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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

133

 

266     

Power of court to remit fine

(1)   

This section applies where a court has, in fixing the amount of a fine in respect

of a service offence, determined the offender’s financial circumstances under

section 248(5).

(2)   

If on subsequently inquiring into the offender’s financial circumstances the

5

court is satisfied that had it had the results of that inquiry when sentencing the

offender it would—

(a)   

have fixed a smaller amount, or

(b)   

not have fined him,

it may remit the whole or part of the fine.

10

267     

Order for service parent or service guardian to pay fine or compensation

(1)   

This section applies where—

(a)   

a person aged under 18 is convicted of an offence by the Court Martial

or the Service Civilian Court;

(b)   

he is a civilian subject to service discipline;

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(c)   

he has a service parent or service guardian; and

(d)   

the court is of the opinion that the case would best be met by the

imposition of a fine or the making of a service compensation order

(with or without any other punishment).

(2)   

The court may, and if the offender is under 16 when convicted must, order that

20

the fine or compensation awarded be paid by the service parent or service

guardian instead of by the offender himself; but this is subject to subsection (3).

(3)   

Where (apart from this subsection) the court would be required by subsection

(2) to make an order against a service parent or service guardian, the court need

not make such an order if it is satisfied—

25

(a)   

that no service parent or service guardian can be found; or

(b)   

that it would be unreasonable to make such an order having regard to

the circumstances of the case.

(4)   

No order may be made under this section without giving the parent or

guardian an opportunity of being heard, unless the parent or guardian has

30

failed to attend having been required to do so.

(5)   

For the purposes of sections 284 to 286 (appeals from Service Civilian Court)

or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)—

(a)   

an order under this section is to be treated as a sentence passed on the

parent or guardian for the offence; and

35

(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

the court that made the order.

(6)   

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

40

order.

(7)   

On an appeal against the order the Court Martial Appeal Court may (as an

alternative to exercising its powers under section 16A(2) of that Act) quash the

order.

 
 

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

134

 

(8)   

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.

268     

Fixing of fine or compensation to be paid by parent or guardian

(1)   

For the purposes of any order under section 267 against the parent or guardian

5

of an offender—

(a)   

section 248 (fixing of fine) has effect as if any reference to the offender’s

financial circumstances were to the parent’s or guardian’s financial

circumstances, and as if the reference in subsection (5)(b) to the

offender were to the parent or guardian;

10

(b)   

section 249(1) (determination of service compensation order) has effect

as if any reference to the financial circumstances of the person against

whom the service compensation order is made were to the financial

circumstances of the parent or guardian;

(c)   

section 249(2) (preference to be given to compensation if insufficient

15

means to pay both compensation and fine) has effect as if the reference

to the offender were to the parent or guardian;

(d)   

section 266 (power to remit fine) has effect as if any reference to the

offender’s financial circumstances were to the parent’s or guardian’s

financial circumstances.

20

(2)   

Before making an order under section 267 against a parent or guardian, the

court may make a financial statement order with respect to him.

(3)   

In subsection (2) “financial statement order” has the meaning given by

subsection (2) of section 265, and subsections (3) and (4) of that section apply

in relation to a financial statement order made under this section as they apply

25

in relation to such an order made under that section.

Community punishments

269     

Community punishments: general restrictions etc

(1)   

A court must not award a community punishment in respect of an offence

unless it is of the opinion that the offence, or the combination of the offence and

30

one or more offences associated with it, was serious enough to warrant such a

punishment.

(2)   

Where a court awards a community punishment—

(a)   

the particular requirement (or requirements) included in the order

must be such as the court considers the most suitable for the offender;

35

and

(b)   

the restrictions on liberty imposed by the order must be such as in the

opinion of the court are commensurate with the seriousness of the

offence, or the combination of the offence and one or more offences

associated with it.

40

(3)   

In forming any such opinion as is mentioned in subsection (1) or (2)(b), 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.

 
 

Armed Forces Bill
Part 10 — Court Martial Decisions: Appeals and Review
Chapter 1 — Appeals from Court Martial

135

 

(4)   

In forming an opinion for the purposes of subsection (2)(a) the court may take

into account any information about the offender which is before it.

(5)   

In determining the restrictions on liberty to be imposed by a community

punishment in respect of an offence, the court may have regard to any period

for which the offender has, since being charged with the offence or any related

5

offence, been kept in service custody in connection with the offence or any

related offence.

(6)   

In subsection (5) “related offence” has the meaning given by section 246.

(7)   

Section 151 of the 2003 Act (community order for persistent offender

previously fined) applies to a court dealing with an offender for a service

10

offence as it applies to a civilian court in England and Wales, but as if—

(a)   

in subsection (1)(c), the reference to a community sentence were to a

community punishment and the reference to section 143(2) of that Act

were to section 237(1)(b) of this Act;

(b)   

in subsection (2), the reference to making a community order were to

15

awarding a community punishment and the words “instead of

imposing a fine” were omitted; and

(c)   

in subsection (7), the reference to section 143(2) of that Act were to

section 237(1)(b) and (2) of this Act.

