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FIRST GROUP OF PARTS continuedPART 8 continued CHAPTER 3 continued
(1) This section applies where an order under section 191 is made.
(2) For the purposes of the Court Martial Appeals Act 1968 (c. 20)—
(a) the order is to be treated as a sentence passed on the offender by the Court Martial for the offence for which the suspended sentence was passed; and
(b) if the offender was not convicted of that offence by the Court Martial, he is to be treated for the purpose of enabling him to appeal against the order as if he had been so convicted.
(3) For the purposes of any appeal against the order references in section 16A of that Act to passing a sentence include making an order.
(4) 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.
(1) This section applies in relation to a suspended sentence of service detention passed on an offender by an officer or the Summary Appeal Court.
(2) If—
(a) an officer records a finding that a charge against the offender in respect of an offence committed during the operational period of the suspended sentence is proved, or
(b) the offender is convicted of an offence in the British Islands which was committed during that operational period, and subsequently appears before his commanding officer,
the officer may (subject to section 194) make an order under subsection (3).
(3) An order under this subsection is an order—
(a) that the suspended sentence shall take effect with the original term unaltered; or
(b) that the suspended sentence shall take effect with the substitution of a lesser term for the original term.
(4) An order under subsection (3) may provide either—
(a) that the suspended sentence shall take effect immediately; or
(b) that the suspended sentence shall take effect from the end of another sentence of service detention which has been passed on the offender on a previous occasion or which the officer passes on the offender on the same occasion as he makes the order.
(5) Any provision included by virtue of subsection (4) in an order made by an officer has effect subject to section 292 (postponement of commencement of suspended sentence on activation by CO).
(1) The term of a suspended sentence as it takes effect by virtue of an order under section 193 must not exceed 28 days unless the officer has extended powers for the purposes of this section.
(2) If—
(a) section 193(2)(a) applies and the officer awards a term of service detention in respect of the offence mentioned there (“the new sentence”), and
(b) the officer makes an order under section 193 and the order provides for the suspended 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, if the officer has extended powers for the purposes of this section, 90 days.
(3) Nothing in subsection (2) affects section 133 (which determines the maximum length etc of the new sentence).
(4) An officer has extended powers for the purposes of this section if he has, before the relevant time—
(a) applied to higher authority for extended powers for the purposes of this section; and
(b) been notified by higher authority that his application has been granted.
(5) An officer also has extended powers for the purposes of this section if he is of or above the rank of rear admiral, major-general or air vice-marshal.
(6) In subsection (4) “the relevant time” means—
(a) where section 193(2)(a) applies, the beginning of the summary hearing of the charge mentioned there;
(b) where section 193(2)(b) applies, the beginning of the hearing as to whether an order under section 193 should be made.
(7) Section 193 is subject to section 244 (limit on combined term of sentences of service detention).
(1) For the purposes of Chapters 2 and 3 of Part 6 (appeals and reviews), an order under section 193 is to be treated as a punishment awarded for the offence for which the suspended sentence was awarded.
(2) Where an order under section 193 was made by virtue of a finding within section 193(2)(a)—
(a) any appeal, or application for leave to appeal, against the finding or the punishment awarded in respect of it is for the purposes of Chapter 2 of Part 6 to be treated as also being an appeal or application for leave to appeal against the order;
(b) any appeal, or application for leave to appeal, against the order is for those purposes to be treated as also being an appeal or application for leave to appeal against the punishment.
(3) Subsections (4) to (7) apply on an appeal to the Summary Appeal Court in a case in which section 193(2)(a) applied (power of CO to activate suspended sentence following finding of guilt).
(4) If the officer made an order under section 193, the Summary Appeal Court may (as an alternative to confirming the order)—
(a) quash the order; or
(b) make, in substitution for the order, any order under that section that the officer could have made.
(5) If the officer did not make an order under that section, the Summary Appeal Court may make any order under that section that the officer could have made.
(6) Section 147(3) has effect, as regards the Summary Appeal Court’s powers of punishment in respect of the officer’s finding (or any substituted finding), as if paragraph (b)(ii) were omitted.
