Legalize / United Kingdom / Public General Act

Armed Forces Act 2006

Type Public General Act

Publication 2006-11-08

Last updated 2026-04-01

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(3) Where a charge mentioned in subsection (2) is referred under section 125(2)(e), the accused may not elect Court Martial trial of the charge (and accordingly section 129(1) does not apply in respect of the charge); but this does not apply —

(a) where the charge is amended after referral;

(b) to any charge substituted for or added to the charge after referral; or

Summary hearing

131

(1) This section applies where a commanding officer hears a charge summarily.

(2) The commanding officer may dismiss the charge at any stage of the hearing; but this is subject to subsection (4) and to any provision of rules under section 153.

(3) If the commanding officer determines that the charge has not been proved, he must dismiss the charge.

(4) If the commanding officer determines that the charge has been proved, he must—

(a) record a finding that the charge has been proved; and

(b) award one or more of the punishments authorised by section 132.

(5) Where the commanding officer records findings that two or more charges against a person have been proved, the award he must make under subsection (4) is a single award (consisting of one or more of those punishments) in respect of the charges taken together.

(6) Nothing in this section authorises a commanding officer to include in an award two or more punishments within the same row of the Table in section 132, except where those punishments are—

(a) different minor punishments which regulations made under row 7 of the Table permit to be awarded together; or

(b) service compensation orders.

Punishments available to commanding officer

132

(1) The second column of the following Table lists the punishments that may be awarded by a commanding officer who has heard a charge summarily, subject in the case of each punishment to any limitation shown in the third column opposite it.

Row Number	Punishment	Limitation
1	detention for a term not exceeding the maximum allowed by section 133	only if the person being punished is of or below the rank of—leading rate; corporal in the Royal Marines; lance corporal or lance bombardier in any of Her Majesty’s military forces;corporal in any of Her Majesty's air forces (see also subsection (1A))
2	forfeiture of a specified term of seniority or of all seniority	only if the person being punished is an officer, and only in accordance with section 134
3	reduction in rank, or disrating	only if the person being punished is a warrant officer or non-commissioned officer, only in accordance with section 135, and not to an extent prohibited by regulations under section 135(4)
4	a fine not exceeding the maximum amount allowed by section 136
5	a severe reprimand or a reprimand	only if the person being punished is an officer, warrant officer or non-commissioned officer
6	a service supervision and punishment order (defined by section 173)	only if the person being punished is an able rate, marine, soldier or airman
7	such minor punishments as may from time to time be authorised by regulations made by the Defence Council
8	a service compensation order (defined by section 175) of an amount not exceeding the maximum allowed by section 137
9	a deprivation order (defined by section 177B)	only if section 177C permits

(1A) In row 1 of the Table, in paragraph (c) of the entry in the third column, in relation to the Royal Air Force Regiment, the reference to a corporal is to be read as a reference to a lance corporal.

(2) Subsection (1) is subject to (in particular)—

(a) section 138 (prohibited combinations of punishments) and any regulations made under that section;

(b) Chapter 1 of Part 9 (general provisions about sentencing).

(3) Where regulations under row 7 of the Table authorise a minor punishment, they may—

(a) confer on the offender's commanding officer a power, when awarding the punishment, to direct that the punishment shall take effect from a date after the date of the award;

(b) confer on the offender's commanding officer the function of deciding the details of the punishment;

Detention: limits on powers

133

(1) The maximum term of detention that a commanding officer may award under row 1 of the Table in section 132 to an able rate, marine, soldier or airman is—

(a) 90 days if the commanding officer has extended powers for the purposes of this subsection;

(b) otherwise, 28 days.

(2) A commanding officer may not award detention under row 1 of the Table in section 132 to a person of any of the following ranks—

(a) leading rate,

(aa) corporal in the Royal Marines;

(b) lance corporal or lance bombardier in any of Her Majesty’s military forces,

unless the commanding officer has extended powers for the purposes of this subsection; and the maximum term of detention that a commanding officer may (if he has those powers) award such a person is 90 days.

(2A) In relation to the Royal Air Force Regiment, the reference in subsection (2)(c) to a corporal is to be read as a reference to a lance corporal.

(3) A commanding officer has extended powers for the purposes of subsection (1) or (2) if he has, within the relevant time (defined by section 135A) —

(a) applied to higher authority for extended powers for the purposes of that subsection; and

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

(4) A commanding officer also has extended powers for the purposes of subsection (1) or (2) if he is of or above the rank of rear admiral, major-general or air vice-marshal.

Forfeiture of seniority: requirement for approval

134

(1) A commanding officer may not award forfeiture of seniority under row 2 of the Table in section 132 unless he has extended powers for the purposes of this section.

(2) A commanding officer has extended powers for the purposes of this section if he has, within the relevant time (defined by section 135A) —

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

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

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

Reduction in rank: limits on powers

135

(1) A commanding officer may not award reduction in rank, or disrating, under row 3 of the Table in section 132 unless—

(a) he has extended powers for the purposes of this subsection; or

(b) the person being punished is a lance corporal or lance bombardier.

(2) The reduction in rank or disrating that a commanding officer may award is reduction or disrating—

(a) by one acting rank or rate; or

(b) if the person being punished has no acting rank or rate, by one substantive rank or rate.

(3) Where the person being punished is a corporal in any of Her Majesty's air forces, the reduction in rank authorised by subsection (2)(a) or (b) (as the case may be) is reduction to the highest rank the person has held in that force as an airman; but this is subject to subsection (3A).

(3A) In relation to the Royal Air Force Regiment, the reference in subsection (3) to a corporal is to be read as a reference to a lance corporal.

(4) The Defence Council may by regulations provide that persons of a trade or branch specified in the regulations may not be reduced or disrated under section 132 below a rank or rate so specified.

(5) A commanding officer has extended powers for the purposes of subsection (1) if he has, within the relevant time (defined by section 135A) —

(a) applied to higher authority for extended powers for the purposes of that subsection; and

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

(6) A commanding officer also has extended powers for the purposes of subsection (1) if he is of or above the rank of rear admiral, major-general or air vice-marshal.

Fine: maximum amount

136

(1) The maximum amount of a fine that a commanding officer may award is 28 days' pay.

(4) For the purposes of this section a day's pay is—

(a) subject to paragraph (b), the gross pay which is (or would apart from any forfeiture be) issuable to the offender in respect of the day when the punishment is awarded;

(b) if the offender is a special member of a reserve force, the gross pay which would have been issuable to him in respect of that day if he had been an ordinary member of that reserve force of the same rank or rate.

(5) If the offender is a member of a reserve force who is not on duty on the day the punishment is awarded, for the purposes of subsection (4) he is to be taken to have been on duty then.

(6) In subsection (4) “special member” and “ordinary member” have the same meanings as in the Reserve Forces Act 1996 (c. 14).

Service compensation orders: maximum amount

137

(1) Where an award by a commanding officer consists of or includes one service compensation order, the compensation to be paid under the order must not exceed £1,000.

(2) Where an award by a commanding officer consists of or includes two or more service compensation orders, the total compensation to be paid under the orders must not exceed £1,000.

(3) If it appears to the Secretary of State that there has been a change in the value of money since the relevant date, he may by order substitute for the sum for the time being specified in subsections (1) and (2) such other sum as appears to him justified by the change.

(4) In subsection (3) “the relevant date” means—

(a) the date of the coming into force of this section; or

(b) where the sum for the time being specified in subsections (1) and (2) was substituted for a sum previously so specified, the date of the substitution.

Prohibited combinations of punishments

138

(1) Subsections (2) to (6) apply where a commanding officer awards punishment in respect of an offender.

(2) If he awards detention, the only additional punishments he may award are—

(a) reduction in rank or disrating (subject to subsection (8));

(b) a service compensation order.

(4) If he awards forfeiture of seniority, the only additional punishments he may award are—

(a) a severe reprimand or a reprimand;

(b) a service compensation order.

(5) If he awards reduction in rank or disrating, the only additional punishments he may award are—

(a) a suspended sentence of service detention (subject to subsection (8));

(b) a service compensation order.

(6) If he awards a fine, he may not also award a service supervision and punishment order.

(7) Regulations under row 7 of the Table in section 132 may make provision, as respects any punishment authorised by those regulations, prohibiting that punishment from being awarded with any other punishment (whether or not so authorised) specified by the regulations.

(8) Nothing in this section authorises a commanding officer to award a particular punishment where the award of that punishment is prohibited otherwise than by this section.

(9) References in this section to a service compensation order include references to two or more such orders.

Savings for maximum penalties for offences

139

(1) Where a commanding officer awards punishment in respect of a single offence, nothing in sections 131 to 138 authorises him—

(a) to award a punishment of a kind which the Court Martial could not award for that offence;

(b) if the offence is under section 42 (criminal conduct), to award a fine exceeding the maximum allowed by section 42(4).

(2) Where a commanding officer awards punishment in respect of two or more offences—

(a) nothing in sections 131 to 138 authorises him to award a punishment of a particular kind unless it is one which the Court Martial could award for at least one of the offences; and

(b) if all the offences are under section 42 and the maximum fine allowed by section 136 exceeds the permitted maximum, nothing in sections 131 to 138 authorises him to award a fine exceeding the permitted maximum.

(3) The permitted maximum is the total of the fines that under section 42(4) the commanding officer could award in respect of the offences if he had power to make separate awards in respect of them.

Chapter 2 — The Summary Appeal Court

The Summary Appeal Court

140

(1) There shall be a court, to be known as the Summary Appeal Court.

(2) The Summary Appeal Court may sit in any place, whether within or outside the United Kingdom.

Right of appeal

141

(1) A person in respect of whom—

(a) a charge has been heard summarily, and

(b) a finding that the charge has been proved has been recorded,

may appeal to the Summary Appeal Court against the finding or against the punishment awarded.

(2) Subject to subsection (3), any appeal under this section must be brought—

(a) within the period of 14 days beginning with the date on which the punishment was awarded (“the initial period”); or

(b) within such longer period as the court may allow by leave given before the end of the initial period.

(3) The court may at any later time give leave for an appeal to be brought within such period as it may allow.

(4) The respondent to an appeal under this section is the Director of Service Prosecutions.

Constitution of the SAC for appeals

142

(1) For the purpose of hearing an appeal under section 141, the Summary Appeal Court is to consist of—

(a) a judge advocate;

(b) an officer qualified for membership under section 143 and not ineligible by virtue of section 144; and

(2) Subsection (1) is subject to any provision made by SAC rules.

(3) The judge advocate for an appeal under section 141 is to be specified by or on behalf of the Judge Advocate General.

(4) The other members of the court for an appeal under section 141 are to be specified by or on behalf of the court administration officer.

Officers and warrant officers qualified for membership of the SAC

143

(1) Subject to subsections (2) to (4), an officer or warrant officer is qualified for membership of the Summary Appeal Court if he is subject to service law.

(2) An officer is not qualified for membership of the court unless—

(a) he has held a commission in any of Her Majesty's forces for at least three years, or for periods amounting in the aggregate to at least three years; or

(b) immediately before receiving his commission, he was a warrant officer in any of those forces.

(3) A warrant officer is not qualified for membership of the court if he is an acting warrant officer.

(4) An officer or warrant officer is not qualified for membership of the court if—

(a) he is a member of the Military Court Service;

(b) he is a member of or on the staff of the Service Prosecuting Authority;

(d) he is a member of the Royal Army Chaplains' Department or the Royal Air Force Chaplains' Branch;

(e) he has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(f) he is an advocate or solicitor in Scotland;

(g) he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or

(h) he has in a relevant territory rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules.

(5) In this section “relevant territory” means—

(a) any of the Channel Islands;

(b) the Isle of Man;

(d) a British overseas territory.

Officers and warrant officers ineligible for membership in particular circumstances

144

(1) An officer is ineligible for membership of the Summary Appeal Court for the hearing of an appeal under section 141 if—

(a) he was the commanding officer of the appellant at any time in the period beginning with the date of commission of the offence which is the subject of the finding against the appellant and ending with the start of the appeal hearing;

(b) before the summary hearing, he took part in investigating the subject matter of any finding against the appellant;

(c) he is a higher authority who dealt with an application made before the summary hearing for permission under section 54 or for extended powers for the purposes of any provision of section 133, 134, 135, 136 or 194;

(d) he serves under the command of a person within paragraph (c);

(e) he serves under the command of the officer who conducted the summary hearing; or

(f) before the summary hearing, he conducted (whether alone or with other persons) an inquiry into the subject matter of any finding against the appellant.

(2) A warrant officer is ineligible for membership of the Summary Appeal Court for the hearing of an appeal under section 141 if he falls within subsection (1)(b), (d), (e) or (f).

(3) Where there is more than one finding against the appellant, the reference in subsection (1)(a) to the date of commission of the offence there mentioned is to the date of commission of the earliest such offence.

(4) SAC rules may provide that an officer or warrant officer of a description prescribed by the rules is ineligible for membership of the Summary Appeal Court.

Open court

145

Subject to any provision made by SAC rules, the Summary Appeal Court must sit in open court.

Hearing of appeals

146

(1) An appeal under section 141 against a finding is to be by way of—

(a) a rehearing of the charge; and

(b) except where section 147(2) applies, a rehearing as respects punishment.

(2) An appeal under section 141 against punishment is to be by way of a rehearing as respects punishment.

(3) In the case of the hearing of an appeal under section 141, rulings and directions on questions of law, procedure or practice are to be given by the judge advocate.

(4) Any rulings or directions given under subsection (3) are binding on the court.

Powers of the SAC

147

(1) At a rehearing of a charge by virtue of section 146(1)(a), the Summary Appeal Court may—

(a) confirm or quash the finding concerned; or

(b) substitute for the finding concerned a finding that another charge has been proved.

(2) Where the court quashes the finding, or (if there is more than one finding) every finding, made in respect of the appellant, it must quash the punishment which relates to that finding or, as the case may be, to those findings.

(3) At a rehearing as respects punishment by virtue of section 146(1)(b) or (2), the Summary Appeal Court may—

(a) confirm the punishment awarded; or

(b) quash that punishment and award in substitution for it any punishment which—

(i) it would have been within the powers of the officer who conducted the summary hearing to award; and

(ii) in the opinion of the court, is no more severe than the punishment originally awarded.

(4) SAC rules may make provision in connection with the exercise of the power under subsection (1)(b) (including provision restricting the exercise of the power).

(5) In determining—

(a) whether to substitute a term of detention, or

(b) the length of any such substituted term,

the court must take account of any period of the original term of detention that the appellant served.

Effect of substituted punishment

148

(1) Unless it otherwise directs, any punishment substituted by the Summary Appeal Court has effect as if awarded on the day on which the original punishment was awarded, but this is subject to subsection (2).

(2) Where the court substitutes a term of detention (other than a suspended sentence of service detention), the substituted term takes effect—

(a) if the court makes a direction under section 189(3), in accordance with the direction;

(b) otherwise, from the beginning of the day on which the punishment is substituted.

Making of, and appeals from, decisions of the SAC

149

(1) Subject to section 146(3), any decision of the Summary Appeal Court when constituted as mentioned in section 142(1) must be determined by a majority of the votes of the members of the court.

(2) The appellant or respondent may question any decision of the Summary Appeal Court on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Summary Appeal Court to have a case stated for the opinion of the High Court in England and Wales.

Privileges of witnesses and others

150

A witness before the Summary Appeal Court or any other person whose duty it is to attend the court is entitled to the same immunities and privileges as a witness before the High Court in England and Wales.

SAC rules

151

(1) The Secretary of State may by rules (referred to in this Act as “SAC rules”) make provision with respect to the Summary Appeal Court.

(2) SAC 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) the hearing of appeals and other proceedings of the court;

(d) evidence, including the admissibility of evidence;

(e) the representation of the appellant.

(3) Without prejudice to the generality of subsections (1) and (2), SAC rules may make provision—

(a) as to oaths and affirmations for members of the court, witnesses and other persons;

(b) as to objections to, and the replacement of, members of the court;

(d) for such powers of the court as may be prescribed by the rules to be exercised by a judge advocate;

(e) 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;

(f) enabling an uncontested appeal to be determined without a hearing;

(g) as to the bringing or abandonment of appeals;

(ga) in relation to cases where the court has awarded or confirmed a punishment at a rehearing and it appears to the court that it had no power to do so, enabling the court to substitute for the (purported) award or confirmation of the punishment a decision that the court would have had power to make at the rehearing;

(h) for the discharge of a court (including provision as to rehearings following discharge);

(i) as to notifications and references under section 152;

(j) for the making and retention of records of the proceedings of the court;

(k) for the supply of copies of such records, including provision about the fees payable for the supply of such copies;

(l) conferring functions in relation to the court on the court administration officer;

(m) 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)(e)(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).

(5A) Rules made by virtue of subsection (3)(ga) may make provision about the commencement of punishments varied by the court.

(6) SAC 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.

(7) In this section “appeal” means an appeal under section 141.

Chapter 3 — Review of Summary Findings and Punishments

Review of summary findings and punishments

152

(1) Where—

(a) a charge has been heard summarily, and

(b) a finding that the charge has been proved has been recorded,

the finding or the punishment awarded may be reviewed at any time.

(2) A review under this section may be carried out by—

(a) the Defence Council; or

(b) any officer appointed by the Defence Council to carry out the review or any class of review which includes the review.

(2A) Subsection (2B) applies where—

(a) a review has been carried out under this section in respect of a punishment,

(b) the person to whom the review relates has not brought an appeal under section 141 within the period provided by subsection (2) of that section, and

(c) the person who carried out the review considers there may be grounds for varying or rescinding the punishment, pursuant to rules made by virtue of section 153(1A).

(2B) The person who carried out the review may refer the punishment back to the commanding officer who awarded it to consider whether to exercise the power to vary or rescind the punishment pursuant to those rules.

(2C) Where subsection (2B) applies, that does not prevent the person who carried out the review from making a referral under subsection (4)—

(a) as an alternative to making a referral under subsection (2B), or

(b) after making a referral under subsection (2B), where the commanding officer has declined to exercise the power to vary or rescind the punishment.

(3) Subsection (4) applies where—

(a) a review has been carried out under this section in respect of a finding or punishment; and

(b) the person to whom the review relates has not brought an appeal under section 141 within the period provided by subsection (2) of that section.

(4) The person who carried out the review may, with the leave of the Summary Appeal Court, refer the finding or punishment to the court to be considered by it as on an appeal.

(5) Subsections (6) and (7) apply where—

(a) a review has been carried out under this section in respect of a finding or punishment; and

(b) the person to whom the review relates has brought an appeal under section 141.

(6) If—

(a) the Summary Appeal Court has not completed the hearing of the appeal, and

(b) the person who carried out the review considers that any matter arising at or from the summary hearing should be brought to the notice of the court,

he may notify the court of that matter.

(7) If—

(a) the Summary Appeal Court has completed the hearing of the appeal, and

(b) the person who carried out the review considers that any matter arising at or from the summary hearing of which the court was not aware should have been brought to the notice of the court,

he may, with the leave of the court, refer the finding or punishment, including any finding or punishment substituted or awarded by the court, to the court to be considered by it as on an appeal.

(8) A reference to the Summary Appeal Court under subsection (4) or (7) shall be treated for the purposes of this Act as an appeal under section 141 brought by the person to whom the finding or punishment relates against the finding or punishment.

Chapter 4 — Summary Hearings etc Rules

Summary hearings etc rules

153

(1) The Secretary of State may by rules make provision with respect to—

(a) the summary hearing of charges by commanding officers;

(b) hearings as regards the making of orders under section 193 (activation of suspended sentence of service detention).

(1A) Without prejudice to the generality of subsection (1), the Secretary of State may by rules make provision with respect to the variation or rescission by a commanding officer of—

(a) a punishment awarded by the officer, or

(b) an order under section 193 made by the officer,

in cases where it appears to the officer that the officer had no power to award the punishment or (as the case may be) to make the order.

(2) Rules under this section may in particular make provision—

(a) as to the practice and procedure to be followed at hearings;

(b) as to evidence at hearings;

(d) as to applications for , and grants of, extended powers;

(e) as to applications for , and grants of, permission to hear summarily charges of a kind mentioned in section 54;

(f) requiring prescribed persons to be notified of prescribed matters.

(2A) Rules made under subsection (1A) may make provision about the commencement of punishments or orders varied by the commanding officer.

(3) In subsection (2) “prescribed” means prescribed by rules under this section.

(a) “prescribed” means prescribed by rules under this section

(b) references to hearings include any proceedings for determining whether a punishment, or an order under section 193, should be varied or rescinded.

Part 7 — Trial by Court Martial

Chapter 1 — The Court Martial

The Court Martial

154

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

(2) The Court Martial may sit in any place, whether within or outside the United Kingdom.

Constitution of the Court Martial

155

(1) In the case of any proceedings, the Court Martial is to consist of—

(a) a judge advocate; and

(b) three or, in the case of proceedings of a prescribed description, six other persons (“lay members”).

(2) But Court Martial rules may provide that, in the case of proceedings of a prescribed description, there are to be—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) no lay members.

(2A) In the case of proceedings where the number of lay members would (but for this subsection) be three, a judge advocate may, in accordance with Court Martial rules, direct that the number of lay members is to be four.

(3) In the case of proceedings where the Court Martial consists of a judge advocate and lay members—

(a) a prescribed number of the lay members must be officers , warrant officers or OR-7 ranks qualified for membership under section 156 and not ineligible by virtue of section 157; and

(b) the rest must be officers so qualified and not so ineligible.

(4) Subsection (3) is subject to any provision made by Court Martial rules.

(5) The judge advocate for any proceedings is to be specified by or on behalf of the Judge Advocate General.

(6) The lay members for any proceedings are to be specified by or on behalf of the court administration officer.

(6A) Court Martial rules may provide that in prescribed circumstances the Court Martial is to remain validly constituted despite the reduction of the number of lay members—

(a) from six to five, or

(b) where a direction has been made under subsection (2A), from four to three,

if a judge advocate gives a direction to that effect.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) In this section—

“OR-7 rank” means any of the following—chief petty officer;staff corporal;staff sergeant;colour sergeant, Royal Marines;flight sergeant;chief technician;

“prescribed” means prescribed by Court Martial rules.

Officers and warrant officers qualified for membership of the Court Martial

156

(1) Subject to subsections (2) to (4), an officer , warrant officer or OR-7 rank is qualified for membership of the Court Martial if he is subject to service law.

(2) An officer is not qualified for membership of the court unless—

(a) he has held a commission in any of Her Majesty's forces for at least three years, or for periods amounting in the aggregate to at least three years; or

(b) immediately before receiving his commission, he was a warrant officer in any of those forces.

(3) A warrant officer is not qualified for membership of the court if he is an acting warrant officer.

(3A) An OR-7 rank is not qualified for membership of the court if that person is an acting—

(a) chief petty officer,

(b) staff corporal,

(d) colour sergeant, Royal Marines,

(e) flight sergeant, or

(f) chief technician.

(4) An officer , warrant officer or OR-7 rank is not qualified for membership of the court if—

(a) he is a member of the Military Court Service;

(b) he is a member of or on the staff of the Service Prosecuting Authority;

(d) he is a member of the Royal Army Chaplains' Department or the Royal Air Force Chaplains' Branch;

(e) he has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(f) he is an advocate or solicitor in Scotland;

(g) he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or

(h) he has in a relevant territory rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules.

(5) In this section “relevant territory” means—

(a) any of the Channel Islands;

(b) the Isle of Man;

(d) a British overseas territory.

(6) In this section “OR-7 rank” has the meaning given by section 155(9).

Officers and warrant officers ineligible for membership in particular circumstances

157

(1) An officer is ineligible for membership of the Court Martial for proceedings after the arraignment of a defendant if—

(a) he was the commanding officer of the defendant at any time in the period beginning with the date of commission of the offence to which the arraignment relates and ending with the arraignment;

(b) he has taken part in investigating the subject matter of any charge against the defendant; or

(c) he has conducted (whether alone or with other persons) an inquiry into the subject matter of any charge against the defendant.

(2) A warrant officer or OR-7 rank is ineligible for membership of the Court Martial for proceedings after the arraignment of a defendant if he falls within subsection (1)(b) or (c).

(3) Where a defendant is arraigned in respect of more than one offence, the reference in subsection (1)(a) to the date of commission of the offence there mentioned is to the date of commission of the earliest such offence.

(4) Court Martial rules may provide that an officer , warrant officer or OR-7 rank of a description prescribed by the rules is ineligible for membership of the Court Martial for a description of proceedings so prescribed.

(5) In this section “OR-7 rank” has the meaning given by section 155(9).

Chapter 2 — Court Martial Proceedings

Open court

158

Subject to any provision made by Court Martial rules, the Court Martial must sit in open court.

Rulings and directions

159

(1) In the case of proceedings where the Court Martial consists of a judge advocate and other persons, rulings and directions on questions of law, procedure or practice are to be given by the judge advocate.

(2) Any rulings or directions given under subsection (1) are binding on the court.

Decisions of Court Martial: finding and sentence

160

(A1) The finding of the Court Martial on a charge must be determined by votes of the members of the Court Martial other than the judge advocate (the “lay members”) and—

(a) where there are three lay members, must be a finding with which no fewer than two of them agree;

(b) where there are four lay members, must be a finding with which no fewer than three of them agree;

(d) where there are six lay members, must be a finding with which no fewer than five of them agree.

(1) Subject to subsection (4), any sentence passed by the Court Martial must be determined by a majority of the votes of the members of the court.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In the case of an equality of votes on the sentence, the judge advocate has a casting vote.

Power of Court Martial to convict of offence other than that charged

161

(1) Where the Court Martial acquits a person of an offence specifically charged in the charge sheet, but the allegations in the charge sheet amount to or include (expressly or by implication) an allegation of another service offence, the court may convict him of that other offence.

(2) For the purposes of subsection (1)—

(a) an allegation of an offence to which section 39(1) applies (offence X) shall be taken as including an allegation of an offence under that section of attempting to commit offence X; and

(b) an allegation of a completed section 42 offence shall be taken as including an allegation of a section 42 offence of attempt.

(3) Subsection (1) applies in relation to a charge sheet containing more than one charge as if each charge were contained in a separate charge sheet.

(4) In this section—

“a completed section 42 offence” means an offence that, by virtue of section 1(4) of the Criminal Attempts Act 1981 (c. 47) as modified by section 43 of this Act, is an offence to which section 1 of that Act applies;

“a section 42 offence of attempt” has the meaning given by section 44(2).

Privileges of witnesses and others

162

A witness before the Court Martial or any other person whose duty it is to attend the court is entitled to the same immunities and privileges as a witness before the High Court in England and Wales.

Court Martial rules

163

(1) The Secretary of State may by rules (referred to in this Act as “Court Martial rules”) make provision with respect to the Court Martial.

(2) Court Martial 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;

(f) appeals from the Service Civilian Court.

(3) Without prejudice to the generality of subsections (1) and (2), Court Martial rules may make provision—

(a) as to oaths and affirmations for members of the court, witnesses and other persons;

(b) as to objections to, and the replacement of, members of the court;

(d) for such powers of the court as may be prescribed by the rules to be exercised by a judge advocate;

(e) 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;

(f) as to the amendment of charges;

(g) for the taking into consideration, when sentencing an offender, of any other service offence committed by him;

(h) for the variation by the court of a sentence passed by it or the variation or rescission by it of an order made by it;

(i) for appeals—

(i) against any orders (including directions) of the court prohibiting or restricting the publication of any matter or excluding the public from any proceedings (whether made in preliminary proceedings or otherwise);

(ii) against any other orders or rulings made in proceedings preliminary to a trial;

(j) for the discharge of a court (including provision as to retrials and rehearings following discharge);

(k) for the powers conferred by section 7 of the Bankers' Books Evidence Act 1879 (c. 11) (orders for the inspection of bankers' books for the purposes of legal proceedings) to be exercisable by a judge advocate as well as by the court or a judge within the meaning of that Act;

(l) for the making and retention of records of the proceedings of the court;

(m) for the supply of copies of such records, including provision about the fees payable for the supply of such copies;

(n) conferring functions in relation to the court on the court administration officer;

(o) 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)(e)(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) Court Martial rules must secure that, after arraignment, charges may not be amended—

(a) in circumstances substantially different from those in which indictments are amendable by the Crown Court; or

(b) otherwise than subject to conditions which correspond, as nearly as circumstances permit, to those subject to which indictments are so amendable.

(7) Rules made by virtue of subsection (3)(h) may make provision about the commencement of sentences or orders varied by the court (including provision conferring on the court a power to direct that a sentence shall take effect otherwise than as mentioned in section 289(1)).

(8) Court Martial 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.

(9) Rules made by virtue of paragraph (i) of subsection (3) may confer jurisdiction on the Court Martial Appeal Court, and rules under section 49 of the Court Martial Appeals Act 1968 may make provision about the powers of that court in relation to appeals made by virtue of that paragraph.

Chapter 3 — Punishments Available to Court Martial

Punishments available to Court Martial

164

(1) The second column of the following Table lists the punishments that may be awarded by sentence of the Court Martial, subject in the case of each punishment to any limitation shown in the third column opposite it.

Row Number	Punishment	Limitation
1	imprisonment
2	dismissal with disgrace from Her Majesty's service
3	dismissal from Her Majesty's service
4	detention for a term not exceeding two years	not if the person being sentenced is an officer
5	forfeiture of a specified term of seniority or of all seniority	only if the person being sentenced is an officer
6	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)
7	a fine
8	a service community order (defined by section 178)	only if the person being sentenced is on the same occasion sentenced to dismissal or dismissal with disgrace and subsection (5) permits
9	a severe reprimand or a reprimand	only if the person being sentenced is an officer, warrant officer or non-commissioned officer
10	a service supervision and punishment order (defined by section 173)	only if the person being sentenced is an able rate, marine, soldier or airman
11	such minor punishments as may from time to time be authorised by regulations made by the Defence Council
12	a service compensation order (defined by section 175)
13	a deprivation order (defined by section 177B)	only if section 177C permits
14	a driving disqualification order (defined by section 177G)	only if subsection (5A) permits

(2) Where this Act provides that a person guilty of a particular offence is liable to any punishment mentioned in the Table or in specified rows of the Table, it means he is liable to any one or more of the punishments so mentioned (subject in the case of each one to any limitation shown in the third column opposite it).

(3) The previous provisions of this section are subject to (in particular)—

Chapters 4 to 6 of Part 8 (imprisonment for two years or less, young offenders' custodial sentences, and mandatory etc sentences for serious offences); ...

Part 9 (general provisions about sentencing); and

Schedule 3A (offender elected Court Martial trial).

(4) The Defence Council may by regulations restrict the extent to which persons of a description specified in the regulations may be reduced in rank or disrated under this section.

(5) The court may not make a service community order unless—

(a) the offender is aged 18 or over when convicted; and

(b) it appears to the court that he will reside in the United Kingdom when the order is in force.

(5A) The court may not make a driving disqualification order unless—

(a) the offence was committed on or after the commencement of section 15 of the Armed Forces Act 2021, and

(b) the court has been notified by the Secretary of State that the power to make such orders is exercisable by the court (and the notice has not been withdrawn).

(6) Where regulations under row 11 of the Table authorise a minor punishment, they may—

(a) confer on the Court Martial a power, when awarding the punishment, to direct that the punishment shall take effect from a date after the date of the award;

(b) confer on the offender's commanding officer the function of deciding the details of the punishment;

(7) This section is modified in relation to certain offenders by Schedule 3 (civilians etc).

Sentencing powers of Court Martial where election for trial by that court instead of CO

165

Schedule 3A (sentencing powers of Court Martial where election for trial by that court instead of CO) has effect.

Chapter 4 — Findings of Unfitness to Stand Trial and Insanity

Fitness to stand trial

166

(1) This section applies where on a trial by the Court Martial the question arises (at the instance of the defence or otherwise) whether the defendant is fit to stand trial.

(2) For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 (c. 84) it would constitute a bar to his being tried on indictment in England and Wales.

(3) Subject to subsections (5) and (6), the question of fitness to stand trial must be determined as soon as it arises.

(4) The question of fitness to stand trial is to be determined by the judge advocate.

(5) If having regard to the nature of the supposed disability the judge advocate is of the opinion that it is expedient to do so and in the interests of the defendant, he may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence.

(6) If before the question of fitness to stand trial falls to be determined the court finds the defendant not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined.

(7) A judge advocate may not make a determination under subsection (4) except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved within the meaning given by section 172.

Finding that defendant did the act or made the omission charged

167

(1) This section applies where in accordance with section 166(4) it is determined by the judge advocate that the defendant is unfit to stand trial.

(2) The trial shall not proceed or further proceed but the court must, as respects the charge or each of the charges on which the defendant was to be or was being tried, determine whether it is satisfied that he did the act charged against him as the offence.

(3) If as respects that charge or any of those charges the court is so satisfied, it must make a finding that the defendant did the act charged against him.

(4) If as respects that charge or any of those charges the court is not so satisfied, it must find the defendant not guilty as if on the charge in question the trial had proceeded to a conclusion.

(5) A determination under subsection (2) must be made—

(a) on the evidence (if any) already given in the trial; and

(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed under this section by the judge advocate to put the case for the defence.

(6) Section 160 (Court Martial decisions) does not apply to a determination or finding under this section, but as respects any charge to which subsection (2) above applies—

(a) the question whether the court is satisfied as mentioned in that subsection is to be determined by the members of the court other than the judge advocate (“the lay members”); and

(b) the court is so satisfied if, on a vote on the question whether they are so satisfied, a majority of the lay members are in favour.

(7) In this section “act” includes an omission and references to the doing of an act are to be read accordingly.

Findings of insanity

168

(1) This section applies where on the trial of a person by the Court Martial the court is satisfied, as respects the charge or any of the charges on which he is being tried, that—

(a) the defendant did the act charged against him as the offence; but

(b) at the time of that act he was insane.

(2) The court must find that the defendant was not guilty of that offence by reason of insanity.

(3) No finding under this section may be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved within the meaning given by section 172.

(4) Section 160 (Court Martial decisions) does not apply to a determination or finding under this section, but—

(a) the question whether the court is satisfied as mentioned in subsection (1) above is to be determined by the members of the court other than the judge advocate (“the lay members”); and

(b) the court is so satisfied if, on a vote on the question whether they are so satisfied, a majority of the lay members are in favour.

(5) In this section “act” includes an omission and references to the doing of an act are to be read accordingly.

Powers where person unfit to stand trial or not guilty by reason of insanity

169

(1) This section applies where on a trial by the Court Martial—

(a) the defendant is found to be unfit to stand trial and to have done the act charged against him; or

(b) the defendant is found not guilty by reason of insanity.

(2) Subject to subsections (4) and (5), the court must make in respect of the defendant—

(a) a hospital order, with or without a restriction order;

(b) a service supervision order (defined by section 170); or

(3) In this section—

“hospital order” means an order under section 37 of the Mental Health Act 1983 (c. 20) (“the 1983 Act”) as modified by Schedule 4 to this Act;

“restriction order” means an order under section 41 of that Act as so modified.

(4) The power to make a hospital order by virtue of this section is not exercisable unless the conditions in subsections (1)(b) and (2) of section 37 of the 1983 Act, as modified by Schedule 4 to this Act, are satisfied.

(5) Where—

(a) the finding mentioned in subsection (1) relates to an offence the sentence for which is fixed by law, and

(b) the court has power to make a hospital order,

the court must make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection).

(6) The functions of the court under this section, and any functions under the 1983 Act that are exercisable by the court by reason of this section or Schedule 4, are to be exercised by—

(a) the judge advocate for the trial mentioned in subsection (1); or

(b) in a case where that judge advocate has made an interim hospital order under section 38 of the 1983 Act as modified by Schedule 4, by that or any other judge advocate.

(7) In subsection (1) “act” includes an omission and the reference to the doing of an act is to be read accordingly.

(8) Schedule 4 (modifications of the 1983 Act) has effect.

Service supervision orders

170

(1) In section 169 and this section a “service supervision order” means an order which requires the person in respect of whom it is made (“the supervised person”) to be under the supervision of a person specified in the order (“the supervising officer”) for a period specified in the order.

(2) The period specified in the order must not exceed the maximum period for the time being specified in paragraph 1(1) of Schedule 1A to the Criminal Procedure (Insanity) Act 1964 (c. 84) (maximum period of civilian supervision order).

(3) The court may not make a service supervision order under section 169(2)(b) unless it is satisfied—

(a) that, having regard to all the circumstances of the case, the making of a service supervision order is the most suitable way of dealing with the defendant;

(b) that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

(c) that arrangements have been made for any treatment which (under subsection (4)) is intended to be specified in the order.

(4) An order under section 169(2)(b) may, in accordance with regulations under subsection (5), require the supervised person to submit, during the whole of the period specified in the order or such part of it as may be so specified, to treatment by or under the direction of a registered medical practitioner.

(5) The Secretary of State may by regulations make further provision in relation to service supervision orders, including in particular provision—

(a) as to the procedure to be followed by a court making a service supervision order;

(b) as to the descriptions of supervising officer who may be specified in such an order;

(c) for treatment to be provided, in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated, at a place other than a place specified in the order;

(d) authorising a court to include in a service supervision order requirements corresponding to any requirements that Schedule 1A to the Criminal Procedure (Insanity) Act 1964 (c. 84) for the time being allows to be included in supervision orders under that Act;

(e) imposing on the supervised person obligations corresponding to any for the time being imposed by that Schedule;

(f) for the amendment and revocation of a service supervision order.

Remission for trial

171

(1) Where—

(a) a person is detained in pursuance of a hospital order which the Court Martial had power to make by virtue of section 169(1)(a),

(b) the court also made a restriction order, and

the Secretary of State, if satisfied after consultation with the responsible clinician that the person can properly be tried, may remit the person for trial by the Court Martial.

(2) A person remitted under this section must be transferred to service custody, but when he is so transferred—

(a) he must as soon as practicable be brought before a judge advocate for a review of whether he should continue to be kept in service custody; and

(b) on that review he is to be dealt with as on a review under section 108(1) (see section 108(4) to (8)).

(3) On the transfer of a person to service custody under this section the hospital order and restriction order cease to have effect.

(4) In this section—

“hospital order” and “restriction order” have the same meanings as in section 169;

“the responsible clinician” means the responsible clinician within the meaning of Part 3 of the Mental Health Act 1983.

(5) In subsection (1)(a) the reference to a hospital order as there mentioned includes a reference to—

(a) a hospital order made by virtue of section 16(1)(b) or 22(3A) of the Court Martial Appeals Act 1968 (c. 20);

(b) a hospital order made by virtue of section 25B(1) of that Act in a case in which a finding within section 169(1)(a) of this Act was made by the Court Martial.

Provision supplementary to sections 166 and 168

172

(1) In sections 166 and 168 and this section “duly approved” means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State , or by another person by virtue of section 12ZA or 12ZB of that Act, as having special experience in the diagnosis or treatment of mental disorder.

(2) For the purposes of the provisions of sections 166 and 168 which permit a court to act on the written evidence of—

(a) a registered medical practitioner, or

(b) a registered medical practitioner who is duly approved,

a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may (subject to subsection (4)) be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved.

(3) The court may require the signatory of any such report to be called to give oral evidence.

(4) Where in pursuance of a direction of the court any such report is tendered in evidence otherwise than by or on behalf of the defendant, then—

(a) if the defendant is represented by counsel or a solicitor, a copy of the report must be given to his counsel or solicitor;

(b) if the defendant is not so represented the substance of the report must be disclosed to him or, if he is aged under 18, to his parent or guardian if present in court;

(d) evidence to rebut the evidence contained in the report may be called by the defendant or on his behalf.

Part 8 — Sentencing Powers and Mandatory etc Sentences

Chapter 1 — Definition etc of Certain Sentences

Service supervision and punishment orders

173

(1) A service supervision and punishment order is an order that—

(a) imposes on the offender, for a period specified in the order, such requirements as regulations made by the Defence Council may prescribe; and

(b) provides that one-sixth of his gross pay for that period is forfeit.

(2) The period specified in the order must be 90, 60 or 30 days beginning with the day the order is made.

(3) The requirements that regulations under this section may prescribe include, in particular—

(a) requirements to perform activities of a prescribed description;

(b) requirements not to use entitlement to leave;

and the descriptions of activities that may be prescribed include extra work and drill.

(4) A requirement included in regulations under this section may be for a person to perform an activity of a prescribed description for up to a prescribed period of time per day, and the regulations may—

(a) confer on the person's commanding officer the function of deciding in respect of any day what activities within the prescribed description must be performed and for how much of the prescribed period of time and when;

(b) provide for the delegation by the commanding officer of any of his functions under the regulations.

(5) Regulations under this section may prescribe different requirements for different parts of the period of the order.

(6) In this section “prescribed” means prescribed by regulations under this section.

Review of service supervision and punishment orders

174

(1) The commanding officer of a person subject to a service supervision and punishment order must, at times prescribed by regulations made by the Defence Council, consider whether the order should continue in force.

(2) If on a review under subsection (1) the commanding officer decides that the order should not continue in force, he must order that it shall immediately cease to have effect.

(3) Regulations made by the Defence Council may—

(a) prescribe criteria to be applied by a commanding officer in deciding whether an order should continue in force;

(b) make provision about procedure in relation to orders under subsection (2).

(4) Where a commanding officer makes an order under subsection (2), there remains forfeit one-sixth of the offender's gross pay for the period—

(a) beginning with the day the service supervision and punishment order is made; and

(b) ending with the day before the date of the commanding officer's order.

Service compensation orders

175

(1) A service compensation order is an order that requires the offender to pay compensation for any personal injury, loss or damage resulting from—

(a) the offence of which he has been convicted; or

(b) where any other offence is taken into consideration in determining his sentence, any offence so taken into consideration.

(2) A service compensation order must be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the offender or the prosecutor.

(3) In the case of an offence of unlawfully obtaining any property (whether by stealing it, handling it or otherwise), where the property in question is recovered, any damage to the property occurring while it was out of the owner's possession is to be treated for the purposes of this section as having resulted from the offence, however and by whomever the damage was caused.

(4) No service compensation order may be made in respect of—

(a) bereavement;

(b) funeral expenses; or

(5) No service compensation order may be made in respect of injury, loss or damage due to an accident arising out of the presence of a motor vehicle on a road unless—

(a) it is in respect of damage treated by subsection (3) as resulting from an offence of unlawfully obtaining any property; or

(b) it is in respect of injury, loss or damage as respects which—

(i) the offender is uninsured in relation to the use of the vehicle; and

(ii) compensation is not payable under any arrangements to which the Secretary of State is a party.

(6) Where a service compensation order is made in respect of injury, loss or damage due to an accident arising out of the presence of a motor vehicle on a road, the amount to be paid may include an amount representing the whole or part of any loss of or reduction in preferential rates of insurance attributable to the accident.

(7) For the purposes of subsection (5) a person is not uninsured in relation to the use of a vehicle if—

(a) the vehicle is in the public service of the Crown; or

(b) the use of the vehicle is exempted from insurance by section 144 of the Road Traffic Act 1988 (c. 52) or Article 90(2) of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)).

(7A) The court must consider making a service compensation order in any case where it has power to do so.

(8) The court must give reasons, on passing sentence, if it does not make a service compensation order in a case where it has power to do so.

(9) References in this section to “the court” are references to the court or officer sentencing the offender.

Service compensation orders: appeals etc

176

(1) A person in whose favour a service compensation order is made is not entitled to receive the amount due to him until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal which could result in the order being varied or ceasing to have effect.

(2) Where the Supreme Court restores a conviction of a service offence, it may make any service compensation order which the court of trial could have made.

(3) Where a service compensation order has been made against any person in respect of an offence taken into consideration in determining his sentence—

(a) the order ceases to have effect if he successfully appeals against his conviction of the offence or, if more than one, all the offences, of which he was convicted in the proceedings in which the order was made;

(b) he may appeal against the order as if it were part of the sentence imposed in respect of the offence or, if more than one, any of the offences, of which he was so convicted.

Review of service compensation orders

177

(1) The appropriate court may, on the application of the person against whom a service compensation order was made, discharge the order or reduce the amount which remains to be paid; but this is subject to subsections (2) and (3).

(2) The appropriate court may exercise a power conferred by subsection (1) only at a time when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal which could result in the order being varied or ceasing to have effect.

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

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

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

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

(4) In this section “the appropriate court” means—

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

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

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

(a) subject to service law;

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

Service community orders (civilians and dismissed servicemen only)

Service community orders

178

(1) A service community order is an order—

(a) imposing on the offender one or more of the requirements listed in column 1 of the community order requirements table in section 201 of the Sentencing Code; and

(b) specifying the local justice area in England and Wales, or the locality in Scotland where the offender resides or will reside, or that the offender resides or will reside in Northern Ireland.

(2) The following provisions of the Sentencing Code apply in relation to a service community order under this Act—

(a) section 203 (restriction on making both community order and suspended sentence order);

(b) sections 206 and 207 (community order: available requirements);

(c) section 208(2) and Schedule 9 (requirements relating to community orders), other than paragraph 17(2)(c) of that Schedule (condition for mental health treatment requirement) (see also the modifications to Schedule 9 made by section 179 of this Act);

(d) section 208(10) to (14) (further requirements);

(e) section 209 (end date);

(f) section 210 (specification of local justice area);

(g) section 217 (power to provide for court review);

(h) section 212(1) to (3) and (5) (provision of copies);

(i) sections 213 to 216 (obligations of responsible officer and offender);

(j) section 218 and Schedule 10 (breach, revocation or amendment of community order) (see also the modifications to Schedule 10 made by section 181 of this Act);

(k) section 219 and Schedule 11 (transfer of community order to Scotland or Northern Ireland) (see also the modifications to Schedule 11 made by section 180 of this Act);

(l) section 220 (when order ceases to be in force);

(m) section 394 (rules relating to community orders);

(n) section 395 (data from electronic monitoring code).

(3) In the application of those provisions, other than Schedule 10, references to a community order include a service community order.

See section 181(1) of this Act as regards references to a community order in Schedule 10.

(4) In the application of those provisions, other than in Schedules 10 and 11, references to a court include a relevant service court.

See section 180 of this Act as regards references to a court in Schedule 11.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(a) the Court Martial;

(b) the Service Civilian Court;

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

Periodic review etc of service community orders

179

(1) In their application to a service community order, paragraphs 21 and 22 of Schedule 9 to the Sentencing Code are modified as follows.

(2) Paragraph 21 (court review of drug rehabilitation requirement) has effect as if for paragraphs (4) to (6) there were substituted—

(4) In this paragraph “the responsible court”, in relation to a service community order imposing a drug rehabilitation requirement, means the Crown Court.

(3) Paragraph 22 (periodic review of drug rehabilitation requirement) has effect as if after sub-paragraph (5) there were inserted—

(5A) In a case where the order was made by the Service Civilian Court, a term of imprisonment or detention in a young offender institution or fine imposed under sub-paragraph (4)(b) must not exceed— (a) in the case of a term of imprisonment or detention in a young offender institution, 6 months; (b) in the case of a fine, the prescribed sum within the meaning of section 32 of the Magistrates' Courts Act 1980. (5B) Where a sentence is passed under sub-paragraph (4)(b), section 9 of the Criminal Appeal Act 1968 (appeal against sentence) applies as if the offender had been convicted on indictment of the offence for which the sentence was passed.