(8)   

Accordingly, subsections (1) and (2)(b) above are subject to section 151(2) of the

20

2003 Act as applied by this section.

Chapter 3

Supplementary

270     

Civilian courts dealing with service offences

(1)   

Nothing in this Part affects a civilian court dealing with an offender for a

25

service offence.

(2)   

The Secretary of State may by regulations modify—

(a)   

any provision of Chapter 1 of Part 12 of the 2003 Act (sentencing

principles etc for civilian courts),

(b)   

any other enactment that confers functions on sentencing courts,

30

in its application to a civilian court dealing with an offender for a service

offence.

Part 10

Court Martial Decisions: Appeals and Review

Chapter 1

35

Appeals from Court Martial

271     

Appeals to the Court Martial Appeal Court

(1)   

The Courts-Martial Appeal Court is renamed the Court Martial Appeal Court.

(2)   

Schedule 8 (amendment of the Courts-Martial (Appeals) Act 1968) has effect.

 
 

Armed Forces Bill
Part 10 — Court Martial Decisions: Appeals and Review
Chapter 2 — Review of Court Martial Sentence

136

 

Chapter 2

Review of Court Martial Sentence

272     

Review of unduly lenient sentence by Court Martial Appeal Court

(1)   

If the Attorney General considers—

(a)   

that a sentence passed by the Court Martial in respect of an offence

5

under section 42 (criminal conduct) is unduly lenient, and

(b)   

that condition A or B is satisfied,

   

he may refer the case to the Court Martial Appeal Court for it to review the

sentencing of the offender.

(2)   

Condition A is that the corresponding offence under the law of England and

10

Wales is under that law an offence which, if committed by an adult, is triable

only on indictment.

(3)   

Condition B is that the case is of a description specified for the purposes of this

subsection in an order made by the Secretary of State.

(4)   

A reference under subsection (1) may not be made without the leave of the

15

Court Martial Appeal Court.

(5)   

On a reference under subsection (1), the Court Martial Appeal Court may—

(a)   

quash the sentence passed by the Court Martial; and

(b)   

pass in substitution for it any sentence which the Court Martial Appeal

Court thinks appropriate and which is a sentence that the Court Martial

20

had power to pass in respect of the offence.

(6)   

For the purposes of subsection (1)(a), the Attorney General may consider that

a sentence passed by the Court Martial is unduly lenient if he considers—

(a)   

that the Court Martial erred in law as to its powers of sentencing; or

(b)   

that the sentence is not that required by section 218, 219, 220, 221, 224,

25

225 or 226;

   

but nothing in this subsection limits subsection (1)(a).

(7)   

Where a reference under subsection (1) relates to an order under section 269(2)

of the 2003 Act (determination of minimum term in relation to mandatory life

sentence), the Court Martial Appeal Court may not, in deciding what order

30

under section 269 of that Act is appropriate for the case, make any allowance

for the fact that the offender is being sentenced for a second time.

(8)   

The reference in subsection (1)(a) to a sentence passed by the Court Martial

does not include one passed on an appeal under section 284 (appeal from

Service Civilian Court).

35

(9)   

In this section and section 273 “sentence” includes any order made by a court

when dealing with an offender.

273     

Reference of point of law to Supreme Court

(1)   

Where the Court Martial Appeal Court has concluded its review of a case

referred to it under section 272(1), the Attorney General or the offender may

40

refer to the Supreme Court a point of law involved in any sentence passed on

the offender in the proceedings.

 
 

Armed Forces Bill
Part 10 — Court Martial Decisions: Appeals and Review
Chapter 3 — Compensation for Miscarriages of Justice

137

 

(2)   

A reference under subsection (1) may not be made without the leave of the

Court Martial Appeal Court or the Supreme Court.

(3)   

Such leave may not be given unless—

(a)   

the Court Martial Appeal Court has certified that the point of law is of

general public importance; and

5

(b)   

it appears to the Court Martial Appeal Court or the Supreme Court (as

the case may be) that the point is one which should be considered by

the Supreme Court.

(4)   

The Supreme Court must give its opinion on any point of law referred to it

under subsection (1) and must—

10

(a)   

remit the case to the Court Martial Appeal Court to be dealt with; or

(b)   

deal with the case itself.

(5)   

For the purposes of dealing with a case itself the Supreme Court may exercise

any powers of the Court Martial Appeal Court.

274     

Power to make supplementary provision about review of sentence

15

(1)   

The Secretary of State may by regulations make supplementary provision with

respect to references under section 272(1) or 273(1) (including provision with

respect to applications, proceedings and other matters in connection with such

references).

(2)   

The regulations may in particular include provision which is equivalent to that

20

made by, or capable of being made under, any provision of—

(a)   

this Act,

(b)   

the Court Martial Appeals Act 1968 (c. 20), or

(c)   

Schedule 3 to the Criminal Justice Act 1988 (c. 33) (reviews of

sentencing; supplementary),

25

   

subject to such modifications as the Secretary of State considers appropriate.

