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
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;
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
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.