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 2 — Principles and Procedures applying to Service Courts Only
128

(6)
Subsection (5)(a) does not apply if the court is of the opinion—
(a)
that the court below was justified in forming an opinion that it was
unnecessary to obtain a pre-sentence report; or
(b)
that, although the court below was not justified in forming that opinion,
in the circumstances of the case at the time it is before the court it is
5
unnecessary to obtain a pre-sentence report.
(7)
Where the offender is aged under 18, the court must not form the opinion
mentioned in subsection (6) unless—
(a)
there exists a previous pre-sentence report obtained in respect of the
offender; and
10
(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.
(8)
Subsections (5) to (7) do not apply to the Summary Appeal Court on an appeal
to it.
(9)
Subsections (1) to (4) do apply to the Summary Appeal Court in relation to a
15
sentence of service detention, but as if the opinions referred to in subsection
(1)(a) were any such opinion as is mentioned in section 241(4) or 242(3).
256
Pre-sentence reports: supplementary
(1)
In section 255 and this section “pre-sentence report” has the meaning given by
section 158(1) of the 2003 Act.
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(2)
In section 158(1) of that Act as applied by this section, “an appropriate officer”
includes any registered social worker (as well as any person who is an
appropriate officer within the meaning given by section 158(2) of that Act).
(3)
In this section “registered social worker” means a person registered as a social
worker in a register maintained by—
25
(a)
the General Social Care Council;
(b)
the Care Council for Wales;
(c)
the Scottish Social Services Council; or
(d)
the Northern Ireland Social Care Council.
(4)
Section 159(1) to (3) and (5) of the 2003 Act (disclosure of reports) apply in
30
relation to a pre-sentence report obtained by a court for the purposes of section
255 of this Act as they apply in relation to a report obtained by a court for the
purposes of section 156 of that Act.
257
Mentally disordered offenders: requirement for medical report
(1)
Subject to subsection (2), before passing a custodial sentence for a service
35
offence on an offender who is or appears to be mentally disordered, a court
must obtain and consider a medical report.
(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 medical report.
(3)
Before passing a custodial sentence for a service offence on an offender who is
40
or appears to be mentally disordered, a court must consider—
(a)
any information before it which relates to his mental condition
(whether given in a medical report, a pre-sentence report or otherwise);
and

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
129

(b)
the likely effect of such a sentence on that condition and on any
treatment which may be available for it.
(4)
No custodial sentence which is passed in a case to which subsection (1) applies
is invalidated by a failure of a court to comply with that subsection, but any
court on an appeal against such a sentence—
5
(a)
must obtain a medical report if none was obtained by the court below;
and
(b)
must consider any such report obtained by it or by that court.
(5)
In this section—
“custodial sentence” does not include a custodial sentence fixed by law;
10
“medical report” means a report as to an offender’s mental condition
made or submitted orally or in writing by a registered medical
practitioner who is approved for the purposes of section 12 of the
Mental Health Act 1983 (c. 20) by the Secretary of State as having
special experience in the diagnosis or treatment of mental disorder.
15
(6)
Nothing in this section is to be taken to limit the generality of—
section 255 (pre-sentence reports); or
section 259(4) (information to be taken into account).
258
Sentencing guidelines
(1)
A court must—
20
(a)
in sentencing an offender for a service offence, have regard to any
guidelines that are relevant to the offender’s case; and
(b)
in exercising any other function relating to the sentencing of offenders
for service offences, have regard to any guidelines which are relevant
to the exercise of the function.
25
(2)
However, the court may depart from the guidelines mentioned in subsection
(1)(a) or (b) if in its opinion the departure is justified by any features of service
life or of the service disciplinary system that are relevant to the case.
(3)
Subsection (2) does not limit any power existing apart from that subsection to
depart from guidelines.
30
(4)
References in subsection (1)(a) and (b) to sentencing an offender for a service
offence include making any order when dealing with an offender in respect of
such an offence.
(5)
In this section—
“guidelines” means sentencing guidelines issued by the Sentencing
35
Guidelines Council under section 170(9) of the 2003 Act as definitive
guidelines, as revised by subsequent guidelines so issued;
“sentencing guidelines” has the meaning given by section 170(1) of that
Act.

