House of Lords - Explanatory Note
Armed Forces Bill - continued          House of Lords

back to previous text

Clause 242: Length of term of service detention: general provision

483.     Where a sentence of service detention is passed by a court (except the SAC), subsection (2) requires it to be for the shortest term commensurate with the seriousness of the offence and any associated offences (see paragraph 481 above). Where such a sentence is passed by a CO or the SAC, subsection (3) similarly requires it to be for the shortest term commensurate with the seriousness of the offence or offences for which the offender is sentenced. The clause applies to service detention a principle laid down in relation to custodial sentences by section 153 of the 2003 Act.

Clause 243: Limit on combined term of sentences of service detention

484.     This clause prohibits a court or CO from sentencing an offender, or activating a suspended sentence previously imposed on him, if it would result in the offender being subject to sentences of service detention amounting to more than two years in total. If a court or CO purports to do this, the excess period is remitted.

Clause 244: Section 243: supplementary

485.     This clause supplements clause 243. Subsection (2) provides that where an offender has been released from a sentence of service detention, the sentence does not count towards the two-year maximum.

486.     Subsection (3) ensures that a suspended sentence of detention does not count for the purposes of the two-year limit unless it has been activated under clause 190 or 192.

487.     Subsection (4) ensures that a sentence of detention passed by a CO counts for the purposes of the two-year limit even if the offender is not currently in custody because of the rules in clause 289 or 290 (which allow him to delay starting the sentence until he has had a chance to appeal).

488.     Subsection (5) ensures that, where a person has been detained continuously under two or more sentences of detention (because one was made consecutive to another, or they were concurrent but one was for a longer period than another), both or all of those sentences count for the purposes of the two-year limit.

Clause 245: Crediting of time in service custody: terms of imprisonment and detention

489.     Where a term of imprisonment for a fixed term or a sentence of service detention is passed on an offender who has been kept in service custody for any period since he was charged, this clause requires the court or CO to direct that time spent in custody by the offender should count towards the sentence, unless the court or CO thinks it just not to do so. This requirement may be relaxed by rules made by the Secretary of State in certain circumstances. A court or CO deciding not to make such a direction must state in open court why it has decided to do so. This clause reflects section 240 of the 2003 Act.

Clause 246: Crediting of time in service custody: supplementary

490.     This clause supplements clause 245. Subsection (1) has the effect that clause 245 applies not only where the offender has been kept in service custody when charged with the offence for which he is being sentenced, but also where he has been kept in service custody in connection with a different charge based on the same facts or evidence.

491.     Subsection (2) provides that if the offender has been kept in service custody or detained in connection with other charges (which are not founded on the same facts or evidence), the fact that he has been detained is to be ignored for the purposes of clause 245.

492.     Subsection (3) ensures that clause 245 does not apply when a suspended sentence is passed, but does apply if the sentence is activated.

493.     Subsections (4) to (7) enable consecutive and concurrent sentences, in specified circumstances, to be treated as a single sentence for the purposes of clause 245(2).

Forfeiture of seniority and reduction in rank

Clause 247: Forfeiture of seniority and reduction in rank or disrating: general restriction

494.     Subsection (1) prohibits a court (except the SAC) from passing a sentence of forfeiture of seniority, reduction in rank or disrating unless the offence and any associated offences are serious enough to warrant such a sentence. Subsection (4) similarly prohibits a CO or the SAC from passing such a sentence unless the offence or offences for which the offender is sentenced are serious enough to warrant it.

495.     Subsections (2) and (5) require a court or CO, when deciding whether an offence or combination of offences is serious enough to warrant such a sentence, to take into account all available information about the circumstances of the offence or offences.

Financial punishments

Clause 248: Fixing of fines

496.     This clause requires a court or CO, when fixing a fine in respect of a service offence, to inquire into the offender's financial circumstances; to determine what those circumstances are; to take account of those circumstances (whether that means increasing or reducing the fine) and the circumstances of the case; and to ensure that the amount of the fine reflects the seriousness of the offence. Clause 248 reflects section 164 of the 2003 Act.

