|
| |
|
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 |
| |
| |
(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 |
| |
| |
(a) | have fixed a smaller amount, or |
| |
| |
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; |
| 15 |
(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 |
| |
(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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
(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 |
| |
| 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. |
| |
| |
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 |
| |
| |
(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 |
| |
(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 |
| |
| 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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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. |
| |
| |
| |
270 | Civilian courts dealing with service offences |
| |
(1) | Nothing in this Part affects a civilian court dealing with an offender for a |
| 25 |
| |
(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 |
| |
| |
| |
Court Martial Decisions: Appeals and Review |
| |
| 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. |
| |
|
| |
|
| |
|
| |
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 |
| |
| |
(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 |
| |
| 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 |
| |
| 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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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— |
| |
| |
(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. |
| |
| |
Compensation for Miscarriages of Justice |
| |
275 | Compensation for miscarriages of justice |
| |
| 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 |
| |
| |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
| 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) | on a reference under section 12A of the Criminal Appeal Act 1995. |
| |
(8) | Schedule 9 (provision with regard to assessors) has effect. |
| |
| 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 |
| |
| |
(2) | The judge advocate for any proceedings is to be specified by or on behalf of the |
| |
| 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 |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(5) | Section 237(3) (meaning of “previous conviction”) applies for the purposes of |
| 15 |
| |
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; |
| |
| 25 |
(b) | the charge is to be regarded for the purposes of Part 5 as allocated for |
| |
| |
(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 |
| |
| |
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 |
| |
| |
|
| |
|