264 Effect of duties to pass custodial sentences on other powers of punishment
(1) Where a provision of this Act requires a court to impose a particular custodial sentence in respect of an offence, it is not to be taken to prevent the court from including in its sentence for that offence any other authorised punishment.
(2) In this section an “authorised punishment” means any punishment authorised by this Act apart from—
service detention;
a service supervision and punishment order;
minor punishments;
a community punishment;
a conditional or absolute discharge.
(1) A court may not pass a sentence of dismissal or dismissal with disgrace 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) The Court Martial must not pass a sentence of dismissal or dismissal with disgrace on an offender who is not legally represented in that court.
(4) Subsection (3) does not apply if 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.
(5) For the purposes of this section an offender is “legally represented” in the Court Martial 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.
(1) Before sentencing a person who has been convicted of a service offence, a court may make a financial statement order; but this does not apply to the Summary Appeal Court.
(2) A financial statement order is an order requiring the person to give to the court, within such period as may be specified in the order, such a statement of his assets and other financial circumstances as the court may require.
(3) A person who without reasonable excuse fails to comply with a financial statement order commits an offence and is liable to a fine not exceeding level 3 on the standard scale.
(4) A person who in providing any statement in pursuance of a financial statement order—
(a) makes a statement which he knows to be false in a material particular,
(b) recklessly provides a statement which is false in a material particular, or
(c) knowingly fails to disclose any material fact,
commits an offence and is liable to a fine not exceeding level 4 on the standard scale.
(1) This section applies where a court has, in fixing the amount of a fine in respect of a service offence, determined the offender's financial circumstances under section 249(5).
(2) If on subsequently inquiring into the offender's financial circumstances the court is satisfied that had it had the results of that inquiry when sentencing the offender it would—
(a) have fixed a smaller amount, or
(b) not have fined him,
it may remit the whole or part of the fine.
(3) Where under this section the court remits the whole or part of a fine after a term of imprisonment has been fixed under section 269A, it must reduce the term by the corresponding proportion.
(4) In calculating any reduction required by subsection (3), any fraction of a day is to be ignored.
268 Order for service parent or service guardian to pay fine or compensation
(1) This section applies 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;
(c) he has a service parent or service guardian; and
(d) the court is of the opinion that the case would best be met by the imposition of a fine or the making of a service compensation order (with or without any other punishment).
(2) The court may, and if the offender is under 16 when convicted must, order that the fine or compensation awarded be paid by the service parent or service guardian instead of by the offender himself; but this is subject to subsection (3).
(3) Where (apart from this subsection) the court would be required by subsection (2) to make an order against a service parent or service guardian, the court need not make such an order if it is satisfied—
(a) that no service parent or service guardian can be found; or
(b) that it would be unreasonable to make such an order having regard to the circumstances of the case.
(4) No order may be made under this section without giving the parent or guardian an opportunity of being heard, unless the parent or guardian has failed to attend having been required to do so.
(5) 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 this section 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.
(6) 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.
(7) 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.
(8) 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.
269 Fixing of fine or compensation to be paid by parent or guardian
(1) For the purposes of any order under section 268 against the parent or guardian of an offender—
(a) section 249 (fixing of fine) has effect as if any reference to the offender's financial circumstances were to the parent's or guardian's financial circumstances, and as if the reference in subsection (5)(b) to the offender were to the parent or guardian;
(b) section 250(1) (determination of service compensation order) has effect as if any reference to the financial circumstances of the person against whom the service compensation order is made were to the financial circumstances of the parent or guardian;
(c) section 250(2) (preference to be given to compensation if insufficient means to pay both compensation and fine) has effect as if the reference to the offender were to the parent or guardian;
(d) section 267 (power to remit fine) has effect as if any reference to the offender's financial circumstances were to the parent's or guardian's financial circumstances.
(2) Before making an order under section 268 against a parent or guardian, the court may make a financial statement order with respect to him.
(3) In subsection (2) “financial statement order” has the meaning given by subsection (2) of section 266, and subsections (3) and (4) of that section apply in relation to a financial statement order made under this section as they apply in relation to such an order made under that section.
269A Fines: fixing of term of imprisonment for default
(1) Where the Court Martial imposes a fine on a person aged 18 or over, the court must make an order fixing a term of imprisonment which the person is to undergo if—
(a) any sum which the person is liable to pay is not duly paid or recovered; and
(b) an enforcement order is made.
(2) The Table in section 129(4) of the Sentencing Code (maximum periods of imprisonment for default), as for the time being in force, applies for the purpose of determining the maximum periods of imprisonment that may be fixed under this section for fines of the amounts set out in that Table.
(3) Where the person mentioned in subsection (1) is sentenced by the court to, or is serving or otherwise liable to serve, a term of—
(a) imprisonment,
(b) detention in a young offender institution, or
(c) detention under section 108 of the Sentencing Act (detention of persons aged 18 to 21 for default or contempt),
the court may order that any term of imprisonment fixed under subsection (1) shall not begin to run until after the end of that other term.
