Armed Forces Act 2006 (c. 52)

(The document as of February, 2008)

-- Back --

Page 20

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20 | P.21 | P.22 | P.23 | P.24 | P.25 | P.26 | P.27 | P.28 | P.29 | P.30 | P.31

(z) an offence under section 1(2) of the Criminal Damage Act 1971 (c. 48) (destroying or damaging property with intent to endanger life);

(aa) an offence under section 1 of the Biological Weapons Act 1974 (c. 6) (developing biological agents etc);

(ab) an offence under section 51 of the Criminal Law Act 1977 (c. 45) (bomb hoaxes);

(ac) an offence under section 1 of the Protection of Children Act 1978 (c. 37) (indecent photographs of children);

(ad) an offence under section 170 of the Customs and Excise Management Act 1979 (c. 2) (fraudulent evasion of duty etc);

(ae) an offence under section 1 of the Taking of Hostages Act 1982 (c. 28) (hostage-taking);

(af) an offence under any of sections 1 to 4 of the Aviation Security Act 1982 (c. 36) (hijacking, destroying, damaging or endangering safety of aircraft etc);

(ag) an offence under section 1 or 2 of the Child Abduction Act 1984 (c. 37) (abduction of child);

(ah) an offence under any of sections 1 and 18 to 23 of the Public Order Act 1986 (c. 64) (riot, stirring up racial or religious hatred, possession of inflammatory material);

(ai) an offence under section 134 or 160 of the Criminal Justice Act 1988 (c. 33) (torture, possession of indecent photograph of child);

(aj) an offence under section 1, 3A or 22A of the Road Traffic Act 1988 (c. 52) (causing death by dangerous driving, causing death by careless driving when under the influence of drink or drugs, causing danger to road-users);

(ak) an offence under any of sections 1 to 6 or 8(6) of the Official Secrets Act 1989 (c. 6) (disclosure of information relating to security, intelligence, defence, international relations etc);

(al) an offence under any of sections 1 or 9 to 13 of the Aviation and Maritime Security Act 1990 (c. 31) (endangering safety at aerodromes, offences against the safety of ships and fixed platforms);

(am) an offence under section 72 of the Value Added Tax Act 1994 (c. 23) (evasion of VAT);

(an) an offence under Part II of the Channel Tunnel (Security) Order 1994 (S.I. 1994/570) (offences relating to Channel Tunnel trains and the tunnel system);

(ao) an offence under section 2 of the Chemical Weapons Act 1996 (c. 6) (use etc of chemical weapons);

(ap) an offence under section 11, 12, 15, 16, 17, 18, 38B, 39, 54, 56, 57 or 58 of the Terrorism Act 2000 (c. 11);

(aq) an offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17) (genocide, crimes against humanity, war crimes etc);

(ar) an offence under section 47, 79, 80, 113 or 114 of the Anti-terrorism, Crime and Security Act 2001 (c. 24);

(as) an offence under section 1 of the Dealing in Cultural Objects (Offences) Act 2003 (c. 27) (dealing in tainted cultural objects);

(at) any offence under Part 1 of the Sexual Offences Act 2003 (c. 42) except one under section 3, 66, 67 or 71;

(au) an offence under any of sections 1, 2, 5, 6 or 8 to 11 of the Terrorism Act 2006.

13 An offence under section 42 as respects which the corresponding offence under the law of England and Wales is--

(a) an offence under section 1 of the Criminal Attempts Act 1981 (c. 47) of attempting to commit an offence within a sub-paragraph of paragraph 12;

(b) an offence under section 1 of the Criminal Law Act 1977 (c. 45) of conspiracy to commit such an offence;

Section 164

SCHEDULE 3 Civilians etc: modifications of Court Martial sentencing powers

Part 1 Civilian offenders

1 (1) In relation to a civilian offender, section 164 (punishments available to Court Martial) has effect as if subsections (4), (6) and (7) were omitted and as if for the Table there were substituted--

