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FIRST GROUP OF PARTS continuedPART 8 continued CHAPTER 5 continued
(1) This section applies where an order under section 214 (“the relevant order”) is made.
(2) For the purposes of sections 285 to 287 (appeals from Service Civilian Court) or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)—
(a) the relevant order is to be treated as a sentence passed on the offender, by the court that made the relevant order, for the offence for which the order under section 211 was made; and
(b) if the offender was not convicted of that offence by that court he is to be treated for the purpose of enabling him to appeal against the relevant order as if he had been so convicted.
(3) For the purposes of any appeal against the relevant order, references in section 16A of the Court Martial Appeals Act 1968 to passing a sentence include making an order.
(4) On an appeal to the Court Martial Appeal Court against the relevant order, the court may (as an alternative to exercising its powers under section 16A(2) of the Court Martial Appeals Act 1968) quash the order.
(1) This section applies if a person is convicted by the Court Martial of an offence under section 42 (criminal conduct) and the corresponding offence under the law of England and Wales is under that law—
(a) murder; or
(b) any other offence the sentence for which is fixed by law as imprisonment for life.
(2) The court must sentence him to imprisonment for life unless he is liable to be detained under section 218 (offences committed when offender aged under 18).
(1) This section applies if—
(a) a person is convicted by the Court Martial of an offence under section 42 (criminal conduct);
(b) the corresponding offence under the law of England and Wales is under that law—
(i) murder; or
(ii) any other offence the sentence for which is fixed by law as imprisonment for life; and
(c) the offender appears to the court to have been aged under 18 at the time the offence was committed.
(2) The court must (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure.
(3) A person sentenced to be detained under this section 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.
(4) A person detained in pursuance of a sentence under this section shall be deemed to be in legal custody.
(1) This section applies where a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct) and the corresponding offence under the law of England and Wales is a serious offence.
(2) If the court is of the required opinion (defined by section 223), then—
(a) if the case falls within section 225(2) of the 2003 Act the court must impose the sentence required by section 225(2) of that Act;
(b) otherwise, it must impose the sentence required by section 225(3) of that Act.
(3) In determining for the purposes of this section whether the case falls within section 225(2) of the 2003 Act, references in section 225(2) to “the offence” are to be read as references to the offence under section 42 of this Act.
(4) In this section “serious offence” has the meaning given by section 224 of the 2003 Act.
(5) A sentence under section 225 of the 2003 Act passed as a result of this section is not to be regarded as a sentence fixed by law.
(1) This section applies where a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct) and the corresponding offence under the law of England and Wales is a specified offence other than a serious offence.
(2) If the court is of the required opinion (defined by section 223), it must impose the sentence required by section 227(2) to (5) of the 2003 Act.
(3) In section 227 of the 2003 Act as applied by this section—
(a) the reference in subsection (2)(b) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England or Wales;
(b) the reference in subsection (3)(a) to section 153(2) of that Act is to be read as a reference to section 261(2) of this Act;
(c) the reference in subsection (4)(a) to a specified violent offence is to an offence under section 42 of this Act as respects which the corresponding offence under the law of England and Wales is a specified violent offence; and
(d) the reference in subsection (4)(b) to a specified sexual offence is to an offence under section 42 of this Act as respects which the corresponding offence under the law of England and Wales is a specified sexual offence.
(4) In this section the following expressions—
“serious offence”,
“specified offence”,
“specified violent offence”, and
“specified sexual offence”,
have the meanings given by section 224 of the 2003 Act.
(1) This section applies where a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct) and the corresponding offence under the law of England and Wales is a serious offence.
(2) If the court is of the required opinion (defined by section 223), then—
(a) if the case falls within section 226(2) of the 2003 Act the court must impose the sentence required by section 226(2) of that Act (read with subsection (3)(b) below);
(b) if the case falls within section 226(3) of that Act the court must impose the sentence required by section 226(3) of that Act.
(3) In determining for the purposes of this section whether the case falls within section 226(2) of the 2003 Act and what the sentence required by that provision is—
(a) references in section 226(2) to “the offence” are to be read as references to the offence under section 42 of this Act; and
(b) references in section 226(2) to section 91 of the Sentencing Act are to be read as references to section 209 of this Act.
(4) In determining for the purposes of this section whether the case falls within section 226(3) of the 2003 Act, the reference in section 226(3) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England or Wales.
(5) In this section “serious offence” has the meaning given by section 224 of the 2003 Act.
(6) A sentence under section 226 of the 2003 Act passed as a result of this section is not to be regarded as a sentence fixed by law.
(1) This section applies where—
(a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct);
(b) the corresponding offence under the law of England and Wales is a specified offence;
(c) the court is of the required opinion (defined by section 223); and
(d) where the corresponding offence under the law of England and Wales is a serious offence, the case is not one in which the court is required by section 221 to impose a sentence complying with subsection (2) of that section.
