Chapter 3 - Supplementary

Clause 270: Civilian courts dealing with service offences

612.     This clause makes it clear that Part 9 (Sentencing: Principles and Procedures) does not apply where a civilian criminal court is dealing with a offender charged and convicted of a service offence contrary to the Reserve Forces Act 1996 or re-sentencing under the 2003 Act an offender who has, for example, breached an order imposed by a service court. Any such person shall be dealt with pursuant to the sentencing principles in the Powers of Criminal Courts (Sentencing) Act 2000 and of the 2003 Act.

PART 10 - COURT MARTIAL DECISIONS: APPEAL AND REVIEW

Chapter 1 - Appeals from Court Martial

Clause 271: Appeals to the Court Martial Appeal Court

613.     This clause renames the Courts-Martial Appeal Court as the Court Martial Appeal Court. The change of name is consequential on the creation of the Court Martial as a standing court in clause 153. This clause also introduces Schedule 8.

Chapter 2 - Review of Court Martial Sentence

Clause 272: Review of unduly lenient sentence by Court Martial Appeal Court

614.     This clause gives the Attorney General the power, equivalent to that which he has in respect of sentences passed by the Crown Court, to refer a case to the Court Martial Appeal Court if he considers that the sentence passed by the Court Martial in respect of the offence is unduly lenient. This power is subject to the leave of the Court Martial Appeal Court and to the following conditions:

• that the corresponding offence under civilian law would, if committed by an adult, be capable of being tried only on indictment; or

• that the offence is one specified in an order made by the Secretary of State.

615.     Subsection (5) provides that the Court Martial Appeal Court may quash the original sentence and substitute it with another sentence that would have been available to the Court Martial.

616.     Subsection (6) specifies certain circumstances when the Attorney General may consider the original sentence to have been unduly lenient.

617.     Subsection (7) provides that where the reference to the Court Martial Appeal Court relates to an order setting a minimum term for a life sentence the Court Martial

Appeal Court may not, in deciding what order is appropriate, allow for the fact that the offender is being sentenced for the second time.

Clause 273: Reference of point of law to Supreme Court

618.     This clause applies where the Court Martial Appeal Court has concluded its review of a case under clause 272(1). It allows the Attorney General or the offender to refer to the Supreme Court a point of law involved in any sentence passed in the proceedings. The reference cannot be made without leave of the Court Martial Appeal Court or the Supreme Court.

Clause 274: Power to make supplementary provision about review of sentence

619.     This clause enables the Secretary of State to make provision by regulations with respect to references under clauses 272 and 273, including provision on applications and procedure.

Chapter 3 - Compensation for Miscarriages of Justice

Clause 275: Compensation for miscarriages of justice

620.     This clause makes provision for the payment of compensation to a person who has been subject to a miscarriage of justice by the Court Martial. It operates in parallel to Section 133 of the Criminal Justice Act 1988 (the provisions in respect of the criminal courts of England and Wales) and is in addition to arrangements for ex-gratia payments from MoD funds for wrongful conviction by Service Courts made on the same basis as those provided for by the Home Office.

621.     Compensation payments are to be made by the Secretary of State, but this is subject to subsections (2) and (3). Subsection (2) provides that if the conviction was the result of the applicant failing to disclose, wholly or in part, a fact, he is not entitled to compensation under this section. Subsection (3) provides that compensation is not payable to a convicted person under this section unless an application for such compensation has been made to the Secretary of State.

622.     Subsection (4) gives the Secretary of State the power to determine whether there is a right to compensation, and subsection (5) provides for an assessor (appointed by the Secretary of State) to determine the amount of such compensation.

623.     Subsection (6) requires the assessor to have regard to certain factors in assessing the amount of compensation, and subsection (7) explains what constitutes a 'conviction having been reversed'.