(4) For the purposes of references in subsection (3) to a term of imprisonment or detention which a person has been sentenced to or is serving or liable to serve, consecutive terms and terms which are wholly or partly concurrent are to be treated as a single term.
(5) References in subsection (3) to a term which a person is serving or liable to serve are to a term imposed—
(a) by a relevant service court; or
(b) by a civilian court in any part of the United Kingdom.
(6) In this section—
“enforcement order” means an order under regulations made under section 322 (orders for enforcement by prescribed courts of fines etc);
“relevant service court” means the Court Martial, the Service Civilian Court, the Court Martial Appeal Court or the Supreme Court on an appeal brought from the Court Martial Appeal Court.
269B Service compensation orders: power to set maximum term of imprisonment for default
(1) This section applies where—
(a) the Court Martial makes a service compensation order and the person by whom the compensation is payable is aged 18 or over; and
(b) the court thinks that the usual default term is insufficient.
(2) In subsection (1) “the usual default term” means the period for which the person would be liable to be committed to prison for default if—
(a) an enforcement order were made; and
(b) by virtue of that order, the amount payable under the service compensation order were treated as if it had been a fine imposed on a conviction by a magistrates' court in England and Wales.
(3) Where this section applies, the court may specify a longer period as the maximum term to which the person is liable to be committed to prison for default if an enforcement order is made.
(4) The Table in section 129(4) of the Sentencing Code (maximum periods of imprisonment for default), as for the time being in force, applies for the purpose of determining the maximum periods of imprisonment that may be specified under this section for service compensation orders of the amounts set out in that Table.
(5) In this section “enforcement order” has the same meaning as in section 269A.
269C Orders under section 269A or 269B against service parents or service guardians: appeals
(1) This section applies where—
(a) the Court Martial makes an order under section 268 in respect of a fine or service compensation order (fine or compensation to be paid by service parent or service guardian); and
(b) the court also makes an order under section 269A or 269B (“a default term order”) in respect of the parent or guardian (“P”).
(2) For the purposes of the Court Martial Appeals Act 1968—
(a) the default term order is to be treated as a sentence passed on P for the offence in respect of which the fine or service compensation order was imposed; and
(b) P is to be treated, for the purpose of enabling P to appeal against the default term order, as if P had been convicted of the offence by the Court Martial.
(3) For the purposes of any appeal against the default term order, references in section 16A of the Court Martial Appeals Act 1968 to passing a sentence include making an order.
(4) On an appeal against the default term order, the Court Martial Appeal Court may (as an alternative to exercising its powers under section 16A(2) of that Act) quash the order; but this is subject to subsection (5).
(5) If the default term order was made under section 269A, the power under subsection (4) may only be exercised if the court also quashes the order under section 268.
270 Community punishments: general restrictions etc
(1) A court must not award a community punishment 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 punishment.
(2) Where a court awards a community punishment—
(a) the particular requirement (or requirements) included in the order must be such as the court considers the most suitable for the offender; and
(b) the restrictions on liberty imposed by the order must be such as in the opinion of the court are commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.
(2A) Subsection (2) is subject to section 208(10) and (11) of the Sentencing Code (community orders: punitive elements) as applied by section 178(3) and section 182(3A).
(3) In forming any such opinion as is mentioned in subsection (1) or (2)(b), 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.
(4) In forming an opinion for the purposes of subsection (2)(a) the court may take into account any information about the offender which is before it.
(5) In determining the restrictions on liberty to be imposed by a community punishment in respect of an offence, the court may have regard to any period for which the offender has, since being charged with the offence or any related offence, been kept in service custody in connection with the offence or any related offence.
(6) In subsection (5) “related offence” has the meaning given by section 247.
(6A) The fact that by virtue of any provision of this section—
(a) a community punishment may be awarded in respect of an offence, or
(b) particular restrictions on liberty may be imposed by a community punishment,
does not require a court to award such a punishment or to impose those restrictions.
(7) Subsections (1) and (2)(b) are subject to section 270A.
270A Exception to restrictions on community punishments
(1) If the conditions in subsection (2) are met, the power to award a community punishment in respect of an offence (“the current offence”) may be exercised even though the court would not otherwise regard—
(a) the current offence, or
(b) the combination of the current offence and one or more offences associated with it,
as serious enough to warrant a community punishment (despite the effect of section 238(1)(b)).
(2) The conditions referred to in subsection (1) are—
(a) that the offender was aged 16 or over when convicted of the current offence;
(b) that on three or more previous occasions the offender has been awarded a relevant financial penalty; and
(c) that the court, having regard to all the circumstances, considers that it would be in the interests of justice to award a community punishment.
