Armed Forces Act 2006

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

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

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

Chapter 6 — Mandatory etc Custodial Sentences for Certain Offences

Mandatory sentences

Mandatory life imprisonment

217

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

• (a) murder; or

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

• (2) Where on conviction the offender is 21 or over, the court must sentence the offender to imprisonment for life.

• (3) Where on conviction the offender is aged under 21, the court must pass on the offender a sentence of custody for life under section 275 of the Sentencing Code.

• (4) Subsection (3) does not apply where the offender is liable to be detained under section 218 (detention at Her Majesty's pleasure for offender under 18).

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

218

• (1) This section applies if—

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

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

• (i) murder; or

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

• (c) the offender appears to the court to have been aged under 18 at the time the offence was committed.

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

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

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

Required sentences

Dangerous offenders aged 18 or over

219

• (1) This section applies where —

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

• (b) the corresponding offence under the law of England and Wales is a Schedule 19 offence within the meaning of Part 10 of the Sentencing Code (see section 307 of that Code), and

• (c) the court is of the required opinion (defined by section 223).

• (1A) Where the offender is under 21 when convicted of the offence under section 42, section 274(3) of the Sentencing Code (duty to impose custody for life) applies in relation to the offender.

• (2) Where the offender is 21 or over when convicted of the offence under section 42, section 285(3) of the Sentencing Code (duty to impose imprisonment for life) applies in relation to the offender.

• (3) In sections 274(3) and 285(3) of the Sentencing Code (as applied by subsections (1A) and (2)), references to “the offence” are to be read as references to the offence under section 42 of this Act.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) A sentence under section 274 or 285 of the Sentencing Code passed as a result of this section is not to be regarded as a sentence fixed by law.

Certain violent or sexual offences: offenders aged 18 or over

220

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dangerous offenders aged under 18

221

• (1) This section applies where —

• (a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct) which was committed on or after 4 April 2005,

• (b) the corresponding offence under the law of England and Wales is a Schedule 19 offence within the meaning of Part 10 of the Sentencing Code (see section 307 of that Code),

• (ba) the court considers that the seriousness of—

• (i) the offence under section 42, or

• (ii) that offence and one or more offences associated with it,

is such as to justify the imposition of a sentence of detention for life, and

• (c) the court is of the required opinion (defined by section 223).

• (2) Section 258(2) of the Sentencing Code (duty to impose detention for life) applies in relation to the offender.

• (3) In section 258(2) of the Sentencing Code (as applied by subsection (2)), the reference to section 250 of that Code is to be read as a reference to section 209 of this Act.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (6) A sentence under section 258(2) of the Sentencing Code passed as a result of this section is not to be regarded as a sentence fixed by law.

Offenders aged under 18: certain violent or sexual offences

222

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“The required opinion” for purposes of sections 219 to 222

223

• (1) “The required opinion” for the purposes of sections 219(1), 219A(1), 221(1) and 221A(1) is the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of—

• (a) further specified offences; or

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

• (2) For the purposes of the court's decision whether it is of that opinion, subsections (2) and (3) of section 308 of the Sentencing Code apply as they apply for the purposes of the assessment referred to in subsection (1) of that section.

• (3) In section 308(2)(a) of the Sentencing Code as applied by this section, the reference to the offence is to be read as a reference to the offence under section 42 of this Act.

• (4) In this section—

• “serious harm” has the meaning given by section 306 of the Sentencing Code;

• “specified offence” has the meaning given by that section.

Place of detention under certain sentences

224

Section 261 of the Sentencing Code (detention in pursuance of extended sentence) applies to detention imposed by virtue of section 221A of this Act as it applies to detention under section 254 of that Code.

Third drug trafficking offence

225

• (1) This section applies where —

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

• (b) if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, section 313 of the Sentencing Code (third class A drug trafficking offence) would apply.

• (2) The Court Martial must impose the sentence required by section 313(2A) of that Code, unless it is of the opinion that there are exceptional circumstances which—

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

• (b) justify not doing so.

Third domestic burglary

226

• (1) This section applies where—

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

• (b) if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, section 314 of the Sentencing Code (third domestic burglary) would apply.

