects section 240 of the 2003 Act.

Clause 246: Crediting of time in service custody: supplementary

573.     This clause is supplementary to clause 245.

574.     Subsection (1) has the effect that the court or CO must make a direction under clause 245 where the offender has been kept in service custody since being charged with an offence other than the offence of which he is convicted, provided that both charges were founded on the same facts or evidence.

575.     Subsection (3) ensures that clause 245 does not apply when a suspended sentence is passed, but does apply if the sentence is activated.

576.     Subsections (4) to (7) enable consecutive and concurrent sentences, in specified circumstances, to be treated as a single sentence for the purposes of clause 245(2).

Forfeiture of seniority and reduction in rank

Clause 247: Forfeiture of seniority and reduction in rank or disrating: general restriction

577.     Subsections (1) and (4) prohibit a court or CO from passing a sentence of forfeiture of seniority, reduction in rank or disrating unless the offence (or offences) taken into account in sentencing is (or taken together are) serious enough to warrant such a sentence.

578.     Subsections (2) and (5) require a court or CO, when deciding whether an offence is serious enough to warrant such a sentence, to take into account all available information about the circumstances of the offence (and any other offence for which the offender is sentenced at the same time, or which is taken into consideration).

Fines

Clause 248: Fixing of fines

579.     This clause sets out how a court or CO imposing a fine is to fix the amount of the fine. It requires the court or CO to inquire into the offender's financial circumstances; if he fails to co-operate with that inquiry, to determine what those circumstances are; to take account of those circumstances (whether that means increasing or reducing the fine) and the other circumstances of the case; and to ensure that the amount of the fine reflects the seriousness of the offence. The clause reflects section 164 of the 2003 Act.

Clause 249: Determination of service compensation order

580.     This clause similarly requires a court or CO to have regard to the offender's financial circumstances when deciding whether to make a service compensation order, and if so for how much. If the offender could not afford to pay both a fine and compensation, compensation must be given priority. The clause reflects part of section 130 of the Sentencing Act.

Clause 250: Power to allow payment of fine or service compensation order by instalments

581.     This clause allows a court or CO imposing a fine or a service compensation order to make a further order allowing time to pay, or directing payment by instalments. The offender can also apply to the Court Martial for such an order (or for the variation of such an order) at a later date. But, where the fine or compensation order was awarded by a CO and the offender is a regular serviceman, a volunteer reservist or an ex-regular subject to an additional duties commitment, the application must be made to his CO instead.

Reasons

Clause 251: Duty to give reasons and explain sentence

582.     This clause requires a court or CO passing sentence to explain the reasons for the sentence (except where the sentence is fixed by law, or is required under Chapter 6 of Part 8), its effect, what it requires of the offender, and the effect of failing to comply. The court must also explain any power to vary or review the sentence on application by the offender. The Secretary of State can relax these requirements in specified cases. The clause reflects part of section 174 of the 2003 Act.

Clause 252: Duties in complying with section 251

583.     This clause specifies particular matters which a court or CO must mention or explain in complying with the duty imposed by clause 251. These include aggravating or mitigating factors which the court or CO regards as of particular importance, and the fact that the court or CO has applied clause 238 (admission of offence), 241 (offence serious enough to warrant service detention), 247 (offence serious enough to warrant forfeiture of seniority, reduction in rank or disrating), 259 (offence serious enough that nothing less than a custodial sentence is justified) or 264 (offence serious enough to warrant dismissal or dismissal with disgrace). A court (except the SAC) must also give reasons for departing from any relevant guidelines issued by the Sentencing Guidelines Council under section 170 of the 2003 Act. The clause reflects part of section 174 of that Act.

Savings

Clause 253: Savings for powers to mitigate sentence

584.     Subsection (1) ensures that the clauses there mentioned do not affect a court or CO's power to mitigate a sentence by taking account of anything that the court or CO thinks relevant.

585.     Subsection (2) allows one punishment within a sentence to be mitigated by another.

586.     Subsection (3) allows a court sentencing an offender for two or more offences to apply the principle that the totality of the sentences properly reflects the overall seriousness of the offender's behaviour—for example, that the total length of consecutive sentences is not disproportionate.

