Armed Forces Act 2006 (c. 52)

(The document as of February, 2008)

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(3) The appropriate court may exercise a power conferred by subsection (1) only if it appears to the court--

(a) that the injury, loss or damage in respect of which the service compensation order was made has been held in civil proceedings to be less than it was taken to be for the purposes of the order;

(b) in the case of a service compensation order in respect of the loss of any property, that the property has been recovered by the person in whose favour the order was made; or

(c) that the person against whom the service compensation order was made has suffered a substantial reduction in his means which was unexpected at the time when the order was made, and that his means seem unlikely to increase for a considerable period.

(4) In this section "the appropriate court" means--

(a) if the service compensation order was awarded by an officer and subsection (5) applies, the commanding officer of the person against whom the service compensation order was made;

(b) in any other case, the Court Martial.

(5) This subsection applies if the person against whom the service compensation order was made is for the time being--

(a) subject to service law;

(b) a member of a volunteer reserve force; or

Service community orders (civilians and dismissed servicemen only)

178 Service community orders

(1) A service community order is an order--

(a) imposing on the offender one or more of the requirements mentioned in section 177(1) of the 2003 Act (community orders under that Act); and

(b) specifying the local justice area in England and Wales, or (as the case may be) the locality in Scotland or the petty sessions district in Northern Ireland, where the offender resides or will reside.

(2) The power to include in the order one or more of the requirements mentioned in section 177(1) of the 2003 Act is subject to--

(a) any restriction that section 177(1) imposes in relation to a particular requirement;

(b) the provisions of the 2003 Act mentioned in the paragraphs of section 177(2) of that Act; and

(3) In the following provisions of the 2003 Act "community order" includes a service community order under this Act--

section 177(3) to (6) (provision about the making of community orders);
section 178 (power to provide for court review of community orders);
Chapter 4 of Part 12 (further provision about orders).

(4) In those provisions in their application in relation to a service community order under this Act, "court" includes a relevant service court.

(5) The following provisions of the 2003 Act do not apply in relation to a service community order under this Act--

section 207(3)(a)(ii) (condition for mental health treatment requirement);
section 219(3) (requirement to give copy of order to magistrates' court).

(6) For the purposes of this section each of the following is a relevant service court--

(a) the Court Martial;

(b) the Service Civilian Court;

(d) the Supreme Court on an appeal brought from the Court Martial Appeal Court.

179 Periodic review etc of service community orders

(1) In section 210 of the 2003 Act (provision for periodic reviews of drug rehabilitation requirement) as it applies to a service community order under this Act--

(a) "the court responsible for the order" means the Crown Court; and

(b) subsections (2) to (4) shall be treated as omitted.

(2) Section 211 of that Act (periodic reviews of drug rehabilitation requirement) has effect in its application to such an order as if for subsections (3) to (5) there were substituted--

" (3A) If the offender fails to express his willingness to comply with the drug rehabilitation requirement as proposed to be amended by the court, the court may revoke the service community order and deal with him, for the offence in respect of which the order was made--

(a) if that offence is an offence punishable with imprisonment, in any way in which it could deal with him if he had just been convicted before the court of an offence punishable with imprisonment;

(b) if it is not an offence punishable with imprisonment, in any way in which it could deal with him if he had just been convicted before the court of an offence not punishable with imprisonment.

(3B) In dealing with the offender under subsection (3A) the court--

(a) must take into account the extent to which the offender has complied with the requirements of the order, and

(b) where subsection (3A)(a) applies, may impose a sentence of imprisonment notwithstanding anything in section 152(2).

(3C) A term of imprisonment or fine imposed under subsection (3A)--

(a) must not exceed the maximum permitted for the offence in respect of which the order was made, and

(b) where the order was made by the Service Civilian Court, must not exceed--

(i) in the case of a term of imprisonment, 12 months;

(ii) in the case of a fine, the prescribed sum within the meaning of section 32 of the Magistrates' Courts Act 1980 (c. 43). "

(3) Where a sentence is passed under section 211(3A) of the 2003 Act as substituted by subsection (2) above, section 9 of the Criminal Appeal Act 1968 (c. 19) (appeal against sentence) applies as if the offender had been convicted on indictment of the offence for which the sentence was passed.

