Armed Forces Act 2006 (c. 52)

(The document as of February, 2008)

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Imprisonment with or without "custody plus" order

197 Imprisonment with or without a custody plus order

(1) Subsection (2) applies where a relevant service court--

(a) imposes a sentence of imprisonment on an offender; and

(b) would (apart from this section) be required by section 181(3)(b) of the 2003 Act to make a custody plus order.

(2) Section 181(3)(b) of the 2003 Act shall be read as conferring on the court a power rather than a duty to make a custody plus order (but this does not affect the duty of the court under section 181(3)(a) of that Act).

(3) A relevant service court may not specify in a custody plus order a requirement to be complied with outside the United Kingdom.

(4) Section 219(3) of the 2003 Act (requirement to give copy of order to magistrates' court) does not apply in relation to a custody plus order made by a relevant service court.

198 Transfer to Scotland or Northern Ireland of custody plus order

(1) In paragraphs 2(1) and (2) and 9(1) and (2) of Schedule 11 to the 2003 Act (court making custody plus order may require compliance in Scotland or Northern Ireland), "court" includes a relevant service court.

(2) In paragraphs 4, 6 and 12 of that Schedule (ancillary provisions) "court" (where the context allows) includes a relevant service court.

(3) Where Part 4 of that Schedule applies to a custody plus order made by a relevant service court, references in that Part to "the original court" are to be read as references to the Crown Court.

(4) Paragraph 22(7)(b) of that Schedule (requirement to give copy of amending order etc to magistrates' court) does not apply in relation to a custody plus order made by a relevant service court.

199 Revocation and amendment of custody plus orders

(1) In Schedule 10 to the 2003 Act (revocation and amendment) as it applies to a custody plus order made by a relevant service court--

(a) "the appropriate court" means the Crown Court; and

(b) the following shall be treated as omitted--

(i) the definition of "the appropriate court" in paragraph 1(1);

(ii) paragraph 2.

(2) Paragraph 9(1)(b)(ii) and (2) of that Schedule (requirement to give copy of revoking or amending order etc to magistrates' court) do not apply in relation to a custody plus order made by a relevant service court.

Suspended sentences of imprisonment

200 Suspended sentence orders with or without community requirements

(1) Subsection (2) applies where (apart from this section) a relevant service court would have power under section 189 of the 2003 Act to make a suspended sentence order.

(2) Section 189(1) of that Act shall be read as conferring on the court a power either--

(a) to make a suspended sentence order with community requirements; or

(b) to make a suspended sentence order without community requirements.

(3) In this Chapter "a suspended sentence order with community requirements" means a suspended sentence order that--

(a) includes all the provision required by section 189(1) of the 2003 Act (as modified by subsection (5) below); and

(b) complies with section 189(3) and (4) of that Act.

(4) In this Chapter "a suspended sentence order without community requirements" means a suspended sentence order made as if in section 189 of the 2003 Act (as modified by subsection (5) below) the following were omitted--

(a) paragraph (a) of subsection (1);

(b) in paragraph (b) of that subsection, sub-paragraph (i) (and the word "either" before that sub-paragraph);

(5) In section 189(1) of the 2003 Act (suspended sentence orders) as it applies to a relevant service court, paragraph (b)(ii) (commission of UK offence in operational period of order) has effect as if for the words from "commits" to the end of sub-paragraph (ii) there were substituted " commits--

(a) another service offence (within the meaning of the Armed Forces Act 2006), or

(b) an offence in the British Islands, " .

(6) A relevant service court may not specify in a suspended sentence order with community requirements a requirement to be complied with outside the United Kingdom.

201 Order without community requirements: provisions not applying

Nothing in the following provisions of the 2003 Act applies in relation to a suspended sentence order without community requirements--

sections 190 to 192 (imposition of community requirements and periodic reviews);
Chapter 4 of Part 12 (further provisions about orders);
Part 3 of Schedule 12 (amendment of order);
Schedule 13 (transfer of order to Scotland or Northern Ireland).

202 Order with community requirements: disapplication of certain provisions

The following provisions of Chapter 4 of Part 12 of the 2003 Act do not apply in relation to a suspended sentence order with community requirements made by a relevant service court--

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

203 Review of order with community requirements

(1) In section 191 of the 2003 Act (provision for periodic reviews of order) as it applies to a suspended sentence order with community requirements made by a relevant service court--

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

(b) subsections (3) to (5) shall be treated as omitted.