624.     Subsection (8) gives effect to Schedule 9 which deals the appointment of assessors etc.

PART 11 - THE SERVICE CIVILIAN COURT

Introduction

625.     At present civilians subject to service law who commit offences under the Service Discipline Acts may be dealt with summarily by an officer (the Appropriate Superior Authority), who has very limited powers of punishment, or by court martial. In addition, the Armed Forces Act 1976 established the Standing Civilian Court for the trial outside the United Kingdom of civilians under the Army Act 1955 and the Air Force Act 1955 (but not under the Naval Discipline Act 1957). The Secretary of State can direct areas outside the United Kingdom where trials may take place. Two such areas have been established: Germany, Belgium and Holland (as the first area); and the republic of Cyprus and the Sovereign Base Areas of Dhekelia and Akrotiri (as the second area) on the island of Cyprus. A Judge Advocate is appointed as magistrate to sit in the Standing Civilian Court.

626.     The Standing Civilian Court generally has jurisdiction to try civilians for offences committed outside the United Kingdom where the offence is one for which a court martial can try a civilian. The exceptions are offences under section 57 of the Army Act 1955 and section 57 of the Air Force Act 1955 (offences in relation to courts, including contempt) and civil offences under the law of England and Wales that are triable only at the Crown Court.

627.     The Standing Civilian Court acts in similar ways to a magistrates' court in England and Wales. It has similar powers of punishment: it can award a maximum sentence of imprisonment for a term not exceeding six months (12 months if consecutive sentences are awarded) but it cannot award imprisonment or a fine for a civil offence where a magistrates' court in England and Wales would not have power to make such an award.

628.     The clauses in this part create the Service Civilian Court to replace the Standing Civilian Court and make provision for the court and its proceedings. The main changes are the replacement of the power to direct areas where trial can take place with provisions for the court to sit anywhere outside the British Islands; and the creation of a power, analogous to the power of a magistrates' court, for the court to decide whether it or the Court Martial should try a charge.

Clause 276: The Service Civilian Court

629.     This clause creates a court to be known as the Service Civilian Court that may sit anywhere outside the United Kingdom, Channel Islands and Isle of Man (i.e. the British Islands).

Clause 277: Constitution and proceedings of the Service Civilian Court

630.     This clause provides that the Service Civilian Court is to consist of a single judge advocate, to be specified by or on behalf of the Judge Advocate General.

631.     Subsection (3) introduces Schedule 10, which deals with proceedings of the Service Civilian Court.

Clause 278: Court must consider whether trial by Court Martial more appropriate

632.     This clause provides that, before the charge is put and a plea entered, the Service Civilian Court must decide whether it or the Court Martial should try the charge. Before making this decision the Service Civilian Court must give the prosecution the opportunity to inform it of any previous convictions the defendant has, and it must give the prosecution and the defendant an opportunity to make representations about which court should try the charge.

633.     Subsection (3) specifies the matters that the Service Civilian Court must take into account in making a decision.

634.     Subsection (4) provides that where the Service Civilian Court decides that the charge should be tried by the Court Martial it must refer the charge to that court.

Clause 279: Right to elect trial by Court Martial instead of by Service Civilian Court

635.     This clause provides that where the Service Civilian Court decides that it should try a charge, the defendant must be given the opportunity before arraignment to elect to be tried by the Court Martial. If the defendant (or any defendant if a charge is charged jointly) elects to be tried by the Court Martial, the charge must be referred to the Court Martial. Otherwise subsection (4) provides that the Service Civilian Court must try the charge. The practical effect of this clause and clause 278 is that the Service Civilian Court will try a charge only where it and the defendant agree that it should do so.

636.     Subsection (5) provides that where the Service Civilian Court is to try together two or more charges against the defendant, an election for Court Martial trial for any of the charges is deemed to be an election for all of them.