180 Transfer of service community order to Scotland or Northern Ireland

(1) In Schedule 9 to the 2003 Act (transfer of community orders to Scotland or Northern Ireland)--

(a) "community order" includes a service community order under this Act; and

(b) in the provisions mentioned in subsection (2), "court" includes a relevant service court.

(2) Those provisions are paragraphs 1(1) and (5), 2(1), 3(1), 4(1), 6, 9 (except 9(b)) and 10(c) and (d).

(3) In its application to a service community order under this Act, that Schedule has effect as if--

(a) the reference in paragraph 9(c) to the powers of the court making or amending the order were to the powers of the Crown Court;

(b) the reference in paragraph 11 to a community order made in England and Wales included a service community order made (anywhere) under this Act;

(c) the reference in paragraph 11 to the court which made the order or the court which last amended the order in England and Wales were to the Crown Court; and

(d) the reference in paragraph 15 to the court which made the order were to the Crown Court.

(4) In this section "relevant service court" has the meaning given by section 178(6).

181 Breach, revocation or amendment of service community order

Part 1 of Schedule 5 (application of Schedule 8 to the 2003 Act to service community orders) has effect.

Overseas community orders (civilians only)

182 Overseas community orders

(1) An overseas community order is an order--

(a) imposing on the offender one or more of the requirements mentioned in section 177(1) of the 2003 Act (community orders under that Act); and

(b) not specifying anywhere as an area where the offender resides or will reside.

(2) The order may include a particular requirement mentioned in section 177(1) of the 2003 Act only if the court is satisfied--

(a) that the requirement, and the arrangements (if any are needed) that will be made in connection with it, are such that the offender will be able to comply with the requirement in the area where he resides or will reside; and

(b) that arrangements will be made for the supervision of his compliance with the requirement.

(3) The power to include in the order one or more of the requirements mentioned in section 177(1) of the 2003 Act is also subject to--

(a) the provisions mentioned in the paragraphs of section 177(2) of that Act; and

(b) Schedule 6 to this Act (special provisions for young offenders).

(4) Subject to section 183 below, in the following provisions of the 2003 Act "community order" includes an overseas order--

section 177(5) and (6) (provision about the making of community orders);
Chapter 4 of Part 12 (further provision about orders).

(5) In those provisions in their application in relation to an overseas community order, "court" includes a relevant service court.

(6) For the purposes of this section each of the following is a relevant service court--

(a) the Court Martial;

(b) the Service Civilian Court;

(d) the Supreme Court on an appeal brought from the Court Martial Appeal Court.

183 Overseas community orders: modifications of 2003 Act

(1) The following provisions of Chapter 4 of Part 12 of the 2003 Act do not apply in relation to overseas community orders--

section 197(1) and (2) (meaning of "the responsible officer");
section 207(3)(a)(ii) (condition for mental health treatment requirement);
sections 210 and 211 (periodic review of drug rehabilitation requirement);
section 215 (electronic monitoring requirement);
section 216 (requirement to specify local justice area);
section 218 (availability of arrangements in local justice area etc).

(2) The references in sections 201(7) and 202(7) of the 2003 Act to the local probation board for the area in which the premises are situated are to be read in relation to an overseas community order as references to a local probation board.

(3) The court by which an overseas community order is made must (as well as complying with so much as is applicable of section 219 of the 2003 Act) provide a copy of the order without delay--

(a) to the offender's commanding officer;

(b) if the offender is aged under 14, to his parent or guardian; and

(4) For the purposes of Part 12 of the 2003 Act "the responsible officer", in relation to an offender to whom an overseas community order relates, means the officer of a local probation board who, as respects the offender, is for the time being responsible for discharging the functions conferred by that Part on the responsible officer.

(5) The power conferred on the Secretary of State by section 197(3)(a) of the 2003 Act includes power to amend subsection (4) above.

184 Breach, revocation or amendment of overseas community order

Part 2 of Schedule 5 (application of Schedule 8 to the 2003 Act to overseas community orders) has effect.

Conditional or absolute discharge (civilians only)

185 Conditional or absolute discharge

(1) A conditional discharge is an order discharging the offender subject to the condition that he commits no service offence during a period specified in the order.

(2) The period specified in the order ("the period of conditional discharge") must--

(a) begin with the date of the order; and

(b) not exceed the maximum period for the time being specified in section 12(1)(b) of the Sentencing Act (maximum period of civilian conditional discharge).