(3) In subsection (2)(b) a “relevant financial penalty” means a sentence consisting only of a fine—
(a) passed on the offender in respect of a service offence ... committed by the offender when aged 16 or over; or
(b) passed on the offender on conviction by a civilian court in the British Islands of an offence so committed; ...
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) For the purposes of subsection (2)(b) it is immaterial whether the offender has on other previous occasions been awarded a sentence other than a relevant financial penalty.
(5) The circumstances which must be had regard to under subsection (2)(c) include—
(a) the nature of the offences for which the relevant financial penalties were awarded;
(b) the relevance of those offences to the current offence; and
(c) the time that has elapsed since those penalties were awarded.
(6) For the purposes of subsection (3), none of the following forms part of an offender's sentence—
(za) a criminal courts charge order (or an order under section 21A of the Prosecution of Offences Act 1985 (criminal courts charge));
(a) a service compensation order;
(b) a compensation order under—
(i) section 133 of the Sentencing Code (or section 130 of the Powers of Criminal Courts (Sentencing) Act 2000);
(ii) section 249 of the Criminal Procedure (Scotland) Act 1995; or
(iii) Article 14 of the Criminal Justice (Northern Ireland) Order 1994;
(c) a surcharge under section 42 of the Sentencing Code (or section 161A of the 2003 Act) ;
(d) an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.
(e) a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015.
(7) This section does not limit the extent to which a court may, in accordance with section 238, treat previous convictions of the offender as increasing the seriousness of an offence.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Nothing in this Part affects a civilian court dealing with an offender for a service offence.
(2) The Secretary of State may by regulations modify—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) any ... enactment that confers functions on sentencing courts,
in its application to a civilian court dealing with an offender for a service offence.
(1) The Courts-Martial Appeal Court is renamed the Court Martial Appeal Court.
(2) Schedule 8 (amendment of the Courts-Martial (Appeals) Act 1968) has effect.
273 Review of unduly lenient sentence by Court Martial Appeal Court
(1) If the Attorney General considers—
(a) that a sentence passed by the Court Martial in respect of an offence under section 42 (criminal conduct) is unduly lenient, and
(b) that condition A or B is satisfied,
he may refer the case to the Court Martial Appeal Court for it to review the sentencing of the offender.
(2) Condition A is that the corresponding offence under the law of England and Wales is under that law an offence which, if committed by an adult, is triable only on indictment.
(3) Condition B is that the case is of a description specified for the purposes of this subsection in an order made by the Secretary of State.
(4) A reference under subsection (1) may not be made without the leave of the Court Martial Appeal Court.
(5) On a reference under subsection (1), the Court Martial Appeal Court may—
(a) quash the sentence passed by the Court Martial; and
(b) pass in substitution for it any sentence which the Court Martial Appeal Court thinks appropriate and which is a sentence that the Court Martial had power to pass in respect of the offence.
(6) For the purposes of subsection (1)(a), the Attorney General may consider that a sentence passed by the Court Martial is unduly lenient if he considers—
(a) that the Court Martial erred in law as to its powers of sentencing; or
(b) that the sentence is not that required by —
(i) 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);
(ii) 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);
(iii) section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18);
(iv) section 313(2A) of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);
(v) section 314(2A) of the Sentencing Code as a result of section 226(2) (third domestic burglary);
(vi) section 311(2) of the Sentencing Code as a result of section 227(2) (firearms offences); or
(vii) section 227A(1A) or (2) (threatening with a weapon in public or on school premises);
but nothing in this subsection limits subsection (1)(a).
(7) Where a reference under subsection (1) relates to a case in which the Court Martial made a minimum term order under section 321 of the Sentencing Code, the Court Martial Appeal Court may not, in deciding what sentence is appropriate for the case, make any allowance for the fact that the offender is being sentenced for a second time.
(7A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) The reference in subsection (1)(a) to a sentence passed by the Court Martial does not include one passed on an appeal under section 285 (appeal from Service Civilian Court).
(9) In this section and section 274 “sentence” includes any order made by a court when dealing with an offender.
(1) Where the Court Martial Appeal Court has concluded its review of a case referred to it under section 273(1), the Attorney General or the offender may refer to the Supreme Court a point of law involved in any sentence passed on the offender in the proceedings.
(2) A reference under subsection (1) may not be made without the leave of the Court Martial Appeal Court or the Supreme Court.
(3) Such leave may not be given unless—
(a) the Court Martial Appeal Court has certified that the point of law is of general public importance; and
(b) it appears to the Court Martial Appeal Court or the Supreme Court (as the case may be) that the point is one which should be considered by the Supreme Court.
(4) The Supreme Court must give its opinion on any point of law referred to it under subsection (1) and must—
(a) remit the case to the Court Martial Appeal Court to be dealt with; or
(b) deal with the case itself.
