Armed Forces Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Armed Forces Bill

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 6 — Mandatory etc Custodial Sentences for Certain Offences
109

(4)
A person detained in pursuance of a sentence under this section shall be
deemed to be in legal custody.
Required sentences
218
Dangerous offenders aged 18 or over
(1)
This section applies where a person aged 18 or over is convicted by the Court
5
Martial of an offence under section 42 (criminal conduct) and the
corresponding offence under the law of England and Wales is a serious offence.
(2)
If the court is of the required opinion (defined by section 222), then—
(a)
if the case falls within section 225(2) of the 2003 Act the court must
impose the sentence required by section 225(2) of that Act;
10
(b)
otherwise, it must impose the sentence required by section 225(3) of
that Act.
(3)
In determining for the purposes of this section whether the case falls within
section 225(2) of the 2003 Act, references in section 225(2) to “the offence” are
to be read as references to the offence under section 42 of this Act.
15
(4)
In this section “serious offence” has the meaning given by section 224 of the
2003 Act.
(5)
A sentence under section 225 of the 2003 Act passed as a result of this section
is not to be regarded as a sentence fixed by law.
219
Certain violent or sexual offences: offenders aged 18 or over
20
(1)
This section applies where a person aged 18 or over 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 a specified
offence other than a serious offence.
(2)
If the court is of the required opinion (defined by section 222), it must impose
25
the sentence required by section 227(2) to (5) of the 2003 Act.
(3)
In section 227 of the 2003 Act as applied by this section—
(a)
the reference in subsection (2)(b) to further specified offences includes
a reference to further acts or omissions that would be specified offences
if committed in England or Wales;
30
(b)
the reference in subsection (3)(a) to section 153(2) of that Act is to be
read as a reference to section 260(2) of this Act;
(c)
the reference in subsection (4)(a) to a specified violent offence is to an
offence under section 42 of this Act as respects which the
corresponding offence under the law of England and Wales is a
35
specified violent offence; and
(d)
the reference in subsection (4)(b) to a specified sexual offence is to an
offence under section 42 of this Act as respects which the
corresponding offence under the law of England and Wales is a
specified sexual offence.
40
(4)
In this section the following expressions—
“serious offence”,
“specified offence”,

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 6 — Mandatory etc Custodial Sentences for Certain Offences
110

“specified violent offence”, and
“specified sexual offence”,

have the meanings given by section 224 of the 2003 Act.
220
Dangerous offenders aged under 18
(1)
This section applies where a person aged under 18 is convicted by the Court
5
Martial of an offence under section 42 (criminal conduct) and the
corresponding offence under the law of England and Wales is a serious offence.
(2)
If the court is of the required opinion (defined by section 222), then—
(a)
if the case falls within section 226(2) of the 2003 Act the court must
impose the sentence required by section 226(2) of that Act (read with
10
subsection (3)(b) below);
(b)
if the case falls within section 226(3) of that Act the court must impose
the sentence required by section 226(3) of that Act.
(3)
In determining for the purposes of this section whether the case falls within
section 226(2) of the 2003 Act and what the sentence required by that provision
15
is—
(a)
references in section 226(2) to “the offence” are to be read as references
to the offence under section 42 of this Act; and
(b)
references in section 226(2) to section 91 of the Sentencing Act are to be
read as references to section 208 of this Act.
20
(4)
In determining for the purposes of this section whether the case falls within
section 226(3) of the 2003 Act, the reference in section 226(3) to further specified
offences includes a reference to further acts or omissions that would be
specified offences if committed in England or Wales.
(5)
In this section “serious offence” has the meaning given by section 224 of the
25
2003 Act.
(6)
A sentence under section 226 of the 2003 Act passed as a result of this section
is not to be regarded as a sentence fixed by law.
221
Offenders aged under 18: certain violent or sexual offences
(1)
This section applies where—
30
(a)
a person aged under 18 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 a
specified offence;
(c)
the court is of the required opinion (defined by section 222); and
35
(d)
where the corresponding offence under the law of England and Wales
is a serious offence, the case is not one in which the court is required by
section 220 to impose a sentence complying with subsection (2) of that
section.
(2)
Where this section applies, the court must impose the sentence required by
40
section 228(2) to (5) of the 2003 Act.
(3)
In section 228 of the 2003 Act as applied by this section—

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 6 — Mandatory etc Custodial Sentences for Certain Offences
111

(a)
the reference in subsection (2)(b) to further specified offences includes
a reference to further acts or omissions that would be specified offences
if committed in England or Wales;
(b)
the reference in subsection (4)(a) to a specified violent offence is to an
offence under section 42 of this Act as respects which the
5
corresponding offence under the law of England and Wales is a
specified violent offence;
(c)
the reference in subsection (4)(b) to a specified sexual offence is to an
offence under section 42 of this Act as respects which the
corresponding offence under the law of England and Wales is a
10
specified sexual offence; and
(d)
references to the maximum term of imprisonment permitted for the
offence are to the maximum term of imprisonment that (apart from
section 218) is permitted for the offence under section 42 in the case of
a person aged 18 or over.
15
(4)
In this section the following expressions—
“serious offence”,
“specified offence”,
“specified violent offence”, and
“specified sexual offence”,
20

