Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 7 — Court Orders Other Than Sentences
114

229
Service restraining orders: supplementary
(1)
Section 7 (interpretation) of the Protection from Harassment Act 1997 (c. 40)
(“the 1997 Act”) applies for the purposes of section 228 of this Act as it applies
for the purposes of sections 5 and 5A of that Act.
(2)
Section 12 of the 1997 Act (national security etc) applies for the purposes of
5
section 228 of this Act as if—
(a)
the reference in subsection (1)(c) to serious crime were a reference to
serious service offences or serious crime (committed anywhere);
(b)
the reference in subsection (1) to the 1997 Act were a reference to section
228 of this Act.
10
(3)
Where the Court Martial Appeal Court allows an appeal against conviction it
may remit the case to the Court Martial for that court to consider whether to
proceed under section 228.
(4)
Section 228 applies in relation to a case remitted under subsection (3) as if
subsection (1)(a) were omitted.
15
230
Service restraining orders: appeals
(1)
This section applies where a court makes an order under section 228—
(a)
after it has acquitted the defendant of an offence; or
(b)
in respect of a case remitted to it under section 229(3).
(2)
For the purposes of sections 284 to 286 (appeals from Service Civilian Court)
20
or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)—
(a)
the order is to be treated as a sentence passed on the defendant in
respect of the offence; and
(b)
the defendant is to be treated for the purpose of enabling him to appeal
against the order as if he had been convicted of the offence by the court.
25
(3)
For the purposes of any appeal against the order, references in section 16A of
the Court Martial Appeals Act 1968 to passing a sentence include making an
order.
231
Service restraining orders: variation and revocation
(1)
The Court Martial may vary or revoke an order under section 228 on an
30
application made by—
(a)
the Director of Service Prosecutions;
(b)
the defendant; or
(c)
any other person mentioned in the order.
(2)
Any person mentioned in the order is entitled to be heard on the hearing of an
35
application under subsection (1).
(3)
Where a person is convicted of an offence under section 228, the court that
convicts him may vary or revoke the order to which the offence relates.

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 7 — Court Orders Other Than Sentences
115

Order for parent or guardian to enter into recognizance
232
Order for service parent or service guardian to enter into recognizance
(1)
Where—
(a)
a person aged under 18 is convicted of an offence by the Court Martial
or the Service Civilian Court,
5
(b)
he is a civilian subject to service discipline, and
(c)
he has a service parent or service guardian,

the court may, and in the circumstances mentioned in subsection (3) must,
exercise the powers conferred by this section.
(2)
The powers conferred by this section are as follows—
10
(a)
with the consent of the offender’s service parent or service guardian, to
order that parent or guardian to enter into a recognizance to take
proper care of the offender and exercise proper control over him; and
(b)
if the service parent or service guardian refuses consent and the court
considers the refusal unreasonable, to order that parent or guardian to
15
pay a fine not exceeding level 3 on the standard scale.
(3)
The circumstances referred to in subsection (1) as those in which the court must
exercise the powers conferred by this section are—
(a)
that the offender is under 16 when convicted; and
(b)
that the court is satisfied, having regard to the circumstances of the
20
case, that the exercise of those powers would be desirable in the
interests of preventing the commission by him of further offences.
(4)
Where the powers conferred by this section are not exercised in a case where
subsection (1) applies and the offender is under 16 when convicted, the court
must state in open court that it is not satisfied as mentioned in subsection (3)(b)
25
and why it is not so satisfied.
(5)
A parent or guardian is a “service parent” or “service guardian” for the
purposes of this section if he is a person subject to service law or a civilian
subject to service discipline.
(6)
For the purposes of this section, taking “care” of a person includes giving him
30
protection and guidance and “control” includes discipline.
233
Recognizances and fines under section 232: further provision
(1)
An order under section 232 must not require the parent or guardian to enter
into a recognizance for an amount exceeding level 3 on the standard scale.
(2)
Such an order must not require the parent or guardian to enter into a
35
recognizance—
(a)
for a period exceeding three years; or
(b)
where the offender will reach the age of 18 in a period shorter than
three years, for a period exceeding that shorter period.
(3)
In fixing the amount of a recognizance under that section, the court must take
40
into account (among other things) the means of the parent or guardian so far
as they appear or are known to the court, and this applies whether taking those
means into account has the effect of increasing or reducing the amount of the
recognizance.