(5) For the purposes of dealing with a case itself the Supreme Court may exercise any powers of the Court Martial Appeal Court.
275 Power to make supplementary provision about review of sentence
(1) The Secretary of State may by regulations make supplementary provision with respect to references under section 273(1) or 274(1) (including provision with respect to applications, proceedings and other matters in connection with such references).
(2) The regulations may in particular include provision which is equivalent to that made by, or capable of being made under, any provision of—
(a) this Act,
(b) the Court Martial Appeals Act 1968 (c. 20), or
(c) Schedule 3 to the Criminal Justice Act 1988 (c. 33) (reviews of sentencing; supplementary),
subject to such modifications as the Secretary of State considers appropriate.
(1) Where—
(a) a person has been convicted by the Court Martial, and
(b) subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice,
the Secretary of State shall pay compensation for the miscarriage of justice to him or, if he is dead, to his personal representatives; but this is subject to subsections (2) to (3A).
(2) Compensation under this section is not payable if the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
(3) Compensation under this section is not payable unless an application for such compensation has been made to the Secretary of State before the end of the period of 2 years beginning with the date on which the conviction of the person concerned is reversed or he is pardoned.
(3A) But the Secretary of State may direct that an application for compensation made after the end of that period is to be treated as if it had been made within that period if the Secretary of State considers that there are exceptional circumstances which justify doing so.
(4) The question whether there is a right to compensation under this section is to be determined by the Secretary of State.
(5) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation is to be assessed by an assessor appointed by the Secretary of State.
(6) Section 276A applies in relation to the assessment of the amount of the compensation.
(7) The reference in subsection (1) to a conviction having been reversed is to be read as a reference to a conviction having been quashed—
(a) on an appeal out of time;
(b) on a reference under section 34 of the Court Martial Appeals Act 1968 (c. 20); or
(c) on a reference under section 12A of the Criminal Appeal Act 1995.
(7A) But in a case where—
(a) a person's conviction for an offence is quashed on an appeal out of time, and
(b) the person is to be subject to a retrial,
the conviction is not to be treated for the purposes of subsection (1) as “reversed” unless and until the person is acquitted of all offences at the retrial or the prosecution indicates that it has decided not to proceed with the retrial.
(8) Schedule 9 (provision with regard to assessors) has effect.
276A Miscarriages of justice: amount of compensation
(1) This section applies where an assessor is required to assess the amount of compensation payable to or in respect of a person under section 276 for a miscarriage of justice.
(2) In assessing so much of any compensation payable under section 276 as is attributable to suffering, harm to reputation or similar damage, the assessor must have regard in particular to—
(a) the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction, and
(b) the conduct of the investigation and prosecution of the offence.
(3) The assessor may make from the total amount of compensation that the assessor would otherwise have assessed as payable under section 276 any deduction or deductions that the assessor considers appropriate by reason of either or both of the following—
(a) any conduct of the person appearing to the assessor to have directly or indirectly caused, or contributed to, the conviction concerned; and
(b) any other convictions of the person and any punishment resulting from them.
(4) If, having had regard to any matters falling within subsection (3)(a) or (b), the assessor considers that there are exceptional circumstances which justify doing so, the assessor may determine that the amount of compensation payable under section 276 is to be a nominal amount only.
(5) The total amount of compensation payable to or in respect of a person under section 276 for a particular miscarriage of justice must not exceed the overall compensation limit. That limit is—
(a) £1,300,000 in a case to which section 276B applies, and
(b) £650,000 in any other case.
(6) The total amount of compensation payable under section 276 for a person's loss of earnings or earnings capacity in respect of any one year must not exceed the earnings compensation limit.
That limit is an amount equal to 1.5 times the median annual gross earnings according to the latest figures published by the Office of National Statistics at the time of the assessment.
(7) The Secretary of State may by order amend subsection (5) or (6) so as to alter any amount for the time being specified as the overall compensation limit or the earnings compensation limit.
276B Cases where person has been detained for at least 10 years
(1) For the purposes of section 276A(5) this section applies to any case where the person concerned (“P”) has been in qualifying detention for a period (or total period) of at least 10 years by the time when—
(a) the conviction is reversed, or
(b) the pardon is given,
as mentioned in section 276(1).
(2) P was “in qualifying detention” at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—
(a) by virtue of a sentence passed in respect of the relevant offence,
(b) under mental health legislation by reason of P's conviction of that offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or
(c) as a result of P's having been ordered to be kept in service custody, or remanded for mental health purposes, in connection with the relevant offence or with any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.
(3) In calculating the period (or total period) during which P has been in qualifying detention as mentioned in subsection (1), no account is to be taken of any period of time during which P was both—
(a) in qualifying detention, and
(b) in excluded concurrent detention.