• (2) The Court Martial must impose the sentence required by section 314(2A) of that Code, unless it is of the opinion that there are exceptional circumstances which—

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

• (b) justify not doing so.

Firearms offences

227

• (1) This section applies if—

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

• (aa) the corresponding offence under the law of England and Wales is an offence listed in any of paragraphs 1 to 4 of Schedule 20 to the Sentencing Code; and

• (b) if his conviction had been by a civilian court in England and Wales of that corresponding offence, section 311 of the Sentencing Code (minimum sentences for certain firearms offences) would apply.

• (2) The Court Martial must impose the sentence required by section 311(2) of the Sentencing Code (as that provision has effect in relation to England and Wales), unless it is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.

• (3) In section 311(3)(a) of that Code, as applied by this section, the reference to a sentence of detention under section 250 or 252A of that Code is to be read as a reference to a sentence of detention under section 209 of this Act.

Appeals where previous convictions set aside

228

• (1A) Subsection (3) applies in the cases described in subsections (1B) to (2).

• (1B) The first case is where—

• (a) a sentence has been imposed on any person under section 273(3) or 283(3) of the Sentencing Code (life sentence for second listed offence) as applied by section 218A of this Act;

• (b) a previous conviction of that person has been subsequently set aside on appeal; and

• (c) without that conviction, the previous offence condition mentioned in section 218A(1)(d) would not have been met.

• (1C) The second case is where—

• (a) a sentence has been imposed on any person under section 225(3) of the 2003 Act (as applied by section 219(2) of this Act);

• (b) the condition in section 225(3A) of the 2003 Act was met but the condition in section 225(3B) of that Act was not; and

• (c) any previous conviction of the person without which the condition in section 225(3A) would not have been met is subsequently set aside on appeal.

• (1D) The third case is where—

• (a) a sentence has been imposed on any person under section 266 or 279 of the Sentencing Code (extended sentence for certain violent, sexual or terrorism offenders aged 18 or over) as applied by section 219A of this Act;

• (b) the condition in section 219A(2) was met, but the condition in section 219A(3) was not; and

• (c) any previous conviction of the person without which the condition in section 219A(2) would not have been met is subsequently set aside on appeal.

• (1E) The fourth case is where—

• (a) a sentence has been imposed on any person under section 227(2) of the 2003 Act (as applied by section 220(2) of this Act);

• (b) the condition in section 227(2A) of the 2003 Act was met but the condition in section 227(2B) of that Act was not; and

• (c) any previous conviction of the person without which the condition in section 227(2A) would not have been met is subsequently set aside on appeal.

• (2) The fifth case is where—

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

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

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

• (3A) Subsection (3B) applies where—

• (a) a sentence has been imposed on a person under section 273(3) or 283(3) of the Sentencing Code (life sentence for second listed offence) as applied by section 218A of this Act;

• (b) a previous sentence imposed on that person has been subsequently modified on appeal; and

• (c) taking account of that modification, the previous offence condition mentioned in section 218A(1)(d) would not have been met.

• (3B) An application for leave to appeal against the sentence mentioned in subsection (3A)(a) may be lodged at any time within 29 days beginning with the day on which the previous sentence was modified.

• (4) Subsections (3) and (3B) have effect notwithstanding anything in section 9(1) of the Court Martial Appeals Act 1968 (c. 20).

Chapter 7 — Court Orders Other Than Sentences

Service restraining orders

Service restraining orders

229

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

• (a) it convicts or acquits a person (“the defendant”) of an offence; and

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

• (2) An order under this section—

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

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

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

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

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

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

Service restraining orders: supplementary

230

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

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

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

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

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

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

Service restraining orders: appeals

231

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

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

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

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

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

• (b) the defendant is to be treated for the purpose of enabling him to appeal against the order as if he had been convicted of the offence by the court.

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

Service restraining orders: variation and revocation

232

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

• (a) the Director of Service Prosecutions;

• (b) the defendant; or

• (c) any other person mentioned in the order.

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

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

Order for parent or guardian to enter into recognizance

Order for service parent or service guardian to enter into recognizance

233

• (1) Where—

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

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

• (c) he has a service parent or service guardian,

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

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

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

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

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

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

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

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

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

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

Recognizances and fines under section 233: further provision

234

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

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

• (a) for a period exceeding three years; or

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

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

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

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

Recognizances: appeals, variation and revocation

235

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

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

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

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

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

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

Forfeiture of recognizance

236

• (1) Where—

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

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

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

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

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

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

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

• (c) remit that sum.