Armed Forces Bill
Part 8 — Sentencing Powers and Mandatory etc Sentences
Chapter 7 — Court Orders Other Than Sentences
116

(4)
A recognizance under section 232 may, where the court has passed an overseas
community order on the offender, include a provision that the service parent
or service guardian ensure that the offender complies with the requirements of
that order.
(5)
A court imposing a fine under section 232(2)(b) may make an order under
5
section 250 (power to allow payment by instalments), and in relation to such a
fine section 250(2) to (7) have effect as if any reference to a service
compensation order were omitted.
234
Recognizances: appeals, variation and revocation
(1)
For the purposes of sections 284 to 286 (appeals from Service Civilian Court)
10
or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)—
(a)
an order under section 232 is to be treated as a sentence passed on the
parent or guardian for the offence; and
(b)
the parent or guardian is to be treated for the purpose of enabling him
to appeal against the order as if he had been convicted of the offence by
15
the court that made the order.
(2)
For the purposes of any appeal against the order, references in section 16A of
the Court Martial Appeals Act 1968 to passing a sentence include making an
order.
(3)
On an appeal against the order the Court Martial Appeal Court may (as an
20
alternative to exercising its powers under section 16A(2) of that Act) quash the
order.
(4)
The Court Martial may vary or revoke an order under section 232 if on the
application of the parent or guardian it appears to the court, having regard to
any change in the circumstances since the order was made, to be in the interests
25
of justice to do so.
235
Forfeiture of recognizance
(1)
Where—
(a)
a recognizance under section 232 has been entered into, and
(b)
the offender commits a service offence during the period of the
30
recognizance,

the Court Martial or the Service Civilian Court may on convicting the offender
of that offence (and subject to subsection (2)) declare the recognizance to be
forfeited.
(2)
The court may not make such a declaration where the parent or guardian is
35
neither a person subject to service law nor a civilian subject to service
discipline.
(3)
If a court declares under this section that a recognizance is to be forfeited it
must—
(a)
adjudge the parent or guardian to pay the sum in which he is bound;
40
(b)
adjudge him to pay part of that sum; or
(c)
remit that sum.
(4)
A court declaring under this section that a recognizance is to be forfeited may
make an order under section 250 (power to allow payment by instalments); and

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
117

in relation to a forfeiture under this section, section 250(2) to (7) have effect as
if references to the fine or service compensation order were to the forfeiture.
Part 9
Sentencing: Principles and Procedures
Chapter 1
5
Principles and Procedures applying to Service Courts and Summary Hearings
General sentencing principles
236
Duty to have regard to purposes of sentencing etc
(1)
A court or officer dealing with an offender for a service offence must have
regard to the following purposes of sentencing—
10
(a)
the punishment of offenders;
(b)
the maintenance of discipline;
(c)
the reduction of service offences and other crime (including reduction
by deterrence);
(d)
the reform and rehabilitation of offenders;
15
(e)
the protection of the public;
(f)
the making of reparation by offenders to persons affected by their
offences.
(2)
If the offender is aged under 18 the court or officer must also have regard to his
welfare.
20
(3)
This section does not apply in relation to—
(a)
an offence the sentence for which is fixed by law;
(b)
an offence the sentence for which, as a result of subsection (2) of any of
sections 218 to 221 and 224 to 226 of this Act (required custodial
sentences), falls to be imposed under—
25
any of sections 225 to 228 of the 2003 Act;
section 110(2) or 111(2) of the Sentencing Act; or
section 51A(2) of the Firearms Act 1968 (c. 27).
(4)
In this section “sentencing” includes the making of any order when dealing
with an offender in respect of his offence.
30
237
Deciding the seriousness of an offence
(1)
A court or officer dealing with an offender for a service offence (“the current
offence”) must in considering the seriousness of the offence—
(a)
consider the offender’s culpability in committing the offence and any
harm which the offence caused, was intended to cause or could
35
foreseeably have caused;
(b)
if the offender has one or more previous convictions, treat as an
aggravating factor each previous conviction that the court or officer
considers can reasonably be so treated;
(c)
if the offender committed the current offence while—
40

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
118

(i)
charged with another service offence and released from service
custody, or
(ii)
on bail,

treat the fact that it was committed in those circumstances as an
aggravating factor.
5
(2)
In considering whether a previous conviction can reasonably be treated as an
aggravating factor the court or officer must have regard (in particular) to—
(a)
the nature of the offence to which the conviction relates and its
relevance to the current offence; and
(b)
the time that has elapsed since the conviction.
10
(3)
Any reference in subsection (1) or (2) to a previous conviction is to be read as a
reference to—
(a)
a previous conviction of a service offence; or
(b)
a previous conviction by a court in the British Islands of an offence
other than a service offence.
15
(4)
Nothing in this section prevents the court or officer from treating a previous
conviction by a court outside the British Islands as an aggravating factor in any
case where the court or officer considers it appropriate to do so.
238
Reduction in sentences for guilty pleas
(1)
This section applies where an offender—
20
(a)
has pleaded guilty to a service offence in proceedings before a court; or
(b)
at a summary hearing in respect of a service offence, has admitted the
offence.
(2)
In determining what sentence to pass on the offender, the court or officer
dealing with him for his offence must take into account—
25
(a)
the stage in the proceedings for the offence at which he indicated his
intention to plead guilty or his intention to admit the offence at a
summary hearing; and
(b)
the circumstances in which this indication was given.
(3)
In subsection (2) “sentence” includes any order made when dealing with the
30
offender in respect of his offence.
(4)
Subsection (5) applies in the case of an offence the sentence for which, as a
result of section 224(2) or 225(2) of this Act (required custodial sentences), falls
to be imposed under section 110(2) or 111(2) of the Sentencing Act.
(5)
Nothing in section 110(2) or 111(2) of that Act prevents the court, after taking
35
into account any matter mentioned in subsection (2) above, from imposing any
sentence which is at least 80% of that specified in section 110(2) or 111(2) of that
Act.
239
Increase in sentence for racial or religious aggravation
(1)
This section applies where a court or officer dealing with an offender for a
40
service offence (other than an offence mentioned in subsection (3)) is
considering the seriousness of the offence.
(2)
If the offence was racially or religiously aggravated the court or officer—
(a)
must treat that fact as an aggravating factor; and