Clause 280: Power of SCC to convict of offence other than that charged

637.     This clause applies to the Service Civilian Court the provisions of clause 160 which provides the Court Martial with a power to convict a person of an offence other than the one charged, where it finds the person not guilty of the charge in the charge sheet and where the allegations in the charge sheet amount to or include an allegation of another service offence.

Punishments available to the Service Civilian Court

Clause 281: Punishments available to Service Civilian Court

638.     This clause provides the list of punishments that the Service Civilian Court may award, the most severe punishment being imprisonment for a term not exceeding the maximum allowed by clause 282.

639.     Subsection (2) provides that the punishments in this section are subject to Chapter 4 of Part 8 of the Bill (clauses 195 to 206 on the application of provisions in the 2003 Act dealing with imprisonment for less than 12 months); Chapter 5 of Part 8 (clauses 207 to 215 on custodial sentences for offenders aged under 18); and Part 9 of the Bill (clauses 236 to 269 on the general principles about sentencing).

640.     Subsection (3) provides that the court may not make a service community order unless the offender is aged 18 or over when convicted, and it appears to the court that the offender will reside in the United Kingdom when the order is in force.

Clause 282: Imprisonment: maximum term

641.     This clause provides that the maximum term of imprisonment the Service Civilian Court may impose shall be 12 months for any one offence and 65 weeks when the court imposes two or more terms of imprisonment to run consecutively.

Clause 283: Fines and compensation orders: maximum amounts

642.     This clause provides that the Service Civilian Court may not impose a fine exceeding the prescribed sum for any one offence. This expression is defined in clause 364. The current amount is £5000.

643.     Subsection (2) provides that where the court convicts a person of an offence of criminal conduct it may not award a fine that a magistrates' court in England and Wales could not impose for the corresponding civil offence.

644.     Subsection (3) provides that (for offences of which the offender has been convicted by the SCC) the maximum amount of compensation paid under a service compensation order made by the Service Civilian Court must not exceed the amount specified in section 131 of the Powers of Criminal Courts (Sentencing) Act 2000.

645.     Subsection (4) provides for the maximum compensation that may be ordered in a case by the SCC for any offences taken into consideration by the court in determining sentence. The effect is that the amount ordered for offences taken into consideration plus the amount actually ordered under subsection (3) must not exceed that maximum that could have been ordered under subsection (3).

Appeals from Service Civilian Court

Clause 284: Right of appeal from Service Civilian Court

646.     This clause provides that a person convicted by the Service Civilian Court may appeal to the Court Martial. Appeal may be against sentence if the person pleaded guilty or against conviction or sentence if he did not plead guilty.

647.     Subsection (2) specifies that it does not matter whether sentence was imposed on conviction or in subsequent proceedings.

648.     Subsection (3) specifies that an appeal must be brought within an initial period of 28 days, beginning on the date the person was sentenced; or within a longer period as the Court Martial may allow.

649.     Subsection (5) provides that the DSP shall be the respondent to any appeal.

650.     Subsection (6) provides that "sentence" includes any order made by a court when dealing with an offender.

Clause 285: Hearing of appeals from SCC

651.     This clause deals with the hearing of appeals by the Court Martial.

652.     Subsection (2) specifies that an appeal against conviction is to be by way of rehearing of the charge (including a rehearing as respects sentence).

653.     Subsection (3) specifies that an appeal against sentence is to be by way of a rehearing as respects sentence.

654.     Subsection (4) provides that Parts 7 to 9 of the Bill apply to appeals as they do to trials by the Court Martial, subject to any modification contained in Court Martial rules.

655.     Subsection (5) specifies which judge advocates are not permitted to be a member of the court hearing an appeal because of prior involvement in a case.

656.     Subsection (6) specifies that the Court Martial may only pass a sentence that the Service Civilian Court had the power to pass in respect of the offence.

