Armed Forces Act 2006 (c. 52)

(The document as of February, 2008)

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

(a) detention for public protection under section 226(3) of the 2003 Act, or

(b) detention under section 228 of that Act,

section 235 of that Act (place of detention etc) applies accordingly.

225 Third drug trafficking offence

(1) This section applies where --

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

(b) if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, section 110 of the Sentencing Act (third class A drug trafficking offence) would apply.

(2) The Court Martial must impose the sentence required by section 110(2) of that Act, unless it is of the opinion that there are particular circumstances which--

(a) relate to any of the offences or to the offender; and

(b) would make it unjust to do so in all the circumstances.

226 Third domestic burglary

(1) This section applies where--

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

(b) if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, section 111 of the Sentencing Act (third domestic burglary) would apply.

(2) The Court Martial must impose the sentence required by section 111(2) of that Act, unless it is of the opinion that there are particular circumstances which--

(a) relate to any of the offences or to the offender; and

(b) would make it unjust to do so in all the circumstances.

227 Firearms offences

(1) This section applies if--

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

(b) if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, section 51A of the Firearms Act 1968 (c. 27) (minimum sentences for certain firearms offences) would apply.

(2) The Court Martial must impose the sentence required by section 51A(2) of that Act (as that provision has effect in relation to England and Wales), unless it is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.

(3) In section 51A(4)(a)(ii) of that Act (interpretation of section 51A(2)), as applied by this section, the reference to a sentence of detention under section 91 of the Sentencing Act is to be read as a reference to a sentence of detention under section 209 of this Act.

228 Appeals where previous convictions set aside

(1) Subsection (3) applies where--

(a) a sentence has been imposed on a person by virtue of section 219 or 220; and

(b) any previous conviction of his without which the court would not have been required to make the assumption mentioned in section 229(3) of the 2003 Act (as applied by section 223) has been subsequently set aside on appeal.

(2) Subsection (3) also applies where--

(a) a sentence has been imposed on any person by virtue of section 225 or 226; and

(b) any previous conviction of his without which that section would not have applied has subsequently been set aside on appeal.

(3) Where this subsection applies, an application for leave to appeal against the sentence may be lodged at any time within 29 days beginning with the day on which the previous conviction was set aside.

(4) Subsection (3) has effect notwithstanding anything in section 9(1) of the Court Martial Appeals Act 1968 (c. 20).

Chapter 7 Court Orders Other Than Sentences

Service restraining orders

229 Service restraining orders

(1) The Court Martial or the Service Civilian Court may make an order under this section where--

(a) it convicts or acquits a person ("the defendant") of an offence; and

(b) the defendant is subject to service law or is a civilian subject to service discipline.

(2) An order under this section--

(a) prohibits the defendant from doing anything described in the order; and

(b) has effect for a fixed period specified in the order or until further order.

(3) An order under this section may be made, and a prohibition may be included in the order, only for the purpose of protecting a person mentioned in the order from conduct which amounts to harassment.

(4) A person subject to service law or a civilian subject to service discipline commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by an order under this section.

(5) A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed five years.

(6) In proceedings for an order under this section, the Director of Service Prosecutions and the defence may lead (as further evidence) any evidence which would be admissible in proceedings in the High Court in England and Wales for an injunction under section 3 of the Protection from Harassment Act 1997 (c. 40).

230 Service restraining orders: supplementary

(1) Section 7 (interpretation) of the Protection from Harassment Act 1997 (c. 40) ("the 1997 Act") applies for the purposes of section 229 of this Act as it applies for the purposes of sections 5 and 5A of that Act.

(2) Section 12 of the 1997 Act (national security etc) applies for the purposes of section 229 of this Act as if--

(a) the reference in subsection (1)(c) to serious crime were a reference to serious service offences or serious crime (committed anywhere);

(b) the reference in subsection (1) to the 1997 Act were a reference to section 229 of this Act.