" TABLE

Row Number	Punishment	Limitation
1	imprisonment
2	a fine
3	a service community order (defined by section 178)	only if subsection (5) permits
4	an overseas community order (defined by section 182)	only if it appears to the court that the offender will reside outside the United Kingdom when the order is in force
5	a conditional discharge (defined by section 185)
6	an absolute discharge (defined by section 185)
7	a service compensation order (defined by section 175) "

(2) A person is a "civilian offender" for the purposes of this Part of this Schedule if he has committed a service offence and--

(a) he was a civilian when he committed the offence;

(b) he is a civilian when sentenced for the offence; and

(3) In sub-paragraph (2) "a civilian" means a person who is--

(a) not a member of the regular forces;

(b) not a member of the reserve forces; and

(4) For the purposes of this paragraph a person is "liable to recall" if--

(a) under section 65(1) of the Reserve Forces Act 1996 (c. 14) he is liable to be recalled for service; or

(b) he is liable to be recalled as mentioned in section 35(1) of the Reserve Forces Act 1980 (c. 9).

2 For the purposes of determining the Court Martial's powers when sentencing a civilian offender for an offence under section 42, section 42(3) (maximum penalties) has effect as if the reference to rows 5 to 12 were to rows 2 to 7.

Part 2 Ex-servicemen etc

3 (1) In relation to an offender to whom this Part of this Schedule applies, section 164 (punishments available to Court Martial) has effect as if subsections (6) and (7) were omitted and as if for the Table there were substituted--

" TABLE

Row Number	Punishment	Limitation
1	imprisonment
2	dismissal with disgrace from Her Majesty's service	only if the person being sentenced is an officer or a member of the reserve forces
3	dismissal from Her Majesty's service	only if the person being sentenced is an officer or a member of the reserve forces
4	detention for a term not exceeding two years	not if the person being sentenced is an officer, or was an officer when last a member of Her Majesty's forces
5	reduction in rank, or disrating	only if the person being sentenced is a warrant officer or non-commissioned officer, and not to an extent prohibited by regulations under subsection (4)
6	a fine
7	a service community order (defined by section 178)	only if subsection (5) permits
8	a severe reprimand or a reprimand	only if the person being sentenced is, or was at the time of the offence, an officer, warrant officer or non-commissioned officer
9	an absolute discharge (defined by section 185)
10	a service compensation order (defined by section 175) "

(2) A person is an offender to whom this Part of this Schedule applies if when sentenced he is--

(a) not subject to service law;

(b) not a member of a volunteer reserve force;

(d) not a civilian offender for the purposes of Part 1 of this Schedule.

4 For the purposes of determining the Court Martial's powers when sentencing an offender to whom this Part of this Schedule applies--

(a) section 25(2) (penalty for misapplying public property etc) has effect as if the reference to rows 2 to 12 were to rows 2 to 10;

(b) section 35(3) (penalty for annoyance by flying) has effect as if the reference to rows 3 to 12 were to rows 3 to 10;

(c) section 42(3) (penalties for criminal conduct offences) has effect as if the reference to rows 5 to 12 were to rows 5 to 10;

(d) any provision of regulations under section 328 (enlistment) which provides that an offence is punishable by any punishment mentioned in rows 2 to 12 of the Table in section 164 has effect as if the reference to rows 2 to 12 were to rows 2 to 10;

(e) any provision of regulations under section 343 (service inquiries) which provides that an offence is punishable by any punishment mentioned in rows 7 to 12 of the Table in section 164 has effect as if the reference to rows 7 to 12 were to rows 6 to 10.

Section 169

SCHEDULE 4 Unfitness and insanity: modifications of Mental Health Act 1983

Hospital orders

1 For the purposes of section 169(2)(a) of this Act, section 37 of the Mental Health Act 1983 (c. 20) ("the 1983 Act") has effect as if--

(a) for subsection (1) there were substituted--

" (1) Where--

(a) section 169 of the Armed Forces Act 2006 applies,

(b) the offence to which the finding relates is an offence punishable with imprisonment, and

the court may by order authorise the defendant's admission to and detention in such hospital as may be specified in the order. " ;

(b) subsections (1A), (1B), (3), (5), (6) and (8) were omitted;

(i) the word "either" before sub-paragraph (i);

(ii) the word "or" at the end of that sub-paragraph; and

(iii) sub-paragraph (ii) (but not the word "and" at the end of it);

(d) for subsection (4) there were substituted--

" (4) Where an order is made under this section requiring a person to be admitted to a hospital ("a hospital order"), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it. " ;

(e) in subsection (7) the reference to a guardianship order were omitted; and

(f) any reference to the offender were to the defendant (the reference in subsection (2)(b) to the offence being construed accordingly).

