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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

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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.

20

(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.

25

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).

35

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.

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