Clause 249: Determination of service compensation order

497.     A court or CO is required to have regard to the offender's financial circumstances when deciding whether to make a service compensation order, and, if so, for what amount. If the offender cannot afford to pay both a fine and compensation, compensation must be given priority. The clause reflects part of section 130 of the Sentencing Act.

Clause 250: Power to allow payment of fine or service compensation order by instalments

498.     This clause allows a court or CO imposing a fine or a service compensation order to make a further order allowing time to pay, or directing payment by instalments. If no order is made when the fine or compensation order is imposed, the offender can apply to the Court Martial for such an order at a later date. An offender can also apply to the Court Martial for the variation of such an order. But, where the fine or compensation order was awarded by a CO and the offender is a regular serviceman, a volunteer reservist or an ex-regular subject to an additional duties commitment, applications must be made instead to his CO.

Reasons

Clause 251: Duty to give reasons and explain sentence

499.     Clause 251 requires a court or CO passing sentence to explain the reasons for the sentence (except where the sentence is fixed by law, or is required under Chapter 6 of Part 8) and the effect of the sentence and of failing to comply. The court must also explain any power to vary or review the sentence on application. The Secretary of State may relax these requirements in specified cases. The clause reflects part of section 174 of the 2003 Act.

Clause 252: Duties in complying with section 251

500.     This clause specifies particular matters which a court or CO must mention or explain in complying with the duty imposed by clause 251. The clause reflects part of section 174 of the 2003 Act.

Savings

Clause 253: Savings for powers to mitigate sentence etc

501.     Subsection (1) ensures that the clauses there mentioned do not affect a court or CO's power to mitigate a sentence by taking account of anything that the court or CO thinks relevant.

502.     Subsection (2) allows one punishment within a sentence to be mitigated by another.

503.     Subsection (3) allows a court passing two or more sentences to apply the principle that the totality of the sentences properly reflects the overall seriousness of the offender's behaviour—for example, that the total length of consecutive sentences is not disproportionate.

504.     The clause reflects section 166 of the 2003 Act.

Chapter 2 - Principles and Procedures applying to Service Courts only

General

505.     Chapter 2 of Part 9 sets out the sentencing principles and procedures which apply to service courts but not to summary hearings.

Clause 254: Individual sentence for each offence

506.     At present, a court-martial (unlike a civilian court) passes a single sentence on an offender, even if he is convicted of two or more offences. A Standing Civilian Court, on the other hand, passes a separate sentence for each offence. This clause requires both the Court Martial and the SCC to pass a separate sentence for each offence. (A CO and the SAC, by contrast, pass a single sentence for all the offences proved: see clauses 130 and 146.)

Clause 255: Pre-sentence reports

507.     This clause requires a service court to obtain and consider a pre-sentence report when considering whether to pass a discretionary custodial sentence, a sentence of dismissal, dismissal with disgrace or service detention, or a community punishment; for how long a custodial sentence, or one of service detention, should be passed; or whether there is a significant risk of the offender causing serious harm by committing further offences, so that clauses 218 to 221 apply. The pre-sentence report is based on an interview and analysis of the defendant and his offending history and needs. It will contain advice about what punishment might be appropriate, and what rehabilitative work would be likely to prove effective in reducing the risk of re-offending. The clause reflects section 156 of the 2003 Act.

508.     Subsection (2) allows the court to dispense with the requirement to obtain a pre-sentence report if it considers that it does not need one. But, if the offender is under 18, under subsection (3) the court must not do this unless there is already a report on the offender and the court has considered that.

509.     Under subsection (4), no sentence is invalidated by a court's failure to obtain and consider a pre-sentence report, even where the court was required to do so.

510.     If the defendant appeals to the CMAC or the Court Martial against a custodial sentence, a sentence of dismissal, dismissal with disgrace or service detention, or a community punishment, and the lower court did not obtain a pre-sentence report, subsections (5) and (6) require the appellate court to obtain and consider a report unless it thinks that the original court was justified in not obtaining one, or that a report is not now needed. If the offender is under 18, however, subsection (7) requires the appellate court to obtain a report unless it has considered a report previously obtained.