(2) In section 210 of that Act (provision for periodic reviews of drug rehabilitation requirement) as it applies to such an order--

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

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

(3) Section 211 of that Act (periodic reviews of drug rehabilitation requirement) has effect in its application to such an order as if--

(a) in subsection (3)(b) for the words from "he could have been dealt with" to the end there were substituted "it could deal with him if he had just been convicted before the court of an offence punishable with imprisonment";

(b) in subsection (4)(b) the words in brackets were omitted; and

" (4A) A term of imprisonment or fine imposed under subsection (3)(b)--

(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). "

(4) Where a sentence is passed under section 211(3)(b) of the 2003 Act as modified by subsection (3) 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.

204 Transfer to Scotland or Northern Ireland of order with community requirements

(1) In paragraphs 1(1) and 6(1) of Schedule 13 to the 2003 Act (court making suspended sentence order with community requirements may require compliance in Scotland or Northern Ireland), "court" includes a relevant service court.

(2) In paragraphs 1(5) and (6), 3, 6(5) and 8 of that Schedule (ancillary provisions), "court" (where the context allows) includes a relevant service court.

(3) Where Part 3 of that Schedule applies to a suspended sentence order made by a relevant service court--

(a) references in that Part to "the original court" are to be read as references to the Crown Court; and

(b) the following shall be treated as omitted--

(i) the definition of "original court" in paragraph 11;

(ii) paragraph 12(3).

(4) Paragraph 20(6)(b) of that Schedule (requirement to give copy of amending order etc to magistrates' court) does not apply in relation to a suspended sentence order made by a relevant service court.

205 Amendment of order with community requirements

(1) In Part 3 of Schedule 12 to the 2003 Act (amendment of order) as it applies to a suspended sentence order with community requirements made by a relevant service court--

(a) "the appropriate court" means the Crown Court;

(b) the reference in paragraph 17 to the court responsible for the order is to be read as a reference to the Crown Court; and

(2) Paragraph 15 of that Schedule has effect in its application to such an order as if--

(a) in sub-paragraph (4)(b) for the words "of the offence" there were substituted "of an offence punishable with imprisonment"; and

(b) after sub-paragraph (5) there were inserted--

" (5A) A term of imprisonment or fine imposed under sub-paragraph (4)(b)--

(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) Paragraphs 2(b) and 3 of that Schedule shall be treated as omitted for the purposes of Part 3 of that Schedule as it applies to such an order.

(4) Where a sentence is passed under paragraph 15(4)(b) of Schedule 12 to the 2003 Act as modified 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.

206 Suspended sentence: further conviction or breach of community requirement

Schedule 7 (modification of Schedule 12 to the 2003 Act in relation to suspended sentences passed by relevant service courts) has effect.

Supplementary

207 Definitions for purposes of Chapter

In this Chapter--

"custody plus order" means an order under section 181(3)(b) of the 2003 Act;
"relevant service court" has the meaning given by section 196(2) of this Act;
"suspended sentence order" means an order under section 189(1) of the 2003 Act;
"suspended sentence order with community requirements" has the meaning given by section 200(3) of this Act;
"suspended sentence order without community requirements" has the meaning given by section 200(4) of this Act.

Chapter 5 Young Offenders: Custodial Sentences Available to Service Courts

Prohibition on imposing imprisonment on persons under 18

208 Prohibition on imposing imprisonment on persons under 18

A person who is aged under 18 when convicted of an offence by the Court Martial or the Service Civilian Court shall not be sentenced to imprisonment for the offence.

Detention for certain serious offences

209 Offenders under 18 convicted of certain serious offences: power to detain for specified period

(1) Subsection (5) (power to pass sentence of detention) applies where--

(a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct); and

(b) the case is within any of subsections (2) to (4).

(2) The case is within this subsection if the corresponding offence under the law of England and Wales is under that law--

(a) an offence punishable in the case of an offender aged 18 or over with imprisonment for 14 years or more; and

(b) not an offence the sentence for which is fixed by law.

