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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

 
 

 
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