Armed Forces Bill

House of Commons

Session 2005 - 06
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Armed Forces Bill

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
121

(ii)
the period (or periods) for which none of the sentences overlap.
(4)
Where subsection (1) is contravened, any part of any sentence of service
detention which would (apart from this subsection) have effect after the end of
the permitted period is remitted by virtue of this subsection.
(5)
In subsection (4) “permitted period” means the period—
5
(a)
beginning with the date of contravention; and
(b)
equal in length to the longest sentence of service detention that could
have been passed on that date without contravening subsection (1).
(6)
For the purposes of the reference in subsection (4) to a part of a sentence which
would have effect after the end of the permitted period, any prospect of early
10
release is to be disregarded.
(7)
In subsection (1)(a) “sentence of service detention” does not include a
suspended sentence of service detention.
244
Section 243: supplementary
(1)
Subsections (2) to (5) apply for the purposes of section 243.
15
(2)
A person is to be regarded as not subject to any sentence from which he has
been released early.
(3)
A person is to be regarded as not subject to a suspended sentence of service
detention unless an order that the sentence shall take effect has been made.
(4)
Subject to subsection (3), a person is to be regarded as subject to any sentence
20
of service detention that has been passed on him but—
(a)
has not taken effect; or
(b)
as a result of section 289(5) or (6) or 290(6) or (7), has ceased to have
effect and has not resumed effect.
(5)
A person who has been detained continuously pursuant to two or more
25
sentences of service detention is to be regarded as subject to all of those
sentences (whether or not any of them has been served in full).
(6)
For the purposes of subsection (5), any periods of detention which would be
continuous but for section 289(3), (5) or (6) or 290(5), (6) or (7) are to be treated
as continuous.
30
245
Crediting of time in service custody: terms of imprisonment and detention
(1)
This section applies where—
(a)
a court or officer sentences an offender to a term of imprisonment or
service detention in respect of a service offence (“the offence in
question”); and
35
(b)
the offender has been kept in service custody, in connection with the
offence in question or any related offence, for any period since being
charged with the offence in question or any related offence.
(2)
The court must direct that the number of days for which the offender has been
kept in service custody since being so charged is to count as time served by him
40
as part of the sentence.
(3)
Subsection (2) does not apply if and to the extent that—

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
122

(a)
rules made by the Secretary of State so provide in the case of—
(i)
a period of service custody which is wholly or partly concurrent
with a sentence of imprisonment or service detention; or
(ii)
sentences of imprisonment or service detention for consecutive
terms or for terms which are wholly or partly concurrent; or
5
(b)
it is in the opinion of the court just in all the circumstances not to give a
direction under that subsection.
(4)
Where the court gives a direction under subsection (2) it must state in open
court—
(a)
the number of days for which the offender was kept in service custody
10
as mentioned in that subsection; and
(b)
the number of days in relation to which the direction is given.
(5)
Where the court does not give a direction under subsection (2), or gives such a
direction in relation to a number of days less than that for which the offender
was kept in service custody as mentioned in that subsection, it must state in
15
open court—
(a)
that its decision is in accordance with rules made under paragraph (a)
of subsection (3); or
(b)
that it is of the opinion mentioned in paragraph (b) of that subsection
and what the circumstances are.
20
(6)
This section applies to—
(a)
a determinate sentence of detention under section 208, and
(b)
a sentence of detention under section 228 of the 2003 Act passed as a
result of section 221 of this Act,

as it applies to an equivalent sentence of imprisonment.
25
(7)
References in this section to “the court” are to the court or officer mentioned in
subsection (1).
246
Crediting of time in service custody: supplementary
(1)
For the purposes of section 245(1) offences are related if the charges for them
were founded on the same facts or evidence.
30
(2)
It is immaterial for the purposes of section 245(1) whether the offender has also
been kept in service custody in connection with other offences, or has also been
detained in connection with other matters.
(3)
For the purposes of section 245 a suspended sentence of imprisonment or a
suspended sentence of service detention—
35
(a)
is to be treated as a sentence of imprisonment or (as the case may be)
service detention when it takes effect; and
(b)
is to be treated as being imposed by the order under which it takes
effect.
(4)
Subsections (5) to (7) apply for the purposes of the reference in section 245(2)
40
to the term of imprisonment or detention to which a person has been sentenced
(that is to say, the reference to his “sentence”).
(5)
Consecutive terms of service detention, and terms of service detention which
are wholly or partly concurrent, are to be treated as a single term.