Clause 286: Findings made and sentences passed by Court Martial on appeal from Service Civilian Court

657.     This clause provides that any finding made or sentence passed by the Court Martial on an appeal replaces the finding or sentence of the Service Civilian Court. It also provides that a sentence passed on an appeal runs from the time from which it would have run if it had been imposed by the Service Civilian Court, unless the Court Martial directs otherwise. Where a sentence is passed on an appeal against sentence, the person is to be treated (for the purposes of enabling him to appeal against sentence) as if he had been convicted by the Court Martial of the offence for which the sentence was passed. This is because there is a right of appeal under the 1968 Act against sentence only for persons convicted by the Court Martial.

SCC Rules

Clause 287: Service Civilian Court rules

658.     This clause provides a power to the Secretary of State to make rules by statutory instrument in relation to the Service Civilian Court. These rule making powers are broadly similar to those for the SAC and the Court Martial.

PART 12 - SERVICE AND EFFECT OF CERTAIN SENTENCES

Commencement of sentence

Clause 288: Commencement of sentences on the Court Martial and Service Civilian Court

659.     This clause provides at subsection (1) that a sentence passed by the Court Martial or the Service Civilian Court begins to run from the beginning of the day on which it is passed. The exceptions to this rule are where a sentence is suspended or where the Court Martial passes a sentence on an appeal from the Service Civilian Court. In the latter case, the sentence is treated as having begun on the day on which it was passed by the Service Civilian Court (see clause 286). Subsection (3) provides that the provisions of subsection (1) of this clause are themselves subject to any power to make a contrary direction that is conferred by or under this Bill or another Act.

Clause 289: Commencement of term of service detention awarded by CO

660.     This clause sets out the rules for determining when a punishment of service detention ("the sentence") awarded by a CO at a summary hearing commences. The clause does not apply to suspended sentences (subsection (1)(a)).

661.     Where the CO awards a punishment of service detention, the sentence is automatically suspended for the appeal period (a period of 14 days from the date of the award, but the period may be extended within those 14 days). This is the period established in clause 140 during which the offender can exercise his right of appeal to the Summary Appeal Court (subsection (7)). The sentence will commence at the end of the appeal period unless the offender brings an appeal within that time.

662.     However, the 14 day suspension of sentence is not absolute. An offender can elect to commence his sentence immediately (subsection (2)). This election must be made at the time the CO awards the sentence and the sentence therefore commences immediately from that date. The offender can withdraw this election at any time during the appeal period (subsection (4)), in which case the suspension of the sentence is activated for the remainder of the appeal period. The sentence will resume at the

end of the appeal period unless the offender brings an appeal within that time (subsection (5)).

663.     Where an offender has brought an appeal within the appeal period, his sentence (or the balance of it if he elected to serve some of it immediately) remains suspended until the appeal is abandoned or determined (subsections (3)(b) and (5)(b)). Similarly, where an appeal is brought outside of the appeal period, the sentence will immediately be suspended until the appeal is abandoned or determined (subsection (6)).

664.     If on appeal the SAC quashes the sentence or substitutes another punishment, the provisions in this clause about resumption of sentence do not apply (subsection (8)).

Clause 290: Commencement of consecutive term of service detention awarded by CO

665.     This clause makes equivalent provision to clause 289 where the CO awards a punishment of service detention ("the second sentence") and directs under clause 188(3) that it shall take effect from the end of an existing award of service detention ("the initial sentence") (subsection (1)). In that case, the offender can still elect (subsection (2)), to begin the second sentence immediately at the end of the initial sentence, but any election to begin serving the sentence may be withdrawn at any time during the 14 day appeal period (subsection (3)). If the election is not withdrawn and the offender does not bring an appeal, his second sentence will take effect from the end of his initial sentence (subsection (4)).