587.     The clause reflects section 166 of the 2003 Act.

Chapter 2 - Principles and Procedures applying to Service Courts only

General

588.     Clauses 254 to 269 of the Bill provide for the general principles of sentencing that are to apply to service courts' consideration of the sentencing process. The principles are, broadly, equivalent to the provisions of the 2003 Act, which itself largely re-enacted with modifications the provisions of the Powers of Criminal Courts (Sentencing) Act 2000.

Clause 254: Individual sentence for each offence

589.     At present, a court-martial passes a single sentence on an offender, even if he is convicted of two or more offences. A Standing Civilian Court, on the other hand (like a civilian court) passes a separate sentence for each offence. This clause requires both the Court Martial and the Service Civilian Court to pass a separate sentence for each offence.

Clause 255: Pre-sentence reports

590.     This clause requires a service court to obtain and consider a pre-sentence report when considering whether to pass a discretionary custodial sentence, a sentence of dismissal, dismissal with disgrace or service detention, or a community punishment; for how long a custodial sentence, or one of service detention, should be passed; or whether there is a significant risk of the offender causing serious harm by committing further offences, so that clauses 218 to 221 apply. The pre-sentence report is based on an interview and analysis of the defendant and his offending history and needs. It will contain advice about what punishment might be appropriate, and what rehabilitative work would be likely to prove effective in reducing the risk of re-offending. The clause reflects section 156 of the 2003 Act.

591.     Subsection (2) allows the court to dispense with the requirement to obtain a pre-sentence report if it considers that it does not need one. But, if the offender is under 18, under subsection (3) the court must not do this unless there is already a report on the offender and the court has considered that.

592.     Under subsection (4), no sentence is invalidated by a court's failure to obtain and consider a pre-sentence report, even where the court was required to do so.

593.     If the defendant appeals to the Court Martial Appeal Court or the Court Martial against a custodial sentence, a sentence of dismissal, dismissal with disgrace or service detention, or a community punishment, and the lower court did not obtain a pre-sentence report, subsections (5) and (6) require the appellate court to obtain and consider a report unless it thinks that the original court was justified in not obtaining one, or that a report is not now needed. If the offender is under 18, however, subsection (7) requires the appellate court to obtain a report unless it has considered a report previously obtained.

Clause 256: Pre-sentence reports: supplementary

594.     This clause applies the definition of a "pre-sentence report" in the 2003 Act for the purposes of clause 255, but allows reports to be prepared for service courts by social workers as well as probation officers.

595.     Subsection (4) applies section 159 of the 2003 Act, which requires copies of a written report to be given to the offender or his legal representative and the prosecutor. If the offender is under 18 a copy must also be given to any parent or guardian of his who is in court; but a complete copy need not be given to such an offender, or to his parent or guardian, if this would create a risk of significant harm to the offender. The prosecutor must not use the report for any purpose except making representations to the court about the report's contents.

Clause 257: Mentally disordered offenders: requirement for medical report

596.     This clause requires a service court to obtain and consider a medical report before passing a custodial sentence (other than one fixed by law) on an offender who is, or appears to be, mentally disordered, unless the court considers that no such report is needed. The court must consider any information before it relating to the offender's mental condition, and the likely effect of a custodial sentence on that condition and on any treatment which may be available for it. If the court does not obtain a medical report this does not invalidate the sentence, but on an appeal against sentence the appellate court must obtain and consider a medical report. The clause reflects section 157 of the 2003 Act.

Clause 258: Sentencing guidelines

597.     This clause requires service courts to have regard to any relevant guidelines issued by the Sentencing Guidelines Council under section 170(9) of the 2003 Act, but allows a court to depart from such guidelines if it thinks this is justified by any relevant features of service life or the service disciplinary system.

Custodial sentences etc

Clause 259: Discretionary custodial sentences: general restrictions

598.     This clause prohibits a service court from passing a custodial sentence (except one fixed by law, or required under Chapter 6 of Part 8) unless it thinks the offence, or the combination of it with other sentences taken into account in sentencing, was so serious that no less severe sentence can be justified. The court can also pass a custodial sentence if it would have awarded a community punishment but cannot impose a particular requirement because the offender will not agree to it. The clause reflects section 152 of the 2003 Act.

Clause 260: Length of discretionary custodial sentences: general provisions

599.     Where a service court passes a custodial sentence (other than one fixed by law, or one required by clause 218(2) or 220(2)), this clause requires the sentence to be for the shortest term commensurate with the seriousness of the offence, unless Chapter 6 of Part 8 requires a longer term. The clause reflects section 153 of the 2003 Act.

