Armed Forces Act 2006 (c. 52)

(The document as of February, 2008)

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271 Civilian courts dealing with service offences

(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) any provision of Chapter 1 of Part 12 of the 2003 Act (sentencing principles etc for civilian courts),

(b) any other enactment that confers functions on sentencing courts,

in its application to a civilian court dealing with an offender for a service offence.

Part 10 Court Martial Decisions: Appeals and Review

Chapter 1 Appeals from Court Martial

272 Appeals to the Court Martial Appeal Court

(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.

Chapter 2 Review of Court Martial Sentence

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 section 219, 220, 221, 222, 225, 226 or 227;

but nothing in this subsection limits subsection (1)(a).

(7) Where a reference under subsection (1) relates to an order under section 269(2) of the 2003 Act (determination of minimum term in relation to mandatory life sentence), the Court Martial Appeal Court may not, in deciding what order under section 269 of that Act is appropriate for the case, make any allowance for the fact that the offender is being sentenced for a second time.

(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.

274 Reference of point of law to Supreme Court

(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

subject to such modifications as the Secretary of State considers appropriate.

Chapter 3 Compensation for Miscarriages of Justice

276 Compensation for miscarriages of justice

(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) and (3).

(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.

(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) In assessing the amount of compensation payable to or in respect of a person that 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 resulting sentence;

(b) the conduct of the investigation and prosecution of the offence; and

(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

(8) Schedule 9 (provision with regard to assessors) has effect.

Part 11 The Service Civilian Court

The Service Civilian Court: court and proceedings

277 The Service Civilian Court

(1) There shall be a court, to be known as the Service Civilian Court.

(2) The Service Civilian Court may sit in any place other than in the British Islands.

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;

(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.

Punishments available to Service Civilian Court

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).

283 Imprisonment: maximum term

(1) The Service Civilian Court may not impose imprisonment for more than 12 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 65 weeks.

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.

(3) The compensation to be paid under a service compensation order made by the Service Civilian Court in respect of any offence of which the court has convicted the offender must not exceed the amount for the time being mentioned in section 131(1) of the Sentencing Act (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.

Appeals from Service Civilian Court

285 Right of appeal from SCC

(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.

286 Hearing of appeals from SCC

(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.

SCC rules

288 SCC rules

(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;

(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;

(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.

(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.

Part 12 Service and Effect of Certain Sentences

Commencement of sentence

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).

Effect of custodial sentence or detention on rank or rate

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