(3) The case is within this subsection if the corresponding offence under the law of England and Wales is an offence under--

(a) section 3 of the Sexual Offences Act 2003 (c. 42) (sexual assault);

(b) section 13 of that Act (child sex offences committed by children or young persons);

(d) section 26 of that Act (inciting a child family member to engage in sexual activity).

(4) The case is within this subsection if it falls within section 227(1) (certain firearms offences).

(5) Where this subsection applies, the court may pass a sentence of detention under this section if it is of the opinion that none of the other methods by which the offender may legally be dealt with is suitable.

(6) A sentence of detention under this section is a sentence that the offender be detained for such period (not exceeding the maximum term of imprisonment with which the offence under section 42 is punishable in the case of a person aged 18 or over) as may be specified in the sentence.

(7) Subsections (5) and (6) are subject to (in particular)--

sections 221, 222 and 227 (required custodial sentences for certain offences); and
sections 260 and 261 (general restrictions on custodial sentences).

210 Detention under section 209: place of detention etc

(1) A person sentenced to be detained under section 209 is liable to be detained in such place, and under such conditions, as may be determined by the Secretary of State or by such other person as may be authorised by him for the purpose.

(2) A person detained in pursuance of a sentence under section 209 shall be deemed to be in legal custody.

Detention and training orders

211 Offenders under 18: detention and training orders

(1) Where--

(a) a person aged under 18 is convicted by the Court Martial or the Service Civilian Court of an offence which is punishable with imprisonment in the case of a person aged 18 or over, and

(b) the court is of the opinion mentioned in section 260(2) or the case falls within section 260(3),

the sentence that the court is to pass is (subject to subsections (2) and (3)) an order that the person shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision.

(2) In the case of an offender aged under 15 at the time of the conviction, the court may not make an order under this section unless it is of the opinion that he is a persistent offender.

(3) In the case of an offender aged under 12 at the time of the conviction, the court may not make an order under this section unless--

(a) it is of the opinion mentioned in subsection (2);

(b) it is of the opinion that only a custodial sentence would be adequate to protect the public from further offending by him; and

(c) the offence was committed on or after such date as may be appointed under section 100(2)(b)(ii) of the Sentencing Act (appointed day for purposes of orders under that Act).

(4) Subsection (1) is also subject to sections 209, 218, 221, 222 and 227 (other custodial sentences that may or must be imposed in particular cases).

212 Term of detention and training order: general

(1) The term of an order made under section 211 in respect of an offence--

(a) shall be 4, 6, 8, 10, 12, 18 or 24 months; and

(b) may not exceed the maximum term of imprisonment with which the offence is punishable in the case of a person aged 18 or over.

(2) Where--

(a) the offence is an offence under section 42 (criminal conduct),

(b) the corresponding offence under the law of England and Wales is under that law a summary offence, and

(c) the maximum term of imprisonment with which that offence is punishable in the case of a person aged 18 or over is 51 weeks,

the term of the order may not exceed 6 months.

213 Application of provisions relating to civilian detention and training orders

(1) In the following provisions of the Sentencing Act references to a detention and training order include an order under section 211 of this Act--

section 101(3) to (10) and (13) (power to impose consecutive terms, duty of court to take account of remands, etc);
sections 102 to 105, 106A and 107 (period of detention and training, period of supervision, breach of supervision requirements, etc).

(2) In sections 101(3) to (10) and (13) and 106A of the Sentencing Act "court" includes a relevant service court (within the meaning given by section 196(2)).

(3) In section 101(8) and (9) of the Sentencing Act in their application to an order under section 211 of this Act, any reference to an offender's being "remanded in custody" is a reference to his being kept in service custody; and section 101(11) and (12) of that Act do not apply in relation to such an order.

214 Offences during currency of detention and training order

(1) This section applies to a person in respect of whom an order under section 211 has been made if--

(a) after his release and before the date on which the term of the order ends, he commits an offence within subsection (2) ("the new offence"); and

(b) whether before or after that date, he is convicted of the new offence.

(2) An offence is within this subsection if it is--

(a) a service offence which is punishable with imprisonment; or

(b) an offence in the British Islands which is so punishable.

(3) A court having power to do so under subsection (4) or (5) may order the person to be detained in such secure accommodation as the Secretary of State may determine for the whole or any part of the period which--

(a) begins with the date of the court's order; and

(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1).

