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Armed Forces Bill


Armed Forces Bill

29

 

31      

Commencement

(1)   

This section and sections 1, 30, 32 and 33 come into force on the day on which

this Act is passed.

(2)   

The other provisions of this Act come into force on such day as the Secretary of

State may by order made by statutory instrument appoint (and different days

5

may be appointed for different purposes).

(3)   

An order under this section may contain transitional, transitory and saving

provision.

(4)   

In particular, an order under this section may make provision, in connection

with the coming into force of any provision of this Act (“the provision in

10

question”), about the operation of Schedule 3A to AFA 2006 where an election

for Court Martial trial was made before the commencement of the provision in

question.

32      

Extent to Channel Islands, Isle of Man and British overseas territories

(1)   

Her Majesty may by Order in Council provide for any of the provisions of this

15

Act, except section 25, to extend to a territory mentioned in subsection (2) with

or without modifications.

(2)   

Those territories are—

(a)   

any of the Channel Islands;

(b)   

the Isle of Man;

20

(c)   

any of the British overseas territories.

(3)   

The provisions that may be extended under subsection (1) of section 15 of the

Visiting Forces Act 1952 to a territory specified in subsection (3) of that section

include—

(a)   

section 9A of that Act (inserted by section 25 of this Act); and

25

(b)   

any Order in Council which—

(i)   

is made under section 1(2) of that Act in relation to section 9A

of that Act; and

(ii)   

is in force at the coming into operation of any Order in Council

made under section 15(1) of that Act which extends section 9A.

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33      

Short title

This Act may be cited as the Armed Forces Act 2011.

 
 

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Armed Forces Bill
Schedule 1 — Court Martial sentencing powers where election for trial by that court instead of CO

 

Schedules

Schedule 1

Section 14

 

Court Martial sentencing powers where election for trial by that court

instead of CO

“Schedule 3A

5

Section 165

 

Court Martial sentencing powers where election for trial by that

court instead of CO

Part 1

Relevant offences

1          

For the purposes of this Schedule an offence is “relevant” if it falls

10

within any of cases A to D (see paragraphs 2 to 5); and references

in this Schedule to a particular case of offence are to be read

accordingly.

2          

An offence of which a person is convicted falls within case A if the

charge in respect of the offence is one in respect of which the

15

person elected Court Martial trial under section 129 (whether or

not the charge was amended after election).

3          

An offence of which a person (“the accused”) is convicted falls

within case B if—

(a)   

the charge in respect of the offence was substituted under

20

section 125(2)(b) for a charge in respect of which the

accused elected Court Martial trial under section 129; and

(b)   

the substitution was not one for which the accused’s

written consent was required by section 130A(2).

4          

Where—

25

(a)   

a person (“the accused”) elects Court Martial trial under

section 129 in respect of a charge,

(b)   

at the time of the election, another charge brought against

the accused (“the relevant charge”) is regarded for the

purposes of Part 5 as allocated for summary hearing,

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(c)   

the relevant charge is referred to the Director of Service

Prosecutions under section 123(2)(e) without the accused

having been given the opportunity to elect Court Martial

trial of the charge, and

(d)   

the Court Martial convicts the accused of an offence

35

alleged in the relevant charge,

           

that offence falls within case C.

 

 

Armed Forces Bill
Schedule 1 — Court Martial sentencing powers where election for trial by that court instead of CO

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5          

Where—

(a)   

a person (“the accused”) is charged with an offence which,

if the accused were convicted of it, would fall within case

C,

(b)   

another charge (“the new charge”) is substituted under

5

section 125(2)(b) for the charge,

(c)   

the substitution is not one for which the accused’s written

consent is required by section 130A(2), and

(d)   

the Court Martial convicts the accused of an offence

alleged in the new charge,

10

           

that offence falls within case D.

Part 2

Sentencing powers etc

Sentencing powers: single relevant offence

6     (1)  

This paragraph applies where—

15

(a)   

the Court Martial convicts a person (“the offender”) of a

case A offence or a case B offence; and

(b)   

paragraph 8 (multiple relevant offences) does not apply.

      (2)  

The sentence passed in respect of the offence must be such that the

offender’s commanding officer could have awarded the

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punishments awarded by that sentence if the commanding

officer—

(a)   

had heard summarily the charge in respect of which the

offender elected Court Martial trial; and

(b)   

had recorded a finding that the charge had been proved.

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7     (1)  

This paragraph applies where—

(a)   

the Court Martial convicts a person (“the offender”) of a

case C offence or a case D offence; and

(b)   

paragraph 8 does not apply.

