(1) A person may appeal to the Court Martial Appeal Court against—
(a) the variation under section 232C of an order to which the person is subject; or
(b) a decision by the Court Martial not to vary or revoke such an order on an application under that section.
(2) On an appeal under subsection (1), the Court Martial Appeal Court may make—
(a) such orders as may be necessary to give effect to its determination of the appeal; and
(b) such incidental or consequential orders as appear to it to be just.
(1) On an application made by a Provost Marshal, the Court Martial must make an order under this section in respect of a person within subsection (2) if the relevant requirements are met.
(2) The following are persons within this subsection—
(a) a member of the regular forces;
(b) a member of the reserve forces (whether or not for the time being subject to service law);
(c) a civilian subject to service discipline.
(3) The relevant requirements are met if the Court Martial is satisfied—
(a) that the person is subject to an order under section 104 or 105 of SOA 2003 (“the principal order”); and
(b) that there are members of the service community outside the United Kingdom who would, if in the United Kingdom, be protected by the principal order.
(4) For the purposes of subsection (3)(b) a person (“P”) is “protected” by the principal order if one or more of the prohibitions included in the order are for the purposes of the protection of P, or of persons of a description within which P falls.
(5) An order under this section—
(a) prohibits the person subject to the order from doing anything described in the order; and
(b) has effect—
(i) until the expiry of the principal order; or
(ii) if earlier, until the principal order is varied, renewed or discharged under section 108 of SOA 2003.
(6) Only corresponding prohibitions may be included in an order under this section.
(7) For the purposes of subsection (6) a “corresponding prohibition” is a prohibition in substantially the same terms as a prohibition in the principal order (“the principal prohibition”), subject to such modifications as are necessary to secure that the prohibition is for the purposes of the protection of members of the service community outside the United Kingdom who would, if in the United Kingdom, be protected by the principal prohibition.
(8) In subsection (7) “protected” is to be construed in accordance with subsection (4).
(1) A person may appeal to the Judge Advocate General against the making of an order under section 232E in respect of the person.
(2) The Secretary of State may by rules make provision about appeals under this section, and the rules may in particular make provision—
(a) specifying the grounds on which an appeal may be brought;
(b) with respect to the procedure which is to apply in connection with an appeal;
(c) with respect to the powers of the Judge Advocate General in relation to an appeal.
232G Offence: breach of order under section 232A or 232E
(1) A person within subsection (2) (“P”) commits an offence if, without reasonable excuse, P does anything which P is prohibited from doing by an order under section 232A or 232E.
(2) The following are persons within this subsection—
(a) a person subject to service law;
(b) a civilian subject to service discipline.
(3) 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.
(4) Where a person is convicted of an offence under this section, the court that convicts him may vary or revoke the order to which the offence relates.
233 Order for service parent or service guardian to enter into recognizance
(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.
234 Recognizances and fines under section 233: further provision
(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.
235 Recognizances: appeals, variation and revocation
(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.
(1) This section applies where—
(a) a person (“the offender”) is convicted of a qualifying section 42 offence by a court,
(b) the offender was aged 18 or over when the offence was committed, and
(c) the court is satisfied beyond reasonable doubt that the offence is aggravated by hostility related to persons falling within any of sections 32 to 34 of the Elections Act 2022.
(2) The court must, when dealing with the offender for the offence, also make an order (a “disqualification order”) that the offender is disqualified, for the period of 5 years beginning with the date on which the order is made—
(a) for being nominated for election to a relevant elective office, and
(b) for being elected to or holding a relevant elective office.
(3) Subsection (2) does not apply where the court considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to make the order; and in such a case the court must state in open court the reasons for not making the order.
(4) For the purposes of this section an offence is aggravated by hostility related to persons falling within any of sections 32 to 34 of the Elections Act 2022 if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on the victim being (or being presumed to be) a person falling within any of those sections, or
(b) the offence was motivated (wholly or partly) by hostility towards persons falling within any of those sections in their capacity as such.
(5) For the purposes of subsection (4) it is immaterial whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that subsection.
(6) For the purpose of deciding whether to make a disqualification order the court may consider evidence led by the parties to the proceedings.
(7) It is immaterial whether evidence led in pursuance of subsection (6) would have been admissible in the proceedings in which the offender was convicted.
(8) Where a qualifying section 42 offence is found to have been committed—
(a) over a period of 2 or more days, or
(b) at some time during a period of 2 or more days,
it is to be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.
(9) For the purposes of any appeal against a disqualification order—
(a) references in section 141 to a finding or punishment include the making of a disqualification order;
(b) references in section 16A of the Court Martial Appeals Act 1968 to passing a sentence include making a disqualification order.