(4) P was “in excluded concurrent detention” at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—
(a) during the term of a sentence passed in respect of an offence other than the relevant offence,
(b) under mental health legislation by reason of P's conviction of any such other offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or
(c) as a result of P's having been ordered to be kept in service custody, or remanded for mental health purposes, in connection with an offence for which P was subsequently convicted other than—
(i) the relevant offence, or
(ii) any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.
(5) But P was not “in excluded concurrent detention” at any time by virtue of subsection (4)(a), (b) or (c) if P's conviction of the other offence mentioned in that provision was quashed on appeal, or a pardon was given in respect of it.
(6) In this section—
“kept in service custody” means—
kept in service custody under section 105(2) of the Armed Forces Act 2006, or
kept in military, air-force or naval custody under section 75A(2) of the Army Act 1955 or of the Air Force Act 1955 or section 47G(2) of the Naval Discipline Act 1957 (as the case may be);
“mental health legislation” means—
Part 3 of the Mental Health Act 1983, or
the provisions of any earlier enactment corresponding to Part 3 of that Act;
“the relevant offence” means the offence in respect of which the conviction is quashed or the pardon is given (but see subsection (7));
“remanded for mental health purposes” means remanded or admitted to hospital under section 35, 36 or 38 of the Mental Health Act 1983 or under any corresponding provision of any earlier enactment;
“reversed” has the same meaning as in section 276 of this Act.
(7) If, as a result of the miscarriage of justice—
(a) two or more convictions are reversed, or
(b) a pardon is given in respect of two or more offences,
“the relevant offence” means any of the offences concerned.
(1) There shall be a court, to be known as the Service Civilian Court.
(2) The Service Civilian Court may sit in any place, whether within or outside the United Kingdom.
278 Constitution and proceedings of the Service Civilian Court
(1) In any proceedings, the Service Civilian Court is to consist of a single judge advocate.
(2) The judge advocate for any proceedings is to be specified by or on behalf of the Judge Advocate General.
(3) Schedule 10 (proceedings of the Service Civilian Court) has effect.
279 Court must consider whether trial by Court Martial more appropriate
(1) Before arraignment, the Service Civilian Court must decide whether it or the Court Martial should try the charge.
(2) Before making a decision under this section, the court must—
(a) give the Director of Service Prosecutions (“the Director”) an opportunity to inform the court of the defendant's previous convictions (if any); and
(b) give the Director and the defendant an opportunity to make representations as to whether the Service Civilian Court or the Court Martial should try the charge.
(3) In making a decision under this section, the court must consider—
(a) the nature of the case;
(b) the seriousness of the offence;
(c) whether its powers of punishment in respect of the offence would be adequate;
(d) any other circumstances it considers to be relevant; and
(e) any representations made by the Director and the defendant.
(4) If the court decides that the charge should be tried by the Court Martial—
(a) it must refer the charge to that court; and
(b) the charge is to be regarded for the purposes of Part 5 as allocated for Court Martial trial.
(5) Section 238(3) (meaning of “previous conviction”) applies for the purposes of subsection (2)(a) above.
280 Right to elect trial by Court Martial instead of by SCC
(1) This section applies where the Service Civilian Court decides (under section 279) that it should try a charge.
(2) Before arraignment the court must, in the way specified by SCC rules, give the defendant the opportunity of electing Court Martial trial of the charge.
(3) If the defendant or (if more than one person is jointly charged) any of the defendants elects Court Martial trial of the charge—
(a) the Service Civilian Court must refer the charge to the Court Martial; and
(b) the charge is to be regarded for the purposes of Part 5 as allocated for Court Martial trial.
(4) If subsection (3) does not apply, the Service Civilian Court must try the charge (but this is subject to the exercise by the Director of Service Prosecutions of the power under section 126(2)(b), (d) or (e)).
(5) Where the Service Civilian Court is, in accordance with SCC rules, to try together two or more charges against the defendant, an election for Court Martial trial in respect of any of the charges takes effect as an election in respect of all of them.
281 Power of SCC to convict of offence other than that charged
Section 161 (power of Court Martial to convict of offence other than that charged) applies in relation to the Service Civilian Court as it applies in relation to the Court Martial.
282 Punishments available to Service Civilian Court
(1) Section 164 and Schedule 3 (punishments available to Court Martial) apply in relation to the Service Civilian Court as they apply in relation to the Court Martial.
(2) Subsection (1) is subject to—
(a) sections 283 and 284 (maximum imprisonment, fine or compensation order that may be awarded by SCC); and
(b) subsection (3).
(3) Where the Service Civilian Court sentences an offender to whom Part 2 of Schedule 3 applies, it may not award a punishment mentioned in any of rows 2 to 5 or 8 of the Table in section 164 (as modified by that Part of that Schedule).
(1) The Service Civilian Court may not impose imprisonment for more than 6 months in respect of any one offence.