      (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

punishments awarded by that sentence if the commanding

officer—

(a)   

had heard summarily the charge referred as mentioned in

paragraph 4(c); and

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(b)   

had recorded a finding that the charge had been proved.

Multiple relevant offences

8     (1)  

This paragraph applies where—

(a)   

the Court Martial convicts a person (“the offender”) of two

or more relevant offences; and

40

(b)   

condition 1 or 2 is met in relation to any two or more of the

offences.

      (2)  

Condition 1, in relation to any two or more offences, is that—

 
 

Armed Forces Bill
Schedule 1 — Court Martial sentencing powers where election for trial by that court instead of CO

32

 

(a)   

each of the offences is a case A offence or a case B offence;

and

(b)   

the relevant charges would have been heard summarily

together if the offender had not elected Court Martial trial.

      (3)  

In sub-paragraph (2) “relevant charge” means—

5

(a)   

in relation to a case A offence, the charge in respect of that

offence; and

(b)   

in relation to a case B offence, the charge in respect of

which the offender elected Court Martial trial and for

which the charge in respect of the case B offence was

10

substituted.

      (4)  

Condition 2, in relation to any two or more offences, is that—

(a)   

each of the offences is a case C offence or a case D offence;

and

(b)   

the referred charges would have been heard summarily

15

together if they had not been referred as mentioned in

paragraph 4(c).

      (5)  

In sub-paragraph (4) “referred charge” means—

(a)   

in relation to a case C offence, the charge in respect of that

offence; and

20

(b)   

in relation to a case D offence, the charge referred as

mentioned in paragraph 4(c) for which the charge in

respect of the case D offence was substituted.

Sentencing powers: multiple relevant offences

9     (1)  

This paragraph applies where paragraph 8 applies by virtue of a

25

condition in that paragraph being met in relation to any two or

more relevant offences.

      (2)  

The offences in relation to which the condition is met (“the joined

offences”) are to be treated for the purposes of section 255

(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

passed by the Court Martial in respect of the joined offences.

      (3)  

Where condition 1 in paragraph 8 is met in relation to the joined

offences, the sentence must be such that the offender’s

commanding officer could have awarded the punishments

35

awarded by that sentence if the commanding officer—

(a)   

had heard the relevant charges (as defined by paragraph

8(3)) summarily together; and

(b)   

had recorded findings that the charges had been proved.

      (4)  

Where condition 2 in paragraph 8 is met in relation to the joined

40

offences, the sentence must be such that the offender’s

commanding officer could have awarded the punishments

awarded by that sentence if the commanding officer—

(a)   

had heard the referred charges (as defined by paragraph

8(5)) summarily together; and

45

(b)   

had recorded findings that the charges had been proved.

 
 

Armed Forces Bill
Schedule 1 — Court Martial sentencing powers where election for trial by that court instead of CO

33

 

Further provision about sentencing

10         

Where paragraph 9 applies, the following provisions apply in

relation to the sentence as if it were a sentence being passed by an

officer at a summary hearing—

section 242 (service detention: general restriction);

5

section 243 (length of term of service detention);

section 248 (forfeiture of seniority, reduction in rank or

disrating).

11         

Where the Court Martial is dealing with an offender for an offence

with which a relevant offence is associated, the offences are to be

10

treated for the purposes of Part 9 (sentencing: principles and

procedures) as not being associated.

Activation of suspended sentence of detention

12    (1)  

This paragraph applies where—

(a)   

the Court Martial, on convicting a person (“the offender”)

15

of a relevant offence, makes an order under section 191(3)

in relation to a suspended sentence of service detention

passed on the offender; and

(b)   

the suspended sentence was passed by an officer or the

Summary Appeal Court.

20

      (2)  

The term of the suspended sentence as it takes effect by virtue of

the order must not exceed 28 days unless the offender’s

commanding officer would have had extended powers for the

purposes of section 194 if—

(a)   

where the offence is a case A offence or a case B offence, the

25

offender had not elected Court Martial trial; or

(b)   

where the offence is a case C offence or a case D offence, the

charge referred as mentioned in paragraph 4(c) had not

been so referred.

      (3)  

If—

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(a)   

the Court Martial awards a term of service detention (“the

new sentence”) in respect of the offence (or, where

paragraph 9 applies, in respect of the offence and one or

more other relevant offences), and

(b)   

the order under section 191(3) provides for the suspended

35

sentence to take effect from the end of the new sentence,

           

the aggregate of the terms of the two sentences must not exceed 28

days or, where the extended powers condition is met, 90 days.