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

Part 9 — Sentencing: Principles and Procedures

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

General sentencing principles

Duty to have regard to purposes of sentencing etc

237

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

• (a) the punishment of offenders;

• (b) the maintenance of discipline;

• (c) the reduction of service offences and other crime (including reduction by deterrence);

• (d) the reform and rehabilitation of offenders;

• (e) the protection of the public (including victims of crime);

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

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

• (3) This section does not apply in relation to—

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

• (b) an offence the sentence for which falls to be imposed under section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence);

• (ba) an offence the sentence for which falls to be imposed under section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over);

• (bb) an offence the sentence for which falls to be imposed under section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18);

• (bc) an offence the sentence for which falls to be imposed under section 313(2A) of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);

• (bd) an offence the sentence for which falls to be imposed under section 314(2A) of the Sentencing Code as a result of section 226(2) (third domestic burglary);

• (be) an offence the sentence for which falls to be imposed under section 311(2) of the Sentencing Code as a result of section 227(2) (firearms offences);

• (c) an offence the sentence for which falls to be imposed under section 227A(1A) or (2) (threatening with a weapon in public or on school premises).

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

Deciding the seriousness of an offence

238

• (1) A court or officer dealing with an offender for a service offence (“the current offence”) must in considering the seriousness of the offence—

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

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

• (c) if the offender committed the current offence while—

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

• (ii) on bail,

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

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

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

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

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

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

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

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

• (6) In section 69 of the Sentencing Code (seriousness of offence with terrorist connection)—

• (a) the references to a court are to be read as including a court dealing with an offender for an offence under section 42, and

• (b) the reference in subsection (1) to an offence specified in Schedule 1 to that Code is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence specified in Schedule 1.

• (7) In section 69A of the Sentencing Code (seriousness of offence where foreign power condition met)—

• (a) the references in that section to a court are to be read as including a court dealing with an offender for a service offence, and

• (b) the reference in subsection (1)(b) to an offence which is not an offence listed in subsection (2) is to be taken as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is not an offence so listed.

Reduction in sentences for guilty pleas

239

• (1) This section applies where an offender—

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

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

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

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

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

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

• (4) Subsection (5) applies in the case of an offence the sentence for which, as a result of section 225(2) or 226(2) of this Act (required custodial sentences), falls to be imposed under section 313(2A) or 314(2A) of the Sentencing Code.

• (5) Nothing in section 313(2A) or 314(2A) of that Code prevents the court, after taking into account any matter mentioned in subsection (2) above, from imposing any sentence which is at least 80% of that specified in section 313(2A) or 314(2A) of that Code.

• (6) Nothing in section 227A(1A) or (2) prevents the court, after taking into account any matter mentioned in subsection (2) of this section, from imposing any sentence which is at least 80% of that specified in section 227A(1A) or (2).

Increase in sentence for racial or religious aggravation

240

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

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

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

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

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

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

Increase in sentence for aggravation related to disability or sexual orientation

241

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

• (2) A service offence is within this subsection if—

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

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

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

• (iii) the victim being (or being presumed to be) transgender, or

• (b) the offence is motivated (wholly or partly)—

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

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

• (iii) by hostility towards persons who are transgender.

• (3) The court or officer—

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

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

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

• (5) In this section “disability” means any physical or mental impairment.

• (6) In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.

Service detention and custodial sentences

Service detention: general restriction

242

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

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

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

• (4) A sentence of service detention may not be—

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

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

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

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

Length of term of service detention: general provision

243

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

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

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

Limit on combined term of sentences of service detention

244

• (1) A court or officer may not—

• (a) pass a sentence of service detention,

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

• (c) make an order under section 191 or 193 (activation of suspended sentence of service detention),

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

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

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

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

• (b) otherwise, the aggregate of—

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

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

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

• (5) In subsection (4) “permitted period” means the period—

• (a) beginning with the date of contravention; and

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

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

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

Section 244: supplementary

245

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

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

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

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

• (a) has not taken effect; or

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

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

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

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

246

• (1) This section applies where—

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

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

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

• (2A) If, on any day on which the offender was kept in service custody, the offender was also detained in connection with any other matter, that day is not to count as time served.