Restriction orders

2 For the purposes of section 169(2)(a) of this Act, section 41(1) of the 1983 Act (power to make a restriction order) has effect as if--

(a) the reference to the Crown Court were to the Court Martial; and

(b) any reference to an offender were to a person in whose case section 169 applies (references to an offence being construed accordingly).

Remand orders

3 In relation to a case where section 169 applies but the court has not yet made one of the disposals mentioned in section 169(2), section 35 of the 1983 Act (remand to hospital for report on mental condition) has effect as if--

(a) the reference in subsection (1) to the Crown Court or a magistrates' court were to the Court Martial;

(b) for the purposes of that section an "accused person" meant a person in whose case this paragraph applies;

(d) in subsection (3)(b) for the words "if he were remanded on bail" there were substituted "if he were not remanded under this section";

(e) in subsection (4) the reference to a place of safety were to any place that the court may direct; and

(f) the reference in subsection (10) to a constable included a reference to a service policeman.

4 In relation to a case where section 169 applies but the court has not yet made one of the disposals mentioned in section 169(2), section 36 of the 1983 Act (remand to hospital for treatment) has effect as if--

(a) in subsection (1) for the words "the Crown Court may, instead of remanding an accused person in custody, remand him" there were substituted "the Court Martial may remand an accused person";

(b) for the purposes of that section an "accused person" meant a person in whose case this paragraph applies;

(d) in subsection (3) the reference to a place of safety were to any place that the court may direct.

Interim hospital orders

5 (1) In relation to a case where section 169 applies but the court has not yet made one of the disposals mentioned in section 169(2), section 38 of the 1983 Act (interim hospital orders) has effect as if--

(a) in subsection (1) for the words from the beginning to "he is convicted" there were substituted "Where section 169 of the Armed Forces Act 2006 applies, the offence to which the finding relates is an offence punishable with imprisonment and the court";

(b) any reference to an offender were to a person in whose case this paragraph applies;

(d) in subsection (7) the reference to a constable included a service policeman.

(2) Where an interim hospital order is made under section 38 of the 1983 Act as modified by this paragraph, the references in section 40(3) of that Act to an offender are to be read in accordance with sub-paragraph (1)(b) above.

Sections 181, 184

SCHEDULE 5 Breach, revocation and amendment of community punishments

Part 1 Service community orders

General

1 (1) In Schedule 8 to the 2003 Act (breach, revocation or amendment of community order), "community order" includes a service community order under this Act.

(2) In its application to such an order, that Schedule has effect as if paragraphs 2(b), 4, 5(4), 6(2), 7, 9, 12, 13, 15, 16(5), 17(5) and (6), 18(4), 20(2), 21 and 27(1)(b)(ii) and (d), (2) and (3)(a) were omitted.

Breach of requirement of order

2 Paragraphs 5(1)(b) and 6(1) of that Schedule (warning and laying of information) have effect in relation to a service community order under this Act as if the references to a justice of the peace were to the Crown Court.

3 Paragraph 8 of that Schedule (issue of summons or warrant for breach) applies to such an order as it applies to an order mentioned in sub-paragraph (1) of that paragraph.

Revocation of order

4 Paragraph 14 of that Schedule (Crown Court's powers of revocation) has effect as if the reference in sub-paragraph (1)(a) to a community order as there mentioned included a service community order under this Act.

Amendment of order

5 In Part 4 of that Schedule (amendment of order) as it applies to a service community order under this Act, "the appropriate court" means the Crown Court.