(3) An absolute discharge is an order discharging the offender absolutely.

(4) Where by virtue of Schedule 3 a court sentences an offender by conditionally or absolutely discharging him, the sentence must not include any other punishment except a service compensation order.

186 Commission of further offence by person conditionally discharged

(1) This section applies where a person who has been conditionally discharged by virtue of Schedule 3 is convicted by the Court Martial or the Service Civilian Court ("the convicting court") of an offence committed during the period of conditional discharge.

(2) If the convicting court is the Court Martial, it may deal with him for the offence for which he was conditionally discharged in any way in which the court that conditionally discharged him could deal with him if it had just convicted him of that offence.

(3) If the convicting court is the Service Civilian Court, it may deal with him for the offence for which he was conditionally discharged in any way in which it could deal with him if it had just convicted him of that offence.

(4) If a person conditionally discharged is subsequently dealt with under this section for the offence in respect of which the order conditionally discharging him was made, that order ceases to have effect.

(5) A person who--

(a) is sentenced by a court under subsection (2) or (3) for an offence for which he was conditionally discharged, and

(b) was not convicted of that offence by that court,

is to be treated, for the purpose of enabling him to appeal against the sentence under section 285 below or the Court Martial Appeals Act 1968 (c. 20), as if he had been so convicted.

(6) Where subsection (3) applies and the offence for which the person was conditionally discharged is not one that the Service Civilian Court would have jurisdiction to try, it shall be assumed for the purposes of that subsection that it could have convicted him of the offence.

187 Effect of discharge

(1) A conviction of an offence for which an order under section 185 discharging the offender absolutely or conditionally is made shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 186.

(2) Where the offender was aged 18 or over at the time of his conviction of the offence in question and is subsequently dealt with under section 186 for that offence, subsection (1) ceases to apply to the conviction.

(3) Without prejudice to subsections (1) and (2), a conviction of an offence for which an order under section 185 discharging the offender absolutely or conditionally is made is in any event to be disregarded for the purposes of any enactment or instrument which--

(a) imposes any disqualification or disability on convicted persons; or

(b) authorises or requires the imposition of any such disqualification or disability.

(4) In subsection (3)--

"enactment" includes an enactment contained in an Act of the Scottish Parliament, in Northern Ireland legislation or in a local Act;
"instrument" means an instrument having effect by virtue of an Act or Northern Ireland legislation (and "Act" here includes an Act of the Scottish Parliament).

(5) Subsections (1) to (4) do not affect--

(a) any appeal, whether against conviction or otherwise;

(b) any right of the offender to rely on his conviction in bar of any subsequent proceedings for the same offence; or

Chapter 2 Consecutive Sentences

188 Consecutive custodial sentences

(1) This section applies where a court passes a qualifying custodial sentence on a person in respect of a service offence.

(2) In this section "qualifying custodial sentence" means--

(a) a determinate sentence of imprisonment;

(b) a determinate sentence of detention under section 209; or

(3) The court may direct--

(a) that the sentence shall take effect from the end of any other qualifying custodial sentence that the court passes on the person on the same occasion;

(b) that the sentence shall take effect from the end of any sentence to which this paragraph applies that was passed on the person on a previous occasion; or

(c) that the sentence shall take effect from the date when the person is (or but for the direction would be) released from custody under any sentence to which this paragraph applies that was passed on him on a previous occasion.

(4) Subsection (3)(b) applies to any of the following sentences, other than one from which the person has already been released early under Chapter 6 of Part 12 of the 2003 Act--

(a) a determinate sentence of imprisonment passed in respect of a service offence or by a civilian court in England and Wales;

(b) a determinate sentence of detention under section 209 of this Act or section 91 of the Sentencing Act;

(c) a sentence of detention under section 228 of the 2003 Act (whether or not passed as a result of section 222 of this Act).

(5) Subsection (3)(c) applies to any of the following sentences (wherever passed)--

(a) a determinate sentence of imprisonment not falling within paragraph (a) of subsection (4);

(b) a sentence not falling within paragraph (b) or (c) of subsection (4) but corresponding to a sentence so falling.

(6) In subsection (1) "court" does not include a civilian court.