(2) Where the Service Civilian Court imposes two or more terms of imprisonment to run consecutively their aggregate must not exceed 12 months.
(3) In this section, references to imprisonment include detention in a young offender institution.
284 Fines and compensation orders: maximum amounts
(1) The Service Civilian Court may not in respect of any one offence impose a fine exceeding the prescribed sum.
(2) Where the Service Civilian Court convicts a person of an offence under section 42 (criminal conduct), it may not impose a fine which a magistrates' court in England or Wales could not impose on him for the corresponding offence under the law of England and Wales.
(2A) The following subsections apply if (but only if) the Service Civilian Court has convicted a person aged under 18 (“the offender”) of an offence or offences.
(3) The compensation to be paid under a service compensation order made by the Service Civilian Court in respect of the offence, or any one of the offences, must not exceed the amount for the time being mentioned in section 139(2) of the Sentencing Code (limit on compensation order made by magistrates' court).
(4) The compensation or total compensation to be paid under a service compensation order or service compensation orders made by the Service Civilian Court in respect of any offence or offences taken into consideration in determining sentence must not exceed the difference (if any) between—
(a) the amount or total amount which under subsection (3) is the maximum for the offence or offences of which the offender has been convicted; and
(b) the amount or total amounts (if any) which are in fact ordered to be paid in respect of that offence or those offences.
(1) A person convicted by the Service Civilian Court may appeal to the Court Martial—
(a) if he pleaded guilty, against his sentence;
(b) if he did not plead guilty, against his conviction or sentence.
(2) It is immaterial for the purposes of subsection (1)(a), and of subsection (1)(b) so far as relating to sentence, whether the sentence was passed on conviction or in subsequent proceedings.
(3) Subject to subsection (4), any appeal under this section must be brought—
(a) within the period of 28 days beginning with the date on which the person was sentenced (“the initial period”); or
(b) within such longer period as the Court Martial may allow by leave given before the end of the initial period.
(4) The Court Martial may at any later time give leave for an appeal to be brought within such period as it may allow.
(5) The respondent to an appeal under this section is the Director of Service Prosecutions.
(6) In this section “sentence” includes any order made by a court when dealing with an offender.
(1) This section applies in relation to appeals under section 285.
(2) An appeal against conviction is to be by way of a rehearing of the charge (including, where the appellant is convicted, a rehearing as respects sentence).
(3) An appeal against sentence is to be by way of a rehearing as respects sentence.
(4) Subject to subsections (5) and (6) and to such modifications as may be contained in Court Martial rules, Parts 7 to 9 of this Act apply in relation to appeals as they apply in relation to trials by the Court Martial.
(5) The following may not be a member of the court hearing the appeal—
(a) the judge advocate who tried or sentenced the appellant;
(b) any other judge advocate before whom there was (in the proceedings under appeal) a hearing.
(6) The Court Martial may only pass a sentence that the Service Civilian Court had power to pass in respect of the offence.
(7) In this section and section 287—
(a) “sentence” includes any order;
(b) references to the passing of a sentence include references to the making of an order.
287 Findings made and sentences passed by Court Martial on appeal from SCC
(1) Any finding made, or sentence passed, by the Court Martial on an appeal under section 285 replaces the finding or sentence of the Service Civilian Court.
(2) Unless the Court Martial otherwise directs, any sentence passed on such an appeal takes effect from the beginning of the day on which the Service Civilian Court passed sentence.
(3) Subsection (4) applies where a sentence is passed on a person on an appeal under section 285 against sentence.
(4) The person is to be treated, for the purpose of enabling him to appeal under the Court Martial Appeals Act 1968 (c. 20) against the sentence, as if he had been convicted by the Court Martial of the offence in respect of which the sentence was passed.
(1) The Secretary of State may by rules (referred to in this Act as “SCC rules”) make provision with respect to the Service Civilian Court.
(2) SCC rules may in particular make provision with respect to—
(a) sittings of the court, including the place of sitting and changes to the place of sitting;
(b) trials and other proceedings of the court;
(c) the practice and procedure of the court;
(d) evidence, including the admissibility of evidence;
(e) the representation of the defendant.
(3) Without prejudice to the generality of subsections (1) and (2), SCC rules may make provision—
(a) as to oaths and affirmations for judge advocates, witnesses and other persons;
(b) as to objections to, and the replacement of, judge advocates;
(c) for procuring the attendance of witnesses and other persons and the production of documents and other things, including provision about—
(i) the payment of expenses to persons summoned to attend the court;
(ii) the issue by the court of warrants for the arrest of persons;
(d) as to the amendment of charges;
(e) for the taking into consideration, when sentencing an offender, of any other service offence committed by him;
(ea) for the variation or rescission by the court of a sentence passed by it, or an order under section 193 made by it, in a case where it appears to the court that it had no power to award such a sentence or (as the case may be) to make such an order;
(f) for the discharge of a court (including provision as to retrials and rehearings following discharge);
(g) for the making and retention of records of proceedings of the court;
(h) for the supply of copies of such records, including provision about the fees payable for the supply of such copies;
(i) conferring functions in relation to the court on the court administration officer;
(j) for the delegation by the court administration officer of any of his functions in relation to the court.