(3) Where the Court Martial Appeal Court allows an appeal against conviction it may remit the case to the Court Martial for that court to consider whether to proceed under section 229.

(4) Section 229 applies in relation to a case remitted under subsection (3) as if subsection (1)(a) were omitted.

231 Service restraining orders: appeals

(1) This section applies where a court makes an order under section 229--

(a) after it has acquitted the defendant of an offence; or

(b) in respect of a case remitted to it under section 230(3).

(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 order is to be treated as a sentence passed on the defendant in respect of the offence; and

(b) the defendant 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.

(3) 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.

232 Service restraining orders: variation and revocation

(1) The Court Martial may vary or revoke an order under section 229 on an application made by--

(a) the Director of Service Prosecutions;

(b) the defendant; or

(2) Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (1).

(3) Where a person is convicted of an offence under section 229, the court that convicts him may vary or revoke the order to which the offence relates.

Order for parent or guardian to enter into recognizance

233 Order for service parent or service guardian to enter into recognizance

(1) Where--

(a) a person aged under 18 is convicted of an offence by the Court Martial or the Service Civilian Court,

(b) he is a civilian subject to service discipline, and

the court may, and in the circumstances mentioned in subsection (3) must, exercise the powers conferred by this section.

(2) The powers conferred by this section are as follows--

(a) with the consent of the offender's service parent or service guardian, to order that parent or guardian to enter into a recognizance to take proper care of the offender and exercise proper control over him; and

(b) if the service parent or service guardian refuses consent and the court considers the refusal unreasonable, to order that parent or guardian to pay a fine not exceeding level 3 on the standard scale.

(3) The circumstances referred to in subsection (1) as those in which the court must exercise the powers conferred by this section are--

(a) that the offender is under 16 when convicted; and

(b) that the court is satisfied, having regard to the circumstances of the case, that the exercise of those powers would be desirable in the interests of preventing the commission by him of further offences.

(4) Where the powers conferred by this section are not exercised in a case where subsection (1) applies and the offender is under 16 when convicted, the court must state in open court that it is not satisfied as mentioned in subsection (3)(b) and why it is not so satisfied.

(5) A parent or guardian is a "service parent" or "service guardian" for the purposes of this section if he is a person subject to service law or a civilian subject to service discipline.

(6) For the purposes of this section, taking "care" of a person includes giving him protection and guidance and "control" includes discipline.

234 Recognizances and fines under section 233: further provision

(1) An order under section 233 must not require the parent or guardian to enter into a recognizance for an amount exceeding level 3 on the standard scale.

(2) Such an order must not require the parent or guardian to enter into a recognizance--

(a) for a period exceeding three years; or

(b) where the offender will reach the age of 18 in a period shorter than three years, for a period exceeding that shorter period.

(3) In fixing the amount of a recognizance under that section, the court must take into account (among other things) the means of the parent or guardian so far as they appear or are known to the court, and this applies whether taking those means into account has the effect of increasing or reducing the amount of the recognizance.

(4) A recognizance under section 233 may, where the court has passed an overseas community order on the offender, include a provision that the service parent or service guardian ensure that the offender complies with the requirements of that order.

(5) A court imposing a fine under section 233(2)(b) may make an order under section 251 (power to allow payment by instalments), and in relation to such a fine section 251(2) to (7) have effect as if any reference to a service compensation order were omitted.

235 Recognizances: appeals, variation and revocation

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

(a) an order under section 233 is to be treated as a sentence passed on the parent or guardian for the offence; and

(b) the parent or guardian is to be treated for the purpose of enabling him to appeal against the order as if he had been convicted of the offence by the court that made the order.

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

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

(4) The Court Martial may vary or revoke an order under section 233 if on the application of the parent or guardian it appears to the court, having regard to any change in the circumstances since the order was made, to be in the interests of justice to do so.

236 Forfeiture of recognizance

(1) Where--

(a) a recognizance under section 233 has been entered into, and

(b) the offender commits a service offence during the period of the recognizance,

the Court Martial or the Service Civilian Court may on convicting the offender of that offence (and subject to subsection (2)) declare the recognizance to be forfeited.