have the meanings given by section 224 of the 2003 Act.
222
“The required opinion” for purposes of sections 218 to 221
(1)
“The required opinion” for the purposes of sections 218(2), 219(2), 220(2) and
221(1) is the opinion that there is a significant risk to members of the public of
serious harm occasioned by the commission by the offender of—
25
(a)
further specified offences; or
(b)
further acts or omissions that would be specified offences if committed
in England or Wales.
(2)
For the purposes of the court’s decision whether it is of that opinion, section
229(2) to (4) of the 2003 Act apply as they apply for the purposes of the
30
assessment referred to in section 229(1) of that Act.
(3)
In section 229(2) to (4) of the 2003 Act as applied by this section—
(a)
any reference to the offence mentioned in section 229(1)(a) of that Act is
a reference to the offence under section 42 of this Act; and
(b)
the reference to such a risk as is mentioned in section 229(1)(b) of that
35
Act is a reference to such a risk as is mentioned in subsection (1) above.
(4)
In this section—
“serious harm” has the meaning given by section 224 of the 2003 Act;
“specified offence” has the meaning given by that section.
223
Place of detention under certain sentences
40
Where as a result of section 220 or 221 a court passes a sentence of—
(a)
detention for public protection under section 226(3) of the 2003 Act, or
(b)
detention under section 228 of that Act,
section 235 of that Act (place of detention etc) applies accordingly.

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 6 — Mandatory etc Custodial Sentences for Certain Offences
112

224
Third drug trafficking offence
(1)
This section applies where —
(a)
a person aged 18 or over is convicted by the Court Martial of an offence
under section 42 (criminal conduct); and
(b)
if his conviction had been by a civilian court in England and Wales of
5
the corresponding offence under the law of England and Wales, section
110 of the Sentencing Act (third class A drug trafficking offence) would
apply.
(2)
The Court Martial must impose the sentence required by section 110(2) of that
Act, unless it is of the opinion that there are particular circumstances which—
10
(a)
relate to any of the offences or to the offender; and
(b)
would make it unjust to do so in all the circumstances.
225
Third domestic burglary
(1)
This section applies where—
(a)
a person aged over 18 is convicted by the Court Martial of an offence
15
under section 42 (criminal conduct); and
(b)
if his conviction had been by a civilian court in England and Wales of
the corresponding offence under the law of England and Wales, section
111 of the Sentencing Act (third domestic burglary) would apply.
(2)
The Court Martial must impose the sentence required by section 111(2) of that
20
Act, unless it is of the opinion that there are particular circumstances which—
(a)
relate to any of the offences or to the offender; and
(b)
would make it unjust to do so in all the circumstances.
226
Firearms offences
(1)
This section applies if—
25
(a)
a person is convicted by the Court Martial of an offence under section
42 (criminal conduct); and
(b)
if his conviction had been by a civilian court in England and Wales of
the corresponding offence under the law of England and Wales, section
51A of the Firearms Act 1968 (c. 27) (minimum sentences for certain
30
firearms offences) would apply.
(2)
The Court Martial must impose the sentence required by section 51A(2) of that
Act (as that provision has effect in relation to England and Wales), unless it is
of the opinion that there are exceptional circumstances relating to the offence
or to the offender which justify its not doing so.
35
(3)
In section 51A(4)(a)(ii) of that Act (interpretation of section 51A(2)), as applied
by this section, the reference to a sentence of detention under section 91 of the
Sentencing Act is to be read as a reference to a sentence of detention under
section 208 of this Act.
227
Appeals where previous convictions set aside
40
(1)
Subsection (3) applies where—
(a)
a sentence has been imposed on a person by virtue of section 218 or 219;
and

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 7 — Court Orders Other Than Sentences
113

(b)
any previous conviction of his without which the court would not have
been required to make the assumption mentioned in section 229(3) of
the 2003 Act (as applied by section 222) has been subsequently set aside
on appeal.
(2)
Subsection (3) also applies where—
5
(a)
a sentence has been imposed on any person by virtue of section 224 or
225; and
(b)
any previous conviction of his without which that section would not
have applied has subsequently been set aside on appeal.
(3)
Where this subsection applies, an application for leave to appeal against the
10
sentence may be lodged at any time within 29 days beginning with the day on
which the previous conviction was set aside.
(4)
Subsection (3) has effect notwithstanding anything in section 9(1) of the Court
Martial Appeals Act 1968 (c. 20).
Chapter 7
15
Court Orders Other Than Sentences
Service restraining orders
228
Service restraining orders
(1)
The Court Martial or the Service Civilian Court may make an order under this
section where—
20
(a)
it convicts or acquits a person (“the defendant”) of an offence; and
(b)
the defendant is subject to service law or is a civilian subject to service
discipline.
(2)
An order under this section—
(a)
prohibits the defendant from doing anything described in the order;
25
and
(b)
has effect for a fixed period specified in the order or until further order.
(3)
An order under this section may be made, and a prohibition may be included
in the order, only for the purpose of protecting a person mentioned in the order
from conduct which amounts to harassment.
30
(4)
A person subject to service law or a civilian subject to service discipline
commits an offence if, without reasonable excuse, he does anything which he
is prohibited from doing by an order under this section.
(5)
A person guilty of an offence under this section is liable to any punishment
mentioned in the Table in section 163, but any sentence of imprisonment
35
imposed in respect of the offence must not exceed five years.
(6)
In proceedings for an order under this section, the Director of Service
Prosecutions and the defence may lead (as further evidence) any evidence
which would be admissible in proceedings in the High Court in England and
Wales for an injunction under section 3 of the Protection from Harassment Act
40
1997 (c. 40).