(10) In this section—
“court” means the court or officer sentencing the offender;
“presumed” means presumed by the offender;
“qualifying section 42 offence” means an offence under section 42 (criminal conduct) as respects which the corresponding offence under the law of England and Wales is an offence listed in Schedule 9 to the Elections Act 2022;
“relevant elective office” has the same meaning as in Part 5 of the Elections Act 2022 (see section 37 of that Act).
References (however expressed) in any enactment to an order under section 30 of the Elections Act 2022 include references to an order under section 236A.
237 Duty to have regard to purposes of sentencing etc
(1) A court or officer dealing with an offender for a service offence must have regard to the following purposes of sentencing—
(a) the punishment of offenders;
(b) the maintenance of discipline;
(c) the reduction of service offences and other crime (including reduction by deterrence);
(d) the reform and rehabilitation of offenders;
(e) the protection of the public (including victims of crime);
(f) the making of reparation by offenders to persons affected by their offences.
(2) If the offender is aged under 18 the court or officer must also have regard to his welfare.
(3) This section does not apply in relation to—
(a) an offence the sentence for which is fixed by law;
(b) an offence the sentence for which falls to be imposed under section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence);
(ba) an offence the sentence for which falls to be imposed under section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over);
(bb) an offence the sentence for which falls to be imposed under section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18);
(bc) an offence the sentence for which falls to be imposed under section 313(2A) of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);
(bd) an offence the sentence for which falls to be imposed under section 314(2A) of the Sentencing Code as a result of section 226(2) (third domestic burglary);
(be) an offence the sentence for which falls to be imposed under section 311(2) of the Sentencing Code as a result of section 227(2) (firearms offences);
(c) an offence the sentence for which falls to be imposed under section 227A(1A) or (2) (threatening with a weapon in public or on school premises).
(4) In this section “sentencing” includes the making of any order when dealing with an offender in respect of his offence.
(1) A court or officer dealing with an offender for a service offence (“the current offence”) must in considering the seriousness of the offence—
(a) consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or could foreseeably have caused;
(b) if the offender has one or more previous convictions, treat as an aggravating factor each previous conviction that the court or officer considers can reasonably be so treated;
(c) if the offender committed the current offence while—
(i) charged with another service offence and released from service custody, or
(ii) on bail,
treat the fact that it was committed in those circumstances as an aggravating factor.
(2) In considering whether a previous conviction can reasonably be treated as an aggravating factor the court or officer must have regard (in particular) to—
(a) the nature of the offence to which the conviction relates and its relevance to the current offence; and
(b) the time that has elapsed since the conviction.
(3) Any reference in subsection (1) or (2) to a previous conviction is to be read as a reference to—
(a) a previous conviction of a service offence; ... or
(b) a previous conviction by a court in the British Islands of an offence other than a service offence.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Nothing in this section prevents the court or officer from treating a previous conviction by a court outside the British Islands as an aggravating factor in any case where the court or officer considers it appropriate to do so.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) In section 69 of the Sentencing Code (seriousness of offence with terrorist connection)—
(a) the references to a court are to be read as including a court dealing with an offender for an offence under section 42, and
(b) the reference in subsection (1) to an offence specified in Schedule 1 to that Code is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence specified in Schedule 1.
(7) In section 69A of the Sentencing Code (seriousness of offence where foreign power or designated body condition met)—
(a) the references in that section to a court are to be read as including a court dealing with an offender for a service offence, and
(b) the reference in subsection (1)(b) to an offence which is not an offence listed in subsection (2) is to be taken as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is not an offence so listed.
(8) In section 70A of the Sentencing Code (sexual grooming of child as aggravating factor)—
(a) the references in that section to a court are to be read as including a court dealing with an offender for a service offence, and
(b) the reference in subsection (1) to a specified child sex offence is to be read as including a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified child sex offence.
(1) This section applies where an offender—
(a) has pleaded guilty to a service offence in proceedings before a court; or
(b) at a summary hearing in respect of a service offence, has admitted the offence.
(2) In determining what sentence to pass on the offender, the court or officer dealing with him for his offence must take into account—
(a) the stage in the proceedings for the offence at which he indicated his intention to plead guilty or his intention to admit the offence at a summary hearing; and
(b) the circumstances in which this indication was given.
(3) In subsection (2) “sentence” includes any order made when dealing with the offender in respect of his offence.
(4) Subsection (5) applies in the case of an offence the sentence for which, as a result of section 225(2) or 226(2) of this Act (required custodial sentences), falls to be imposed under section 313(2A) or 314(2A) of the Sentencing Code.