(2) The court may not make such a declaration where the parent or guardian is neither a person subject to service law nor a civilian subject to service discipline.

(3) If a court declares under this section that a recognizance is to be forfeited it must--

(a) adjudge the parent or guardian to pay the sum in which he is bound;

(b) adjudge him to pay part of that sum; or

(4) A court declaring under this section that a recognizance is to be forfeited may make an order under section 251 (power to allow payment by instalments); and in relation to a forfeiture under this section, section 251(2) to (7) have effect as if references to the fine or service compensation order were to the forfeiture.

Part 9 Sentencing: Principles and Procedures

Chapter 1 Principles and Procedures applying to Service Courts and Summary Hearings

General sentencing principles

237 Duty to have regard to purposes of sentencing etc

(1) A court or officer dealing with an offender for a service offence must have regard to the following purposes of sentencing--

(a) the punishment of offenders;

(b) the maintenance of discipline;

(d) the reform and rehabilitation of offenders;

(e) the protection of the public;

(f) the making of reparation by offenders to persons affected by their offences.

(2) If the offender is aged under 18 the court or officer must also have regard to his welfare.

(3) This section does not apply in relation to--

(a) an offence the sentence for which is fixed by law;

(b) an offence the sentence for which, as a result of subsection (2) of any of sections 219 to 222 and 225 to 227 of this Act (required custodial sentences), falls to be imposed under--

any of sections 225 to 228 of the 2003 Act;
section 110(2) or 111(2) of the Sentencing Act; or
section 51A(2) of the Firearms Act 1968 (c. 27).

(4) In this section "sentencing" includes the making of any order when dealing with an offender in respect of his offence.

238 Deciding the seriousness of an offence

(1) A court or officer dealing with an offender for a service offence ("the current offence") must in considering the seriousness of the offence--

(a) consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or could foreseeably have caused;

(b) if the offender has one or more previous convictions, treat as an aggravating factor each previous conviction that the court or officer considers can reasonably be so treated;

(i) charged with another service offence and released from service custody, or

(ii) on bail,

treat the fact that it was committed in those circumstances as an aggravating factor.

(2) In considering whether a previous conviction can reasonably be treated as an aggravating factor the court or officer must have regard (in particular) to--

(a) the nature of the offence to which the conviction relates and its relevance to the current offence; and

(b) the time that has elapsed since the conviction.

(3) Any reference in subsection (1) or (2) to a previous conviction is to be read as a reference to--

(a) a previous conviction of a service offence; or

(b) a previous conviction by a court in the British Islands of an offence other than a service offence.

(4) Nothing in this section prevents the court or officer from treating a previous conviction by a court outside the British Islands as an aggravating factor in any case where the court or officer considers it appropriate to do so.

239 Reduction in sentences for guilty pleas

(1) This section applies where an offender--

(a) has pleaded guilty to a service offence in proceedings before a court; or

(b) at a summary hearing in respect of a service offence, has admitted the offence.

(2) In determining what sentence to pass on the offender, the court or officer dealing with him for his offence must take into account--

(a) the stage in the proceedings for the offence at which he indicated his intention to plead guilty or his intention to admit the offence at a summary hearing; and

(b) the circumstances in which this indication was given.

(3) In subsection (2) "sentence" includes any order made when dealing with the offender in respect of his offence.

(4) Subsection (5) applies in the case of an offence the sentence for which, as a result of section 225(2) or 226(2) of this Act (required custodial sentences), falls to be imposed under section 110(2) or 111(2) of the Sentencing Act.

(5) Nothing in section 110(2) or 111(2) of that Act prevents the court, after taking into account any matter mentioned in subsection (2) above, from imposing any sentence which is at least 80% of that specified in section 110(2) or 111(2) of that Act.

