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Armed Forces Bill


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

102

 

201     

Order with community requirements: disapplication of certain provisions

The following provisions of Chapter 4 of Part 12 of the 2003 Act do not apply

in relation to a suspended sentence order with community requirements made

by a relevant service court—

section 207(3)(a)(ii) (condition for mental health treatment requirement);

5

section 219(3) (requirement to give copy of order to magistrates’ court).

202     

Review of order with community requirements

(1)   

In section 191 of the 2003 Act (provision for periodic reviews of order) as it

applies to a suspended sentence order with community requirements made by

a relevant service court—

10

(a)   

“the court responsible for the order” means the Crown Court; and

(b)   

subsections (3) to (5) shall be treated as omitted.

(2)   

In section 210 of that Act (provision for periodic reviews of drug rehabilitation

requirement) as it applies to such an order—

(a)   

“the court responsible for the order” means the Crown Court; and

15

(b)   

subsections (2) to (4) shall be treated as omitted.

(3)   

Section 211 of that Act (periodic reviews of drug rehabilitation requirement)

has effect in its application to such an order as if—

(a)   

in subsection (3)(b) for the words from “he could have been dealt with”

to the end there were substituted “it could deal with him if he had just

20

been convicted before the court of an offence punishable with

imprisonment”;

(b)   

in subsection (4)(b) the words in brackets were omitted; and

(c)   

after subsection (4) there were inserted—

“(4A)   

A term of imprisonment or fine imposed under subsection

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(3)(b)—

(a)   

must not exceed the maximum permitted for the offence

in respect of which the order was made, and

(b)   

where the order was made by the Service Civilian Court,

must not exceed—

30

(i)   

in the case of a term of imprisonment, 12 months;

(ii)   

in the case of a fine, the prescribed sum within

the meaning of section 32 of the Magistrates’

Courts Act 1980 (c. 43).”

(4)   

Where a sentence is passed under section 211(3)(b) of the 2003 Act as modified

35

by subsection (3) above, section 9 of the Criminal Appeal Act 1968 (c. 19)

(appeal against sentence) applies as if the offender had been convicted on

indictment of the offence for which the sentence was passed.

203     

Transfer to Scotland or Northern Ireland of order with community

requirements

40

(1)   

In paragraphs 1(1) and 6(1) of Schedule 13 to the 2003 Act (court making

suspended sentence order with community requirements may require

compliance in Scotland or Northern Ireland), “court” includes a relevant

service court.

 
 

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

103

 

(2)   

In paragraphs 1(5) and (6), 3, 6(5) and 8 of that Schedule (ancillary provisions),

“court” (where the context allows) includes a relevant service court.

(3)   

Where Part 3 of that Schedule applies to a suspended sentence order made by

a relevant service court—

(a)   

references in that Part to “the original court” are to be read as references

5

to the Crown Court; and

(b)   

the following shall be treated as omitted—

(i)   

the definition of “original court” in paragraph 11;

(ii)   

paragraph 12(3).

(4)   

Paragraph 20(6)(b) of that Schedule (requirement to give copy of amending

10

order etc to magistrates’ court) does not apply in relation to a suspended

sentence order made by a relevant service court.

204     

Amendment of order with community requirements

(1)   

In Part 3 of Schedule 12 to the 2003 Act (amendment of order) as it applies to a

suspended sentence order with community requirements made by a relevant

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service court—

(a)   

“the appropriate court” means the Crown Court;

(b)   

the reference in paragraph 17 to the court responsible for the order is to

be read as a reference to the Crown Court; and

(c)   

paragraphs 13(3), 14(5), 15(6), 16(4), 18(2) and 22(1)(b)(ii) and (d) and (2)

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shall be treated as omitted.