(5) Nothing in section 313(2A) or 314(2A) of that Code prevents the court, after taking into account any matter mentioned in subsection (2) above, from imposing any sentence which is at least 80% of that specified in section 313(2A) or 314(2A) of that Code.
(6) Nothing in section 227A(1A) or (2) prevents the court, after taking into account any matter mentioned in subsection (2) of this section, from imposing any sentence which is at least 80% of that specified in section 227A(1A) or (2).
240 Increase in sentence for racial or religious aggravation
(1) This section applies where a court or officer dealing with an offender for a service offence (other than an offence mentioned in subsection (3)) is considering the seriousness of the offence.
(2) If the offence was racially or religiously aggravated the court or officer—
(a) must treat that fact as an aggravating factor; and
(b) must state in open court that the offence was so aggravated.
(3) This section does not apply in relation to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under any of sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37) (racially or religiously aggravated assaults, criminal damage, public order offences and harassment etc).
(4) Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or religiously aggravated”) applies for the purposes of this section as it applies for the purposes of sections 29 to 32 of that Act.
241 Increase in sentence for aggravation related to disability , sexual orientation or transgender identity
(1) This section applies where a court or officer dealing with an offender for a service offence within subsection (2) is considering the seriousness of the offence.
(2) A service offence is within this subsection if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
(i) the sexual orientation (or presumed sexual orientation) of the victim; ...
(ii) a disability (or presumed disability) of the victim; or
(iii) the victim being (or being presumed to be) transgender, or
(b) the offence is motivated (wholly or partly)—
(i) by hostility towards persons who are of a particular sexual orientation; ...
(ii) by hostility towards persons who have a disability or a particular disability , or
(iii) by hostility towards persons who are transgender.
(3) The court or officer—
(a) must treat as an aggravating factor the fact that the offence was committed in any of the circumstances mentioned in paragraph (a) or (b) of subsection (2); and
(b) must state in open court that the offence was committed in such circumstances.
(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether the offender's hostility is also based to any extent on any other factor not mentioned in that paragraph.
(5) In this section “disability” means any physical or mental impairment.
(6) In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.
(1) A court may not pass a sentence of service detention in respect of an offence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.
(2) In forming any such opinion as is mentioned in subsection (1) or section 243(2) (length of sentence), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.
(3) In subsections (1) and (2) “court” does not include the Summary Appeal Court.
(4) A sentence of service detention may not be—
(a) passed by an officer at a summary hearing, or
(b) passed or confirmed by the Summary Appeal Court,
unless the officer or court is of the opinion that the offence it is in respect of (or, if it is in respect of two or more offences, the combination of them) was serious enough to warrant such a sentence.
(5) In forming any such opinion as is mentioned in subsection (4) or section 243(3) (length of sentence), an officer or the Summary Appeal Court must take into account all such information as is available to him or it about the circumstances of the offence (or offences), including any aggravating or mitigating factors.
243 Length of term of service detention: general provision
(1) This section applies where a sentence of service detention is passed in respect of a service offence.
(2) Where the detention is imposed by a court other than the Summary Appeal Court, it must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it.
(3) Where the detention is imposed by an officer at a summary hearing or by the Summary Appeal Court, it must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the officer or court is commensurate with the seriousness of the offence (or, if it is imposed in respect of two or more offences, the seriousness of them taken together).
244 Limit on combined term of sentences of service detention
(1) A court or officer may not—
(a) pass a sentence of service detention,
(b) make a direction under section 189 (consecutive terms of service detention), or
(c) make an order under section 191 or 193 (activation of suspended sentence of service detention),
whose effect would be that a person would (at the relevant time) be subject to sentences of service detention the combined term of which exceeds two years.
(2) In subsection (1) “the relevant time” is the time immediately after the passing of the sentence or the making of the direction or order.
(3) For the purposes of this section, the combined term of sentences of service detention is—
(a) if none of the sentences overlap, the aggregate of the terms of the sentences;
(b) otherwise, the aggregate of—
(i) the period (or periods) during which any of the sentences overlaps any other of them; and
(ii) the period (or periods) for which none of the sentences overlap.
(4) Where subsection (1) is contravened, any part of any sentence of service detention which would (apart from this subsection) have effect after the end of the permitted period is remitted by virtue of this subsection.
(5) In subsection (4) “permitted period” means the period—
(a) beginning with the date of contravention; and
(b) equal in length to the longest sentence of service detention that could have been passed on that date without contravening subsection (1).
(6) For the purposes of the reference in subsection (4) to a part of a sentence which would have effect after the end of the permitted period, any prospect of early release is to be disregarded.