6 In paragraph 19 of that Schedule (amendment in relation to review of drug rehabilitation requirement) as it applies to such an order, "the court responsible for the order" means the Crown Court.

Powers of civilian courts in relation to order following subsequent conviction

7 Paragraph 22 of that Schedule (committal to Crown Court on subsequent conviction by magistrates' court in England or Wales) has effect as if the reference in sub-paragraph (1) to a community order made by the Crown Court included a service community order under this Act.

Re-sentencing powers

8 (1) This paragraph applies for the purposes of construing the powers conferred on the Crown Court by paragraphs 10(1)(b), 14(2)(b)(ii), 17(3)(b) and 23(2)(b)(ii) of Schedule 8 to the 2003 Act to deal with the offender, for the offence in respect of which the order was made, in any way in which he could have been dealt with for that offence by the court which made the order.

(2) Each of those powers shall be construed in relation to a service community order under this Act as a power to deal with the offender, 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 the Crown Court could deal with him if he had just been convicted before that court of an offence punishable with imprisonment;

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

(3) A term of imprisonment or fine imposed by virtue of this paragraph--

(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.

(4) In relation to a service community order under this Act, the references in paragraphs 10(4) and 17(4)(b) of that Schedule to a custodial sentence are to be read as references to a sentence of imprisonment.

9 Where a sentence is passed by virtue of paragraph 8 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.

Part 2 Overseas community orders

General

10 (1) In Schedule 8 to the 2003 Act (breach, revocation or amendment of community order), "community order" includes an overseas community order.

(2) In its application to such an order, that Schedule has effect as if there were omitted--

(a) in paragraph 1, the definitions of "the local justice area concerned" and "the responsible officer"; and

(b) paragraphs 2, 3(b), 4, 5(4), 6(2), 7, 9, 10(6), 12, 13, 15, 16, 17(5) and (6), 18(4), 19, 20(2), 21(4), 22 and 23(1)(a)(ii).

11 (1) For the purposes of that Schedule as it applies in relation to an overseas community order, "court" includes--

(a) the Court Martial;

(b) the Service Civilian Court.

(2) For the purposes of that Schedule as it applies in relation to such an order, and for the purposes of this Part of this Schedule, an overseas community order made on appeal is to be treated as having been made by the Court Martial.

Breach of requirement of order

12 Paragraphs 5(1)(b) and 6(1) of that Schedule (warning and laying of information) have effect in relation to an overseas community order as if the references to causing an information to be laid before a justice of the peace in respect of the failure were references to applying to the court that made the order for the exercise of its powers in relation to the failure.

13 Paragraph 8 of that Schedule (issue of summons or warrant for breach) has effect in relation to such an order as if for it and the cross-heading before it there were substituted--

" Issue of summons or warrant

8 (1) If at any time while an overseas community order under the Armed Forces Act 2006 is in force it appears to the appropriate court, on an application by the responsible officer, that the offender has failed to comply with any of the requirements of the order, that court may--

(a) issue a summons requiring the offender to appear at the time and place specified in it, or

(b) issue a warrant for his arrest.

(2) In sub-paragraph (1) "the appropriate court" means the court that made the order.

(3) Any summons or warrant issued under this paragraph must direct the offender to appear or be brought before the court issuing the summons or warrant.

(4) Where a summons issued under sub-paragraph (1)(a) requires the offender to appear before the court and he does not appear in answer to the summons, the court may issue a warrant for his arrest. "

14 Paragraph 10 of that Schedule (powers of Crown Court on breach of community order) has effect in relation to an overseas community order as if--

(a) the cross-heading before it were "Powers of court that made the order";

(b) any reference to the Crown Court in sub-paragraphs (1) to (3) and (5) were to the court that made the overseas community order; and

" (4) In dealing with an offender under sub-paragraph (1)(b) the court may, in the case of an offender who has wilfully and persistently failed to comply with the requirements of the order, impose a custodial sentence within the meaning of the Armed Forces Act 2006 (where the order was made in respect of an offence punishable with such a sentence) notwithstanding anything in section 260(2) of that Act. "

Revocation of order

15 Paragraph 14 of that Schedule (Crown Court's powers of revocation) has effect in relation to an overseas community order as if--

(a) the reference in sub-paragraph (1)(a) to a community order as there mentioned were to an overseas community order; and

(b) in the other provisions of paragraph 14, and in the cross-heading before it, any reference to the Crown Court were to the court that made the overseas community order.