Clause 256: Pre-sentence reports: supplementary

511.     This clause applies the definition of a "pre-sentence report" in the 2003 Act for the purposes of clause 255, but allows reports to be prepared for service courts by social workers as well as probation officers.

512.     Subsection (4) applies the relevant provisions of section 159 of the 2003 Act, which requires copies of a written report to be given to the offender or his legal representative and the prosecutor. If the offender is under 18 a copy must also be given to any parent or guardian of his who is in court; but a complete copy need not be given to such an offender, or to his parent or guardian, if this would create a risk of significant harm to the offender. The prosecutor must not use the report for any purpose except making representations to the court about the contents of the report.

Clause 257: Mentally disordered offenders: requirement for medical report

513.     This clause requires a service court to obtain and consider a medical report before passing a custodial sentence (other than one fixed by law) on an offender who is, or appears to be, mentally disordered, unless the court considers that no such report is needed. The court must consider any information before it relating to the offender's mental condition, and the likely effect of a custodial sentence on that condition and on any treatment which may be available for it. If the court does not obtain a medical report this does not invalidate the sentence, but on an appeal against sentence the appellate court must obtain and consider a medical report. The clause reflects section 157 of the 2003 Act.

Clause 258: Sentencing guidelines

514.     This clause requires a service court to have regard to any relevant guidelines issued by the Sentencing Guidelines Council under section 170(9) of the 2003 Act, but provides that it may depart from such guidelines if it thinks this is justified by any relevant features of service life or the service disciplinary system.

Custodial sentences and service detention

Clause 259: Discretionary custodial sentences: general restrictions

515.     This clause prohibits a service court from passing a custodial sentence (except one fixed by law, or required under Chapter 6 of Part 8) unless it thinks the offence, or the combination of the offence and any associated offences (see paragraph 481 above), was so serious that no less severe sentence can be justified. The court can also pass a custodial sentence if it would have awarded a community punishment but cannot impose a particular requirement because the offender will not agree to it. The clause reflects section 152 of the 2003 Act.

Clause 260: Length of discretionary custodial sentences: general provision

516.     Where a service court passes a custodial sentence (other than one fixed by law, or one required by clause 218(2) or 220(2)), this clause requires the sentence to be for the shortest term commensurate with the seriousness of the offence, or the combination of the offence and any associated offences (see paragraph 481 above), unless Chapter 6 of Part 8 requires a longer term. The clause reflects section 153 of the 2003 Act.

Clause 261: Power to recommend licence conditions

517.     This clause enables a service court (like a civilian court) to recommend, when passing a sentence of imprisonment for 12 months or more, particular conditions that in its view should be included in the offender's licence when he is released. Section 238 of the 2003 Act requires the Secretary of State to have regard to any such recommendation when setting the licence conditions.

Clause 262: Restriction on imposing custodial sentence or service detention on unrepresented offender

518.     This clause prohibits a service court from passing a sentence of imprisonment, a sentence of detention under clause 208 or 217, a detention and training order or a sentence of service detention on an offender who is not legally represented. But this does not apply if the offender refused or failed to apply for representation after being informed of his right to apply for it, or was aged 21 or more when convicted and has previously been sentenced to imprisonment (not counting a suspended sentence which has not been activated). The clause reflects section 83 of the Sentencing Act.

Clause 263: Effect of duties to pass custodial sentences on other powers of punishment

519.     This clause makes it clear that, where any provision of the Bill requires a court to pass a particular custodial sentence, the court can also include in its sentence any another punishment, except those listed in subsection (2).

Dismissal

Clause 264: Dismissal: general restrictions

520.     Subsections (1) and (2) prohibit a court from passing a sentence of dismissal, or dismissal with disgrace, unless it considers that the offence (or the combination of the offence and any associated offences: see paragraph 481 above) was serious enough to warrant such a sentence.

521.     Subsections (3) to (5) prohibit the Court Martial from passing such a sentence on an offender who is not legally represented, unless he refused or failed to apply for representation after being informed of his right to apply for it.

Financial punishments

Clause 265: Financial statement orders

522.     This clause enables a service court (other than the SAC) to order an offender to give the court a statement of his financial circumstances before it passes sentence. The offender commits a further offence (punishable with a fine) if he fails to comply, or provides false or incomplete information. This clause reflects section 162 of the 2003 Act.