(7) In subsection (1)(a) “sentence of service detention” does not include a suspended sentence of service detention.
(1) Subsections (2) to (5) apply for the purposes of section 244.
(2) A person is to be regarded as not subject to any sentence from which he has been released early.
(3) A person is to be regarded as not subject to a suspended sentence of service detention unless an order that the sentence shall take effect has been made.
(4) Subject to subsection (3), a person is to be regarded as subject to any sentence of service detention that has been passed on him but—
(a) has not taken effect; or
(b) as a result of section 290(5) or (6) or 291(6) or (7), has ceased to have effect and has not resumed effect.
(5) A person who has been detained continuously pursuant to two or more sentences of service detention is to be regarded as subject to all of those sentences (whether or not any of them has been served in full).
(6) For the purposes of subsection (5), any periods of detention which would be continuous but for section 290(3), (5) or (6) or 291(5), (6) or (7) are to be treated as continuous.
246 Crediting of time in service custody: terms of imprisonment and detention
(1) This section applies where—
(a) a court or officer sentences an offender to a term of imprisonment or service detention in respect of a service offence (“the offence in question”); and
(b) the offender has been kept in service custody, in connection with the offence in question or any related offence, for any period since being charged with the offence in question or any related offence.
(2) The number of days for which the offender was kept in service custody in connection with the offence in question or any related offence since being so charged is to count as time served by the offender as part of the sentence.
(2A) If, on any day on which the offender was kept in service custody, the offender was also detained in connection with any other matter, that day is not to count as time served.
(2B) A day counts as time served—
(a) in relation to only one sentence, and
(b) only once in relation to that sentence.
(2C) A day is not to count as time served as part of any automatic release period served by the offender (see section 255B(1) or 255BA(1) of the 2003 Act).
(6) This section applies to—
(a) a determinate sentence of detention under section 209, ...
(b) a sentence of detention under section 226B or 228 of the 2003 Act passed as a result of section 221A or 222 of this Act ,
(ba) an extended sentence of detention under section 254 of the Sentencing Code passed as a result of section 221A of this Act, and
(c) a determinate sentence of detention in a young offender institution,
as it applies to an equivalent sentence of imprisonment.
(7) References in this section to “the court” are to the court or officer mentioned in subsection (1).
247 Crediting of time in service custody: supplementary
(1) For the purposes of section 246(1) offences are related if the charges for them were founded on the same facts or evidence.
(2) It is immaterial for the purposes of section 246(1) whether the offender has also been kept in service custody in connection with other offences (but see section 246(2B))....
(2A) The reference in section 246(2A) to detention in connection with any other matter does not include remand in custody in connection with another offence but includes—
(a) detention pursuant to any custodial sentence;
(b) committal in default of payment of any sum of money;
(c) committal for want of sufficient distress to satisfy any sum of money;
(d) committal for failure to do or abstain from doing anything required to be done or left undone.
(3) For the purposes of section 246 a suspended sentence of imprisonment or a suspended sentence of service detention—
(a) is to be treated as a sentence of imprisonment or (as the case may be) service detention when an order that it shall take effect is made; and
(b) is to be treated as being imposed by that order.
(4) Subsections (5) to (7) apply for the purposes of the references in section 246(2) and (2B) to the term of imprisonment or detention to which a person has been sentenced (that is to say, the reference to his “sentence”).
(5) Consecutive terms of service detention, and terms of service detention which are wholly or partly concurrent, are to be treated as a single term.
(6) Consecutive relevant custodial terms, and relevant custodial terms which are wholly or partly concurrent, are to be treated as a single term if—
(a) the sentences were passed on the same occasion; or
(b) where they were passed on different occasions, the person has not been released under Chapter 6 of Part 12 of the 2003 Act at any time during the period beginning with the first and ending with the last of those occasions.
(7) For the purposes of subsection (6) a sentence within any of paragraphs (a) to (c) of section 188(4) is a relevant custodial term.
248 Forfeiture of seniority and reduction in rank or disrating: general restriction
(1) A court may not pass a sentence of forfeiture of seniority, reduction in rank or disrating in respect of an offence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.
(2) In forming any such opinion as is mentioned in subsection (1), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.
(3) In subsections (1) and (2) “court” does not include the Summary Appeal Court.
(4) A sentence of forfeiture of seniority, reduction in rank or disrating may not be—
(a) passed by an officer at a summary hearing, or
(b) passed or confirmed by the Summary Appeal Court,
unless the officer or court is of the opinion that the offence it is in respect of (or, if it is in respect of two or more offences, the combination of them) was serious enough to warrant such a sentence.