(2)   

Paragraph 15 of that Schedule has effect in its application to such an order as

if—

(a)   

in sub-paragraph (4)(b) for the words “of the offence” there were

substituted “of an offence punishable with imprisonment”; and

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(b)   

after sub-paragraph (5) there were inserted—

   “(5A)  

A term of imprisonment or fine imposed under sub-

paragraph (4)(b)—

(a)   

must not exceed the maximum permitted for the

offence in respect of which the order was made, and

30

(b)   

where the order was made by the Service Civilian

Court, must not exceed—

(i)   

in the case of a term of imprisonment, 12

months;

(ii)   

in the case of a fine, the prescribed sum within

35

the meaning of section 32 of the Magistrates’

Courts Act 1980 (c. 43).”

(3)   

Paragraphs 2(b) and 3 of that Schedule shall be treated as omitted for the

purposes of Part 3 of that Schedule as it applies to such an order.

(4)   

Where a sentence is passed under paragraph 15(4)(b) of Schedule 12 to the 2003

40

Act as modified by subsection (2) above, section 9 of the Criminal Appeal Act

1968 (c. 19) (appeal against sentence) applies as if the offender had been

convicted on indictment of the offence for which the sentence was passed.

 
 

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 5 — Young Offenders: Custodial Sentences Available to Service Courts

104

 

205     

Suspended sentence: further conviction or breach of community requirement

Schedule 7 (modification of Schedule 12 to the 2003 Act in relation to

suspended sentences passed by relevant service courts) has effect.

Supplementary

206     

Definitions for purposes of Chapter

5

In this Chapter—

“custody plus order” means an order under section 181(3)(b) of the 2003

Act;

“relevant service court” has the meaning given by section 195(2) of this

Act;

10

“suspended sentence order” means an order under section 189(1) of the

2003 Act;

“suspended sentence order with community requirements” has the

meaning given by section 199(3) of this Act;

“suspended sentence order without community requirements” has the

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meaning given by section 199(4) of this Act.

Chapter 5

Young Offenders: Custodial Sentences Available to Service Courts

Prohibition on imposing imprisonment on persons under 18

207     

Prohibition on imposing imprisonment on persons under 18

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A person who is aged under 18 when convicted of an offence by the Court

Martial or the Service Civilian Court shall not be sentenced to imprisonment

for the offence.

Detention for certain serious offences

208     

Offenders under 18 convicted of certain serious offences: power to detain for

25

specified period

(1)   

Subsection (5) (power to pass sentence of detention) applies where—

(a)   

a person aged under 18 is convicted by the Court Martial of an offence

under section 42 (criminal conduct); and

(b)   

the case is within any of subsections (2) to (4).

30

(2)   

The case is within this subsection if the corresponding offence under the law of

England and Wales is under that law—

(a)   

an offence punishable in the case of an offender aged 18 or over with

imprisonment for 14 years or more; and

(b)   

not an offence the sentence for which is fixed by law.

35

(3)   

The case is within this subsection if the corresponding offence under the law of

England and Wales is an offence under—

(a)   

section 3 of the Sexual Offences Act 2003 (c. 42) (sexual assault);

 
 

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 5 — Young Offenders: Custodial Sentences Available to Service Courts

105

 

(b)   

section 13 of that Act (child sex offences committed by children or

young persons);

(c)   

section 25 of that Act (sexual activity with a child family member); or

(d)   

section 26 of that Act (inciting a child family member to engage in

sexual activity).

5

(4)   

The case is within this subsection if it falls within section 226(1) (certain

firearms offences).

(5)   

Where this subsection applies, the court may pass a sentence of detention

under this section if it is of the opinion that none of the other methods by which

the offender may legally be dealt with is suitable.

10

(6)   

A sentence of detention under this section is a sentence that the offender be

detained for such period (not exceeding the maximum term of imprisonment

with which the offence under section 42 is punishable in the case of a person

aged 18 or over) as may be specified in the sentence.

(7)   

Subsections (5) and (6) are subject to (in particular)—

15

sections 220, 221 and 226 (required custodial sentences for certain

offences); and

sections 259 and 260 (general restrictions on custodial sentences).

209     

Detention under section 208: place of detention etc

(1)   

A person sentenced to be detained under section 208 is liable to be detained in

20

such place, and under such conditions, as may be determined by the Secretary

of State or by such other person as may be authorised by him for the purpose.