(4) Where the Court Martial or the Service Civilian Court convicts the person of the new offence, the court may on the conviction make an order under subsection (3).

(5) Where the offender is convicted of the new offence otherwise than by the Court Martial or the Service Civilian Court, the Court Martial may make an order under subsection (3) if the offender appears or is brought before it following the issue of a summons or warrant under subsection (7).

(6) Where an order under subsection (3) is made on the conviction of the new offence, the order must be in addition to the sentence for the new offence, and the period for which the person is ordered under subsection (3) to be detained--

(a) shall, as the court may direct, either be served before and be followed by, or be served concurrently with, any sentence imposed for the new offence; and

(b) in either case, shall be disregarded in determining the appropriate length of that sentence.

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

(a) that this section applies to a person,

(b) that his conviction of the new offence was not by the Court Martial or the Service Civilian Court, and

(c) that no order under subsection (3) or under section 105 of the Sentencing Act has been made in respect of the new offence,

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

(8) A person detained in pursuance of an order under subsection (3) shall be deemed to be in legal custody.

215 Section 214: definitions etc

(1) Section 101(13) of the Sentencing Act (treatment of concurrent and consecutive terms) applies for the purposes of the reference in section 214(1)(a) of this Act to the term of an order.

(2) Where the new offence (within the meaning of section 214) is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of that section to have been committed on the last of those days.

(3) In section 214 "secure accommodation" has the meaning given by section 107 of the Sentencing Act.

216 Appeals against orders under section 214

(1) This section applies where an order under section 214 ("the relevant order") is made.

(2) For the purposes of sections 285 to 287 (appeals from Service Civilian Court) or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)--

(a) the relevant order is to be treated as a sentence passed on the offender, by the court that made the relevant order, for the offence for which the order under section 211 was made; and

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

(3) For the purposes of any appeal against the relevant order, references in section 16A of the Court Martial Appeals Act 1968 to passing a sentence include making an order.

(4) On an appeal to the Court Martial Appeal Court against the relevant order, the court may (as an alternative to exercising its powers under section 16A(2) of the Court Martial Appeals Act 1968) quash the order.

Chapter 6 Mandatory etc Custodial Sentences for Certain Offences

Mandatory sentences

217 Mandatory life imprisonment

(1) This section applies if a person is convicted by the Court Martial of an offence under section 42 (criminal conduct) and the corresponding offence under the law of England and Wales is under that law--

(a) murder; or

(b) any other offence the sentence for which is fixed by law as imprisonment for life.

(2) The court must sentence him to imprisonment for life unless he is liable to be detained under section 218 (offences committed when offender aged under 18).

218 Offenders who commit murder etc when under 18: mandatory detention at Her Majesty's pleasure

(1) This section applies if--

(a) a person is convicted by the Court Martial of an offence under section 42 (criminal conduct);

(b) the corresponding offence under the law of England and Wales is under that law--

(i) murder; or

(ii) any other offence the sentence for which is fixed by law as imprisonment for life; and

(2) The court must (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty's pleasure.

(3) A person sentenced to be detained under this section is liable to be detained in such place, and under such conditions, as may be determined by the Secretary of State or by such other person as may be authorised by him for the purpose.

(4) A person detained in pursuance of a sentence under this section shall be deemed to be in legal custody.

Required sentences

219 Dangerous offenders aged 18 or over

(1) This section applies where a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct) and the corresponding offence under the law of England and Wales is a serious offence.

(2) If the court is of the required opinion (defined by section 223), then--

(a) if the case falls within section 225(2) of the 2003 Act the court must impose the sentence required by section 225(2) of that Act;

(b) otherwise, it must impose the sentence required by section 225(3) of that Act.

(3) In determining for the purposes of this section whether the case falls within section 225(2) of the 2003 Act, references in section 225(2) to "the offence" are to be read as references to the offence under section 42 of this Act.

(4) In this section "serious offence" has the meaning given by section 224 of the 2003 Act.

(5) A sentence under section 225 of the 2003 Act passed as a result of this section is not to be regarded as a sentence fixed by law.

220 Certain violent or sexual offences: offenders aged 18 or over

(2) If the court is of the required opinion (defined by section 223), it must impose the sentence required by section 227(2) to (5) of the 2003 Act.