(4) Provision that may be made by the rules by virtue of subsection (2)(d) includes provision applying, with or without modifications, any enactment (whenever passed) creating an offence in respect of statements admitted in evidence.
(5) Provision that may be made by the rules by virtue of subsection (3)(c)(ii) includes provision—
(a) conferring powers of arrest;
(b) requiring any arrested person to be brought before the court;
(c) authorising the keeping of persons in service custody, and the imposition of requirements on release from service custody (including provision applying section 107(5) and (6) with or without modifications).
(6) SCC rules must secure that, after arraignment, charges may not be amended—
(a) in circumstances substantially different from those in which charges may be amended in magistrates' courts in England and Wales; or
(b) otherwise than subject to conditions which correspond, as nearly as circumstances permit, to those subject to which charges may be so amended.
(6A) Rules made by virtue of subsection (3)(ea) may make provision about the commencement of sentences or orders varied by the court (including provision conferring on the court a power to direct that a sentence is to take effect otherwise than as mentioned in section 289(1)).
(7) SCC rules may apply, with or without modifications, any enactment or subordinate legislation (whenever passed or made), including any provision made by or under this Act.
289 Commencement of sentences of the Court Martial and Service Civilian Court
(1) A sentence passed by the Court Martial or the Service Civilian Court takes effect from the beginning of the day on which it is passed.
(2) Subsection (1) does not apply to—
(a) a suspended sentence of imprisonment or service detention; or
(b) a sentence passed by the Court Martial on appeal from the Service Civilian Court.
(3) Subsection (1) is subject to any power conferred by or under any Act (including this Act) to direct that a sentence shall take effect otherwise than as mentioned in subsection (1).
290 Commencement of term of service detention awarded by CO
(1) This section applies where an officer—
(a) awards a term of service detention (other than a suspended sentence of service detention); and
(b) does not make a direction under section 189(3) in respect of the award (consecutive sentences of service detention).
(2) If the offender so elects at the time of the award, the award takes effect from the beginning of the day on which the award is made.
(3) If no election is made under subsection (2), the award—
(a) takes effect from the end of the appeal period (unless an appeal is brought within that period);
(b) if an appeal is brought within that period, takes effect from the beginning of the day when the appeal is abandoned or determined.
(4) An election under subsection (2) may be withdrawn at any time until the end of the appeal period.
(5) If an election is withdrawn, the remainder of the award ceases to have effect from the beginning of the day of withdrawal and resumes effect—
(a) from the end of the appeal period (unless an appeal is brought within that period);
(b) if an appeal is brought within that period, from the beginning of the day when the appeal is abandoned or determined.
(6) If an award takes or resumes effect under subsection (2), (3)(a) or (5)(a) and an appeal is subsequently brought, the remainder of the award—
(a) ceases to have effect from the beginning of the day when the appeal is brought; and
(b) resumes effect from the beginning of the day when the appeal is abandoned or determined.
(7) In this section “appeal period” means the period mentioned in section 141(2) for the bringing of an appeal.
(8) Nothing in subsection (3)(b), (5)(b) or (6)(b) applies where the appeal is determined and, on that determination, the award is quashed or another punishment is substituted for it.
291 Commencement of consecutive term of service detention awarded by CO
(1) This section applies where an officer—
(a) awards a term of service detention; and
(b) directs under section 189(3) that the award shall take effect from the end of another sentence of service detention (“the initial sentence”).
(2) The offender may at the time of the award make an election under this subsection.
(3) Such an election may be withdrawn at any time until the end of the appeal period.
(4) If the offender—
(a) makes an election under subsection (2), and
(b) does not withdraw the election, or bring an appeal, before the end of the initial sentence,
the award takes effect from the end of the initial sentence.
(5) If subsection (4) does not apply, the award—
(a) takes effect from the end of the initial sentence or (if later) the end of the appeal period (unless an appeal is brought before that time);
(b) if an appeal is brought before the end of the initial sentence or (if later) the end of the appeal period, takes effect from the end of the initial sentence or (if later) the beginning of the day when the appeal is abandoned or determined.
(6) If an election is withdrawn after the end of the initial sentence, the remainder of the award ceases to have effect from the beginning of the day of withdrawal and resumes effect—
(a) from the end of the appeal period (unless an appeal is brought within that period);
(b) if an appeal is brought within that period, from the beginning of the day when the appeal is abandoned or determined.