(2)   

A person detained in pursuance of a sentence under section 208 shall be

deemed to be in legal custody.

Detention and training orders

25

210     

Offenders under 18: detention and training orders

(1)   

Where—

(a)   

a person aged under 18 is convicted by the Court Martial or the Service

Civilian Court of an offence which is punishable with imprisonment in

the case of a person aged 18 or over, and

30

(b)   

the court is of the opinion mentioned in section 259(2) or the case falls

within section 259(3),

   

the sentence that the court is to pass is (subject to subsections (2) and (3)) an

order that the person shall be subject, for the term specified in the order, to a

period of detention and training followed by a period of supervision.

35

(2)   

In the case of an offender aged under 15 at the time of the conviction, the court

may not make an order under this section unless it is of the opinion that he is

a persistent offender.

(3)   

In the case of an offender aged under 12 at the time of the conviction, the court

may not make an order under this section unless—

40

(a)   

it is of the opinion mentioned in subsection (2);

(b)   

it is of the opinion that only a custodial sentence would be adequate to

protect the public from further offending by him; and

 
 

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 5 — Young Offenders: Custodial Sentences Available to Service Courts

106

 

(c)   

the offence was committed on or after such date as may be appointed

under section 100(2)(b)(ii) of the Sentencing Act (appointed day for

purposes of orders under that Act).

(4)   

Subsection (1) is also subject to sections 208, 217, 220, 221 and 226 (other

custodial sentences that may or must be imposed in particular cases).

5

211     

Term of detention and training order: general

(1)   

The term of an order made under section 210 in respect of an offence—

(a)   

shall be 4, 6, 8, 10, 12, 18 or 24 months; and

(b)   

may not exceed the maximum term of imprisonment with which the

offence is punishable in the case of a person aged 18 or over.

10

(2)   

Where—

(a)   

the offence is an offence under section 42 (criminal conduct),

(b)   

the corresponding offence under the law of England and Wales is

under that law a summary offence, and

(c)   

the maximum term of imprisonment with which that offence is

15

punishable in the case of a person aged 18 or over is 51 weeks,

the term of the order may not exceed 6 months.

212     

Application of provisions relating to civilian detention and training orders

(1)   

In the following provisions of the Sentencing Act references to a detention and

training order include an order under section 210 of this Act—

20

section 101(3) to (10) and (13) (power to impose consecutive terms, duty

of court to take account of remands, etc);

sections 102 to 105, 106A and 107 (period of detention and training, period

of supervision, breach of supervision requirements, etc).

(2)   

In sections 101(3) to (10) and (13) and 106A of the Sentencing Act “court”

25

includes a relevant service court (within the meaning given by section 195(2)).

(3)   

In section 101(8) and (9) of the Sentencing Act in their application to an order

under section 210 of this Act, any reference to an offender’s being “remanded

in custody” is a reference to his being kept in service custody; and section

101(11) and (12) of that Act do not apply in relation to such an order.

30

213     

Offences during currency of detention and training order

(1)   

This section applies to a person in respect of whom an order under section 210

has been made if—

(a)   

after his release and before the date on which the term of the order

ends, he commits an offence within subsection (2) (“the new offence”);

35

and

(b)   

whether before or after that date, he is convicted of the new offence.

(2)   

An offence is within this subsection if it is—

(a)   

a service offence which is punishable with imprisonment; or

(b)   

an offence in the British Islands which is so punishable.

40

(3)   

A court having power to do so under subsection (4) or (5) may order the person

to be detained in such secure accommodation as the Secretary of State may

determine for the whole or any part of the period which—

 
 

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 5 — Young Offenders: Custodial Sentences Available to Service Courts

107

 

(a)   

begins with the date of the court’s order; and

(b)   

is equal in length to the period between the date on which the new

offence was committed and the date mentioned in subsection (1).

(4)   

Where the Court Martial or the Service Civilian Court convicts the person of

the new offence, the court may on the conviction make an order under

5

subsection (3).