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
119

(b)
must state in open court that the offence was so aggravated.
(3)
This section does not apply in relation to an offence under section 42 as respects
which the corresponding offence under the law of England and Wales is an
offence under any of sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37)
(racially or religiously aggravated assaults, criminal damage, public order
5
offences and harassment etc).
(4)
Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or
religiously aggravated”) applies for the purposes of this section as it applies for
the purposes of sections 29 to 32 of that Act.
240
Increase in sentence for aggravation related to disability or sexual orientation
10
(1)
This section applies where a court or officer dealing with an offender for a
service offence within subsection (2) is considering the seriousness of the
offence.
(2)
A service offence is within this subsection if—
(a)
at the time of committing the offence, or immediately before or after
15
doing so, the offender demonstrated towards the victim of the offence
hostility based on—
(i)
the sexual orientation (or presumed sexual orientation) of the
victim; or
(ii)
a disability (or presumed disability) of the victim; or
20
(b)
the offence is motivated (wholly or partly)—
(i)
by hostility towards persons who are of a particular sexual
orientation; or
(ii)
by hostility towards persons who have a disability or a
particular disability.
25
(3)
The court or officer—
(a)
must treat as an aggravating factor the fact that the offence was
committed in any of the circumstances mentioned in paragraph (a) or
(b) of subsection (2); and
(b)
must state in open court that the offence was committed in such
30
circumstances.
(4)
It is immaterial for the purposes of paragraph (a) or (b) of subsection (2)
whether the offender’s hostility is also based to any extent on any other factor
not mentioned in that paragraph.
(5)
In this section “disability” means any physical or mental impairment.
35
Service detention and custodial sentences
241
Service detention: general restriction
(1)
A court may not pass a sentence of service detention in respect of an offence
unless it is of the opinion that the offence, or the combination of the offence and
one or more offences associated with it, was serious enough to warrant such a
40
sentence.
(2)
In forming any such opinion as is mentioned in subsection (1) or section 242(2)
(length of sentence), a court must take into account all such information as is

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
120

available to it about the circumstances of the offence and any associated
offence, including any aggravating or mitigating factors.
(3)
In subsections (1) and (2) “court” does not include the Summary Appeal Court.
(4)
A sentence of service detention may not be—
(a)
passed by an officer at a summary hearing, or
5
(b)
passed or confirmed by the Summary Appeal Court,

unless the officer or court is of the opinion that the offence it is in respect of (or,
if it is in respect of two or more offences, the combination of them) was serious
enough to warrant such a sentence.
(5)
In forming any such opinion as is mentioned in subsection (4) or section 242(3)
10
(length of sentence), an officer or the Summary Appeal Court must take into
account all such information as is available to him or it about the circumstances
of the offence (or offences), including any aggravating or mitigating factors.
242
Length of term of service detention: general provision
(1)
This section applies where a sentence of service detention is passed in respect
15
of a service offence.
(2)
Where the detention is imposed by a court other than the Summary Appeal
Court, it must be for the shortest term (not exceeding the permitted maximum)
that in the opinion of the court is commensurate with the seriousness of the
offence or the combination of the offence and one or more offences associated
20
with it.
(3)
Where the detention is imposed by an officer at a summary hearing or by the
Summary Appeal Court, it must be for the shortest term (not exceeding the
permitted maximum) that in the opinion of the officer or court is
commensurate with the seriousness of the offence (or, if it is imposed in respect
25
of two or more offences, the seriousness of them taken together).
243
Limit on combined term of sentences of service detention
(1)
A court or officer may not—
(a)
pass a sentence of service detention,
(b)
make a direction under section 188 (consecutive terms of service
30
detention), or
(c)
make an order under section 190 or 192 (activation of suspended
sentence of service detention),

whose effect would be that a person would (at the relevant time) be subject to
sentences of service detention the combined term of which exceeds two years.
35
(2)
In subsection (1) “the relevant time” is the time immediately after the passing
of the sentence or the making of the direction or order.
(3)
For the purposes of this section, the combined term of sentences of service
detention is—
(a)
if none of the sentences overlap, the aggregate of the terms of the
40
sentences;
(b)
otherwise, the aggregate of—
(i)
the period (or periods) during which any of the sentences
overlaps any other of them; and