(7) If an award takes or resumes effect under subsection (4), (5)(a) or (6)(a) and an appeal is subsequently brought, the remainder of the award—
(a) ceases to have effect from the beginning of the day when the appeal is brought; and
(b) resumes effect from the beginning of the day when the appeal is abandoned or determined.
(8) In this section “appeal period” means the period mentioned in section 141(2) for the bringing of an appeal against the award mentioned in subsection (1)(a) above.
(9) Nothing in subsection (5)(b), (6)(b) or (7)(b) applies where the appeal is determined and, on that determination, the award is quashed or another punishment is substituted for it.
292 Commencement of suspended sentence activated by CO
(1) This section applies where an officer makes an order (“the activation order”) under section 193(3) (activation of suspended award of service detention).
(2) If the activation order does not provide that the suspended sentence shall take effect from the end of another sentence, section 290(2) to (8) apply, but with the following modifications—
(a) the reference in subsection (2) to the time of the award is to be read as to the time when the activation order is made;
(b) the reference in subsection (2) to the day on which the award is made is to be read as to the day on which the activation order is made;
(c) any other reference to “the award” in subsections (2) to (7) is to the award of service detention to which the activation order relates (with any modification of its term made by the activation order);
(d) the reference in subsection (7) to an appeal is to an appeal against the activation order; and
(e) in subsection (8)—
(i) the reference to the award is to be read as to the activation order; and
(ii) the reference to another punishment is to be read as to another order under section 193(3).
(3) If the activation order provides that the suspended sentence shall take effect from the end of another sentence (“the initial sentence”), section 291(2) to (9) apply, but with the following modifications—
(a) the reference in subsection (2) to the time of the award is to be read as to the time when the activation order is made;
(b) any reference to “the initial sentence” is to the initial sentence as defined by this subsection;
(c) any reference to “the award” in subsections (4) to (7) is to the award of service detention to which the activation order relates (with any modification of its term made by the activation order);
(d) the reference in subsection (8) to the award mentioned in section 291(1)(a) is to be read as to the activation order; and
(e) in subsection (9)—
(i) the reference to the award is to be read as to the activation order; and
(ii) the reference to another punishment is to be read as to another order under section 193(3).
294 Rank or rate of WOs and NCOs while in custody pursuant to custodial sentence etc
(1) While a warrant officer or non-commissioned officer is in custody in pursuance of a sentence or order to which this section applies, he is for all purposes to be treated as being—
(a) if he is a member of any of Her Majesty's air forces, of the highest rank he has held in that force as an airman;
(b) otherwise, of the rank or rate of able rate, marine or soldier (as the case may be).
(2) The sentences to which this section applies are—
(a) a custodial sentence passed in respect of a service offence;
(b) a sentence of service detention;
(c) a sentence of imprisonment, or a sentence corresponding to any other custodial sentence, passed by a civilian court in the British Islands.
(3) The orders to which this section applies are—
(a) an order under section 214 (detention for commission of offence during currency of order);
(b) an order under paragraph 3 of Schedule 12 to the Sentencing Code (detention of offender subject to detention and training order for breach of supervision requirements);
(c) an order made by a civilian court in the British Islands corresponding to an order within paragraph (a) or (b).
(1) This section applies where a sentence of dismissal or dismissal with disgrace is passed on an offender.
(2) If the offender is a commissioned officer, his commission is forfeit with effect from the beginning of the day on which the sentence is passed.
(3) If the offender is not a commissioned officer, the competent authority must discharge him from the regular or reserve force of which he is a member.
(4) If the offender is a warrant officer or non-commissioned officer, his rank or rate is reduced from the beginning of the day on which the sentence is passed—
(a) if he is a member of any of Her Majesty's air forces, to the highest rank he has held in that force as an airman;
(b) otherwise, to able rate, marine or soldier (as the case may be).
(5) Nothing in subsection (3) requires the offender to be discharged before he is released from any sentence of service detention—
(a) which is passed on him on the same occasion as the sentence mentioned in subsection (1); or
(b) to which he is subject when that sentence is passed.
(1) A person sentenced to service detention—
(a) may be detained in service custody; but
(b) may not be detained in a prison.
(2) Subsection (1)(a) does not apply if—
(a) the sentence has not taken effect; or
(b) the sentence has ceased to have effect by virtue of section 290 or 291 and has not resumed effect.
(3) A person detained in service custody in pursuance of a sentence of service detention is deemed to be in legal custody.
297 Detention in service custody following passing of custodial sentence etc
(1) Where—
(a) a custodial sentence has been passed on a person in respect of a service offence, or
(b) an order under section 214 (detention for commission of offence during currency of order) has been made in respect of a person,
the person may be detained in service custody until he is committed to the appropriate establishment.
(2) For the purposes of subsection (1), a suspended sentence of imprisonment is to be treated as passed when an order that the sentence shall take effect is made.
(3) A person in service custody under subsection (1) is deemed to be in legal custody.