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(1) | This section and sections 1, 30, 32 and 33 come into force on the day on which |
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(2) | The other provisions of this Act come into force on such day as the Secretary of |
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State may by order made by statutory instrument appoint (and different days |
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may be appointed for different purposes). |
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(3) | An order under this section may contain transitional, transitory and saving |
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(4) | In particular, an order under this section may make provision, in connection |
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with the coming into force of any provision of this Act (“the provision in |
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question”), about the operation of Schedule 3A to AFA 2006 where an election |
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for Court Martial trial was made before the commencement of the provision in |
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32 | Extent to Channel Islands, Isle of Man and British overseas territories |
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(1) | Her Majesty may by Order in Council provide for any of the provisions of this |
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Act, except section 25, to extend to a territory mentioned in subsection (2) with |
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or without modifications. |
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(2) | Those territories are— |
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(a) | any of the Channel Islands; |
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(c) | any of the British overseas territories. |
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(3) | The provisions that may be extended under subsection (1) of section 15 of the |
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Visiting Forces Act 1952 to a territory specified in subsection (3) of that section |
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(a) | section 9A of that Act (inserted by section 25 of this Act); and |
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(b) | any Order in Council which— |
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(i) | is made under section 1(2) of that Act in relation to section 9A |
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(ii) | is in force at the coming into operation of any Order in Council |
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made under section 15(1) of that Act which extends section 9A. |
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This Act may be cited as the Armed Forces Act 2011. |
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Court Martial sentencing powers where election for trial by that court |
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Court Martial sentencing powers where election for trial by that |
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1 | For the purposes of this Schedule an offence is “relevant” if it falls |
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within any of cases A to D (see paragraphs 2 to 5); and references |
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in this Schedule to a particular case of offence are to be read |
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2 | An offence of which a person is convicted falls within case A if the |
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charge in respect of the offence is one in respect of which the |
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person elected Court Martial trial under section 129 (whether or |
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not the charge was amended after election). |
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3 | An offence of which a person (“the accused”) is convicted falls |
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(a) | the charge in respect of the offence was substituted under |
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section 125(2)(b) for a charge in respect of which the |
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accused elected Court Martial trial under section 129; and |
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(b) | the substitution was not one for which the accused’s |
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written consent was required by section 130A(2). |
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(a) | a person (“the accused”) elects Court Martial trial under |
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section 129 in respect of a charge, |
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(b) | at the time of the election, another charge brought against |
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the accused (“the relevant charge”) is regarded for the |
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purposes of Part 5 as allocated for summary hearing, |
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(c) | the relevant charge is referred to the Director of Service |
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Prosecutions under section 123(2)(e) without the accused |
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having been given the opportunity to elect Court Martial |
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(d) | the Court Martial convicts the accused of an offence |
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alleged in the relevant charge, |
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| that offence falls within case C. |
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(a) | a person (“the accused”) is charged with an offence which, |
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if the accused were convicted of it, would fall within case |
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(b) | another charge (“the new charge”) is substituted under |
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section 125(2)(b) for the charge, |
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(c) | the substitution is not one for which the accused’s written |
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consent is required by section 130A(2), and |
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(d) | the Court Martial convicts the accused of an offence |
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alleged in the new charge, |
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| that offence falls within case D. |
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Sentencing powers: single relevant offence |
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6 (1) | This paragraph applies where— |
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(a) | the Court Martial convicts a person (“the offender”) of a |
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case A offence or a case B offence; and |
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(b) | paragraph 8 (multiple relevant offences) does not apply. |
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(2) | The sentence passed in respect of the offence must be such that the |
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offender’s commanding officer could have awarded the |
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punishments awarded by that sentence if the commanding |
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(a) | had heard summarily the charge in respect of which the |
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offender elected Court Martial trial; and |
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(b) | had recorded a finding that the charge had been proved. |
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7 (1) | This paragraph applies where— |
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(a) | the Court Martial convicts a person (“the offender”) of a |
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case C offence or a case D offence; and |
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(b) | paragraph 8 does not apply. |
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(2) | The sentence passed in respect of the offence must be such that the |
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offender’s commanding officer could have awarded the |
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punishments awarded by that sentence if the commanding |
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(a) | had heard summarily the charge referred as mentioned in |
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(b) | had recorded a finding that the charge had been proved. |