(7) But the court may not exercise its powers under section 147(3) or subsection (4) or (5) above in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the officer.
(8) On an appeal against an order under section 193 made by virtue of section 193(2)(b), the Summary Appeal Court may (as an alternative to confirming the order)—
(a) quash the order; or
(b) make, in substitution for the order, any order under section 193 that—
(i) the officer could have made; and
(ii) is no more severe than the order appealed against.
(9) In determining in any case—
(a) whether to substitute an order under section 193, or
(b) the terms of any such substituted order,
the Summary Appeal Court must take account of any period of the suspended sentence that the appellant served.
(1) In the following provisions of the 2003 Act, “court” includes a relevant service court—
sections 181 and 182 (imprisonment for under 12 months: term of sentence and “custody plus” orders);
sections 189 and 190 (suspended sentences of imprisonment);
Chapter 4 of Part 12 (further provision about orders) in its application in relation to a custody plus order or suspended sentence order.
(2) For the purposes of this Chapter, each of the following is a relevant service court—
(a) the Court Martial;
(b) the Service Civilian Court;
(c) the Court Martial Appeal Court;
(d) the Supreme Court on an appeal brought from the Court Martial Appeal Court.
(1) Subsection (2) applies where a relevant service court—
(a) imposes a sentence of imprisonment on an offender; and
(b) would (apart from this section) be required by section 181(3)(b) of the 2003 Act to make a custody plus order.
(2) Section 181(3)(b) of the 2003 Act shall be read as conferring on the court a power rather than a duty to make a custody plus order (but this does not affect the duty of the court under section 181(3)(a) of that Act).
(3) A relevant service court may not specify in a custody plus order a requirement to be complied with outside the United Kingdom.
(4) Section 219(3) of the 2003 Act (requirement to give copy of order to magistrates' court) does not apply in relation to a custody plus order made by a relevant service court.
(1) In paragraphs 2(1) and (2) and 9(1) and (2) of Schedule 11 to the 2003 Act (court making custody plus order may require compliance in Scotland or Northern Ireland), “court” includes a relevant service court.
(2) In paragraphs 4, 6 and 12 of that Schedule (ancillary provisions) “court” (where the context allows) includes a relevant service court.
(3) Where Part 4 of that Schedule applies to a custody plus order made by a relevant service court, references in that Part to “the original court” are to be read as references to the Crown Court.
(4) Paragraph 22(7)(b) of that Schedule (requirement to give copy of amending order etc to magistrates' court) does not apply in relation to a custody plus order made by a relevant service court.
(1) In Schedule 10 to the 2003 Act (revocation and amendment) as it applies to a custody plus order made by a relevant service court—
(a) “the appropriate court” means the Crown Court; and
(b) the following shall be treated as omitted—
(i) the definition of “the appropriate court” in paragraph 1(1);
(ii) paragraph 2.
(2) Paragraph 9(1)(b)(ii) and (2) of that Schedule (requirement to give copy of revoking or amending order etc to magistrates' court) do not apply in relation to a custody plus order made by a relevant service court.
(1) Subsection (2) applies where (apart from this section) a relevant service court would have power under section 189 of the 2003 Act to make a suspended sentence order.
(2) Section 189(1) of that Act shall be read as conferring on the court a power either—
(a) to make a suspended sentence order with community requirements; or
(b) to make a suspended sentence order without community requirements.
(3) In this Chapter “a suspended sentence order with community requirements” means a suspended sentence order that—
(a) includes all the provision required by section 189(1) of the 2003 Act (as modified by subsection (5) below); and
(b) complies with section 189(3) and (4) of that Act.
(4) In this Chapter “a suspended sentence order without community requirements” means a suspended sentence order made as if in section 189 of the 2003 Act (as modified by subsection (5) below) the following were omitted—
(a) paragraph (a) of subsection (1);
(b) in paragraph (b) of that subsection, sub-paragraph (i) (and the word “either” before that sub-paragraph);
(c) subsection (4) and the reference in subsection (3) to the supervision period.