(5)   

Where the offender is convicted of the new offence otherwise than by the Court

Martial or the Service Civilian Court, the Court Martial may make an order

under subsection (3) if the offender appears or is brought before it following

the issue of a summons or warrant under subsection (7).

10

(6)   

Where an order under subsection (3) is made on the conviction of the new

offence, the order must be in addition to the sentence for the new offence, and

the period for which the person is ordered under subsection (3) to be

detained—

(a)   

shall, as the court may direct, either be served before and be followed

15

by, or be served concurrently with, any sentence imposed for the new

offence; and

(b)   

in either case, shall be disregarded in determining the appropriate

length of that sentence.

(7)   

If it appears to the Court Martial—

20

(a)   

that this section applies to a person,

(b)   

that his conviction of the new offence was not by the Court Martial or

the Service Civilian Court, and

(c)   

that no order under subsection (3) or under section 105 of the

Sentencing Act has been made in respect of the new offence,

25

   

the Court Martial may issue a summons requiring the person to appear at the

time and place specified in it, or a warrant for his arrest.

(8)   

A person detained in pursuance of an order under subsection (3) shall be

deemed to be in legal custody.

214     

Section 213: definitions etc

30

(1)   

Section 101(13) of the Sentencing Act (treatment of concurrent and consecutive

terms) applies for the purposes of the reference in section 213(1)(a) of this Act

to the term of an order.

(2)   

Where the new offence (within the meaning of section 213) is found to have

been committed over a period of two or more days, or at some time during a

35

period of two or more days, it shall be taken for the purposes of that section to

have been committed on the last of those days.

(3)   

In section 213 “secure accommodation” has the meaning given by section 107

of the Sentencing Act.

215     

Appeals against orders under section 213

40

(1)   

This section applies where an order under section 213 (“the relevant order”) is

made.

(2)   

For the purposes of sections 284 to 286 (appeals from Service Civilian Court)

or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)—

 
 

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 6 — Mandatory etc Custodial Sentences for Certain Offences

108

 

(a)   

the relevant order is to be treated as a sentence passed on the offender,

by the court that made the relevant order, for the offence for which the

order under section 210 was made; and

(b)   

if the offender was not convicted of that offence by that court he is to be

treated for the purpose of enabling him to appeal against the relevant

5

order as if he had been so convicted.

(3)   

For the purposes of any appeal against the relevant order, references in section

16A of the Court Martial Appeals Act 1968 to passing a sentence include

making an order.

(4)   

On an appeal to the Court Martial Appeal Court against the relevant order, the

10

court may (as an alternative to exercising its powers under section 16A(2) of the

Court Martial Appeals Act 1968) quash the order.

Chapter 6

Mandatory etc Custodial Sentences for Certain Offences

Mandatory sentences

15

216     

Mandatory life imprisonment

(1)   

This section applies if a person is convicted by the Court Martial of an offence

under section 42 (criminal conduct) and the corresponding offence under the

law of England and Wales is under that law—

(a)   

murder; or

20

(b)   

any other offence the sentence for which is fixed by law as

imprisonment for life.

(2)   

The court must sentence him to imprisonment for life unless he is liable to be

detained under section 217 (offences committed when offender aged under 18).

217     

Offenders who commit murder etc when under 18: mandatory detention at

25

Her Majesty’s pleasure

(1)   

This section applies if—

(a)   

a person is convicted by the Court Martial of an offence under section

42 (criminal conduct);

(b)   

the corresponding offence under the law of England and Wales is

30

under that law—

(i)   

murder; or

(ii)   

any other offence the sentence for which is fixed by law as

imprisonment for life; and

(c)   

the offender appears to the court to have been aged under 18 at the time

35

the offence was committed.

(2)   

The court must (notwithstanding anything in this or any other Act) sentence

him to be detained during Her Majesty’s pleasure.

(3)   

A person sentenced to be detained under this section is liable to be detained in

such place, and under such conditions, as may be determined by the Secretary

40

of State or by such other person as may be authorised by him for the purpose.

 
 

 
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