(5) In forming any such opinion as is mentioned in subsection (4), an officer or the Summary Appeal Court must take into account all such information as is available to him or it about the circumstances of the offence (or offences), including any aggravating or mitigating factors.
(1) A court or officer fixing a fine to be imposed on an offender in respect of a service offence must, before fixing the amount of the fine, inquire into the offender's financial circumstances.
(2) The amount of any fine fixed by a court or officer in respect of a service offence must be such as, in the opinion of the court or officer, reflects the seriousness of the offence.
(3) In fixing the amount of any fine to be imposed on an offender in respect of a service offence, a court or officer must take into account the circumstances of the case including, among other things, the offender's financial circumstances so far as they are known, or appear, to the court or officer.
(4) Subsection (3) applies whether taking into account the offender's financial circumstances has the effect of increasing or reducing the amount of the fine.
(5) Where—
(a) the court has inquired into the offender's financial circumstances as required by this section,
(b) the offender has failed to co-operate with the court in its inquiry (whether by failing to comply with a financial statement order under section 266 or otherwise), and
(c) the court considers that it has insufficient information to make a proper determination of the offender's financial circumstances,
the court may make such determination of his financial circumstances as it considers appropriate.
(6) References in subsection (5) to “the court” are to the court or officer fixing a fine in respect of a service offence.
(1) In determining whether to make a service compensation order against any person, and in determining the amount to be paid by any person under such an order, a court or officer must have regard to that person's financial circumstances so far as they appear or are known to the court or officer.
(2) Where the court or officer considers—
(a) that it would be appropriate both to impose a fine and to make a service compensation order, but
(b) that the offender has insufficient means to pay both an appropriate fine and appropriate compensation,
the court or officer must give preference to compensation (but may impose a fine as well).
251 Power to allow payment of fine or service compensation order by instalments
(1) A court or officer awarding a fine or service compensation order in respect of a service offence may make an order under this section.
(2) An order under this section is an order—
(a) allowing time for payment of the amount due in respect of the fine or service compensation order (“the amount due”); or
(b) directing payment of that amount by instalments of such amounts and on such dates as may be specified in the order.
(3) If no order under this section is made when the fine or service compensation order is imposed, at any later time the appropriate court may make such an order on the application of the person by whom the amount due is payable (“the relevant person”).
(4) The appropriate court may on the application of the relevant person vary an order made under this section.
(5) In this section “the appropriate court” means—
(a) if the fine or service compensation order was imposed by an officer and subsection (6) applies, the commanding officer of the relevant person;
(b) if the fine or service compensation order was imposed by a court and subsection (6) or (7) applies, the Court Martial.
(6) This subsection applies if the relevant person is for the time being—
(a) subject to service law;
(b) a member of a volunteer reserve force; or
(c) a member of an ex-regular reserve force who is subject to an additional duties commitment.
(7) This subsection applies if the relevant person is for the time being a civilian subject to service discipline.
(1) Any court or officer passing sentence on an offender for a service offence—
(a) must state in open court, in ordinary language and in general terms and in accordance with section 253, its (or his) reasons for deciding on the sentence passed; and
(b) must explain to the offender in ordinary language—
(i) the effect of the sentence;
(ii) where the offender is required to comply with any order forming part of the sentence, the effects of non-compliance with the order;
(iii) any power, on the application of the offender or any other person, to vary or review any order forming part of the sentence; and
(iv) where the sentence consists of or includes a fine, the effects of failure to pay the fine.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The Secretary of State may by order—
(a) prescribe cases in which subsection (1)(a) or (b) does not apply;
(b) prescribe cases in which the statement referred to in subsection (1)(a) or the explanation referred to in subsection (1)(b) may be made in the absence of the offender, or may be provided in written form.
(4) In this section and section 253 “sentence” includes any order made when dealing with the offender in respect of his offence.
(1) In complying with section 252(1)(a) an officer or the Summary Appeal Court must—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) if section 239 (guilty pleas) applies and as a result of taking into account a matter mentioned in section 239(2) the officer or court has imposed a punishment on the offender which is less severe than the punishment that would otherwise have been imposed, state that fact;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) In complying with section 252(1)(a) a court other than the Summary Appeal Court must—
(a) where guidelines indicate that a sentence of a particular kind, or within a particular range, would normally be appropriate for the offence and the sentence is of a different kind or is outside that range, state the court's reasons for deciding on a sentence of a different kind or outside that range;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) if section 239 (guilty pleas) applies and as a result of taking into account a matter mentioned in section 239(2) the court has imposed a punishment on the offender which is less severe than the punishment it would otherwise have imposed, state that fact;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) In this section “guidelines” has the same meaning as in section 259.