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
123

(6)
Consecutive relevant custodial terms, and relevant custodial terms which are
wholly or partly concurrent, are to be treated as a single term if—
(a)
the sentences were passed on the same occasion; or
(b)
where they were passed on different occasions, the person has not been
released under Chapter 6 of Part 12 of the 2003 Act at any time during
5
the period beginning with the first and ending with the last of those
occasions.
(7)
For the purposes of subsection (6) any sentence within paragraph (a), (b) or (c)
of section 187(4) is a relevant custodial term.
Forfeiture of seniority and reduction in rank
10
247
Forfeiture of seniority and reduction in rank or disrating: general restriction
(1)
A court may not pass a sentence of forfeiture of seniority, reduction in rank or
disrating 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 sentence.
15
(2)
In forming any such opinion as is mentioned in subsection (1), a court must
take into account all such information as is 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.
20
(4)
A sentence of forfeiture of seniority, reduction in rank or disrating may not
be—
(a)
passed by an officer at a summary hearing, or
(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,
25
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), 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),
30
including any aggravating or mitigating factors.
Financial punishments
248
Fixing of fines
(1)
A court or officer fixing a fine to be imposed on an offender in respect of a
service offence must, before fixing the amount of the fine, inquire into the
35
offender’s financial circumstances.
(2)
The amount of any fine fixed by a court or officer in respect of a service offence
must be such as, in the opinion of the court or officer, reflects the seriousness
of the offence.
(3)
In fixing the amount of any fine to be imposed on an offender in respect of a
40
service offence, a court or officer must take into account the circumstances of

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
124

the case including, among other things, the offender’s financial circumstances
so far as they are known, or appear, to the court or officer.
(4)
Subsection (3) applies whether taking into account the offender’s financial
circumstances has the effect of increasing or reducing the amount of the fine.
(5)
Where—
5
(a)
the court has inquired into the offender’s financial circumstances as
required by this section,
(b)
the offender has failed to co-operate with the court in its inquiry
(whether by failing to comply with a financial statement order under
section 265 or otherwise), and
10
(c)
the court considers that it has insufficient information to make a proper
determination of the offender’s financial circumstances,

the court may make such determination of his financial circumstances as it
considers appropriate.
(6)
References in subsection (5) to “the court” are to the court or officer fixing a fine
15
in respect of a service offence.
249
Determination of service compensation order
(1)
In determining whether to make a service compensation order against any
person, and in determining the amount to be paid by any person under such
an order, a court or officer must have regard to that person’s financial
20
circumstances so far as they appear or are known to the court or officer.
(2)
Where the court or officer considers—
(a)
that it would be appropriate both to impose a fine and to make a service
compensation order, but
(b)
that the offender has insufficient means to pay both an appropriate fine
25
and appropriate compensation,
the court or officer must give preference to compensation (but may impose a
fine as well).
250
Power to allow payment of fine or service compensation order by instalments
(1)
A court or officer awarding a fine or service compensation order in respect of
30
a service offence may make an order under this section.
(2)
An order under this section is an order—
(a)
allowing time for payment of the amount due in respect of the fine or
service compensation order (“the amount due”); or
(b)
directing payment of that amount by instalments of such amounts and
35
on such dates as may be specified in the order.
(3)
If no order under this section is made when the fine or service compensation
order is imposed, at any later time the appropriate court may make such an
order on the application of the person by whom the amount due is payable
(“the relevant person”).
40
(4)
The appropriate court may on the application of the relevant person vary an
order made under this section.
(5)
In this section “the appropriate court” means—

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
125

(a)
if the fine or service compensation order was imposed by an officer and
subsection (6) applies, the commanding officer of the relevant person;
(b)
if the fine or service compensation order was imposed by a court and
subsection (6) or (7) applies, the Court Martial.
(6)
This subsection applies if the relevant person is for the time being—
5
(a)
subject to service law;
(b)
a member of a volunteer reserve force; or
(c)
a member of an ex-regular reserve force who is subject to an additional
duties commitment.
(7)
This subsection applies if the relevant person is for the time being a civilian
10
subject to service discipline.
Reasons
251
Duty to give reasons and explain sentence
(1)
Any court or officer passing sentence on an offender for a service offence—
(a)
must state in open court, in ordinary language and in general terms and
15
in accordance with section 252, its (or his) reasons for deciding on the
sentence passed; and
(b)
must explain to the offender in ordinary language—
(i)
the effect of the sentence;
(ii)
where the offender is required to comply with any order
20
forming part of the sentence, the effects of non-compliance with
the order;
(iii)
any power, on the application of the offender or any other
person, to vary or review any order forming part of the
sentence; and
25
(iv)
where the sentence consists of or includes a fine, the effects of
failure to pay the fine.
(2)
Subsection (1)(a) does not apply—
(a)
to an offence the sentence for which is fixed by law; or
(b)
to an offence the sentence for which, as a result of subsection (2) of
30
section 224, 225 or 226 of this Act (required custodial sentences), falls to
be imposed under section 110(2) or 111(2) of the Sentencing Act or
section 51A(2) of the Firearms Act 1968 (c. 27).
(3)
The Secretary of State may by order—
(a)
prescribe cases in which subsection (1)(a) or (b) does not apply;
35
(b)
prescribe cases in which the statement referred to in subsection (1)(a) or
the explanation referred to in subsection (1)(b) may be made in the
absence of the offender, or may be provided in written form.
(4)
In this section and section 252 “sentence” includes any order made when
dealing with the offender in respect of his offence.
40
252
Duties in complying with section 251
(1)
In complying with section 251(1)(a) an officer or the Summary Appeal Court
must—