240 Increase in sentence for racial or religious aggravation

(1) This section applies where a court or officer dealing with an offender for a service offence (other than an offence mentioned in subsection (3)) is considering the seriousness of the offence.

(2) If the offence was racially or religiously aggravated the court or officer--

(a) must treat that fact as an aggravating factor; and

(b) must state in open court that the offence was so aggravated.

(3) This section does not apply in relation to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under any of sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37) (racially or religiously aggravated assaults, criminal damage, public order offences and harassment etc).

(4) Section 28 of the Crime and Disorder Act 1998 (meaning of "racially or religiously aggravated") applies for the purposes of this section as it applies for the purposes of sections 29 to 32 of that Act.

241 Increase in sentence for aggravation related to disability or sexual orientation

(1) This section applies where a court or officer dealing with an offender for a service offence within subsection (2) is considering the seriousness of the offence.

(2) A service offence is within this subsection if--

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on--

(i) the sexual orientation (or presumed sexual orientation) of the victim; or

(ii) a disability (or presumed disability) of the victim; or

(b) the offence is motivated (wholly or partly)--

(i) by hostility towards persons who are of a particular sexual orientation; or

(ii) by hostility towards persons who have a disability or a particular disability.

(3) The court or officer--

(a) must treat as an aggravating factor the fact that the offence was committed in any of the circumstances mentioned in paragraph (a) or (b) of subsection (2); and

(b) must state in open court that the offence was committed in such circumstances.

(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether the offender's hostility is also based to any extent on any other factor not mentioned in that paragraph.

(5) In this section "disability" means any physical or mental impairment.

Service detention and custodial sentences

242 Service detention: general restriction

(1) A court may not pass a sentence of service detention in respect of an offence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.

(2) In forming any such opinion as is mentioned in subsection (1) or section 243(2) (length of sentence), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.

(3) In subsections (1) and (2) "court" does not include the Summary Appeal Court.

(4) A sentence of service detention may not be--

(a) passed by an officer at a summary hearing, or

(b) passed or confirmed by the Summary Appeal Court,

unless the officer or court is of the opinion that the offence it is in respect of (or, if it is in respect of two or more offences, the combination of them) was serious enough to warrant such a sentence.

(5) In forming any such opinion as is mentioned in subsection (4) or section 243(3) (length of sentence), an officer or the Summary Appeal Court must take into account all such information as is available to him or it about the circumstances of the offence (or offences), including any aggravating or mitigating factors.

243 Length of term of service detention: general provision

(1) This section applies where a sentence of service detention is passed in respect of a service offence.

(2) Where the detention is imposed by a court other than the Summary Appeal Court, it must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it.

(3) Where the detention is imposed by an officer at a summary hearing or by the Summary Appeal Court, it must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the officer or court is commensurate with the seriousness of the offence (or, if it is imposed in respect of two or more offences, the seriousness of them taken together).

244 Limit on combined term of sentences of service detention

(1) A court or officer may not--

(a) pass a sentence of service detention,

(b) make a direction under section 189 (consecutive terms of service detention), or

whose effect would be that a person would (at the relevant time) be subject to sentences of service detention the combined term of which exceeds two years.

(2) In subsection (1) "the relevant time" is the time immediately after the passing of the sentence or the making of the direction or order.

(3) For the purposes of this section, the combined term of sentences of service detention is--

(a) if none of the sentences overlap, the aggregate of the terms of the sentences;

(b) otherwise, the aggregate of--

(i) the period (or periods) during which any of the sentences overlaps any other of them; and

(ii) the period (or periods) for which none of the sentences overlap.

(4) Where subsection (1) is contravened, any part of any sentence of service detention which would (apart from this subsection) have effect after the end of the permitted period is remitted by virtue of this subsection.

(5) In subsection (4) "permitted period" means the period--

(a) beginning with the date of contravention; and

(b) equal in length to the longest sentence of service detention that could have been passed on that date without contravening subsection (1).