• (2B) A day counts as time served—

• (a) in relation to only one sentence, and

• (b) only once in relation to that sentence.

• (2C) A day is not to count as time served as part of any automatic release period served by the offender (see section 255B(1) or 255BA(1) of the 2003 Act).

• (6) This section applies to—

• (a) a determinate sentence of detention under section 209, ...

• (b) a sentence of detention under section 226B or 228 of the 2003 Act passed as a result of section 221A or 222 of this Act ,

• (ba) an extended sentence of detention under section 254 of the Sentencing Code passed as a result of section 221A of this Act, and

• (c) a determinate sentence of detention in a young offender institution,

as it applies to an equivalent sentence of imprisonment.

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

Crediting of time in service custody: supplementary

247

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

• (2) It is immaterial for the purposes of section 246(1) whether the offender has also been kept in service custody in connection with other offences (but see section 246(2B))....

• (2A) The reference in section 246(2A) to detention in connection with any other matter does not include remand in custody in connection with another offence but includes—

• (a) detention pursuant to any custodial sentence;

• (b) committal in default of payment of any sum of money;

• (c) committal for want of sufficient distress to satisfy any sum of money;

• (d) committal for failure to do or abstain from doing anything required to be done or left undone.

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

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

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

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

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

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

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

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

• (7) For the purposes of subsection (6) a sentence within any of paragraphs (a) to (c) of section 188(4) is a relevant custodial term.

Forfeiture of seniority and reduction in rank

Forfeiture of seniority and reduction in rank or disrating: general restriction

248

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

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

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

• (4) A sentence of forfeiture of seniority, reduction in rank or disrating may not be—

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

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

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

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

Financial punishments

Fixing of fines

249

• (1) A court or officer fixing a fine to be imposed on an offender in respect of a service offence must, before fixing the amount of the fine, inquire into the offender's financial circumstances.

• (2) The amount of any fine fixed by a court or officer in respect of a service offence must be such as, in the opinion of the court or officer, reflects the seriousness of the offence.

• (3) In fixing the amount of any fine to be imposed on an offender in respect of a service offence, a court or officer must take into account the circumstances of the case including, among other things, the offender's financial circumstances so far as they are known, or appear, to the court or officer.

• (4) Subsection (3) applies whether taking into account the offender's financial circumstances has the effect of increasing or reducing the amount of the fine.

• (5) Where—

• (a) the court has inquired into the offender's financial circumstances as required by this section,

• (b) the offender has failed to co-operate with the court in its inquiry (whether by failing to comply with a financial statement order under section 266 or otherwise), and

• (c) the court considers that it has insufficient information to make a proper determination of the offender's financial circumstances,

the court may make such determination of his financial circumstances as it considers appropriate.

• (6) References in subsection (5) to “the court” are to the court or officer fixing a fine in respect of a service offence.

Determination of service compensation order

250

• (1) In determining whether to make a service compensation order against any person, and in determining the amount to be paid by any person under such an order, a court or officer must have regard to that person's financial circumstances so far as they appear or are known to the court or officer.

• (2) Where the court or officer considers—

• (a) that it would be appropriate both to impose a fine and to make a service compensation order, but

• (b) that the offender has insufficient means to pay both an appropriate fine and appropriate compensation,

the court or officer must give preference to compensation (but may impose a fine as well).

Power to allow payment of fine or service compensation order by instalments

251

• (1) A court or officer awarding a fine or service compensation order in respect of a service offence may make an order under this section.

• (2) An order under this section is an order—

• (a) allowing time for payment of the amount due in respect of the fine or service compensation order (“the amount due”); or

• (b) directing payment of that amount by instalments of such amounts and on such dates as may be specified in the order.

• (3) If no order under this section is made when the fine or service compensation order is imposed, at any later time the appropriate court may make such an order on the application of the person by whom the amount due is payable (“the relevant person”).

• (4) The appropriate court may on the application of the relevant person vary an order made under this section.

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

• (a) if the fine or service compensation order was imposed by an officer and subsection (6) applies, the commanding officer of the relevant person;

• (b) if the fine or service compensation order was imposed by a court and subsection (6) or (7) applies, the Court Martial.