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Multiple relevant offences |
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8 (1) | This paragraph applies where— |
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(a) | the Court Martial convicts a person (“the offender”) of two |
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or more relevant offences; and |
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(b) | condition 1 or 2 is met in relation to any two or more of the |
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(2) | Condition 1, in relation to any two or more offences, is that— |
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(a) | each of the offences is a case A offence or a case B offence; |
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(b) | the relevant charges would have been heard summarily |
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together if the offender had not elected Court Martial trial. |
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(3) | In sub-paragraph (2) “relevant charge” means— |
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(a) | in relation to a case A offence, the charge in respect of that |
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(b) | in relation to a case B offence, the charge in respect of |
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which the offender elected Court Martial trial and for |
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which the charge in respect of the case B offence was |
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(4) | Condition 2, in relation to any two or more offences, is that— |
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(a) | each of the offences is a case C offence or a case D offence; |
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(b) | the referred charges would have been heard summarily |
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together if they had not been referred as mentioned in |
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(5) | In sub-paragraph (4) “referred charge” means— |
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(a) | in relation to a case C offence, the charge in respect of that |
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(b) | in relation to a case D offence, the charge referred as |
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mentioned in paragraph 4(c) for which the charge in |
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respect of the case D offence was substituted. |
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Sentencing powers: multiple relevant offences |
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9 (1) | This paragraph applies where paragraph 8 applies by virtue of a |
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condition in that paragraph being met in relation to any two or |
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(2) | The offences in relation to which the condition is met (“the joined |
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offences”) are to be treated for the purposes of section 255 |
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(individual sentence for each offence) as a single offence; and |
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references in this paragraph to “the sentence” are to the sentence |
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passed by the Court Martial in respect of the joined offences. |
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(3) | Where condition 1 in paragraph 8 is met in relation to the joined |
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offences, the sentence must be such that the offender’s |
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commanding officer could have awarded the punishments |
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awarded by that sentence if the commanding officer— |
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(a) | had heard the relevant charges (as defined by paragraph |
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8(3)) summarily together; and |
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(b) | had recorded findings that the charges had been proved. |
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(4) | Where condition 2 in paragraph 8 is met in relation to the joined |
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offences, the sentence must be such that the offender’s |
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commanding officer could have awarded the punishments |
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awarded by that sentence if the commanding officer— |
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(a) | had heard the referred charges (as defined by paragraph |
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8(5)) summarily together; and |
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(b) | had recorded findings that the charges had been proved. |
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Further provision about sentencing |
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10 | Where paragraph 9 applies, the following provisions apply in |
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relation to the sentence as if it were a sentence being passed by an |
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officer at a summary hearing— |
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section 242 (service detention: general restriction); |
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section 243 (length of term of service detention); |
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section 248 (forfeiture of seniority, reduction in rank or |
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11 | Where the Court Martial is dealing with an offender for an offence |
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with which a relevant offence is associated, the offences are to be |
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treated for the purposes of Part 9 (sentencing: principles and |
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procedures) as not being associated. |
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Activation of suspended sentence of detention |
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12 (1) | This paragraph applies where— |
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(a) | the Court Martial, on convicting a person (“the offender”) |
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of a relevant offence, makes an order under section 191(3) |
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in relation to a suspended sentence of service detention |
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passed on the offender; and |
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(b) | the suspended sentence was passed by an officer or the |
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(2) | The term of the suspended sentence as it takes effect by virtue of |
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the order must not exceed 28 days unless the offender’s |
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commanding officer would have had extended powers for the |
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purposes of section 194 if— |
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(a) | where the offence is a case A offence or a case B offence, the |
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offender had not elected Court Martial trial; or |
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(b) | where the offence is a case C offence or a case D offence, the |
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charge referred as mentioned in paragraph 4(c) had not |
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(a) | the Court Martial awards a term of service detention (“the |
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new sentence”) in respect of the offence (or, where |
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paragraph 9 applies, in respect of the offence and one or |
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more other relevant offences), and |
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(b) | the order under section 191(3) provides for the suspended |
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sentence to take effect from the end of the new sentence, |
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| the aggregate of the terms of the two sentences must not exceed 28 |
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days or, where the extended powers condition is met, 90 days. |
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(4) | The extended powers condition is— |