Clause 261: Power to recommend licence conditions

600.     This clause enables a service court (like a civilian court) to recommend, when passing a sentence of imprisonment for 12 months or more, particular conditions that in its view should be included in the offender's licence when he is released. Section 238 of the 2003 Act requires the Secretary of State to have regard to any such recommendation when setting the licence conditions.

Clause 262: Restriction on imposing custodial sentence or service detention on unrepresented offender

601.     This clause prohibits a service court from passing a sentence of imprisonment, a sentence of detention under clause 208 or 217, a detention and training order or a sentence of service detention on an offender who is not legally represented. But this does not apply if the offender refused or failed to apply for representation after being informed of his right to apply for it, or was aged 21 or more when convicted and has previously been sentenced to imprisonment (not counting a suspended sentence which has not been activated). The clause reflects section 83 of the Sentencing Act.

Clause 263: Effect of duties to pass custodial sentences on other powers of punishment

602.     This clause makes it clear that, where any provision of the Bill requires a court to pass a particular custodial sentence, the court can also include in its sentence any another punishment, except those listed in subsection (2).

Dismissal

Clause 264: Dismissal: general restrictions

603.     Subsections (1) and (2) prohibit a court from passing a sentence of dismissal, or dismissal with disgrace, unless it thinks the offence (or the combination of it with other sentences taken into account in sentencing) was serious enough to warrant such a sentence.

604.     Subsections (3) to (5) prohibit the Court Martial from passing such a sentence on an offender who is not legally represented, unless he refused or failed to apply for representation after being informed of his right to apply for it.

Financial punishments

Clause 265: Financial statement orders

605.     This clause enables a service court (other than the Summary Appeal Court) to order an offender to give the court a statement of his financial circumstances before it passes sentence. The offender commits a further offence (punishable with a fine) if he fails to comply, or provides false or incomplete information. (Clause 60 sets a time limit for the commencement of proceedings for such an offence.) This clause reflects section 162 of the 2003 Act.

Clause 266: Power of court to remit fine

606.     This clause enables a service court to reduce or remit a fine if it did not have full information about the offender's financial circumstances when it imposed the fine. The clause reflects section 165 of the 2003 Act.

Clause 267: Order for service parent or service guardian to pay fine or compensation

607.     Where the offender was convicted aged under 18, is a civilian subject to service discipline, and has a parent or guardian who is subject to service law or a civilian subject to service discipline, this clause enables the court to order the parent or guardian to pay any fine or compensation awarded against the offender. If the offender is under 16 on conviction, the court must do so unless satisfied that this would be unreasonable, or that the parent or guardian cannot be found. The court must give the parent or guardian an opportunity to be heard. The parent or guardian can appeal against the order as if it were a sentence, except that the appellate court can quash the order without substituting another. The clause reflects section 137 of the Sentencing Act.

Clause 268: Fixing of fine or compensation to be paid by parent or guardian

608.     Under this clause, various provisions of the Bill relating to fines and compensation orders are applied in relation to an order under clause 267 that the offender's parent or guardian must pay a fine or compensation.

Community Punishments

Clause 269: Community punishments; general restrictions

609.     Under subsections (1) and (2)(b) a service court must not award a community punishment unless it thinks the offence (or the combination of the offence and any other offences taken into consideration in sentencing) was serious enough to warrant one, and the restrictions imposed must be commensurate with the seriousness of the offence (or offences). This reflects part of section 148 of the 2003 Act. Subsection (3) requires the court to take into account all available information about the offence in forming an opinion on these matters. But under subsection (7) (which applies section 151 of the 2003 Act) the court can also award a community punishment if the offender has at least three times been fined for service or civilian offences committed when he was aged 16 or over, and the court considers that this would be in the interests of justice.

610.     Subsection (2)(a) further provides that the requirements included in the order must be such as the court considers the most suitable for the offender. This reflects part of section 148 of the 2003 Act. For this purpose subsection (4) allows the court to take into account any information about the offender that it may have.

611.     Subsections (5) and (6) allow the court, in determining what restrictions a community punishment should impose, to have regard to any period for which the offender has been kept in service custody since being charged with the offence or any other offence founded on the same facts or evidence. This reflects section 149 of the 2003 Act.

 
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Prepared: 6 December 2005