      (4)  

The extended powers condition is—

(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

extended powers for the purposes of section 194 if the

offender had not elected Court Martial trial;

(b)   

where the offence is a case C offence or a case D offence,

that the offender’s commanding officer would have had

45

extended powers for the purposes of section 194 if the

 
 

Armed Forces Bill
Schedule 1 — Court Martial sentencing powers where election for trial by that court instead of CO

34

 

charge referred as mentioned in paragraph 4(c) had not

been so referred.

      (5)  

In determining for the purposes of sub-paragraph (2) or (4)

whether the offender’s commanding officer would have had

extended powers for the purposes of section 194 if, as the case may

5

be—

(a)   

the offender had not elected Court Martial trial, or

(b)   

the charge referred as mentioned in paragraph 4(c) had not

been so referred,

           

no account is to be taken of any of the matters mentioned in sub-

10

paragraph (6).

      (6)  

Those matters are—

(a)   

any change in the commanding officer’s rank after the

election or referral;

(b)   

in the case of sub-paragraph (2)(a) or (4)(a), any possibility

15

that, if the offender had declined Court Martial trial, the

commanding officer might subsequently have been

granted extended powers for the purposes of section 194;

and

(c)   

in the case of sub-paragraph (2)(b) or (4)(b), any possibility

20

that, if the charge referred as mentioned in paragraph 4(c)

had not been so referred, the commanding officer might

have been granted extended powers for those purposes

after the time when the charge was in fact referred.

Court orders other than sentences

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13    (1)  

The Court Martial may not make an order under section 229

(service restraining order) by virtue of—

(a)   

convicting a person of a relevant offence; or

(b)   

acquitting a person of an offence which would be a

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

(service sexual offences prevention order) by virtue of dealing

with a person in respect of—

(a)   

a relevant offence of which the person has been convicted;

or

35

(b)   

a relevant finding in relation to an offence which, if the

person were convicted of it, would be a relevant offence.

      (3)  

In sub-paragraph (2) “relevant finding” has the same meaning as

in section 232A.

Review of unduly lenient sentences

40

14         

In section 273 (review of unduly lenient sentence by Court Martial

Appeal Court), the reference in subsection (1)(a) to an offence

under section 42 does not include a relevant offence.

 
 

Armed Forces Bill
Schedule 1 — Court Martial sentencing powers where election for trial by that court instead of CO

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Appeals: application of Court Martial Appeals Act 1968 to multiple relevant offences

15    (1)  

This paragraph applies where, by virtue of paragraph 9(2), the

Court Martial passed a single sentence in respect of two or more

relevant offences (“the joined offences”); and references in this

paragraph to “the 1968 Act” are to the Court Martial Appeals Act

5

1968.

      (2)  

Where—

(a)   

section 13 of the 1968 Act (power to re-sentence when some

but not all convictions successfully appealed) applies in

relation to the sentence, but

10

(b)   

the appellant remains convicted of two or more of the

joined offences,

           

those offences are to be treated for the purposes of section 13(2) of

the 1968 Act as a single offence.

      (3)  

Sub-paragraph (4) applies where section 14 of the 1968 Act

15

(substitution of conviction on different charge after plea of not

guilty) applies in relation to a conviction of any of the joined

offences.

      (4)  

The reference in section 14(2)(b) to a sentence that the Court

Martial would have had power to pass in respect of the offence

20

mentioned in section 14(1)(b) is to be read as a reference to a

sentence that the Court Martial would have had power to pass in

respect of all the applicable offences.

      (5)  

For the purposes of sub-paragraph (4) an offence is an “applicable

offence” if it is—

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(a)   

a joined offence of which the appellant remains convicted;

(b)   

an offence a finding of guilty of which has been substituted

under section 14 of the 1968 Act for a finding of guilty of a

joined offence; or

(c)   

an offence a plea of guilty of which has been substituted

30

under section 14A of that Act for a plea of guilty of a joined

offence.

      (6)  

Sub-paragraph (7) applies where—

(a)   

section 14A of the 1968 Act (substitution of conviction on

different charge after guilty plea) applies in relation to a

35

conviction of any of the joined offences; and

(b)   

section 14 of that Act does not so apply.

      (7)  

The reference in section 14A(2)(b) to a sentence that the Court

Martial would have had power to pass in respect of the offence

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

respect of—

(a)   

all the joined offences of which the appellant remains

convicted; and

(b)   

the offence a plea of guilty of which has been substituted

45

under section 14A for a plea of guilty of a joined offence.

 
 

 
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