Clause 266: Power of court to remit fine

523.     This clause enables a service court to reduce or remit a fine if it did not have full information about the offender's financial circumstances when it imposed the fine. The clause reflects section 165 of the 2003 Act.

Clause 267: Order for service parent or service guardian to pay fine or compensation

524.     Where the offender was convicted aged under 18, is a civilian subject to service discipline, and has a parent or guardian who is subject to service law or who is a civilian subject to service discipline, this clause enables the court to order that parent or guardian to pay any fine or compensation awarded against the offender. If the offender is under 16 on conviction, the court must do so unless satisfied that this would be unreasonable, or that the parent or guardian cannot be found. The court must give the parent or guardian an opportunity to be heard. The parent or guardian can appeal against the order as if it were a sentence, except that the appellate court can quash the order without substituting another. The clause reflects section 137 of the Sentencing Act.

Clause 268: Fixing of fine or compensation to be paid by parent or guardian

525.     Under this clause, various provisions of the Bill relating to the fixing of fines and compensation orders are modified in relation to an order under clause 267 that the offender's parent or guardian must pay a fine or compensation.

Community punishments

Clause 269: Community punishments: general restrictions

526.     Under subsections (1) and (2)(b) a service court must not award a community punishment unless it thinks the offence (or the combination of the offence and any associated offences: see paragraph 481 above) was serious enough to warrant one, and the restrictions imposed must be commensurate with the seriousness of the offence (or offences). This reflects part of section 148 of the 2003 Act. Subsection (3) requires the court to take into account all available information about the offence in forming an opinion on these matters. But under subsection (7) (which applies section 151 of the 2003 Act) the court can also award a community punishment if the offender has at least three times been fined for service or civilian offences committed when he was aged 16 or over, and the court considers that this would be in the interests of justice.

527.     Subsection (2)(a) further provides that the requirements included in the order must be such as the court considers the most suitable for the offender. This reflects part of section 148 of the 2003 Act. For this purpose subsection (4) allows the court to take into account any information about the offender that it may have.

528.     Subsections (5) and (6) allow the court, in determining what restrictions a community punishment should impose, to have regard to any period for which the offender has been kept in service custody since being charged with the offence or any other offence the charge for which was founded on the same facts or evidence. This reflects section 149 of the 2003 Act.

Chapter 3 - Supplementary

Clause 270: Civilian courts dealing with service offences

529.     This clause makes it clear that Part 9 does not apply where a civilian criminal court is dealing with a person convicted of a service offence (e.g. an offence under section 95 of the Reserve Forces Act 1996) or re-sentencing under the 2003 Act an offender who has, for example, breached an order imposed by a service court. The principles in the Sentencing Act and the 2003 Act will apply instead.

PART 10 - COURT MARTIAL DECISIONS: APPEAL AND REVIEW

Chapter 1 - Appeals from Court Martial

Clause 271: Appeals to the Court Martial Appeal Court

530.     This clause renames the Courts-Martial Appeal Court as the Court Martial Appeal Court ("CMAC"), in consequence of the creation of the Court Martial by clause 153.

531.     The clause also gives effect to Schedule 8. That Schedule makes a number of amendments to the Courts-Martial (Appeals) Act 1968, including renaming it as the Court Martial Appeals Act 1968.

Chapter 2 - Review of Court Martial Sentence

Clause 272: Review of unduly lenient sentence by Court Martial Appeal Court

532.     This clause gives the Attorney General the power, equivalent to that which he has in respect of sentences passed by the Crown Court, to refer a case to the CMAC if he considers that the sentence passed by the Court Martial in respect of the offence is unduly lenient. This power is exercisable only in relation to criminal conduct offences and is subject to the leave of the CMAC. One of two conditions must be satisfied: either the corresponding offence under civilian law would, if committed by an adult, be capable of being tried only on indictment; or the offence is one specified in an order made by the Secretary of State.

533.     On such a reference the CMAC may quash the original sentence and substitute for it another sentence that would have been available to the Court Martial.