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
130

Custodial sentences and service detention
259
Discretionary custodial sentences: general restrictions
(1)
This section applies where a court is dealing with an offender for a service
offence punishable with a custodial sentence, other than an offence the
sentence for which—
5
(a)
is fixed by law; or
(b)
falls to be imposed as a result of subsection (2) of any of sections 218 to
221 and 224 to 226.
(2)
The court must not pass a custodial sentence unless it is of the opinion that the
offence, or the combination of the offence and one or more offences associated
10
with it, was so serious that no less severe sentence can be justified for the
offence.
(3)
Nothing in subsection (2) prevents the court from passing a custodial sentence
where—
(a)
the court had proposed to award a community punishment; and
15
(b)
the offender failed to express his willingness to comply with a
requirement which the court proposed to include in the community
punishment and which required an expression of such willingness.
(4)
In forming any such opinion as is mentioned in subsection (2) or section 260(2)
(length of sentence), a court must take into account all such information as is
20
available to it about the circumstances of the offence and any associated
offence, including any aggravating or mitigating factors.
(5)
For the purposes of this section a sentence falls to be imposed as a result of
subsection (2) of section 224, 225 or 226 if it is required by that subsection and
the court is not of the opinion there mentioned.
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260
Length of discretionary custodial sentences: general provision
(1)
This section applies where a court passes a custodial sentence for a service
offence, other than a sentence fixed by law or falling to be imposed as a result
of section 218(2) or 220(2).
(2)
The custodial sentence must be for the shortest term (not exceeding the
30
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 with it.
(3)
Subsection (2) is subject to sections 219, 221, 224, 225 and 226 (required
minimum sentences for certain offences).
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261
Power to recommend licence conditions
In section 238(1) of the 2003 Act (court imposing prison term of 12 months or
more may recommend licence conditions) “court” includes a court dealing
with an offender for a service offence.
262
Restriction on imposing custodial sentence or service detention on
40
unrepresented offender
(1)
A sentence of—

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
131

(a)
imprisonment, or
(b)
service detention,

must not be passed by the Court Martial or the Service Civilian Court, or
passed or confirmed by the Summary Appeal Court, in respect of an offender
who is not legally represented in that court.
5
(2)
Subsection (1) does not apply if the offender—
(a)
having been informed of his right to apply for legal representation and
having had the opportunity to do so, refused or failed to apply; or
(b)
was aged 21 or over when convicted, and has previously been
sentenced to imprisonment by a civilian court in any part of the United
10
Kingdom or for a service offence.
(3)
The Court Martial or the Service Civilian Court must not—
(a)
pass a sentence of detention under section 208 or 217 (young offenders’
detention), or
(b)
make an order under section 210 (detention and training),
15

on or in respect of an offender who is not legally represented in that court
unless the offender, having been informed of his right to apply for legal
representation and having had the opportunity to do so, refused or failed to
apply.
(4)
For the purposes of this section an offender is “legally represented” in the
20
Court Martial or the Service Civilian Court only if he has the assistance of
counsel or a solicitor to represent him in the proceedings in that court at some
time after he is found guilty and before he is sentenced.
(5)
For the purposes of this section an offender is “legally represented” in the
Summary Appeal Court—
25
(a)
in a case where his appeal was only against punishment, if he has the
assistance of counsel or a solicitor to represent him at some time during
the proceedings in that court;
(b)
in any other case, only if he has the assistance of counsel or a solicitor
to represent him in the proceedings in that court at some time after the
30
court confirms or substitutes the finding and before it confirms or
passes sentence.
(6)
For the purposes of subsection (2)(b)—
(a)
a previous sentence of imprisonment which has been suspended and
has not taken effect is to be disregarded;
35
(b)
“sentence of imprisonment” does not include a committal for contempt
of court or any kindred offence.
263
Effect of duties to pass custodial sentences on other powers of punishment
(1)
Where a provision of this Act requires a court to impose a particular custodial
sentence in respect of an offence, it is not to be taken to prevent the court from
40
including in its sentence for that offence any other authorised punishment.
(2)
In this section an “authorised punishment” means any punishment authorised
by this Act apart from—
service detention;
a service supervision and punishment order;
45
minor punishments;

Armed Forces Bill
Part 9 — Sentencing: Principles and Procedures
Chapter 2 — Principles and Procedures applying to Service Courts Only
132

a community punishment;
a conditional or absolute discharge.
Dismissal
264
Dismissal: general restrictions
(1)
A court may not pass a sentence of dismissal or dismissal with disgrace in
5
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.
(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
10
circumstances of the offence and any associated offence, including any
aggravating or mitigating factors.
(3)
The Court Martial must not pass a sentence of dismissal or dismissal with
disgrace on an offender who is not legally represented in that court.
(4)
Subsection (3) does not apply if the offender, having been informed of his right
15
to apply for legal representation and having had the opportunity to do so,
refused or failed to apply.
(5)
For the purposes of this section an offender is “legally represented” in the
Court Martial only if he has the assistance of counsel or a solicitor to represent
him in the proceedings in that court at some time after he is found guilty and
20
before he is sentenced.
Financial punishments
265
Financial statement orders
(1)
Before sentencing a person who has been convicted of a service offence, a court
may make a financial statement order; but this does not apply to the Summary
25
Appeal Court.
(2)
A financial statement order is an order requiring the person to give to the court,
within such period as may be specified in the order, such a statement of his
financial circumstances as the court may require.
(3)
A person who without reasonable excuse fails to comply with a financial
30
statement order commits an offence and is liable to a fine not exceeding level 3
on the standard scale.
(4)
A person who in providing any statement in pursuance of a financial statement
order—
(a)
makes a statement which he knows to be false in a material particular,
35
(b)
recklessly provides a statement which is false in a material particular,
or
(c)
knowingly fails to disclose any material fact,

commits an offence and is liable to a fine not exceeding level 4 on the standard
scale.
40