(1) This section applies if—
(a) a court or officer is passing sentence for a service offence, and
(b) the court or officer is of the view that the offence involved domestic abuse carried out by the offender.
(2) The court or officer must, in open court, state that in the court’s or officer’s view the offence involved domestic abuse carried out by the offender.
(3) In its application to a court, this section is without prejudice to any duty imposed on the court by section 259 to have regard to guidelines in dealing with the offender for the offence.
(4) In this section—
“domestic abuse” has the same meaning as in the Domestic Abuse Act 2021 (see sections 1 and 2 of that Act);
“sentence” includes any order made when dealing with the offender in respect of an offence.
(1) Nothing in any of sections 242, 243, 248, 249, 250, 256, 258, 260, 261, 265 and 270 prevents a court or officer from mitigating an offender's sentence by taking into account any such matters as, in the court's or officer's opinion, are relevant in mitigation of sentence.
(2) Nothing in those sections prevents a court or officer from mitigating any punishment included in an offender's sentence by taking into account any other punishment included in that sentence.
(3) Nothing in those sections or section 255 prevents a court, in the case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying any rule of law as to the totality of sentences.
(4) Subsections (2) and (3) do not affect the generality of subsection (1).
Where the Court Martial or the Service Civilian Court convicts a person, the court must pass a separate sentence in respect of each offence of which he is convicted.
(1) Subject to subsection (2), a court must obtain and consider a pre-sentence report before—
(a) forming any such opinion as is mentioned in—
section 242(1) or 243(2) (service detention);
section 260(2) or 261(2) (custodial sentence); or
section 265(1) (dismissal or dismissal with disgrace);
(b) forming any such opinion as is mentioned in section 270(1) or (2)(b) (community punishment) or any opinion as to the suitability for the offender of the particular requirement or requirements to be included in a community punishment; or
(c) forming the required opinion for the purposes of section 219(1), 219A(1), 221(1) or 221A(1) (sentences for dangerous offenders).
(2) Subsection (1) does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report.
(3) Where the offender is aged under 18, the court must not form the opinion mentioned in subsection (2) unless—
(a) there exists a previous pre-sentence report obtained in respect of the offender; and
(b) the court has had regard to the information contained in that report, or, if there is more than one such report, the most recent report.
(4) No sentence is invalidated by a failure of a court to obtain and consider a pre-sentence report before doing any of the things mentioned in paragraphs (a) to (c) of subsection (1).
(5) However, any court on appeal against a custodial sentence in respect of a service offence, a sentence of dismissal or dismissal with disgrace, a sentence of service detention or a community punishment—
(a) must (subject to subsection (6)) obtain a pre-sentence report if none was obtained by the court below; and
(b) must consider any such report obtained by it or by that court.
(6) Subsection (5)(a) does not apply if the court is of the opinion—
(a) that the court below was justified in forming an opinion that it was unnecessary to obtain a pre-sentence report; or
(b) that, although the court below was not justified in forming that opinion, in the circumstances of the case at the time it is before the court it is unnecessary to obtain a pre-sentence report.
(7) Where the offender is aged under 18, the court must not form the opinion mentioned in subsection (6) unless—
(a) there exists a previous pre-sentence report obtained in respect of the offender; and
(b) the court has had regard to the information contained in that report or, if there is more than one such report, the most recent report.
(8) Subsections (5) to (7) do not apply to the Summary Appeal Court on an appeal to it.
(9) Subsections (1) to (4) do apply to the Summary Appeal Court in relation to a sentence of service detention, but as if the opinions referred to in subsection (1)(a) were any such opinion as is mentioned in section 242(4) or 243(3).
(10) The reference in subsection (1)(a) to a court forming any such opinion as is mentioned in section 260(2) or 261(2) includes a court forming such an opinion for the purposes of section 218A(4).
(1) In section 256 and this section “pre-sentence report” has the meaning given by section 31(1) of the Sentencing Code.
(2) In section 31(1) of that Code as applied by this section, “an appropriate officer” includes any registered social worker (as well as any person who is an appropriate officer within the meaning given by section 31(2) of that Code).
(3) In this section “registered social worker” means a person registered as a social worker in a register maintained by—
(a) Social Work England;
(b) the Care Council for Wales;
(c) the Scottish Social Services Council; or
(d) the Northern Ireland Social Care Council.
(4) Section 32(1) to (4) and (6) of the Sentencing Code (disclosure of reports) apply in relation to a pre-sentence report obtained by a court for the purposes of section 256 of this Act as they apply in relation to a report obtained by a court for the purposes of section 30 of that Code.