• (6) This subsection applies if the relevant person is for the time being—

• (a) subject to service law;

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

• (c) a member of an ex-regular reserve force who is subject to an additional duties commitment.

• (7) This subsection applies if the relevant person is for the time being a civilian subject to service discipline.

Reasons

Duty to give reasons and explain sentence

252

• (1) Any court or officer passing sentence on an offender for a service offence—

• (a) must state in open court, in ordinary language and in general terms and in accordance with section 253, its (or his) reasons for deciding on the sentence passed; and

• (b) must explain to the offender in ordinary language—

• (i) the effect of the sentence;

• (ii) where the offender is required to comply with any order forming part of the sentence, the effects of non-compliance with the order;

• (iii) any power, on the application of the offender or any other person, to vary or review any order forming part of the sentence; and

• (iv) where the sentence consists of or includes a fine, the effects of failure to pay the fine.

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

• (3) The Secretary of State may by order—

• (a) prescribe cases in which subsection (1)(a) or (b) does not apply;

• (b) prescribe cases in which the statement referred to in subsection (1)(a) or the explanation referred to in subsection (1)(b) may be made in the absence of the offender, or may be provided in written form.

• (4) In this section and section 253 “sentence” includes any order made when dealing with the offender in respect of his offence.

Duties in complying with section 252

253

• (1) In complying with section 252(1)(a) an officer or the Summary Appeal Court must—

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

• (b) if section 239 (guilty pleas) applies and as a result of taking into account a matter mentioned in section 239(2) the officer or court has imposed a punishment on the offender which is less severe than the punishment that would otherwise have been imposed, state that fact;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) In complying with section 252(1)(a) a court other than the Summary Appeal Court must—

• (a) where guidelines indicate that a sentence of a particular kind, or within a particular range, would normally be appropriate for the offence and the sentence is of a different kind or is outside that range, state the court's reasons for deciding on a sentence of a different kind or outside that range;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) if section 239 (guilty pleas) applies and as a result of taking into account a matter mentioned in section 239(2) the court has imposed a punishment on the offender which is less severe than the punishment it would otherwise have imposed, state that fact;

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In this section “guidelines” has the same meaning as in section 259.

Savings

Savings for powers to mitigate sentence etc

254

• (1) Nothing in any of sections 242, 243, 248, 249, 250, 256, 258, 260, 261, 265 and 270 prevents a court or officer from mitigating an offender's sentence by taking into account any such matters as, in the court's or officer's opinion, are relevant in mitigation of sentence.

• (2) Nothing in those sections prevents a court or officer from mitigating any punishment included in an offender's sentence by taking into account any other punishment included in that sentence.

• (3) Nothing in those sections or section 255 prevents a court, in the case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying any rule of law as to the totality of sentences.

• (4) Subsections (2) and (3) do not affect the generality of subsection (1).

Chapter 2 — Principles and Procedures applying to Service Courts Only

General

Individual sentence for each offence

255

Where the Court Martial or the Service Civilian Court convicts a person, the court must pass a separate sentence in respect of each offence of which he is convicted.

Pre-sentence reports

256

• (1) Subject to subsection (2), a court must obtain and consider a pre-sentence report before—

• (a) forming any such opinion as is mentioned in—

• section 242(1) or 243(2) (service detention);

• section 260(2) or 261(2) (custodial sentence); or

• section 265(1) (dismissal or dismissal with disgrace);

• (b) forming any such opinion as is mentioned in section 270(1) or (2)(b) (community punishment) or any opinion as to the suitability for the offender of the particular requirement or requirements to be included in a community punishment; or

• (c) forming the required opinion for the purposes of section 219(1), 219A(1), 221(1) or 221A(1) (sentences for dangerous offenders).

• (2) Subsection (1) does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report.

• (3) Where the offender is aged under 18, the court must not form the opinion mentioned in subsection (2) unless—

• (a) there exists a previous pre-sentence report obtained in respect of the offender; and

• (b) the court has had regard to the information contained in that report, or, if there is more than one such report, the most recent report.

• (4) No sentence is invalidated by a failure of a court to obtain and consider a pre-sentence report before doing any of the things mentioned in paragraphs (a) to (c) of subsection (1).

• (5) However, any court on appeal against a custodial sentence in respect of a service offence, a sentence of dismissal or dismissal with disgrace, a sentence of service detention or a community punishment—

• (a) must (subject to subsection (6)) obtain a pre-sentence report if none was obtained by the court below; and

• (b) must consider any such report obtained by it or by that court.

• (6) Subsection (5)(a) does not apply if the court is of the opinion—

• (a) that the court below was justified in forming an opinion that it was unnecessary to obtain a pre-sentence report; or

• (b) that, although the court below was not justified in forming that opinion, in the circumstances of the case at the time it is before the court it is unnecessary to obtain a pre-sentence report.

• (7) Where the offender is aged under 18, the court must not form the opinion mentioned in subsection (6) unless—

• (a) there exists a previous pre-sentence report obtained in respect of the offender; and

• (b) the court has had regard to the information contained in that report or, if there is more than one such report, the most recent report.

• (8) Subsections (5) to (7) do not apply to the Summary Appeal Court on an appeal to it.

• (9) Subsections (1) to (4) do apply to the Summary Appeal Court in relation to a sentence of service detention, but as if the opinions referred to in subsection (1)(a) were any such opinion as is mentioned in section 242(4) or 243(3).

• (10) The reference in subsection (1)(a) to a court forming any such opinion as is mentioned in section 260(2) or 261(2) includes a court forming such an opinion for the purposes of section 218A(4).

Pre-sentence reports: supplementary

257

• (1) In section 256 and this section “pre-sentence report” has the meaning given by section 31(1) of the Sentencing Code.

• (2) In section 31(1) of that Code as applied by this section, “an appropriate officer” includes any registered social worker (as well as any person who is an appropriate officer within the meaning given by section 31(2) of that Code).

• (3) In this section “registered social worker” means a person registered as a social worker in a register maintained by—

• (a) Social Work England;

• (b) the Care Council for Wales;

• (c) the Scottish Social Services Council; or

• (d) the Northern Ireland Social Care Council.

• (4) Section 32(1) to (4) and (6) of the Sentencing Code (disclosure of reports) apply in relation to a pre-sentence report obtained by a court for the purposes of section 256 of this Act as they apply in relation to a report obtained by a court for the purposes of section 30 of that Code.

Mentally disordered offenders: requirement for medical report

258

• (1) Subject to subsection (2), before passing a custodial sentence for a service offence on an offender who is or appears to be mentally disordered, a court must obtain and consider a medical report.

• (2) Subsection (1) does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a medical report.

• (3) Before passing a custodial sentence for a service offence on an offender who is or appears to be mentally disordered, a court must consider—

• (a) any information before it which relates to his mental condition (whether given in a medical report, a pre-sentence report or otherwise); and

• (b) the likely effect of such a sentence on that condition and on any treatment which may be available for it.

• (4) No custodial sentence which is passed in a case to which subsection (1) applies is invalidated by a failure of a court to comply with that subsection, but any court on an appeal against such a sentence—

• (a) must obtain a medical report if none was obtained by the court below; and

• (b) must consider any such report obtained by it or by that court.

• (5) In this section—

• “custodial sentence” does not include a custodial sentence fixed by law;

• “medical report” means a report as to an offender's mental condition made or submitted orally or in writing by a registered medical practitioner who is approved for the purposes of section 12 of the Mental Health Act 1983 (c. 20) 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.

• (6) Nothing in this section is to be taken to limit the generality of—

• section 256 (pre-sentence reports); or

• section 260(4) (information to be taken into account).

Sentencing guidelines

259

• (1) A court must—

• (a) in sentencing an offender for a service offence, have regard to any guidelines that are relevant to the offender's case; and

• (b) in exercising any other function relating to the sentencing of offenders for service offences, have regard to any guidelines which are relevant to the exercise of the function.

• (2) However, the court may depart from the guidelines mentioned in subsection (1)(a) or (b) if in its opinion the departure is justified by any features of service life or of the service disciplinary system that are relevant to the case.

• (3) Subsection (2) does not limit any power existing apart from that subsection to depart from guidelines.

• (4) References in subsection (1)(a) and (b) to sentencing an offender for a service offence include making any order when dealing with an offender in respect of such an offence.

• (5) In this section “guidelines” means sentencing guidelines issued by the Sentencing Council for England and Wales under section 120 of the Coroners and Justice Act 2009 as definitive guidelines, as revised by any subsequent guidelines so issued.

Custodial sentences and service detention

Discretionary custodial sentences: general restrictions

260

• (1) This section applies where a court is dealing with an offender for a service offence punishable with a custodial sentence, other than an offence the sentence for which—

• (a) is fixed by law;

• (b) falls to be imposed under section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence);

• (c) falls to be imposed under section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over);

• (d) falls to be imposed under section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18);

• (e) falls to be imposed under section 313(2A) of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);

• (f) falls to be imposed under section 314(2A) of the Sentencing Code as a result of section 226(2) (third domestic burglary);

• (g) falls to be imposed under section 311(2) of the Sentencing Code as a result of section 227(2) (firearms offences); or

• (h) falls to be imposed under section 227A(1A) or (2) (threatening with a weapon in public or on school premises).

• (2) The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that no less severe sentence can be justified for the offence.

• (3) Nothing in subsection (2) prevents the court from passing a custodial sentence where—

• (a) the court had proposed to award a community punishment; and

• (b) the offender failed to express his willingness to comply with a requirement which the court proposed to include in the community punishment and which required an expression of such willingness.

• (4) In forming any such opinion as is mentioned in subsection (2) or section 261(2) (length of sentence), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.

• (4A) The reference in subsection (4) to a court forming any such opinion as is mentioned in subsection (2) or section 261(2) includes a court forming such an opinion for the purposes of section 218A(4).

• (4B) The reference in subsection (4) to a court forming any such opinion as is mentioned in section 261(2) also includes a court forming such an opinion for the purposes of —

• (a) section 268(2) or 281(2) of the Sentencing Code, as applied by section 219A of this Act (extended sentences for offenders aged 18 or over), or

• (b) section 256(2) of the Sentencing Code, as applied by section 221A of this Act (extended sentences for offenders aged under 18).

• (5) For the purposes of this section a sentence falls to be imposed as a result of subsection (2) of section 225, 226 or 227 if it is required by that subsection and the court is not of the opinion there mentioned.

Length of discretionary custodial sentences: general provision

261

• (1) This section applies where a court passes a custodial sentence for a service offence, other than a sentence fixed by law or imposed under —

• (a) section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence),

• (b) section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over), or

• (c) section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18).

• (2) The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it.

• (3) Subsection (2) is subject to sections 219A, 221A, 225, 226 , 227 and 227A (sentences that may or must be imposed for certain offences).

Power to recommend licence conditions

262

In section 328 of the Sentencing Code (court imposing prison term of 12 months or more may recommend licence conditions) “court” includes a court dealing with an offender for a service offence.

Restriction on imposing custodial sentence or service detention on unrepresented offender

263

• (1) A sentence of—

• (a) imprisonment, or

• (b) service detention,

must not be passed by the Court Martial or the Service Civilian Court, or passed or confirmed by the Summary Appeal Court, in respect of an offender who is not legally represented in that court.

• (2) Subsection (1) does not apply if the offender—

• (a) having been informed of his right to apply for legal representation and having had the opportunity to do so, refused or failed to apply; or

• (b) was aged 21 or over when convicted, and has previously been sentenced to imprisonment by a civilian court in any part of the United Kingdom or for a service offence ....

• (3) The Court Martial or the Service Civilian Court must not—

• (a) pass a custodial sentence on an offender who is aged under 21 on conviction, or

• (b) make an order under section 211 (detention and training),

on or in respect of an offender who is not legally represented in that court unless the offender, having been informed of his right to apply for legal representation and having had the opportunity to do so, refused or failed to apply.

• (4) For the purposes of this section an offender is “legally represented” in the Court Martial or the Service Civilian Court only if he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before he is sentenced.

• (5) For the purposes of this section an offender is “legally represented” in the Summary Appeal Court—

• (a) in a case where his appeal was only against punishment, if he has the assistance of counsel or a solicitor to represent him at some time during the proceedings in that court;

• (b) in any other case, only if he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after the court confirms or substitutes the finding and before it confirms or passes sentence.

• (6) For the purposes of subsection (2)(b)—

• (a) a previous sentence of imprisonment which has been suspended and has not taken effect is to be disregarded;

• (b) “sentence of imprisonment” does not include a committal for contempt of court or any kindred offence;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Effect of duties to pass custodial sentences on other powers of punishment

264

• (1) Where a provision of this Act requires a court to impose a particular custodial sentence in respect of an offence, it is not to be taken to prevent the court from including in its sentence for that offence any other authorised punishment.

• (2) In this section an “authorised punishment” means any punishment authorised by this Act apart from—

• service detention;

• a service supervision and punishment order;

• minor punishments;

• a community punishment;

• a conditional or absolute discharge.

Dismissal

Dismissal: general restrictions

265

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

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

• (3) The Court Martial must not pass a sentence of dismissal or dismissal with disgrace on an offender who is not legally represented in that court.

• (4) Subsection (3) does not apply if the offender, having been informed of his right to apply for legal representation and having had the opportunity to do so, refused or failed to apply.

• (5) For the purposes of this section an offender is “legally represented” in the Court Martial only if he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before he is sentenced.

Financial punishments

Financial statement orders

266

• (1) Before sentencing a person who has been convicted of a service offence, a court may make a financial statement order; but this does not apply to the Summary Appeal Court.

• (2) A financial statement order is an order requiring the person to give to the court, within such period as may be specified in the order, such a statement of his assets and other financial circumstances as the court may require.

• (3) A person who without reasonable excuse fails to comply with a financial statement order commits an offence and is liable to a fine not exceeding level 3 on the standard scale.

• (4) A person who in providing any statement in pursuance of a financial statement order—

• (a) makes a statement which he knows to be false in a material particular,

• (b) recklessly provides a statement which is false in a material particular, or

• (c) knowingly fails to disclose any material fact,

commits an offence and is liable to a fine not exceeding level 4 on the standard scale.

Power of court to remit fine

267

• (1) This section applies where a court has, in fixing the amount of a fine in respect of a service offence, determined the offender's financial circumstances under section 249(5).

• (2) If on subsequently inquiring into the offender's financial circumstances the court is satisfied that had it had the results of that inquiry when sentencing the offender it would—

• (a) have fixed a smaller amount, or

• (b) not have fined him,

it may remit the whole or part of the fine.

• (3) Where under this section the court remits the whole or part of a fine after a term of imprisonment has been fixed under section 269A, it must reduce the term by the corresponding proportion.

• (4) In calculating any reduction required by subsection (3), any fraction of a day is to be ignored.

Order for service parent or service guardian to pay fine or compensation

268

• (1) This section applies where—

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

• (b) he is a civilian subject to service discipline;

• (c) he has a service parent or service guardian; and

• (d) the court is of the opinion that the case would best be met by the imposition of a fine or the making of a service compensation order (with or without any other punishment).

• (2) The court may, and if the offender is under 16 when convicted must, order that the fine or compensation awarded be paid by the service parent or service guardian instead of by the offender himself; but this is subject to subsection (3).

• (3) Where (apart from this subsection) the court would be required by subsection (2) to make an order against a service parent or service guardian, the court need not make such an order if it is satisfied—

• (a) that no service parent or service guardian can be found; or

• (b) that it would be unreasonable to make such an order having regard to the circumstances of the case.

• (4) No order may be made under this section without giving the parent or guardian an opportunity of being heard, unless the parent or guardian has failed to attend having been required to do so.

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

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

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

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

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

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

Fixing of fine or compensation to be paid by parent or guardian

269

• (1) For the purposes of any order under section 268 against the parent or guardian of an offender—

• (a) section 249 (fixing of fine) has effect as if any reference to the offender's financial circumstances were to the parent's or guardian's financial circumstances, and as if the reference in subsection (5)(b) to the offender were to the parent or guardian;

• (b) section 250(1) (determination of service compensation order) has effect as if any reference to the financial circumstances of the person against whom the service compensation order is made were to the financial circumstances of the parent or guardian;

• (c) section 250(2) (preference to be given to compensation if insufficient means to pay both compensation and fine) has effect as if the reference to the offender were to the parent or guardian;