(5) In section 189(1) of the 2003 Act (suspended sentence orders) as it applies to a relevant service court, paragraph (b)(ii) (commission of UK offence in operational period of order) has effect as if for the words from “commits” to the end of sub-paragraph (ii) there were substituted “commits—
(a) another service offence (within the meaning of the Armed Forces Act 2006), or
(b) an offence in the British Islands,”.
(6) A relevant service court may not specify in a suspended sentence order with community requirements a requirement to be complied with outside the United Kingdom.
Nothing in the following provisions of the 2003 Act applies in relation to a suspended sentence order without community requirements—
sections 190 to 192 (imposition of community requirements and periodic reviews);
Chapter 4 of Part 12 (further provisions about orders);
Part 3 of Schedule 12 (amendment of order);
Schedule 13 (transfer of order to Scotland or Northern Ireland).
The following provisions of Chapter 4 of Part 12 of the 2003 Act do not apply in relation to a suspended sentence order with community requirements made by a relevant service court—
section 207(3)(a)(ii) (condition for mental health treatment requirement);
section 219(3) (requirement to give copy of order to magistrates' court).
(1) In section 191 of the 2003 Act (provision for periodic reviews of order) as it applies to a suspended sentence order with community requirements made by a relevant service court—
(a) “the court responsible for the order” means the Crown Court; and
(b) subsections (3) to (5) shall be treated as omitted.
(2) In section 210 of that Act (provision for periodic reviews of drug rehabilitation requirement) as it applies to such an order—
(a) “the court responsible for the order” means the Crown Court; and
(b) subsections (2) to (4) shall be treated as omitted.
(3) Section 211 of that Act (periodic reviews of drug rehabilitation requirement) has effect in its application to such an order as if—
(a) in subsection (3)(b) for the words from “he could have been dealt with” to the end there were substituted “it could deal with him if he had just been convicted before the court of an offence punishable with imprisonment”;
(b) in subsection (4)(b) the words in brackets were omitted; and
(c) after subsection (4) there were inserted—
“(4A) A term of imprisonment or fine imposed under subsection (3)(b)—
(a) must not exceed the maximum permitted for the offence in respect of which the order was made, and
(b) where the order was made by the Service Civilian Court, must not exceed—
(i) in the case of a term of imprisonment, 12 months;
(ii) in the case of a fine, the prescribed sum within the meaning of section 32 of the Magistrates' Courts Act 1980 (c. 43).”
(4) Where a sentence is passed under section 211(3)(b) of the 2003 Act as modified by subsection (3) above, section 9 of the Criminal Appeal Act 1968 (c. 19) (appeal against sentence) applies as if the offender had been convicted on indictment of the offence for which the sentence was passed.
(1) In paragraphs 1(1) and 6(1) of Schedule 13 to the 2003 Act (court making suspended sentence order with community requirements may require compliance in Scotland or Northern Ireland), “court” includes a relevant service court.
(2) In paragraphs 1(5) and (6), 3, 6(5) and 8 of that Schedule (ancillary provisions), “court” (where the context allows) includes a relevant service court.
(3) Where Part 3 of that Schedule applies to a suspended sentence order made by a relevant service court—
(a) references in that Part to “the original court” are to be read as references to the Crown Court; and
(b) the following shall be treated as omitted—
(i) the definition of “original court” in paragraph 11;
(ii) paragraph 12(3).
(4) Paragraph 20(6)(b) of that Schedule (requirement to give copy of amending order etc to magistrates' court) does not apply in relation to a suspended sentence order made by a relevant service court.
(1) In Part 3 of Schedule 12 to the 2003 Act (amendment of order) as it applies to a suspended sentence order with community requirements made by a relevant service court—
(a) “the appropriate court” means the Crown Court;
(b) the reference in paragraph 17 to the court responsible for the order is to be read as a reference to the Crown Court; and
(c) paragraphs 13(3), 14(5), 15(6), 16(4), 18(2) and 22(1)(b)(ii) and (d) and (2) shall be treated as omitted.
(2) Paragraph 15 of that Schedule has effect in its application to such an order as if—
(a) in sub-paragraph (4)(b) for the words “of the offence” there were substituted “of an offence punishable with imprisonment”; and
(b) after sub-paragraph (5) there were inserted—
“(5A) A term of imprisonment or fine imposed under sub-paragraph (4)(b)—
(a) must not exceed the maximum permitted for the offence in respect of which the order was made, and
(b) where the order was made by the Service Civilian Court, must not exceed—
(i) in the case of a term of imprisonment, 12 months;
(ii) in the case of a fine, the prescribed sum within the meaning of section 32 of the Magistrates' Courts Act 1980 (c. 43).”
(3) Paragraphs 2(b) and 3 of that Schedule shall be treated as omitted for the purposes of Part 3 of that Schedule as it applies to such an order.
(4) Where a sentence is passed under paragraph 15(4)(b) of Schedule 12 to the 2003 Act as modified by subsection (2) above, section 9 of the Criminal Appeal Act 1968 (c. 19) (appeal against sentence) applies as if the offender had been convicted on indictment of the offence for which the sentence was passed.
Schedule 7 (modification of Schedule 12 to the 2003 Act in relation to suspended sentences passed by relevant service courts) has effect.
In this Chapter—
“custody plus order” means an order under section 181(3)(b) of the 2003 Act;
“relevant service court” has the meaning given by section 196(2) of this Act;
“suspended sentence order” means an order under section 189(1) of the 2003 Act;
“suspended sentence order with community requirements” has the meaning given by section 200(3) of this Act;
“suspended sentence order without community requirements” has the meaning given by section 200(4) of this Act.
A person who is aged under 18 when convicted of an offence by the Court Martial or the Service Civilian Court shall not be sentenced to imprisonment for the offence.
(1) Subsection (5) (power to pass sentence of detention) applies where—
(a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct); and
(b) the case is within any of subsections (2) to (4).
(2) The case is within this subsection if the corresponding offence under the law of England and Wales is under that law—
(a) an offence punishable in the case of an offender aged 18 or over with imprisonment for 14 years or more; and
(b) not an offence the sentence for which is fixed by law.
(3) The case is within this subsection if the corresponding offence under the law of England and Wales is an offence under—
(a) section 3 of the Sexual Offences Act 2003 (c. 42) (sexual assault);
(b) section 13 of that Act (child sex offences committed by children or young persons);
(c) section 25 of that Act (sexual activity with a child family member); or
(d) section 26 of that Act (inciting a child family member to engage in sexual activity).
(4) The case is within this subsection if it falls within section 227(1) (certain firearms offences).
(5) Where this subsection applies, the court may pass a sentence of detention under this section if it is of the opinion that none of the other methods by which the offender may legally be dealt with is suitable.
(6) A sentence of detention under this section is a sentence that the offender be detained for such period (not exceeding the maximum term of imprisonment with which the offence under section 42 is punishable in the case of a person aged 18 or over) as may be specified in the sentence.
(7) Subsections (5) and (6) are subject to (in particular)—
sections 221, 222 and 227 (required custodial sentences for certain offences); and
sections 260 and 261 (general restrictions on custodial sentences).
(1) A person sentenced to be detained under section 209 is liable to be detained in such place, and under such conditions, as may be determined by the Secretary of State or by such other person as may be authorised by him for the purpose.
(2) A person detained in pursuance of a sentence under section 209 shall be deemed to be in legal custody.
(1) Where—
(a) a person aged under 18 is convicted by the Court Martial or the Service Civilian Court of an offence which is punishable with imprisonment in the case of a person aged 18 or over, and
(b) the court is of the opinion mentioned in section 260(2) or the case falls within section 260(3),
the sentence that the court is to pass is (subject to subsections (2) and (3)) an order that the person shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision.
(2) In the case of an offender aged under 15 at the time of the conviction, the court may not make an order under this section unless it is of the opinion that he is a persistent offender.
(3) In the case of an offender aged under 12 at the time of the conviction, the court may not make an order under this section unless—
(a) it is of the opinion mentioned in subsection (2);
(b) it is of the opinion that only a custodial sentence would be adequate to protect the public from further offending by him; and
(c) the offence was committed on or after such date as may be appointed under section 100(2)(b)(ii) of the Sentencing Act (appointed day for purposes of orders under that Act).
(4) Subsection (1) is also subject to sections 209, 218, 221, 222 and 227 (other custodial sentences that may or must be imposed in particular cases).
(1) The term of an order made under section 211 in respect of an offence—
(a) shall be 4, 6, 8, 10, 12, 18 or 24 months; and
(b) may not exceed the maximum term of imprisonment with which the offence is punishable in the case of a person aged 18 or over.
(2) Where—
(a) the offence is an offence under section 42 (criminal conduct),
(b) the corresponding offence under the law of England and Wales is under that law a summary offence, and
(c) the maximum term of imprisonment with which that offence is punishable in the case of a person aged 18 or over is 51 weeks,
the term of the order may not exceed 6 months.
(1) In the following provisions of the Sentencing Act references to a detention and training order include an order under section 211 of this Act—
section 101(3) to (10) and (13) (power to impose consecutive terms, duty of court to take account of remands, etc);
sections 102 to 105, 106A and 107 (period of detention and training, period of supervision, breach of supervision requirements, etc).
(2) In sections 101(3) to (10) and (13) and 106A of the Sentencing Act “court” includes a relevant service court (within the meaning given by section 196(2)).
(3) In section 101(8) and (9) of the Sentencing Act in their application to an order under section 211 of this Act, any reference to an offender’s being “remanded in custody” is a reference to his being kept in service custody; and section 101(11) and (12) of that Act do not apply in relation to such an order.
(1) This section applies to a person in respect of whom an order under section 211 has been made if—
(a) after his release and before the date on which the term of the order ends, he commits an offence within subsection (2) (“the new offence”); and
(b) whether before or after that date, he is convicted of the new offence.
(2) An offence is within this subsection if it is—
(a) a service offence which is punishable with imprisonment; or
(b) an offence in the British Islands which is so punishable.
(3) A court having power to do so under subsection (4) or (5) may order the person to be detained in such secure accommodation as the Secretary of State may determine for the whole or any part of the period which—
(a) begins with the date of the court’s order; and
(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1).
(4) Where the Court Martial or the Service Civilian Court convicts the person of the new offence, the court may on the conviction make an order under subsection (3).
(5) Where the offender is convicted of the new offence otherwise than by the Court Martial or the Service Civilian Court, the Court Martial may make an order under subsection (3) if the offender appears or is brought before it following the issue of a summons or warrant under subsection (7).
(6) Where an order under subsection (3) is made on the conviction of the new offence, the order must be in addition to the sentence for the new offence, and the period for which the person is ordered under subsection (3) to be detained—
(a) shall, as the court may direct, either be served before and be followed by, or be served concurrently with, any sentence imposed for the new offence; and
(b) in either case, shall be disregarded in determining the appropriate length of that sentence.
(7) If it appears to the Court Martial—
(a) that this section applies to a person,
(b) that his conviction of the new offence was not by the Court Martial or the Service Civilian Court, and
(c) that no order under subsection (3) or under section 105 of the Sentencing Act has been made in respect of the new offence,
the Court Martial may issue a summons requiring the person to appear at the time and place specified in it, or a warrant for his arrest.
(8) A person detained in pursuance of an order under subsection (3) shall be deemed to be in legal custody.
(1) Section 101(13) of the Sentencing Act (treatment of concurrent and consecutive terms) applies for the purposes of the reference in section 214(1)(a) of this Act to the term of an order.
(2) Where the new offence (within the meaning of section 214) is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of that section to have been committed on the last of those days.
(3) In section 214 “secure accommodation” has the meaning given by section 107 of the Sentencing Act.
Armed Forces Act 2006