Amendment of order

16 In Part 4 of that Schedule (amendment of order) as it applies to an overseas community order, "the appropriate court" means the court that made the order.

17 Paragraph 17 of that Schedule has effect in relation to an overseas community order as if for sub-paragraph (4)(b) there were substituted--

" (b) may impose a custodial sentence within the meaning of the Armed Forces Act 2006 (where the order was made in respect of an offence punishable with such a sentence) notwithstanding anything in section 260(2) of that Act. "

Powers in relation to order following subsequent conviction

18 Paragraph 21 of that Schedule (powers of magistrates' court on subsequent conviction) has effect in relation to an overseas community order as if--

(a) the cross-heading before it were "Powers of Service Civilian Court on subsequent conviction"; and

(b) any reference in that paragraph to a magistrates' court were to the Service Civilian Court.

19 Paragraph 23 of that Schedule (powers of Crown Court on subsequent conviction) has effect in relation to an overseas community order as if--

(a) the cross-heading before it were "Powers of Court Martial on subsequent conviction"; and

(b) any reference in that paragraph to the Crown Court (except the references in sub-paragraph (1)(a)(ii), which is treated as omitted) were to the Court Martial.

Supplementary provisions relating to orders

20 In paragraph 26 of that Schedule as it applies to an overseas community order, the reference to section 177(3) of the 2003 Act shall be treated as omitted.

21 Paragraph 27 of that Schedule has effect in relation to an overseas community order as if it read--

" 27 On the making under this Schedule of an order revoking or amending an overseas community order, the court administration officer (within the meaning of the Armed Forces Act 2006) must--

(a) provide copies of the revoking or amending order--

(i) to the offender;

(ii) to the responsible officer;

(iii) to the offender's commanding officer; and

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

(b) in the case of an amending order which imposes or amends a requirement specified in the first column of Schedule 14, provide a copy of so much of the amending order as relates to that requirement to the person specified in relation to that requirement in the second column of that Schedule; and

(c) in the case of an amending order which imposes or amends an education requirement, provide to Service Children's Education a copy of so much of the amending order as relates to that requirement. "

Court Martial rules

22 If Court Martial rules provide that powers of the Court Martial under Schedule 8 to the 2003 Act as applied by this Part of this Schedule are to be exercised by a judge advocate, the rules may also disapply section 160 of this Act in relation to sentences passed under that Schedule.

Appeals

23 A person who--

(a) is sentenced by the Court Martial under paragraph 23(2)(b)(ii) of Schedule 8 to the 2003 Act as applied by this Part of this Schedule, and

(b) was not convicted by the Court Martial of the offence in respect of which the sentence is passed,

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 so convicted.

Section 182

SCHEDULE 6 Overseas community orders: young offenders

Unpaid work requirement

1 An unpaid work requirement, as defined by section 199 of the 2003 Act, may not be included in an overseas community order if the offender is aged under 16 on conviction.

Exclusion requirement

2 Where an exclusion requirement, as defined by section 205 of the 2003 Act, is included in an overseas community order made in respect of an offender aged under 18 on conviction, the period specified in the order must not exceed three months.

Residence requirement

3 (1) In relation to an overseas community order made in respect of an offender aged under 18 on conviction, section 206(1) of the 2003 Act (residence requirement) has effect as if after the words "at a place specified in the order" there were added "or with an individual so specified".

(2) A requirement that a person reside with an individual must not be included in an overseas community order unless the individual has consented to the requirement.

(3) Nothing in section 206(2) to (4) of the 2003 Act applies in relation to a requirement in an overseas community order that a person reside with an individual.

(4) A requirement that a person reside at a specified place must not be included in an overseas community order if the offender is aged under 16 on conviction.

