Armed Forces Bill

House of Commons

Session 2010 - 11
Internet Publications
Other Bills before Parliament

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.
30
33
Short title
This Act may be cited as the Armed Forces Act 2011.

30
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,
30
(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
31

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
20
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.
25
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
30
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
35
(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
30
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—
30
(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,
40
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
25
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.
30
      (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
35

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—
25
(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
40
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.