(3) In section 227 of the 2003 Act as applied by this section--

(a) the reference in subsection (2)(b) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England or Wales;

(b) the reference in subsection (3)(a) to section 153(2) of that Act is to be read as a reference to section 261(2) of this Act;

(c) the reference in subsection (4)(a) to a specified violent offence is to an offence under section 42 of this Act as respects which the corresponding offence under the law of England and Wales is a specified violent offence; and

(d) the reference in subsection (4)(b) to a specified sexual offence is to an offence under section 42 of this Act as respects which the corresponding offence under the law of England and Wales is a specified sexual offence.

(4) In this section the following expressions--

"serious offence",
"specified offence",
"specified violent offence", and
"specified sexual offence",

have the meanings given by section 224 of the 2003 Act.

221 Dangerous offenders aged under 18

(1) This section applies where a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct) and the corresponding offence under the law of England and Wales is a serious offence.

(2) If the court is of the required opinion (defined by section 223), then--

(a) if the case falls within section 226(2) of the 2003 Act the court must impose the sentence required by section 226(2) of that Act (read with subsection (3)(b) below);

(b) if the case falls within section 226(3) of that Act the court must impose the sentence required by section 226(3) of that Act.

(3) In determining for the purposes of this section whether the case falls within section 226(2) of the 2003 Act and what the sentence required by that provision is--

(a) references in section 226(2) to "the offence" are to be read as references to the offence under section 42 of this Act; and

(b) references in section 226(2) to section 91 of the Sentencing Act are to be read as references to section 209 of this Act.

(4) In determining for the purposes of this section whether the case falls within section 226(3) of the 2003 Act, the reference in section 226(3) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England or Wales.

(5) In this section "serious offence" has the meaning given by section 224 of the 2003 Act.

(6) A sentence under section 226 of the 2003 Act passed as a result of this section is not to be regarded as a sentence fixed by law.

222 Offenders aged under 18: certain violent or sexual offences

(1) This section applies where--

(a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct);

(b) the corresponding offence under the law of England and Wales is a specified offence;

(d) where the corresponding offence under the law of England and Wales is a serious offence, the case is not one in which the court is required by section 221 to impose a sentence complying with subsection (2) of that section.

(2) Where this section applies, the court must impose the sentence required by section 228(2) to (5) of the 2003 Act.

(3) In section 228 of the 2003 Act as applied by this section--

(a) the reference in subsection (2)(b) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England or Wales;

(b) the reference in subsection (4)(a) to a specified violent offence is to an offence under section 42 of this Act as respects which the corresponding offence under the law of England and Wales is a specified violent offence;

(c) the reference in subsection (4)(b) to a specified sexual offence is to an offence under section 42 of this Act as respects which the corresponding offence under the law of England and Wales is a specified sexual offence; and

(d) references to the maximum term of imprisonment permitted for the offence are to the maximum term of imprisonment that (apart from section 219) is permitted for the offence under section 42 in the case of a person aged 18 or over.

(4) In this section the following expressions--

"serious offence",
"specified offence",
"specified violent offence", and
"specified sexual offence",

have the meanings given by section 224 of the 2003 Act.

223 "The required opinion" for purposes of sections 219 to 222

(1) "The required opinion" for the purposes of sections 219(2), 220(2), 221(2) and 222(1) is the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of--

(a) further specified offences; or

(b) further acts or omissions that would be specified offences if committed in England or Wales.

(2) For the purposes of the court's decision whether it is of that opinion, section 229(2) to (4) of the 2003 Act apply as they apply for the purposes of the assessment referred to in section 229(1) of that Act.

(3) In section 229(2) to (4) of the 2003 Act as applied by this section--

(a) any reference to the offence mentioned in section 229(1)(a) of that Act is a reference to the offence under section 42 of this Act; and

(b) the reference to such a risk as is mentioned in section 229(1)(b) of that Act is a reference to such a risk as is mentioned in subsection (1) above.

(4) In this section--

"serious harm" has the meaning given by section 224 of the 2003 Act;
"specified offence" has the meaning given by that section.

224 Place of detention under certain sentences

Where as a result of section 221 or 222 a court passes a sentence of--

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