258 Mentally disordered offenders: requirement for medical report
(1) Subject to subsection (2), before passing a custodial sentence for a service offence on an offender who is or appears to be mentally disordered, a court must obtain and consider a medical report.
(2) Subsection (1) does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a medical report.
(3) Before passing a custodial sentence for a service offence on an offender who is or appears to be mentally disordered, a court must consider—
(a) any information before it which relates to his mental condition (whether given in a medical report, a pre-sentence report or otherwise); and
(b) the likely effect of such a sentence on that condition and on any treatment which may be available for it.
(4) No custodial sentence which is passed in a case to which subsection (1) applies is invalidated by a failure of a court to comply with that subsection, but any court on an appeal against such a sentence—
(a) must obtain a medical report if none was obtained by the court below; and
(b) must consider any such report obtained by it or by that court.
(5) In this section—
“custodial sentence” does not include a custodial sentence fixed by law;
“medical report” means a report as to an offender's mental condition made or submitted orally or in writing by a registered medical practitioner who is approved for the purposes of section 12 of the Mental Health Act 1983 (c. 20) by the Secretary of State , or by another person by virtue of section 12ZA or 12ZB of that Act, as having special experience in the diagnosis or treatment of mental disorder.
(6) Nothing in this section is to be taken to limit the generality of—
section 256 (pre-sentence reports); or
section 260(4) (information to be taken into account).
(1) A court must—
(a) in sentencing an offender for a service offence, have regard to any guidelines that are relevant to the offender's case; and
(b) in exercising any other function relating to the sentencing of offenders for service offences, have regard to any guidelines which are relevant to the exercise of the function.
(2) However, the court may depart from the guidelines mentioned in subsection (1)(a) or (b) if in its opinion the departure is justified by any features of service life or of the service disciplinary system that are relevant to the case.
(3) Subsection (2) does not limit any power existing apart from that subsection to depart from guidelines.
(4) References in subsection (1)(a) and (b) to sentencing an offender for a service offence include making any order when dealing with an offender in respect of such an offence.
(5) In this section “guidelines” means sentencing guidelines issued by the Sentencing Council for England and Wales under section 120 of the Coroners and Justice Act 2009 as definitive guidelines, as revised by any subsequent guidelines so issued.
260 Discretionary custodial sentences: general restrictions
(1) This section applies where a court is dealing with an offender for a service offence punishable with a custodial sentence, other than an offence the sentence for which—
(a) is fixed by law;
(b) falls to be imposed under section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence);
(c) falls to be imposed under section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over);
(d) falls to be imposed under section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18);
(e) falls to be imposed under section 313(2A) of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);
(f) falls to be imposed under section 314(2A) of the Sentencing Code as a result of section 226(2) (third domestic burglary);
(g) falls to be imposed under section 311(2) of the Sentencing Code as a result of section 227(2) (firearms offences); or
(h) falls to be imposed under section 227A(1A) or (2) (threatening with a weapon in public or on school premises).
(2) The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that no less severe sentence can be justified for the offence.
(3) Nothing in subsection (2) prevents the court from passing a custodial sentence where—
(a) the court had proposed to award a community punishment; and
(b) the offender failed to express his willingness to comply with a requirement which the court proposed to include in the community punishment and which required an expression of such willingness.
(4) In forming any such opinion as is mentioned in subsection (2) or section 261(2) (length of sentence), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.
(4A) The reference in subsection (4) to a court forming any such opinion as is mentioned in subsection (2) or section 261(2) includes a court forming such an opinion for the purposes of section 218A(4).
(4B) The reference in subsection (4) to a court forming any such opinion as is mentioned in section 261(2) also includes a court forming such an opinion for the purposes of —
(a) section 268(2) or 281(2) of the Sentencing Code, as applied by section 219A of this Act (extended sentences for offenders aged 18 or over), or
(b) section 256(2) of the Sentencing Code, as applied by section 221A of this Act (extended sentences for offenders aged under 18).
(5) For the purposes of this section a sentence falls to be imposed as a result of subsection (2) of section 225, 226 or 227 if it is required by that subsection and the court is not of the opinion there mentioned.
261 Length of discretionary custodial sentences: general provision
(1) This section applies where a court passes a custodial sentence for a service offence, other than a sentence fixed by law or imposed under —
(a) section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence),
(b) section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over), or
(c) section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18).
(2) The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it.
(3) Subsection (2) is subject to sections 219A, 221A, 225, 226 , 227 and 227A (sentences that may or must be imposed for certain offences).
(1) In Chapter 8 of Part 10 of the Sentencing Code (sections 321 to 324: effect of life sentences), references to a court include the Court Martial.