(2) Where this section applies, the court must impose the sentence required by section 228(2) to (5) of the 2003 Act.
(3) In section 228 of the 2003 Act as applied by this section—
(a) the reference in subsection (2)(b) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England or Wales;
(b) the reference in subsection (4)(a) to a specified violent offence is to an offence under section 42 of this Act as respects which the corresponding offence under the law of England and Wales is a specified violent offence;
(c) the reference in subsection (4)(b) to a specified sexual offence is to an offence under section 42 of this Act as respects which the corresponding offence under the law of England and Wales is a specified sexual offence; and
(d) references to the maximum term of imprisonment permitted for the offence are to the maximum term of imprisonment that (apart from section 219) is permitted for the offence under section 42 in the case of a person aged 18 or over.
(4) In this section the following expressions—
“serious offence”,
“specified offence”,
“specified violent offence”, and
“specified sexual offence”,
have the meanings given by section 224 of the 2003 Act.
(1) “The required opinion” for the purposes of sections 219(2), 220(2), 221(2) and 222(1) is the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of—
(a) further specified offences; or
(b) further acts or omissions that would be specified offences if committed in England or Wales.
(2) For the purposes of the court’s decision whether it is of that opinion, section 229(2) to (4) of the 2003 Act apply as they apply for the purposes of the assessment referred to in section 229(1) of that Act.
(3) In section 229(2) to (4) of the 2003 Act as applied by this section—
(a) any reference to the offence mentioned in section 229(1)(a) of that Act is a reference to the offence under section 42 of this Act; and
(b) the reference to such a risk as is mentioned in section 229(1)(b) of that Act is a reference to such a risk as is mentioned in subsection (1) above.
(4) In this section—
“serious harm” has the meaning given by section 224 of the 2003 Act;
“specified offence” has the meaning given by that section.
Where as a result of section 221 or 222 a court passes a sentence of—
(a) detention for public protection under section 226(3) of the 2003 Act, or
(b) detention under section 228 of that Act,
section 235 of that Act (place of detention etc) applies accordingly.
(1) This section applies where —
(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct); and
(b) if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, section 110 of the Sentencing Act (third class A drug trafficking offence) would apply.
(2) The Court Martial must impose the sentence required by section 110(2) of that Act, unless it is of the opinion that there are particular circumstances which—
(a) relate to any of the offences or to the offender; and
(b) would make it unjust to do so in all the circumstances.
(1) This section applies where—
(a) a person aged over 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct); and
(b) if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, section 111 of the Sentencing Act (third domestic burglary) would apply.
(2) The Court Martial must impose the sentence required by section 111(2) of that Act, unless it is of the opinion that there are particular circumstances which—
(a) relate to any of the offences or to the offender; and
(b) would make it unjust to do so in all the circumstances.
(1) This section applies if—
(a) a person is convicted by the Court Martial of an offence under section 42 (criminal conduct); and
(b) if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, section 51A of the Firearms Act 1968 (c. 27) (minimum sentences for certain firearms offences) would apply.
(2) The Court Martial must impose the sentence required by section 51A(2) of that Act (as that provision has effect in relation to England and Wales), unless it is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
(3) In section 51A(4)(a)(ii) of that Act (interpretation of section 51A(2)), as applied by this section, the reference to a sentence of detention under section 91 of the Sentencing Act is to be read as a reference to a sentence of detention under section 209 of this Act.
(1) Subsection (3) applies where—
(a) a sentence has been imposed on a person by virtue of section 219 or 220; and
(b) any previous conviction of his without which the court would not have been required to make the assumption mentioned in section 229(3) of the 2003 Act (as applied by section 223) has been subsequently set aside on appeal.
(2) Subsection (3) also applies where—
(a) a sentence has been imposed on any person by virtue of section 225 or 226; and
(b) any previous conviction of his without which that section would not have applied has subsequently been set aside on appeal.
(3) Where this subsection applies, an application for leave to appeal against the sentence may be lodged at any time within 29 days beginning with the day on which the previous conviction was set aside.
(4) Subsection (3) has effect notwithstanding anything in section 9(1) of the Court Martial Appeals Act 1968 (c. 20).
(1) The Court Martial or the Service Civilian Court may make an order under this section where—
(a) it convicts or acquits a person (“the defendant”) of an offence; and
(b) the defendant is subject to service law or is a civilian subject to service discipline.
(2) An order under this section—
(a) prohibits the defendant from doing anything described in the order; and
(b) has effect for a fixed period specified in the order or until further order.
(3) An order under this section may be made, and a prohibition may be included in the order, only for the purpose of protecting a person mentioned in the order from conduct which amounts to harassment.
(4) A person subject to service law or a civilian subject to service discipline commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by an order under this section.
(5) A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed five years.
(6) In proceedings for an order under this section, the Director of Service Prosecutions and the defence may lead (as further evidence) any evidence which would be admissible in proceedings in the High Court in England and Wales for an injunction under section 3 of the Protection from Harassment Act 1997 (c. 40).
(1) Section 7 (interpretation) of the Protection from Harassment Act 1997 (c. 40) (“the 1997 Act”) applies for the purposes of section 229 of this Act as it applies for the purposes of sections 5 and 5A of that Act.
(2) Section 12 of the 1997 Act (national security etc) applies for the purposes of section 229 of this Act as if—
(a) the reference in subsection (1)(c) to serious crime were a reference to serious service offences or serious crime (committed anywhere);
(b) the reference in subsection (1) to the 1997 Act were a reference to section 229 of this Act.
(3) Where the Court Martial Appeal Court allows an appeal against conviction it may remit the case to the Court Martial for that court to consider whether to proceed under section 229.
(4) Section 229 applies in relation to a case remitted under subsection (3) as if subsection (1)(a) were omitted.
(1) This section applies where a court makes an order under section 229—
(a) after it has acquitted the defendant of an offence; or
(b) in respect of a case remitted to it under section 230(3).
(2) For the purposes of sections 285 to 287 (appeals from Service Civilian Court) or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)—
(a) the order is to be treated as a sentence passed on the defendant in respect of the offence; and
(b) the defendant 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.
(3) 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 order.
(1) The Court Martial may vary or revoke an order under section 229 on an application made by—
(a) the Director of Service Prosecutions;
(b) the defendant; or
(c) any other person mentioned in the order.
(2) Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (1).
(3) Where a person is convicted of an offence under section 229, the court that convicts him may vary or revoke the order to which the offence relates.
(1) 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, and
(c) he has a service parent or service guardian,
the court may, and in the circumstances mentioned in subsection (3) must, exercise the powers conferred by this section.
(2) The powers conferred by this section are as follows—
(a) with the consent of the offender’s service parent or service guardian, to order that parent or guardian to enter into a recognizance to take proper care of the offender and exercise proper control over him; and
(b) if the service parent or service guardian refuses consent and the court considers the refusal unreasonable, to order that parent or guardian to pay a fine not exceeding level 3 on the standard scale.
(3) The circumstances referred to in subsection (1) as those in which the court must exercise the powers conferred by this section are—
(a) that the offender is under 16 when convicted; and
(b) that the court is satisfied, having regard to the circumstances of the case, that the exercise of those powers would be desirable in the interests of preventing the commission by him of further offences.
(4) Where the powers conferred by this section are not exercised in a case where subsection (1) applies and the offender is under 16 when convicted, the court must state in open court that it is not satisfied as mentioned in subsection (3)(b) and why it is not so satisfied.
(5) 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.
(6) For the purposes of this section, taking “care” of a person includes giving him protection and guidance and “control” includes discipline.
(1) An order under section 233 must not require the parent or guardian to enter into a recognizance for an amount exceeding level 3 on the standard scale.
(2) Such an order must not require the parent or guardian to enter into a recognizance—
(a) for a period exceeding three years; or
(b) where the offender will reach the age of 18 in a period shorter than three years, for a period exceeding that shorter period.
(3) In fixing the amount of a recognizance under that section, the court must take into account (among other things) the means of the parent or guardian so far as they appear or are known to the court, and this applies whether taking those means into account has the effect of increasing or reducing the amount of the recognizance.
(4) A recognizance under section 233 may, where the court has passed an overseas community order on the offender, include a provision that the service parent or service guardian ensure that the offender complies with the requirements of that order.
(5) A court imposing a fine under section 233(2)(b) may make an order under section 251 (power to allow payment by instalments), and in relation to such a fine section 251(2) to (7) have effect as if any reference to a service compensation order were omitted.
(1) For the purposes of sections 285 to 287 (appeals from Service Civilian Court) or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)—
(a) an order under section 233 is to be treated as a sentence passed on the parent or guardian for the offence; and
(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.
(2) 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 order.
(3) 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.
(4) The Court Martial may vary or revoke an order under section 233 if on the application of the parent or guardian it appears to the court, having regard to any change in the circumstances since the order was made, to be in the interests of justice to do so.
(1) Where—
(a) a recognizance under section 233 has been entered into, and
(b) the offender commits a service offence during the period of the recognizance,
the Court Martial or the Service Civilian Court may on convicting the offender of that offence (and subject to subsection (2)) declare the recognizance to be forfeited.
(2) The court may not make such a declaration where the parent or guardian is neither a person subject to service law nor a civilian subject to service discipline.
(3) If a court declares under this section that a recognizance is to be forfeited it must—
(a) adjudge the parent or guardian to pay the sum in which he is bound;
(b) adjudge him to pay part of that sum; or
(c) remit that sum.
(4) A court declaring under this section that a recognizance is to be forfeited may make an order under section 251 (power to allow payment by instalments); and in relation to a forfeiture under this section, section 251(2) to (7) have effect as if references to the fine or service compensation order were to the forfeiture.
Armed Forces Act 2006