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(a) | where the offence is a case A offence or a case B offence, |
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that the offender’s commanding officer would have had |
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extended powers for the purposes of section 194 if the |
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offender had not elected Court Martial trial; |
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(b) | where the offence is a case C offence or a case D offence, |
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that the offender’s commanding officer would have had |
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extended powers for the purposes of section 194 if the |
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charge referred as mentioned in paragraph 4(c) had not |
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(5) | In determining for the purposes of sub-paragraph (2) or (4) |
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whether the offender’s commanding officer would have had |
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extended powers for the purposes of section 194 if, as the case may |
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(a) | the offender had not elected Court Martial trial, or |
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(b) | the charge referred as mentioned in paragraph 4(c) had not |
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| no account is to be taken of any of the matters mentioned in sub- |
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(a) | any change in the commanding officer’s rank after the |
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(b) | in the case of sub-paragraph (2)(a) or (4)(a), any possibility |
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that, if the offender had declined Court Martial trial, the |
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commanding officer might subsequently have been |
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granted extended powers for the purposes of section 194; |
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(c) | in the case of sub-paragraph (2)(b) or (4)(b), any possibility |
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that, if the charge referred as mentioned in paragraph 4(c) |
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had not been so referred, the commanding officer might |
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have been granted extended powers for those purposes |
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after the time when the charge was in fact referred. |
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Court orders other than sentences |
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13 (1) | The Court Martial may not make an order under section 229 |
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(service restraining order) by virtue of— |
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(a) | convicting a person of a relevant offence; or |
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(b) | acquitting a person of an offence which would be a |
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relevant offence if the person were convicted of it. |
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(2) | The Court Martial may not make an order under section 232A |
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(service sexual offences prevention order) by virtue of dealing |
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with a person in respect of— |
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(a) | a relevant offence of which the person has been convicted; |
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(b) | a relevant finding in relation to an offence which, if the |
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person were convicted of it, would be a relevant offence. |
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(3) | In sub-paragraph (2) “relevant finding” has the same meaning as |
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Review of unduly lenient sentences |
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14 | In section 273 (review of unduly lenient sentence by Court Martial |
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Appeal Court), the reference in subsection (1)(a) to an offence |
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under section 42 does not include a relevant offence. |
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Appeals: application of Court Martial Appeals Act 1968 to multiple relevant offences |
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15 (1) | This paragraph applies where, by virtue of paragraph 9(2), the |
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Court Martial passed a single sentence in respect of two or more |
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relevant offences (“the joined offences”); and references in this |
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paragraph to “the 1968 Act” are to the Court Martial Appeals Act |
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(a) | section 13 of the 1968 Act (power to re-sentence when some |
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but not all convictions successfully appealed) applies in |
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relation to the sentence, but |
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(b) | the appellant remains convicted of two or more of the |
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| those offences are to be treated for the purposes of section 13(2) of |
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the 1968 Act as a single offence. |
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(3) | Sub-paragraph (4) applies where section 14 of the 1968 Act |
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(substitution of conviction on different charge after plea of not |
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guilty) applies in relation to a conviction of any of the joined |
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(4) | The reference in section 14(2)(b) to a sentence that the Court |
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Martial would have had power to pass in respect of the offence |
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mentioned in section 14(1)(b) is to be read as a reference to a |
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sentence that the Court Martial would have had power to pass in |
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respect of all the applicable offences. |
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(5) | For the purposes of sub-paragraph (4) an offence is an “applicable |
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(a) | a joined offence of which the appellant remains convicted; |
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(b) | an offence a finding of guilty of which has been substituted |
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under section 14 of the 1968 Act for a finding of guilty of a |
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(c) | an offence a plea of guilty of which has been substituted |
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under section 14A of that Act for a plea of guilty of a joined |
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(6) | Sub-paragraph (7) applies where— |
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(a) | section 14A of the 1968 Act (substitution of conviction on |
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different charge after guilty plea) applies in relation to a |
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conviction of any of the joined offences; and |
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(b) | section 14 of that Act does not so apply. |
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(7) | The reference in section 14A(2)(b) to a sentence that the Court |
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Martial would have had power to pass in respect of the offence |
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mentioned in section 14A(1)(b) is to be read as a reference to a |
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sentence that the Court Martial would have had power to pass in |
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(a) | all the joined offences of which the appellant remains |
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(b) | the offence a plea of guilty of which has been substituted |
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under section 14A for a plea of guilty of a joined offence. |
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