189 Consecutive sentences of service detention

(1) A court which passes a sentence of service detention on a person may direct that the sentence shall take effect from the end of any other sentence of service detention--

(a) that has been passed on him on a previous occasion; or

(b) that the court passes on him on the same occasion.

(2) In subsection (1) "court" does not include the Summary Appeal Court.

(3) Where an officer or the Summary Appeal Court awards a person a term of service detention, the officer or court may direct that the award shall take effect from the end of any other sentence of service detention that has been passed on him on a previous occasion.

(4) This section is subject to section 244 (limit on combined term of sentences of service detention).

Chapter 3 Suspended Sentence of Service Detention

190 Suspension of sentence of service detention

(1) A court which, or officer who, passes a sentence of service detention may order that the sentence shall not have effect unless--

(a) during a period specified in the order ("the operational period") the offender commits another service offence or an offence in the British Islands; and

(b) a court or officer orders under section 191 or 193 that the sentence shall take effect.

(2) The operational period must be a period of at least three months and not more than twelve months beginning with the date of the order made under this section.

(3) In this Act "suspended sentence of service detention" means a sentence to which an order under this section relates.

191 Activation by Court Martial of suspended sentence of service detention

(1) The Court Martial may make an order under subsection (3) where it convicts a person of an offence committed during the operational period of a suspended sentence of service detention passed on him.

(2) The Court Martial may also make an order under subsection (3) if--

(a) the Court Martial has passed a suspended sentence of service detention on a person;

(b) the person has been convicted of another service offence, or an offence in the British Islands, committed during the operational period of the suspended sentence; and

(c) the person appears or is brought before the Court Martial following the issue of a summons or warrant under subsection (6).

(3) An order under this subsection is an order--

(a) that the suspended sentence shall take effect with the original term unaltered; or

(b) that the suspended sentence shall take effect with the substitution of a lesser term for the original term.

(4) An order under subsection (3) may provide either--

(a) that the suspended sentence shall take effect immediately; or

(b) that the suspended sentence shall take effect from the end of another sentence of service detention which has been passed on the person on a previous occasion or which the court passes on the person on the same occasion as it makes the order.

(5) Where--

(a) by virtue of subsection (2) the Court Martial orders that a suspended sentence shall take effect, and

(b) the conviction mentioned in subsection (2)(b) is a conviction by an officer or the Summary Appeal Court,

any unserved part of any service supervision and punishment order or minor punishment awarded by the officer or the Summary Appeal Court is remitted by the making of the order.

(6) If it appears to the Court Martial--

(a) that subsection (2)(a) and (b) apply, and

(b) that the offender has not been dealt with in respect of the suspended sentence,

the court may issue a summons requiring him to appear at the time and place specified in it, or a warrant for his arrest.

(7) In subsection (2)(a) the reference to the Court Martial includes--

(a) the Court Martial Appeal Court; and

(b) the Supreme Court on an appeal brought from the Court Martial Appeal Court.

(8) This section is subject to section 244 (limit on combined term of sentences of service detention).

192 Activation by Court Martial: appeals

(1) This section applies where an order under section 191 is made.

(2) For the purposes of the Court Martial Appeals Act 1968 (c. 20)--

(a) the order is to be treated as a sentence passed on the offender by the Court Martial for the offence for which the suspended sentence was passed; and

(b) if the offender was not convicted of that offence by the Court Martial, he is to be treated for the purpose of enabling him to appeal against the order as if he had been so convicted.

(3) For the purposes of any appeal against the order references in section 16A of that Act to passing a sentence include making an order.

(4) On an appeal against the order the Court Martial Appeal Court may (as an alternative to exercising its powers under section 16A(2) of that Act) quash the order.

193 Activation by CO of suspended sentence of service detention

(1) This section applies in relation to a suspended sentence of service detention passed on an offender by an officer or the Summary Appeal Court.

(2) If--

(a) an officer records a finding that a charge against the offender in respect of an offence committed during the operational period of the suspended sentence is proved, or

(b) the offender is convicted of an offence in the British Islands which was committed during that operational period, and subsequently appears before his commanding officer,

the officer may (subject to section 194) make an order under subsection (3).

(3) An order under this subsection is an order--

(a) that the suspended sentence shall take effect with the original term unaltered; or

(b) that the suspended sentence shall take effect with the substitution of a lesser term for the original term.