534.     The clause specifies certain circumstances in which the Attorney General may consider the original sentence to have been unduly lenient; and it provides that, where the reference to the CMAC relates to an order setting a minimum term for a life sentence, the CMAC may not, in deciding what order is appropriate, allow for the fact that the offender is being sentenced for the second time.

Clause 273: Reference of point of law to Supreme Court

535.     This clause applies where the CMAC has concluded its review of a case under clause 272. It allows the Attorney General or the offender to refer to the Supreme Court a point of law involved in any sentence passed in the proceedings. The reference cannot be made without leave of the CMAC or the Supreme Court and the conditions for granting leave are specified. When the Supreme Court has given its opinion on the point of law referred to it, it may then refer the case back to the CMAC to be dealt with, or deal with the case itself, in which case it may exercise any of the powers that would have been available to the CMAC.

Clause 274: Power to make supplementary provision about review of sentence

536.     This clause enables the Secretary of State to make provision by regulations with respect to references under clauses 272 and 273, including provision on applications and procedure.

Chapter 3 - Compensation for Miscarriages of Justice

Clause 275: Compensation for miscarriages of justice

537.     This clause makes provision for the payment of compensation to a person who has been subject to a miscarriage of justice by the Court Martial. It mirrors the civilian equivalent in section 133 of the Criminal Justice Act 1988.

538.     Compensation payments are made by the Secretary of State, but this is subject to subsections (2) and (3). Subsection (2) provides that if the conviction was the result of the applicant failing to disclose, wholly or in part, the "unknown fact" which led to the miscarriage of justice, he is not entitled to compensation under this section. Subsection (3) provides that compensation is not payable under this provision unless an application for such compensation has been made to the Secretary of State.

539.     The Secretary of State has the power to determine whether there is a right to compensation under subsection (4). Where he determines that there is such a right, subsection (5) provides that the amount of compensation is to be assessed by an assessor (appointed by the Secretary of State).

540.     Subsection (6) requires the assessor to have regard to certain factors in assessing the amount of compensation, and subsection (7) explains what constitutes a "conviction having been reversed" for the purpose of this clause. This will include a case in which the CMAC quashes a conviction following a reference by the Criminal Cases Review Commission (which is given power to make such references by clause 319 and Schedule 11).

541.     Subsection (8) gives effect to Schedule 9, which deals with the appointment of assessors etc.

PART 11 - THE SERVICE CIVILIAN COURT

542.     At present civilians subject to service law who commit offences under the SDAs may be dealt with summarily by an officer (the appropriate superior authority), who has very limited powers of punishment, or by court-martial. In addition, the Armed Forces Act 1976 established Standing Civilian Courts for the trial outside the UK of civilians under the Army and Air Force Acts 1955 (but not the Naval Discipline Act 1957). The Secretary of State can direct areas outside the UK where trials may take place. Two such areas have been established: Germany, Belgium and Holland (as the first area); and the republic of Cyprus and the Sovereign Base Areas of Dhekelia and Akrotiri (as the second area) on the island of Cyprus. A judge advocate is appointed as magistrate to sit in a Standing Civilian Court.

543.     Standing Civilian Courts generally have jurisdiction to try civilians for offences committed outside the UK where the offence is one for which a court-martial can try a civilian. The exceptions are offences under section 57 of the Army and Air Force Acts 1955 (offences in relation to courts, including contempt) and civil offences under the law of England and Wales that are triable only in the Crown Court.

544.     Standing Civilian Courts act in similar ways to a magistrates' court in England and Wales. They have similar powers of punishment: they can award a maximum sentence of imprisonment for a term not exceeding six months (12 months if consecutive sentences are awarded) but cannot award imprisonment or a fine for a civil offence where a magistrates' court in England and Wales would not have power to make such an award.

545.     The clauses in this Part create the Service Civilian Court to replace the Standing Civilian Courts and make provision for the court and its proceedings. The main changes are the replacement of the power to direct areas where trial can take place with provisions for the court to sit anywhere outside the British Islands; and the creation of a power, analogous to the power of a magistrates' court, for the court to decide whether it or the Court Martial should try a charge.

 
previous Section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries ordering index

© Parliamentary copyright 2006
Prepared: 25 May 2006