Chapter 3

Compensation for Miscarriages of Justice

275     

Compensation for miscarriages of justice

(1)   

Where—

30

(a)   

a person has been convicted by the Court Martial, and

(b)   

subsequently his conviction has been reversed, or he has been

pardoned, on the ground that a new or newly discovered fact shows

beyond reasonable doubt that there has been a miscarriage of justice,

   

the Secretary of State shall pay compensation for the miscarriage of justice to

35

him or, if he is dead, to his personal representatives; but this is subject to

subsections (2) and (3).

(2)   

Compensation under this section is not payable if the non-disclosure of the

unknown fact was wholly or partly attributable to the person convicted.

(3)   

Compensation under this section is not payable unless an application for such

40

compensation has been made to the Secretary of State.

 
 

Armed Forces Bill
Part 11 — The Service Civilian Court

138

 

(4)   

The question whether there is a right to compensation under this section is to

be determined by the Secretary of State.

(5)   

If the Secretary of State determines that there is a right to such compensation,

the amount of the compensation is to be assessed by an assessor appointed by

the Secretary of State.

5

(6)   

In assessing the amount of compensation payable to or in respect of a person

that is attributable to suffering, harm to reputation or similar damage, the

assessor must have regard in particular to—

(a)   

the seriousness of the offence of which the person was convicted and

the severity of the resulting sentence;

10

(b)   

the conduct of the investigation and prosecution of the offence; and

(c)   

any other convictions of the person and any resulting sentences.

(7)   

The reference in subsection (1) to a conviction having been reversed is to be

read as a reference to a conviction having been quashed—

(a)   

on an appeal out of time;

15

(b)   

on a reference under section 34 of the Court Martial Appeals Act 1968

(c. 20); or

(c)   

on a reference under section 12A of the Criminal Appeal Act 1995.

(8)   

Schedule 9 (provision with regard to assessors) has effect.

Part 11

20

The Service Civilian Court

The Service Civilian Court: court and proceedings

276     

The Service Civilian Court

(1)   

There shall be a court, to be known as the Service Civilian Court.

(2)   

The Service Civilian Court may sit in any place other than in the British Islands.

25

277     

Constitution and proceedings of the Service Civilian Court

(1)   

In any proceedings, the Service Civilian Court is to consist of a single judge

advocate.

(2)   

The judge advocate for any proceedings is to be specified by or on behalf of the

Judge Advocate General.

30

(3)   

Schedule 10 (proceedings of the Service Civilian Court) has effect.

278     

Court must consider whether trial by Court Martial more appropriate

(1)   

Before arraignment, the Service Civilian Court must decide whether it or the

Court Martial should try the charge.

(2)   

Before making a decision under this section, the court must—

35

(a)   

give the Director of Service Prosecutions (“the Director”) an

opportunity to inform the court of the defendant’s previous

convictions (if any); and

 
 

Armed Forces Bill
Part 11 — The Service Civilian Court

139

 

(b)   

give the Director and the defendant an opportunity to make

representations as to whether the Service Civilian Court or the Court

Martial should try the charge.

(3)   

In making a decision under this section, the court must consider—

(a)   

the nature of the case;

5

(b)   

the seriousness of the offence;

(c)   

whether its powers of punishment in respect of the offence would be

adequate;

(d)   

any other circumstances it considers to be relevant; and

(e)   

any representations made by the Director and the defendant.

10

(4)   

If the court decides that the charge should be tried by the Court Martial—

(a)   

it must refer the charge to that court; and

(b)   

the charge is to be regarded for the purposes of Part 5 as allocated for

Court Martial trial.

(5)   

Section 237(3) (meaning of “previous conviction”) applies for the purposes of

15

subsection (2)(a) above.

279     

Right to elect trial by Court Martial instead of by SCC

(1)   

This section applies where the Service Civilian Court decides (under section

278) that it should try a charge.

(2)   

Before arraignment the court must, in the way specified by SCC rules, give the

20

defendant the opportunity of electing Court Martial trial of the charge.

(3)   

If the defendant or (if more than one person is jointly charged) any of the

defendants elects Court Martial trial of the charge—

(a)   

the Service Civilian Court must refer the charge to the Court Martial;

and

25

(b)   

the charge is to be regarded for the purposes of Part 5 as allocated for

Court Martial trial.

(4)   

If subsection (3) does not apply, the Service Civilian Court must try the charge

(but this is subject to the exercise by the Director of Service Prosecutions of the

power under section 125(2)(b), (d) or (e)).

30

(5)   

Where the Service Civilian Court is, in accordance with SCC rules, to try

together two or more charges against the defendant, an election for Court

Martial trial in respect of any of the charges takes effect as an election in respect

of all of them.

280     

Power of SCC to convict of offence other than that charged

35

Section 160 (power of Court Martial to convict of offence other than that

charged) applies in relation to the Service Civilian Court as it applies in relation

to the Court Martial.

 
 

 
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Revised 28 April 2006