(4) An order under subsection (3) may provide either--

(a) that the suspended sentence shall take effect immediately; or

(b) that the suspended sentence shall take effect from the end of another sentence of service detention which has been passed on the offender on a previous occasion or which the officer passes on the offender on the same occasion as he makes the order.

(5) Any provision included by virtue of subsection (4) in an order made by an officer has effect subject to section 292 (postponement of commencement of suspended sentence on activation by CO).

194 Activation by CO: maximum term

(1) The term of a suspended sentence as it takes effect by virtue of an order under section 193 must not exceed 28 days unless the officer has extended powers for the purposes of this section.

(2) If--

(a) section 193(2)(a) applies and the officer awards a term of service detention in respect of the offence mentioned there ("the new sentence"), and

(b) the officer makes an order under section 193 and the order provides for the suspended sentence to take effect from the end of the new sentence,

the aggregate of the terms of the two sentences must not exceed 28 days or, if the officer has extended powers for the purposes of this section, 90 days.

(3) Nothing in subsection (2) affects section 133 (which determines the maximum length etc of the new sentence).

(4) An officer has extended powers for the purposes of this section if he has, before the relevant time--

(a) applied to higher authority for extended powers for the purposes of this section; and

(b) been notified by higher authority that his application has been granted.

(5) An officer also has extended powers for the purposes of this section if he is of or above the rank of rear admiral, major-general or air vice-marshal.

(6) In subsection (4) "the relevant time" means--

(a) where section 193(2)(a) applies, the beginning of the summary hearing of the charge mentioned there;

(b) where section 193(2)(b) applies, the beginning of the hearing as to whether an order under section 193 should be made.

(7) Section 193 is subject to section 244 (limit on combined term of sentences of service detention).

195 Suspended sentences: powers of SAC

(1) For the purposes of Chapters 2 and 3 of Part 6 (appeals and reviews), an order under section 193 is to be treated as a punishment awarded for the offence for which the suspended sentence was awarded.

(2) Where an order under section 193 was made by virtue of a finding within section 193(2)(a)--

(a) any appeal, or application for leave to appeal, against the finding or the punishment awarded in respect of it is for the purposes of Chapter 2 of Part 6 to be treated as also being an appeal or application for leave to appeal against the order;

(b) any appeal, or application for leave to appeal, against the order is for those purposes to be treated as also being an appeal or application for leave to appeal against the punishment.

(3) Subsections (4) to (7) apply on an appeal to the Summary Appeal Court in a case in which section 193(2)(a) applied (power of CO to activate suspended sentence following finding of guilt).

(4) If the officer made an order under section 193, the Summary Appeal Court may (as an alternative to confirming the order)--

(a) quash the order; or

(b) make, in substitution for the order, any order under that section that the officer could have made.

(5) If the officer did not make an order under that section, the Summary Appeal Court may make any order under that section that the officer could have made.

(6) Section 147(3) has effect, as regards the Summary Appeal Court's powers of punishment in respect of the officer's finding (or any substituted finding), as if paragraph (b)(ii) were omitted.

(7) But the court may not exercise its powers under section 147(3) or subsection (4) or (5) above in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the officer.

(8) On an appeal against an order under section 193 made by virtue of section 193(2)(b), the Summary Appeal Court may (as an alternative to confirming the order)--

(a) quash the order; or

(b) make, in substitution for the order, any order under section 193 that--

(i) the officer could have made; and

(ii) is no more severe than the order appealed against.

(9) In determining in any case--

(a) whether to substitute an order under section 193, or

(b) the terms of any such substituted order,

the Summary Appeal Court must take account of any period of the suspended sentence that the appellant served.

Chapter 4 Imprisonment for Term of Under 12 Months

Application of provisions in the 2003 Act

196 Term of sentence etc

(1) In the following provisions of the 2003 Act, "court" includes a relevant service court--

sections 181 and 182 (imprisonment for under 12 months: term of sentence and "custody plus" orders);
sections 189 and 190 (suspended sentences of imprisonment);
Chapter 4 of Part 12 (further provision about orders) in its application in relation to a custody plus order or suspended sentence order.

(2) For the purposes of this Chapter, each of the following is a relevant service court--

(a) the Court Martial;

(b) the Service Civilian Court;

(d) the Supreme Court on an appeal brought from the Court Martial Appeal Court.

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