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 1 — Principles and Procedures applying to Service Courts and Summary Hearings
126

(a)
mention any aggravating or mitigating factors which he (or it) has
regarded as being of particular importance;
(b)
if section 238 (guilty pleas) applies and as a result of taking into account
a matter mentioned in section 238(2) the officer or court has imposed a
punishment on the offender which is less severe than the punishment
5
that would otherwise have been imposed, state that fact;
(c)
where the sentence is one of service detention, state that he (or it) is of
the opinion mentioned in section 241(4) and why; and
(d)
where the sentence is one of forfeiture of seniority, reduction in rank or
disrating, state that he (or it) is of the opinion mentioned in section
10
247(4) and why.
(2)
In complying with section 251(1)(a) a court other than the Summary Appeal
Court must—
(a)
where guidelines indicate that a sentence of a particular kind, or within
a particular range, would normally be appropriate for the offence and
15
the sentence is of a different kind or is outside that range, state the
court’s reasons for deciding on a sentence of a different kind or outside
that range;
(b)
mention any aggravating or mitigating factors which the court has
regarded as being of particular importance;
20
(c)
if section 238 (guilty pleas) applies and as a result of taking into account
a matter mentioned in section 238(2) the court has imposed a
punishment on the offender which is less severe than the punishment
it would otherwise have imposed, state that fact;
(d)
where the sentence is a custodial sentence and section 259 applies (and
25
the case does not fall within section 259(3)), state that it is of the opinion
mentioned in section 259(2) and why;
(e)
where the sentence is one of dismissal or dismissal with disgrace, state
that it is of the opinion mentioned in section 264(1) and why;
(f)
where the sentence is one of service detention, state that it is of the
30
opinion mentioned in section 241(1) and why;
(g)
where the sentence is one of forfeiture of seniority, reduction in rank or
disrating, state that it is of the opinion mentioned in section 247(1) and
why; and
(h)
where the sentence consists of or includes a community punishment
35
(and the case does not fall within section 151(2) of the 2003 Act as
applied by section 269 of this Act), state that it is of the opinion
mentioned in section 269(1) and why.
(3)
In this section “guidelines” has the same meaning as in section 258.
Savings
40
253
Savings for powers to mitigate sentence etc
(1)
Nothing in any of sections 241, 242, 247, 248, 249, 255, 257, 259, 260, 264 and 269
prevents a court or officer from mitigating an offender’s sentence by taking
into account any such matters as, in the court’s or officer’s opinion, are relevant
in mitigation of sentence.
45
(2)
Nothing in those sections prevents a court or officer from mitigating any
punishment included in an offender’s sentence by taking into account any
other punishment included in that sentence.

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
127

(3)
Nothing in those sections or section 254 prevents a court, in the case of an
offender who is convicted of one or more other offences, from mitigating his
sentence by applying any rule of law as to the totality of sentences.
(4)
Subsections (2) and (3) do not affect the generality of subsection (1).
Chapter 2
5
Principles and Procedures applying to Service Courts Only
General
254
Individual sentence for each offence
Where the Court Martial or the Service Civilian Court convicts a person, the
court must pass a separate sentence in respect of each offence of which he is
10
convicted.
255
Pre-sentence reports
(1)
Subject to subsection (2), a court must obtain and consider a pre-sentence
report before—
(a)
forming any such opinion as is mentioned in—
15
section 241(1) or 242(2) (service detention);
section 259(2) or 260(2) (custodial sentence); or
section 264(1) (dismissal or dismissal with disgrace);
(b)
forming any such opinion as is mentioned in section 269(1) or (2)(b)
(community punishment) or any opinion as to the suitability for the
20
offender of the particular requirement or requirements to be included
in a community punishment; or
(c)
forming the required opinion for the purposes of section 218(2), 219(2),
220(2) or 221(1) (minimum sentences for dangerous offenders and
sexual or violent offences).
25
(2)
Subsection (1) does not apply if, in the circumstances of the case, the court is of
the opinion that it is unnecessary to obtain a pre-sentence report.
(3)
Where the offender is aged under 18, the court must not form the opinion
mentioned in subsection (2) unless—
(a)
there exists a previous pre-sentence report obtained in respect of the
30
offender; and
(b)
the court has had regard to the information contained in that report, or,
if there is more than one such report, the most recent report.
(4)
No sentence is invalidated by a failure of a court to obtain and consider a pre-
sentence report before doing any of the things mentioned in paragraphs (a) to
35
(c) of subsection (1).
(5)
However, any court on appeal against a custodial sentence in respect of a
service offence, a sentence of dismissal or dismissal with disgrace, a sentence
of service detention or a community punishment—
(a)
must (subject to subsection (6)) obtain a pre-sentence report if none was
40
obtained by the court below; and
(b)
must consider any such report obtained by it or by that court.