(6) For the purposes of the reference in subsection (4) to a part of a sentence which would have effect after the end of the permitted period, any prospect of early release is to be disregarded.

(7) In subsection (1)(a) "sentence of service detention" does not include a suspended sentence of service detention.

245 Section 244: supplementary

(1) Subsections (2) to (5) apply for the purposes of section 244.

(2) A person is to be regarded as not subject to any sentence from which he has been released early.

(3) A person is to be regarded as not subject to a suspended sentence of service detention unless an order that the sentence shall take effect has been made.

(4) Subject to subsection (3), a person is to be regarded as subject to any sentence of service detention that has been passed on him but--

(a) has not taken effect; or

(b) as a result of section 290(5) or (6) or 291(6) or (7), has ceased to have effect and has not resumed effect.

(5) A person who has been detained continuously pursuant to two or more sentences of service detention is to be regarded as subject to all of those sentences (whether or not any of them has been served in full).

(6) For the purposes of subsection (5), any periods of detention which would be continuous but for section 290(3), (5) or (6) or 291(5), (6) or (7) are to be treated as continuous.

246 Crediting of time in service custody: terms of imprisonment and detention

(1) This section applies where--

(a) a court or officer sentences an offender to a term of imprisonment or service detention in respect of a service offence ("the offence in question"); and

(b) the offender has been kept in service custody, in connection with the offence in question or any related offence, for any period since being charged with the offence in question or any related offence.

(2) The court must direct that the number of days for which the offender has been kept in service custody in connection with the offence in question or any related offence since being so charged is to count as time served by him as part of the sentence.

(3) Subsection (2) does not apply if and to the extent that--

(a) rules made by the Secretary of State so provide in the case of--

(i) a period of service custody which is wholly or partly concurrent with a sentence of imprisonment or service detention; or

(ii) sentences of imprisonment or service detention for consecutive terms or for terms which are wholly or partly concurrent; or

(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.

(4) Where the court gives a direction under subsection (2) it must state in open court--

(a) the number of days for which the offender was kept in service custody as mentioned in that subsection; and

(b) the number of days in relation to which the direction is given.

(5) Where the court does not give a direction under subsection (2), or gives such a direction in relation to a number of days less than that for which the offender was kept in service custody as mentioned in that subsection, it must state in open court--

(a) that its decision is in accordance with rules made under paragraph (a) of subsection (3); or

(b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.

(6) This section applies to--

(a) a determinate sentence of detention under section 209, and

(b) a sentence of detention under section 228 of the 2003 Act passed as a result of section 222 of this Act,

as it applies to an equivalent sentence of imprisonment.

(7) References in this section to "the court" are to the court or officer mentioned in subsection (1).

247 Crediting of time in service custody: supplementary

(1) For the purposes of section 246(1) offences are related if the charges for them were founded on the same facts or evidence.

(2) It is immaterial for the purposes of section 246(1) whether the offender has also been kept in service custody in connection with other offences, or has also been detained in connection with other matters.

(3) For the purposes of section 246 a suspended sentence of imprisonment or a suspended sentence of service detention--

(a) is to be treated as a sentence of imprisonment or (as the case may be) service detention when an order that it shall take effect is made; and

(b) is to be treated as being imposed by that order.

(4) Subsections (5) to (7) apply for the purposes of the reference in section 246(2) to the term of imprisonment or detention to which a person has been sentenced (that is to say, the reference to his "sentence").

(5) Consecutive terms of service detention, and terms of service detention which are wholly or partly concurrent, are to be treated as a single term.

(6) Consecutive relevant custodial terms, and relevant custodial terms which are wholly or partly concurrent, are to be treated as a single term if--

(a) the sentences were passed on the same occasion; or

(b) where they were passed on different occasions, the person has not been released under Chapter 6 of Part 12 of the 2003 Act at any time during the period beginning with the first and ending with the last of those occasions.

(7) For the purposes of subsection (6) any sentence within paragraph (a), (b) or (c) of section 188(4) is a relevant custodial term.

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