Transfer of service community order to Scotland or Northern Ireland

180

(1) In its application to service community orders, Schedule 11 to the Sentencing Code (transfer of community orders to Scotland or Northern Ireland) applies with the following modifications.

(2) In paragraphs 1, 3, 5, 6, 7, 9, 11, 12, 13, 15 and 17 the references to a court are to be read as including a relevant service court.

(3) In paragraph 14, the reference to a court in England and Wales is to be read as including a relevant service court.

(4) In paragraph 15(d), the reference to the powers of the court making or amending the community order is to be read as a reference to the powers of the Crown Court.

(5) In paragraph 21(6) to (8), the references to the court which made the order are to be read as including a relevant service court.

(6) In paragraph 22(1), the reference to the court which made the order or which last amended the order in England and Wales is to be read as a reference to the Crown Court.

(7) In paragraphs 23 to 26, the references to a court in England and Wales are to be read as references to the Crown Court.

(8) In this section “relevant service court” has the same meaning as in section 178.

Breach, revocation or amendment of service community order

181

(1) Schedule 10 to the Sentencing Code (breach, revocation or amendment of community order) applies to a service community order as it applies to a Crown Court community order (within the meaning of that Schedule) with the following modifications.

(2) Paragraph 1(1) has effect as if, for the definition of “appropriate court” there were substituted—

“appropriate court” means the Crown Court;

(3) Part 1 has effect as if, after paragraph 5, the following paragraph were inserted—

(5A) (1) Sub-paragraphs (2) and (3) apply where— (a) this Schedule provides the court with a power to re-sentence an offender for the offence in respect of which a service community order was made, and (b) the service community order was made by the Service Civilian Court. (2) A term of imprisonment or detention in a young offender institution imposed under the power to re-sentence the offender must not exceed 6 months. (3) A fine imposed under the power to re-sentence the offender must not exceed the prescribed sum (within the meaning of section 32 of the Magistrates' Courts Act 1980). (4) Where a sentence is passed by virtue of a power in this Schedule for a court to re-sentence an offender, section 9 of the Criminal Appeal Act 1968 (appeal against sentence) applies as if the offender had been convicted on indictment of the offence for which the sentence was passed.

(4) Paragraph 11 has effect as if sub-paragraph (3) were omitted.

(5) Paragraph 27 has effect as if sub-paragraphs (3)(b), (5) and (6) were omitted.

Overseas community orders (civilians only)

Overseas community orders

182

(1) An overseas community order is an order—

(a) imposing on the offender one or more of the requirements listed in column 1 of the community order requirements table in section 201 of the Sentencing Code (but see subsection (1A) below); and

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

(1A) The order may not include any of the following—

(a) a foreign travel prohibition requirement;

(b) an alcohol abstinence and monitoring requirement;

(d) an electronic whereabouts monitoring requirement.

(2) The order may include a particular requirement ... only if the court is satisfied—

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

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

(3) The following provisions of the Sentencing Code apply in relation to an overseas community order under this Act—

(a) section 203 (restriction on making both community order and suspended sentence order);

(b) sections 206 and 207(3) (community order: available requirements);

(c) section 208(2) and Schedule 9 (requirements relating to community orders), other than the following provisions of that Schedule—

(i) paragraph 3(1)(b) (unpaid work requirement: availability of arrangements);

(ii) paragraph 10(3) (requirement to impose electronic monitoring requirement when imposing curfew requirement);

(iii) paragraph 12 (requirement to impose electronic monitoring requirement when imposing exclusion requirement);

(iv) paragraph 15 (foreign travel prohibition requirement);

(v) paragraph 17(2)(c) (condition for mental health treatment requirement);

(vi) paragraphs 21 and 22 (periodic review of drug rehabilitation requirement);

(vii) paragraphs 25 and 26 (alcohol abstinence and monitoring requirement);

(viii) paragraph 28(a) (availability of attendance centre);

(ix) paragraphs 29 to 35 (electronic monitoring);

(d) section 208(10) to (14) (further requirements) (see also the modifications to section 208(11) made by section 183(2) of this Act);

(e) section 209 (end date);

(f) section 212(1) to (3) and (5) (provision of copies) (see also the modifications made to section 212 by section 183(3) of this Act);

(g) sections 213 to 216 (obligations of responsible officer and offender) (see also the modifications made to sections 214 and 216 by section 183(4) and (5) of this Act);

(h) section 218 and Schedule 10 (breach, revocation or amendment of community order) (see also the modifications to Schedule 10 made by Schedule 6A to this Act);

(i) section 220 (when order ceases to be in force);

(j) section 394 (rules relating to community orders).

(4) In the application of those provisions to an overseas community order, references to a community order include an overseas community order.

(5) In the application of those provisions to an overseas community order, other than in Schedule 10, references to a court include a relevant service court.

See Schedule 6A to this Act as regards references to a court in Schedule 10.

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

(a) the Court Martial;

(b) the Service Civilian Court;

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

Overseas community orders: modifications of 2003 Act

183

(1) The provisions of the Sentencing Code mentioned in section 182(3) apply in relation to an overseas community order with the modifications set out in subsections (2) to (5).

(2) Section 208(11) has effect as if, before paragraph (a) there were inserted—

(za) the offender is aged under 18 when convicted of the offence in respect of which the order is made;

(3) Section 212 (provision of copies of community order and related documents) has effect as if, in subsection (2), for paragraphs (a) to (d) there were substituted—

(a) to the offender, (b) to the offender's commanding officer, (c) if the offender is aged under 14, to the offender's parent or guardian, (d) if the order imposes an education requirement under Schedule 6 to the Armed Forces Act 2006, to Service Children's Education, (e) to the responsible officer, and (f) to an officer of a provider of probation services that is a public sector provider who is acting at the court.

(4) Section 214 (obligations of responsible officer) has effect as if, at the end of subsection (2) there were inserted

, and (c) where appropriate, to take steps to enforce those requirements.

(5) Section 216 (duty of offender to obtain permission before changing residence) has effect as if, in subsection (4), for the words from “has the same meaning” to the end, there were substituted “ means the court that made the order ”.

(6) Schedule 6 makes provision about the application of the provisions of the Sentencing Code mentioned in section 182(3) where an overseas community order relates to a young offender.

Breach, revocation or amendment of overseas community order

184

Schedule 6A (application of Schedule 10 to the Sentencing Code to overseas community orders) has effect.

Conditional or absolute discharge (civilians only)

Conditional or absolute discharge

185

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

(2) The period specified in the order (“the period of conditional discharge”) must—

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

(b) not exceed the maximum period for the time being specified in section 80(5) of the Sentencing Code (maximum period of civilian conditional discharge).

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

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

Commission of further offence by person conditionally discharged

186

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

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

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

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

(5) A person who—

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

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

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

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

Effect of discharge

187

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

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

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