(5) In sub-paragraphs (2) to (4), references to a requirement are to a requirement under section 206(1) of the 2003 Act as modified by this paragraph.

Mental health requirement

4 (1) In section 207(3) of the 2003 Act as it applies in relation to an overseas community order, paragraph (c) (consent of offender to mental health requirement) does not apply if the offender is aged under 14.

(2) In section 208(1) of the 2003 Act as it applies in relation to an overseas community order (mental health treatment at place not specified in order), the words "with the consent of the offender" do not apply if the offender is aged under 14.

Drug rehabilitation requirement

5 (1) In relation to an overseas community order made in respect of an offender aged under 18 on conviction, section 209(1) of the 2003 Act (drug rehabilitation requirement) has effect as if paragraph (b) (requirement to provide samples) were omitted.

(2) But sub-paragraph (1) does not apply where--

(a) the offender is aged 14 or over; and

(b) has expressed his willingness to provide samples as mentioned in section 209(1)(b) of the 2003 Act.

(3) In section 209(2) of the 2003 Act as it applies in relation to an overseas community order, paragraph (d) (consent of offender to drug rehabilitation requirement) does not apply if the offender is aged under 14.

(4) Section 209(3) of the 2003 Act (treatment and testing period must be at least six months) does not apply in relation to an overseas community order made in respect of an offender aged under 18 on conviction.

Alcohol treatment requirement

6 An alcohol treatment requirement, as defined by section 212 of the 2003 Act, may not be included in an overseas community order if the offender is aged under 18 on conviction.

Education requirement

7 (1) An overseas community order made in respect of an offender aged under 18 on conviction may include a requirement (an "education requirement") requiring the offender to comply, during a period or periods specified in the order, with arrangements for his education--

(a) made for the time being by his parent or guardian; and

(b) approved by Service Children's Education ("SCE").

(2) A court may not include an education requirement in an overseas community order unless it has consulted SCE and is satisfied--

(a) that, in the view of SCE, arrangements exist for the offender to receive efficient full-time education suitable to his age, ability and aptitude and to any special educational need he may have; and

(b) that, having regard to the circumstances of the case, the inclusion of the requirement is necessary for securing the good conduct of the offender or for preventing the commission of further offences.

(3) Any period specified in an overseas community order as one during which the offender must comply with arrangements made for his education must not include any period after he has ceased to be of compulsory school age (within the meaning of section 8 of the Education Act 1996 (c. 56)).

(4) An education requirement under this paragraph may (despite section 182(1)(a)) be the only requirement imposed by an overseas community order.

Power to amend

8 The powers of the Secretary of State under section 223 of the 2003 Act (powers to amend limits) include power by order to amend paragraph 2 of this Schedule by substituting for the maximum period for the time being specified in that paragraph such other period as may be specified in the order.

Section 206

SCHEDULE 7 Suspended prison sentence: further conviction or breach of requirement

Part 1 Introductory

Suspended sentence order with community requirements

1 Part 2 of Schedule 12 to the 2003 Act (breach of community requirement, or further conviction) has effect in its application to a suspended sentence order with community requirements made by a relevant service court--

(a) as if paragraphs 3, 4(4), 5(2), 6, 8(4A), (6) and (7) and 12(4) of that Schedule were omitted; and

(b) with the modifications in paragraphs 4 to 9 of this Schedule.

Suspended sentence order without community requirements

2 (1) In its application to a suspended sentence order without community requirements, Part 2 of Schedule 12 to the 2003 Act has effect--

(a) as if the provisions of that Schedule mentioned in sub-paragraph (2) below were omitted; and

(b) with the modifications in paragraphs 6 to 9 of this Schedule.

(2) The provisions referred to in sub-paragraph (1)(a) above are--

(a) paragraphs 3 to 7 and 10;

(b) in paragraph 8--

(i) paragraph (a) of each of sub-paragraphs (1) and (4);

(ii) sub-paragraphs (i) and (ii) of sub-paragraph (2)(c);

(iii) sub-paragraphs (4A), (6) and (7);

-- Back --

Stat