666.      If no election is made, then the second sentence of service detention will take effect from either the end of the initial sentence or the end of the appeal period, whichever is later, so long as no appeal is brought within this time (subsection 5)(a)). If an appeal is brought before the end of the initial sentence or the appeal period (whichever is the later time), the second sentence has effect from the day that the initial sentence ends or the appeal is abandoned or determined, whichever is the later (subsection (5)(b)). The effects on the commencement of the second sentence by the withdrawal of an election or the bringing of an appeal set out at subsections (6) and (7) are otherwise the same as those contained in clause 289.

Effect of detention on rank or rate

Clause 291: Effect on rank or rate of WOs and NCOs of custodial sentence or sentence of service detention

667.     Under the Service Discipline Acts, a court martial passing a sentence of imprisonment was required to include a sentence of dismissal from the Services (with or without disgrace). Clause 163 now allows the court to pass a sentence of imprisonment without also awarding dismissal, for example where it takes the view

that dismissal would be an unduly harsh penalty. The offender therefore remains in the Services on completion of his sentence.

668.     This clause determines what effect a sentence of imprisonment or service detention has on the rank or rate of a warrant officer or non-commissioned officer where the court decides not to award an accompanying sentence of dismissal or dismissal with disgrace. The offender's rank is reduced to the lowest rank that it could be reduced to by the Court Martial (This is subject to possible restriction by Defence Council regulations under section163(4)).

Clause 292: Rank or rate of WOs and NCOs while in custody pursuant to custodial sentence etc

669.     This clause determines the rank or rate which the warrant officer or non-commissioned officer is treated as holding while detained in pursuance of a relevant sentence. The offender is treated as holding (if in the RAF) the highest rank he has held as an airman (see the note on clause 134). In the case of the other services, the offender is treated as holding the rank of able rate, marine or soldier (as appropriate to the service).

Effect of dismissal

Clause 293: Effect of sentence of dismissal

670.     This clause applies where an offender is sentenced to dismissal or dismissal with disgrace. In the case of an officer, his commission is forfeit (and he accordingly ceases automatically to be a member of the forces). In the case of a warrant officer and below, he is automatically reduced in rank to the lowest rank or rate of his Service. He must also be discharged by the competent authority (but discharge may be delayed until after any sentence of service detention has been served).

Service of sentence

Clause 294: Service detention

671.     This clause applies where a person is sentenced to service detention. It provides that the person can be legally detained in service custody for the duration of their sentence and makes clear that a person sentenced to service detention cannot be detained in a prison during such a sentence.

672.     Service detention is carried out either at the Military Corrective and Training Centre (MCTC) at Colchester in Essex or in licensed unit facilities.

673.     The MCTC is an Army unit but it accommodates people from all three Services, and has some naval and RAF personnel on its staff. It provides a dedicated facility which serves three functions:

• holding people who are serving a sentence of service detention:

• holding people who are in service custody pre-trial and pre-sentence.

• holding people who have been sentenced to imprisonment or, in the case of young people, a custodial sentence, while their transfer to the civilian institution in which they will serve their sentence is arranged.

674.      Unit detention facilities are for those who are in custody pre-charge or pre-sentence or for persons who have been sentenced to only a short period of service detention (typically less than 14 days).

Clause 295: Detention in service custody following passing of custodial sentence etc

675.     This clause applies where a person is sentenced to a custodial sentence, or where an order is made under clause 213 (the detention of an offender who has committed an offence during the currency of a "detention and training order"). Such people must serve their sentences in a civilian institution. This clause enables such a person to be detained in service custody until he is committed to the appropriate civilian institution in which he will serve his sentence.

Clause 296: Removal to England and Wales following passing of custodial sentence etc

676.     Currently persons sentenced to custodial sentences under the SDAs may be committed to a civilian institution in England and Wales, Scotland or Northern Ireland. The Bill (and rules made under it) will provide that all persons sentenced to custodial sentences, or subject to orders under clause 213, will be committed into an institution in England and Wales (via the Military Corrective and Training Centre). Like other prisoners, they may after committal be transferred to institutions in other parts of the UK under the provisions of the Crime (Sentences) Act 1997.