(2) In section 322 of that Code as it applies in relation to a life sentence passed by the Court Martial—
(a) subsection (2)(b)(i) has effect as if, for “section 240ZA of the Criminal Justice Act 2003” there were substituted “ section 246 of the Armed Forces Act 2006 ”;
(b) subsection (4) has effect as if, for “section 52(2)” there were substituted “ section 252(1)(a) of the Armed Forces Act 2006 ”.
(3) In section 323 of that Code as it applies in relation to a life sentence passed by the Court Martial,
(za) subsection (1C)(b) has effect as if for “section 252A, 254, ... 278 or 279” there were substituted—
(i) section 224A or 224B of the Armed Forces Act 2006, or
(ii) section 254, ... 278 or 279 passed as a result of section 219A, 219ZA or 221A of that Act,
subsection (2)(c)(i) has effect as if, for “section 240ZA of the Criminal Justice Act 2003” there were substituted “ section 246 of the Armed Forces Act 2006 ”.
(4) Section 324, as it applies in relation to a sentence passed by the Court Martial, has effect as if for the definition of “life sentence” there were substituted—
“life sentence” means any of the following sentences imposed under or by virtue of the Armed Forces Act 2006—
(a) a sentence of imprisonment for life,
(b) a sentence of detention for life or during Her Majesty's pleasure, or
(c) a sentence of custody for life;
.
(5) Schedule 21, as it applies in relation to a sentence passed by the Court Martial, has effect as if a reference to murder included reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is murder.
In section 328 of the Sentencing Code (court imposing prison term of 12 months or more may recommend licence conditions) “court” includes a court dealing with an offender for a service offence.
262A Conversion of sentence of detention to sentence of imprisonment
(1) In section 329 of the Sentencing Code (conversion of sentence of detention to sentence of imprisonment), “court” includes a court dealing with an offender for a service offence.
(2) In its application to a court dealing with an offender for a service offence, that section has effect with the following modifications.
(3) In subsection (5)—
(a) paragraph (a) has effect as if, after “254,” there were inserted “ passed as a result of section 221A of the Armed Forces Act 2006 ”;
(b) the words following paragraph (b) have effect as if, after “279” there were inserted “ passed as a result of section 219A(7) of the Armed Forces Act 2006 ”.
(4) Subsection (7) has effect as if, for paragraphs (a) to (f) there were substituted—
(a) a sentence of detention under section 209 of the Armed Forces Act 2006 (including one imposed under section 221 of that Act (detention for life));
(b) an extended sentence of detention under section 254 passed as a result of section 221A of the Armed Forces Act 2006;
(c) a sentence of detention during Her Majesty's pleasure (see section 218 of the Armed Forces Act 2006);
(d) a sentence of detention in a young offender institution;
(e) an extended sentence of detention in a young offender institution (see section 219A(4) of the Armed Forces Act 2006);
(f) a sentence of custody for life (see sections 210A, 217, 218A(1B) and 219(1A) of the Armed Forces Act 2006).
263 Restriction on imposing custodial sentence or service detention on unrepresented offender
(1) A sentence of—
(a) imprisonment, or
(b) service detention,
must not be passed by the Court Martial or the Service Civilian Court, or passed or confirmed by the Summary Appeal Court, in respect of an offender who is not legally represented in that court.
(2) Subsection (1) does not apply if the offender—
(a) having been informed of his right to apply for legal representation and having had the opportunity to do so, refused or failed to apply; or
(b) was aged 21 or over when convicted, and has previously been sentenced to imprisonment by a civilian court in any part of the United Kingdom or for a service offence ....
(3) The Court Martial or the Service Civilian Court must not—
(a) pass a custodial sentence on an offender who is aged under 21 on conviction, or
(b) make an order under section 211 (detention and training),
on or in respect of an offender who is not legally represented in that court unless the offender, having been informed of his right to apply for legal representation and having had the opportunity to do so, refused or failed to apply.
(4) For the purposes of this section an offender is “legally represented” in the Court Martial or the Service Civilian Court only if he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before he is sentenced.
(5) For the purposes of this section an offender is “legally represented” in the Summary Appeal Court—
(a) in a case where his appeal was only against punishment, if he has the assistance of counsel or a solicitor to represent him at some time during the proceedings in that court;
(b) in any other case, only if he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after the court confirms or substitutes the finding and before it confirms or passes sentence.
(6) For the purposes of subsection (2)(b)—
(a) a previous sentence of imprisonment which has been suspended and has not taken effect is to be disregarded;
(b) “sentence of imprisonment” does not include a committal for contempt of court or any kindred offence;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .