Legalize / United Kingdom / Statutory-Instrument

The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

Type Statutory-Instrument

Publication 2009-04-23

Last updated 2024-04-17

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

PDF Download

articles Not indexed

Reform history JSON API

(3) In subsection (5) of section 268 of AFA 2006 (order that fine or compensation be paid by service parent or guardian) the reference to an order under that section includes an order made by a court-martial under paragraph 13 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

(4) No appeal shall lie from—

(a) an order by a court-martial under paragraph 14 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 requiring an offender's service parent or guardian to enter into a recognisance; or

(b) a declaration by a court-martial that such a recognisance is forfeited (in whole or in part).

Right of appeal against activation of suspended SDA sentence by Court Martial or court-martial

109

(1) Section 192 of AFA 2006 applies in relation to an order under article 94 (activation of suspended SDA sentence of imprisonment by Court Martial) as it applies in relation to an order under section 191 of AFA 2006.

(2) Section 192(1) to (3) of AFA 2006 apply in relation to an order under section 120(5) of AA 1955 or AFA 1955 or section 91(1) of NDA 1957 (activation of suspended sentence of imprisonment or detention by court-martial) as they apply in relation to an order under section 191 of AFA 2006.

Application for leave to appeal against sentence by court-martial where previous conviction set aside

110

Section 228(3) of AFA 2006 applies, notwithstanding anything in section 9(1) of CMAA 1968, where—

(a) a court-martial has sentenced a person for an SDA civil offence;

(b) the corresponding civil offence was one to which section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 would apply;

(c) the court imposed a sentence of life imprisonment or custody for life in accordance with section 70(3A) of AA 1955 or AFA 1955 or section 42(1A) of NDA 1957; and

(d) any previous conviction of the person's without which section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 would not have applied to the corresponding civil offence has been subsequently set aside on appeal.

Quashing of conviction by court-martial

111

In section 12(1)(a) of CMAA 1968 (duty to allow appeal against unsafe conviction), the reference to the Court Martial includes a court-martial.

Power to re-sentence when some but not all convictions successfully appealed

112

(1) This article applies, and section 13 of CMAA 1968 does not apply, where—

(a) on a single occasion a person was sentenced by a court-martial in respect of two or more offences; and

(b) the Appeal Court allows an appeal against conviction in respect of some but not all of the offences.

(2) If the appellant remains convicted of only one of the offences, the Appeal Court may pass a sentence in substitution for the sentence passed by the court-martial in respect of that offence.

(3) If—

(a) the appellant remains convicted of two or more of the offences,

(b) the court-martial passed more than one sentence in respect of the offences of which he remains convicted, and

the Appeal Court may pass a sentence in substitution for that sentence.

(4) If—

(a) the appellant remains convicted of two or more of the offences, and

(b) any sentence passed by the court-martial was in respect of more than one of the offences of which he remains convicted,

the Appeal Court may pass, in substitution for that sentence, separate sentences in respect of both or all of the offences of which he remains convicted and in respect of which that sentence was passed.

(5) A sentence passed under this article in respect of an offence must be a sentence that—

(a) the court thinks appropriate; and

(b) the Court Martial would have had power to pass in respect of the offence if Parts 1 to 13 of AFA 2006 had been in force and that court had convicted the appellant of the offence.

(6) But the Appeal Court may not exercise its powers under this article in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the court-martial.

Substitution of conviction on different charge otherwise than after guilty plea

113

(1) This article applies, and section 14 of CMAA 1968 does not apply, where—

(a) an appellant has been convicted by a court-martial of an offence to which he did not plead guilty (“offence A”);

(b) the court-martial could lawfully have found him guilty of some other offence (“offence B”); and

(c) it appears to the Appeal Court on an appeal against conviction that the court-martial must have been satisfied of facts which prove him guilty of offence B.

(2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the finding in relation to offence A a finding of guilty of offence B.

(3) Where the Appeal Court exercises the power conferred by paragraph (2), it may exercise any power that it would have had if—

(a) the court-martial had convicted the appellant of offence B instead of offence A;

(b) the court-martial had passed, in respect of offence B (and any other offence in respect of which the sentence in respect of offence A was passed), the sentence that it passed in respect of offence A; and

Substitution of conviction on different charge after guilty plea

114

(1) This article applies, and section 14A of CMAA 1968 does not apply, where—

(a) an appellant has been convicted by a court-martial of an offence to which he pleaded guilty (“offence A”);

(b) if he had not so pleaded, he could lawfully have pleaded guilty to, or been found guilty of, some other offence (“offence B”); and

(c) it appears to the Appeal Court on an appeal against conviction that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of offence B.

(2) The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the appellant's plea of guilty a plea of guilty of offence B.

(3) Where the Appeal Court exercises the power conferred by paragraph (2), it may exercise any power that it would have had if—

(a) the appellant had been charged with, and had pleaded guilty to, offence B instead of offence A;

(b) the court-martial had passed, in respect of offence B (and any other offence in respect of which the sentence in respect of offence A was passed), the sentence that it passed in respect of offence A; and

Variation of conviction so as to attract different sentence

115

(1) On an appeal against conviction by court-martial, section 15(1) and (2) of CMAA 1968 apply notwithstanding their repeal by AFA 2006.

(2) Where the Appeal Court exercises the power conferred by section 15(1) of CMAA 1968, article 113 or 114 (as the case may be) applies as if references to guilt of offence B were to guilt of offence A in circumstances involving the lower of the two degrees of punishment mentioned in that subsection.

(3) Where the Appeal Court exercises the power conferred by section 15(2) of CMAA 1968, article 113 or 114 (as the case may be) applies as if references to guilt of offence B were to guilt of offence A subject to the exceptions or variations to which the finding substituted by the court is subject.

Effect of appeal, or application for leave to appeal, against sentence

116

Section 16A(1) of CMAA 1968 (appeal, or application for leave to appeal, against one sentence treated as appeal or application in respect of other sentences) applies where a court-martial passed two or more sentences on a person on the same occasion.

Powers of Appeal Court on appeal against sentence

117

(1) This article applies, and section 16A(2) and (3) of CMAA 1968 do not apply, on an appeal against one or more sentences passed by a court-martial.

(2) If the appeal is against a sentence passed in respect of one offence, the Appeal Court may pass a sentence in substitution for that sentence.

(3) If the appeal is against a sentence passed in respect of two or more offences, the Appeal Court may pass, in substitution for that sentence, separate sentences in respect of both or all the offences.

(4) If the appeal is against two or more sentences, paragraph (2) or (3) (as the case may be) applies in relation to each of the sentences.

(5) A sentence passed under this article in respect of an offence must be a sentence that—

(a) the court thinks appropriate; and

(b) the Court Martial would have had power to pass in respect of the offence if Parts 1 to 13 of AFA 2006 had been in force and that court had convicted the appellant of the offence.

(6) But the Appeal Court may not exercise its powers under this article in such a way that, taking the case as a whole, the appellant is dealt with more severely on appeal than he was dealt with by the court-martial.

(7) If the sentence (or any of the sentences) passed by the court-martial included an order under section 120(5) of AA 1955 or AFA 1955 or section 91(1) of NDA 1957 (activation of suspended sentence), paragraphs (2) and (3) do not apply in relation to the order; but the Appeal Court may—

(a) substitute for the order any order which the Court Martial would have had power to make under article 94 or (by virtue of article 95 or 96) section 191 of AFA 2006 if—

(i) Parts 1 to 13 of that Act, and this Order, had been in force at the time of the conviction by virtue of which the court-martial made the order, and

(ii) that conviction had been by the Court Martial;

(b) quash the order; or

(c) if the court-martial gave a direction under section 120(5B) of AA 1955 or AFA 1955 or section 91(2) of NDA 1957 (activated sentence to run from the end of another sentence), quash the direction.

(8) In relation to an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 (failure to comply with requirements of a community supervision order) as respects which the court-martial imposed a fine under paragraph 4(10) of that Schedule, any reference in this article to a sentence which the Court Martial would have had power to pass in respect of the offence is to be read as a reference to any punishment in rows 2 to 7 of the Table in Part 1 of Schedule 3 to AFA 2006.

Term of sentence

118

(1) In section 17(1) of CMAA 1968 (term of sentence) the reference to a sentence passed by the Appeal Court under section 13, 14, 14A or 16A of that Act includes a sentence passed under article 112, 113, 114 or 117.

(2) In relation to a sentence passed by the Appeal Court in substitution for a sentence passed by a court-martial, the reference in section 17(1) of CMAA 1968 to the day on which the Court Martial passed sentence is to the day on which the court-martial passed sentence.

Retrial authorised by Appeal Court

119

(1) Where the Appeal Court has made (whether before or after commencement) an order under section 19 of CMAA 1968 (power to authorise retrial) on quashing a conviction by court-martial, subsection (3) of that section applies without the amendments made by AFA 2006.

(2) In paragraph (1), the reference to a conviction by court-martial includes a finding of not guilty by reason of insanity.

(3) Where—

(a) before commencement, the Appeal Court made an order under section 19 of CMAA 1968 for the retrial of a person on a charge, and

(b) the charge is current at commencement,

the charge is to be regarded for the purposes of Part 5 of AFA 2006 as allocated for Court Martial trial.

(4) For the purposes of this article a charge is “current at commencement” if, at commencement—

(a) neither article 25 of this Order (saving of existing bars to service proceedings) nor Chapter 3 of Part 2 of AFA 2006 (double jeopardy) as modified by this Order prohibits the trial of the person by the Court Martial for the offence to which the charge relates;

(b) proceedings on the charge have not been stayed; and

(c) proceedings on the charge have not been discontinued under section 83B(8) of AA 1955 or AFA 1955 or section 52I(7) of NDA 1957, and no other charge has been substituted for it.

(5) In section 20(1) of CMAA 1968 (requirement of leave for arraignment more than three months after making of order for retrial) the reference to an order under section 19 of that Act includes one made before commencement.

Appeal against finding of not guilty by reason of insanity

120

(1) In section 21(1) of CMAA 1968 (appeal against finding of not guilty by reason of insanity) the reference to the Court Martial includes a court-martial.

(2) In relation to an appeal brought by virtue of paragraph (1), the references to the Court Martial in section 22(2) and (3A) of CMAA 1968 are to be read as references to the court-martial.

(3) Paragraph (4) applies, and section 22(3) of CMAA 1968 does not apply, where the Appeal Court substitutes a finding of guilty of an offence for a finding by court-martial of not guilty by reason of insanity.

(4) The Appeal Court shall have the like powers of sentencing the appellant, and other powers, as the Court Martial would have had if Parts 1 to 13 of AFA 2006 had been in force and that court had convicted the appellant of the offence on the date when the court-martial found him not guilty by reason of insanity; and section 17 of CMAA 1968 applies as in the case of a sentence passed by the Appeal Court under article 112, 113, 114 or 117.

Appeal against finding of unfitness to stand trial

121

(1) In section 24(1) of CMAA 1968 (appeal against finding of unfitness to stand trial) the reference to the Court Martial includes a court-martial.

(2) Where, before commencement, the Appeal Court allowed an appeal under section 24 of CMAA 1968, paragraph (b) of section 25(2) of that Act applies as if the court had made an order under paragraph (a) of that subsection.

(3) Where section 20 of CMAA 1968 applies by virtue of paragraph (2) above—

(a) the Appeal Court is to be regarded for the purposes of that section as having made an order under section 25(2)(a) of that Act on the date on which the court allowed the appeal; and

(b) references in that section to the setting aside of the order under section 19 of that Act are to be read as references to a direction by the Appeal Court that paragraph (2) above shall cease to apply.

Appeal against order made in cases of insanity or unfitness to stand trial

122

(1) In section 25A(1) of CMAA 1968 (appeal against hospital order etc) the reference to the Court Martial includes a court-martial.

(2) For the purposes of that subsection as it applies in relation to an order made by a court-martial, the reference in section 25A(2) of CMAA 1968 to a service supervision order is to be read as a reference to a supervision order.

(3) In relation to an appeal under section 25A of CMAA 1968 by virtue of paragraphs (1) and (2) above, references in section 25B(1) of that Act to the Court Martial are to be read as references to the court-martial.

(4) For the purposes of section 25B(1) of CMAA 1968 (disposal of appeal against hospital order etc) as modified by paragraph (3) above, the court-martial shall be regarded as having had power to make a service supervision order (as defined by section 170 of AFA 2006) if it had power to make a supervision order.

(5) In section 25B(4) of CMAA 1968, the reference to a service supervision order includes a supervision order.

(6) In this article, “supervision order” has the meaning given by section 116A(6) of AA 1955 or AFA 1955 or section 63A(6) of NDA 1957, as the case may be.

Costs of successful appeal

123

In relation to an appeal from a court-martial, section 31 of CMAA 1968 applies without the amendment made by AFA 2006.

Reference of cases by Service authorities

124

(1) In section 34(1) of CMAA 1968, the first reference to the Court Martial includes a court-martial.

(2) In relation to a person convicted by a court-martial, other references in section 34 of that Act to the Court Martial are to be read as references to the court-martial.

(3) Section 34(1) and (2) of CMAA 1968 apply in relation to a finding by a court-martial of not guilty by reason of insanity as they apply in relation to a conviction by court-martial.

Provision of record of proceedings of court-martial

125

In relation to an appeal or application for leave to appeal from a court-martial, section 37 of CMAA 1968 has effect as if for the words “a record of the proceedings of the Court Martial” there were substituted “a record of the proceedings of the court-martial and any petition presented by the appellant or applicant”.

Appeal to House of Lords or Supreme Court

126

(1) In relation to an appeal brought from a decision of the Appeal Court before commencement, the reference in section 41(3) of CMAA 1968 (powers of the Supreme Court) to the powers of the Appeal Court is to be read as to the powers that the Appeal Court would have had if it had heard the appeal after commencement.

(2) Where—

(a) the Secretary of State made an application before commencement for leave to appeal to the House of Lords or the Supreme Court, and

(b) the Appeal Court, the House of Lords or the Supreme Court dismisses the application,

section 47(1) of CMAA 1968 applies as if the application had been made by the Director of Service Prosecutions.

(3) In relation to an appeal from a decision of the Appeal Court where the appeal to that court was brought from a court-martial, section 47(3) of CMAA 1968 applies without the amendment made by AFA 2006.

Duties of registrar with respect to appeals etc

127

In relation to an appeal or application for leave to appeal from a court-martial, section 50(1) of CMAA 1968 (duties of registrar with respect to appeals etc) applies without the amendment made by AFA 2006.

Saving for prerogative

128

In section 54(1) of CMAA 1968 (saving for right of Her Majesty to quash a conviction) the reference to the Court Martial includes a court-martial.

Review of unduly lenient sentence for SDA offence

129

(1) Where, immediately before commencement, a reference has been made under section 113C(1) of AA 1955 or AFA 1955 or section 71AC(1) of NDA 1957 (review of unduly lenient sentence by Appeal Court) but the Appeal Court has not concluded its review of the case, the reference has effect after commencement as a reference under section 273(1) of AFA 2006.

(2) In section 273(1)(a) of AFA 2006—

(a) the reference to a sentence passed by the Court Martial—

(i) includes a sentence passed by a court-martial;

(ii) does not include a sentence passed on an appeal under paragraph 18 of Schedule 3 to AFA 1976 or by virtue of article 134 (appeal from Standing Civilian Court);

(b) the reference to an offence under section 42 of AFA 2006 includes an SDA civil offence.

(3) In relation to a sentence passed by the Court Martial in respect of an SDA civil offence, the reference in section 273(2) of AFA 2006 to the corresponding offence under the law of England and Wales is to be read as a reference to the corresponding civil offence.

(4) In relation to a sentence passed by a court-martial, section 273(1) of AFA 2006 has effect as if for paragraph (b) there were substituted—

(b) that section 113C of the Army Act 1955 (c. 18) or the Air Force Act 1955 (c. 19) or section 71AC of the Naval Discipline Act 1957 (c. 53) applied to the case,

; and section 273(2) and (3) of AFA 2006 do not apply.

(5) For the purposes of section 273(1)(a) of AFA 2006, the Attorney General may consider that a sentence passed by the Court Martial is unduly lenient if he considers that the sentence is not that required by article 89 (sentences required by SDAs); but this paragraph is without prejudice to section 273(6) of AFA 2006, and nothing in it limits section 273(1)(a).

(6) For the purposes of section 273(1)(a) of AFA 2006, the Attorney General may consider that a sentence passed by a court-martial is unduly lenient if he considers—

(a) that the court-martial erred in law as to its powers of sentencing; or

(b) that the sentence is not that required by section 70(3A) of AA 1955 or AFA 1955 or section 42(1A) of NDA 1957;

but nothing in this paragraph limits section 273(1)(a) of AFA 2006.

(7) Where, immediately before commencement, leave for a reference has been granted under section 113C(1) of AA 1955 or AFA 1955 or section 71AC(1) of NDA 1957 but the reference has not been made, the leave has effect after commencement as leave granted under section 273(4) of AFA 2006.

(8) Paragraphs (9) to (11) apply, and section 273(5) of AFA 2006 does not apply, on a reference under section 273(1) of that Act of a case in which sentence was passed by a court-martial (including a reference which by virtue of paragraph (1) above has effect as a reference under that subsection).

(9) If the court-martial passed sentence in respect of one offence, article 117(2) applies as if the reference were an appeal against the sentence; but article 117(6) does not apply.

(10) If the court-martial passed one sentence in respect of two or more offences, article 117(3) applies as if the reference were an appeal against the sentence; but article 117(6) does not apply.

(11) If the court-martial passed two or more sentences, article 117(4) applies as if the reference were an appeal against the sentences; but article 117(6) does not apply.

(12) On—

(a) a reference which by virtue of paragraph (1) has effect as a reference under section 273(1) of AFA 2006, or

(b) a reference under that subsection of a case in which sentence was passed by a court-martial, where the Attorney General applied for leave to refer the case under section 113C(1) of AA 1955 or AFA 1955 or section 71AC(1) of NDA 1957 before commencement,

section 273(7) of AFA 2006 applies as enacted.

(13) In section 274(1) of AFA 2006 (reference of point of law to Supreme Court), the reference to a case referred to the Appeal Court under section 273(1) of that Act includes a case referred to the Appeal Court under section 113C(1) of AA 1955 or AFA 1955 or section 71AC(1) of NDA 1957.

(14) Where—

(a) a point of law has been referred to the House of Lords or the Supreme Court under section 113C(4) of AA 1955 or AFA 1955 or section 71AC(4) of NDA 1957, and

(b) neither the House of Lords nor the Supreme Court has exercised its powers under that subsection,

section 274(4) and (5) of AFA 2006 apply as if the point of law had been referred under section 274(1).

Compensation for miscarriages of justice

130

(1) For the purposes of section 276 of AFA 2006 (compensation for miscarriages of justice) a person who was convicted by a court-martial is to be regarded as having been convicted by the Court Martial; but that section does not apply in relation to such a person if—

(a) any compensation assessed to be payable to him under section 10 of AFA 1991 was paid in full before commencement; or

(b) the Secretary of State determined under section 10(3) of that Act that there was no right to such compensation.

(2) Section 276(7A) of AFA 2006 does not apply in relation to a conviction as respects which an application for compensation was made under section 10 of AFA 1991 before commencement.

(3) In relation to a conviction which was reversed before commencement, or a pardon which was given before commencement, the reference in section 276(3) of AFA 2006 to the date on which the conviction is reversed, or the person concerned is pardoned, is to be read as a reference to commencement.

(4) Where an application for compensation under section 10 of AFA 1991 was made before commencement but the Secretary of State did not determine under section 10(3) of that Act whether there was a right to compensation, the application is to be regarded as an application for compensation under section 276 of AFA 2006.

(5) Where the Secretary of State determined that there was a right to compensation under section 10 of AFA 1991 but the amount payable was not assessed—

(a) the Secretary of State is to be regarded as having determined that there is a right to compensation under section 276 of AFA 2006;

(b) any person appointed under section 10(4) of AFA 1991 to assess the amount payable is to be regarded as having been appointed under section 276(5) of AFA 2006;

(c) section 276(6) of AFA 2006 applies as if the substitution made by the Criminal Justice and Immigration Act 2008 had not been made; and

(d) sections 276A and 276B of AFA 2006 do not apply.

(6) Where the amount of any compensation payable under section 10 of AFA 1991 was assessed under that section but the compensation so assessed was not paid in full before commencement—

(a) the amount so assessed is the amount payable under section 276 of AFA 2006, and subsection (5) of that section does not apply; and

(b) any sums paid in pursuance of the assessment are to be regarded as having been paid under that section.

PART 16 — STANDING CIVILIAN COURTS AND THE SERVICE CIVILIAN COURT

Constitution of the Service Civilian Court

131

If before commencement a person is specified by or on behalf of the Judge Advocate General to be the judge advocate for Service Civilian Court proceedings intended to take place after commencement, the specification has effect after commencement as a specification under section 278(2) of AFA 2006.

Arraignment before a Standing Civilian Court

132

(1) SCC rules may provide that a plea offered on arraignment before a Standing Civilian Court is to be treated, for such purposes as may be specified, as having been offered on arraignment before the Service Civilian Court.

(2) Section 279 of AFA 2006 (consideration of whether trial by Court Martial more appropriate) does not apply in relation to a charge on which the defendant was arraigned before a Standing Civilian Court.

Maximum fine for SDA civil offence

133

In section 284(2) of AFA 2006 (maximum fine by Service Civilian Court for criminal conduct offence)—

(a) the reference to an offence under section 42 of that Act includes an SDA civil offence;

(b) the reference to the corresponding offence under the law of England and Wales includes the corresponding civil offence.

Appeal against conviction or sentence by Standing Civilian Court

134

(1) In section 285(1) of AFA 2006 (appeal to the Court Martial), the reference to a person convicted by the Service Civilian Court includes a person convicted by a Standing Civilian Court.

(2) Where such a person brought an appeal under paragraph 18 of Schedule 3 to AFA 1976 and the appeal has not been determined or abandoned, the appeal is to be regarded as an appeal under section 285 of AFA 2006.

(3) Any appeal by such a person must be brought within 40 days of the court's sentence, and section 285(3) and (4) of AFA 2006 do not apply in relation to such an appeal.

(4) On an appeal by such a person, the Court Martial may only pass a sentence that the Service Civilian Court could have passed if Parts 1 to 13 of AFA 2006 had been in force and that court had convicted the appellant on the date on which the Standing Civilian Court convicted him; and section 286(6) of AFA 2006 does not apply.

(5) On an appeal against a fine imposed by a Standing Civilian Court under paragraph 4(10) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 (fine for offence of failure to comply with requirements of a community supervision order), the Court Martial—

(a) may substitute any punishment in rows 2 to 7 of the Table in Part 1 of Schedule 3 to AFA 2006; but

(b) may not deal with the offender for the offence for which the community supervision order was made.

(6) In section 268(5) of AFA 2006 (appeal against order that fine or compensation be paid by service parent or guardian) references to an order under section 268 include an order made by a Standing Civilian Court under paragraph 13 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

(7) No appeal shall lie from—

(a) an order by a Standing Civilian Court under paragraph 14 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 requiring an offender's service parent or guardian to enter into a recognisance; or

(b) a declaration by a Standing Civilian Court that such a recognisance is forfeited (in whole or in part).

(8) In relation to an appeal by a person convicted by a Standing Civilian Court, references in section 287 of AFA 2006 (findings made and sentences passed by Court Martial on appeal from SCC) to the Service Civilian Court are to be read as references to the Standing Civilian Court.

PART 17 — SERVICE AND EFFECT OF SENTENCES IN RESPECT OF SDA OFFENCES

CHAPTER 1 — General

General saving for SDA sentences

135

A punishment awarded before commencement under an enactment repealed by AFA 2006 is not affected by the coming into force of the repeal of the enactment under which it was awarded, or by article 6.

CHAPTER 2 — Custodial sentences and detention

Committal orders under NDA 1957: custodial sentences

136

(1) This article applies where—

(a) a person has been sentenced under NDA 1957 to an SDA custodial sentence; and

(b) at commencement, no committal order has been issued under section 81(3) of that Act in respect of the sentence.

(2) Subject to paragraph (3), the sentence shall be sufficient warrant for sending the person to such place as the Commandant of the Military Corrective Training Centre may direct, and detaining him in service custody until he reaches that place; and, accordingly, no committal order shall be required.

(3) Where the sentence has been suspended under section 90 of NDA 1957, and no order has been made under section 91(1) of that Act in respect of it—

(a) paragraph (2) does not apply unless an order is made under article 94 in respect of the sentence; but

(b) any such order shall have the effect mentioned in paragraph (2).

Committal orders under NDA 1957: sentences of service detention

137

(1) Paragraphs (2) to (4) apply where—

(a) a person has before commencement been sentenced to detention under section 43(1)(e) of NDA 1957; and

(b) at commencement, no committal order has been issued under section 81(3) of that Act in respect of the sentence.

(2) Subject to paragraphs (3) and (4), the sentence shall be sufficient warrant for sending the person in service custody to the Military Corrective Training Centre; and, accordingly, no committal order shall be required.

(3) Where the sentence has been suspended under section 90 of NDA 1957, and at commencement no order has been made under section 91(1) or 91B(1) of that Act in respect of it—

(a) paragraph (2) does not apply unless an order is made under section 91B(1) of that Act (by virtue of article 55 or 62), or section 191(3) or 193(3) of AFA 2006 (by virtue of any of articles 95 to 97), in respect of the sentence; but

(b) any such order shall have the effect mentioned in paragraph (2).

(4) Where the sentence was passed by an officer and, immediately before commencement, was suspended by virtue of section 85A(4) of NDA 1957, paragraph (2) applies only when the sentence takes effect by virtue of section 290 or 291 of AFA 2006 (as modified by article 138 or 140).

(5) Where—

(a) a person is sentenced to detention under section 43(1)(e) of NDA 1957 by virtue of article 55 (award of SDA punishment for offence found proved before commencement), and

(b) the sentence is not suspended under section 90 of NDA 1957,

the sentence shall be sufficient warrant for sending the person in service custody to the Military Corrective Training Centre; but this is subject to sections 290 and 291 of AFA 2006 (as modified by article 142).

(6) Where—

(a) a person is sentenced to detention under section 43(1)(e) of NDA 1957 by virtue of article 55,

(b) the sentence is suspended under section 90 of NDA 1957, and

(c) an order under section 191(3) or 193(3) of AFA 2006 is made (by virtue of any of articles 95 to 97) in respect of the sentence,

the order shall be sufficient warrant for sending the person in service custody to the Military Corrective Training Centre; but, in the case of an order under section 193(3) of AFA 2006, this is subject to sections 290 to 292 of that Act (as modified by article 144).

Commencement of SDA sentence of service detention awarded by CO: sentence not running at commencement

138

(1) This article applies where—

(a) immediately before commencement, an SDA sentence of service detention awarded by an officer (or the remainder of such a sentence) was suspended by virtue of section 118ZA(3) or (4) of AA 1955 or AFA 1955 or section 85A(4) or (5) of NDA 1957 (commencement of sentence of detention awarded by CO); and

(b) either—

(i) the officer did not make an order under section 118A(2) of AA 1955 or AFA 1955 or section 86(2) of NDA 1957 that the sentence should run from the expiry of another sentence; or

(ii) the officer made such an order but the other sentence expired before commencement.

(2) If at commencement—

(a) the offender has made no election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957,

(b) the appeal period has not expired, and

section 290(3) of AFA 2006 applies as if the sentence were a sentence of service detention as respects which the offender made no election under section 290(2).

(3) If at commencement—

(a) the offender has made an election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957 but has withdrawn it,

(b) the appeal period has not expired, and

section 290(5) of AFA 2006 applies as if the sentence were a sentence of service detention as respects which the offender made an election under section 290(2) but withdrew the election under section 290(4).

(4) In paragraphs (2) and (3) “the appeal period” means the period mentioned in section 141(2) of AFA 2006 (as modified by article 63(2)) for the bringing of an appeal.

(5) If at commencement an appeal has been brought and has not been abandoned or determined, section 290(3) or (as the case may be) (5) of AFA 2006 applies (with the omission of paragraph (a)) as if—

(a) the sentence were a sentence of service detention;

(b) any election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957, or failure to make such an election, were an election under section 290(2) of AFA 2006 or (as the case may be) a failure to make such an election;

(c) any withdrawal of an election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957 were a withdrawal under section 290(4) of AFA 2006 of an election under section 290(2); and

(d) the appeal had been brought under section 141 of AFA 2006.

(6) If at commencement—

(a) the sentence has taken or resumed effect, and

(b) an appeal which was subsequently brought has not been abandoned or determined,

section 290(6) of AFA 2006 applies (with the omission of paragraph (a)) as if the sentence had taken or resumed effect under section 290(2), (3)(a) or (5)(a) of that Act and the appeal had been brought under section 141.

Commencement of SDA sentence of service detention awarded by CO: sentence running at commencement

139

(1) This article applies where—

(a) an SDA sentence of service detention was awarded by an officer before commencement; and

(b) immediately before commencement, the sentence was not suspended by virtue of section 118ZA(3) or (4) of AA 1955 or AFA 1955 or section 85A(4) or (5) of NDA 1957 (but had not expired).

(2) If the offender made an election under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957—

(a) section 290(4) of AFA 2006 applies as if the sentence were a sentence of service detention as respects which the offender made an election under section 290(2);

(b) section 290(5) of that Act applies if the election is withdrawn within the appeal period; and

(i) the election is not withdrawn but an appeal is subsequently brought; or

(ii) the election is withdrawn during the appeal period, the remainder of the award resumes effect under section 290(5)(a) of that Act and an appeal is subsequently brought.

(3) In paragraph (2) “the appeal period” means the period mentioned in section 141(2) of AFA 2006 (as modified by article 63(2)) for the bringing of an appeal.

(4) If—

(a) the appeal period (within the meaning of section 118ZA of AA 1955 or AFA 1955 or section 85A of NDA 1957) has expired before commencement without an appeal being brought, and

(b) an appeal is subsequently brought,

section 290(6) of AFA 2006 applies as if the sentence were a sentence of service detention which took or resumed effect under section 290(3)(a) or (5)(a).

Commencement of consecutive SDA sentence of service detention awarded by CO before commencement

140

(1) This article applies where—

(a) before commencement, an officer awarded an SDA sentence of service detention (“the subsequent sentence”);

(b) the officer made an order under section 118A(2) of AA 1955 or AFA 1955 or section 86(2) of NDA 1957 that the subsequent sentence should begin to run from the expiry of a sentence of detention which the offender was already serving (“the initial sentence”); and

(2) Section 291(3) to (9) of AFA 2006 apply as if—

(a) both the initial sentence and the subsequent sentence were sentences of service detention awarded under section 132 of that Act;

(b) the order were a direction under section 189(3) of that Act that the subsequent sentence should take effect from the end of the initial sentence;

(c) any election made under section 118ZA(2) of AA 1955 or AFA 1955 or section 85A(2) of NDA 1957, or failure to make such an election, were an election or (as the case may be) failure to make an election under section 291(2) of AFA 2006; and

(d) any withdrawal of an election under section 118ZA(3) of AA 1955 or AFA 1955 or section 85A(4) of NDA 1957, or failure to make such a withdrawal, were a withdrawal under section 291(3) of AFA 2006 or (as the case may be) a failure to make such a withdrawal.

Commencement of sentence of detention activated by CO under NDA 1957 before commencement

141

(1) Article 138 applies in relation to an SDA sentence of service detention as respects which an officer made an order under section 91B(1) of NDA 1957 before commencement as it applies in relation to an SDA sentence of service detention awarded by an officer, but with the following modifications—

(a) the references in article 138(1)(b) to an order under section 86(2) of that Act are to be read as to a direction under section 91B(6) of that Act;

(b) in section 290(3), (5) and (6) of AFA 2006 as applied by article 138, references to the award are to be read as to the SDA sentence of service detention to which the order relates;

(c) in relation to section 290(3) and (5) of AFA 2006 as applied by article 138, the reference in section 290(7) of that Act to an appeal is to an appeal against the order;

(d) in relation to section 290(3)(b), (5)(b) and (6)(b) of AFA 2006 as applied by article 138, in section 290(8) of that Act—

(i) the reference to the award is to be read as to the order; and

(ii) the reference to another punishment is to be read as to an order under section 193(3) of AFA 2006.

(2) Article 139 applies in relation to a sentence of detention as respects which an officer made an order under section 91B(1) of NDA 1957 before commencement as it applies in relation to an SDA sentence of service detention awarded by an officer, but with the following modifications—

(a) in section 290(5) and (6) of AFA 2006 as applied by article 139, references to the award are to be read as to the SDA sentence of service detention to which the order relates;

(b) in relation to section 290(4) and (5) of AFA 2006 as applied by article 139, the reference in section 290(7) of that Act to an appeal is to an appeal against the order;

(i) the reference to the award is to be read as to the order; and

(ii) the reference to another punishment is to be read as to an order under section 193(3) of AFA 2006.

(3) Article 140 applies in relation to an SDA sentence of service detention as respects which an officer made an order under section 91B(1) of NDA 1957 before commencement and gave a direction under section 91B(6) of that Act as it applies in relation to an SDA sentence of service detention as respects which an officer made an order under section 86(2) of that Act, but with the following modifications—

(a) the reference in article 140(1)(b) to an order under section 86(2) of that Act is to be read as to a direction under section 91B(6) of that Act;

(b) in section 291(4) to (7) of AFA 2006 as applied by article 140, references to the award are to be read as to the SDA sentence of service detention to which the order relates;

(c) in relation to section 291(5) and (6) of AFA 2006 as applied by article 140, the reference in section 291(8) of that Act to an appeal is to an appeal against the order;

(d) in relation to section 291(5)(b), (6)(b) and (7)(b) of AFA 2006 as applied by article 140, in section 291(9) of that Act—

(i) the reference to the award is to be read as to the order; and

(ii) the reference to another punishment is to be read as to an order under section 193(3) of AFA 2006.

(4) In this article, “the order” means the order under section 91B(1) of NDA 1957.

Commencement of SDA sentence of service detention awarded by CO after commencement

142

(1) Section 290 of AFA 2006 (commencement of term of service detention awarded by CO) applies where an officer—

(a) awards an SDA sentence of service detention by virtue of article 55 (award of SDA punishment for offence found proved before commencement);

(b) in the case of a sentence under NDA 1957, does not make an order under section 90(1) of that Act suspending the sentence; and

(c) does not order under section 118A(2) of AA 1955 or AFA 1955, or section 86(2) of NDA 1957, that the sentence shall begin to run from the expiry of another sentence.

(2) Section 291 of AFA 2006 (commencement of consecutive term of service detention awarded by CO) applies where an officer—

(a) awards an SDA sentence of service detention by virtue of article 55; and

(b) orders under section 118A(2) of AA 1955 or AFA 1955, or section 86(2) of NDA 1957, that the sentence shall begin to run from the expiry of another sentence.

(3) In section 291 of AFA 2006 as applied by paragraph (2)—

“the initial sentence” means the second sentence mentioned in paragraph (2)(b);

“the appeal period” means the period mentioned in section 141(2) of AFA 2006 for the bringing of an appeal against the award mentioned in paragraph (2)(a).

Commencement of sentence of detention activated by CO under NDA 1957 after commencement

143

(1) Section 292(2) of AFA 2006 (commencement of suspended sentence of service detention activated by CO) applies where an officer—

(a) makes an order under section 91B(1) of NDA 1957 by virtue of article 55 or 62; and

(b) does not direct under section 91B(6) of that Act that the sentence in respect of which the order is made shall begin to run from the end of another sentence.

(2) Section 292(3) of AFA 2006 (commencement of suspended sentence of service detention activated by CO and made consecutive to another sentence) applies, with the omission of paragraph (b), where an officer—

(a) makes an order under section 91B(1) of NDA 1957 by virtue of article 55 or 62; and

(b) directs under section 91B(6) of that Act that the sentence in respect of which the order is made shall begin to run from the end of another sentence.

(3) In section 292(2) and (3) of AFA 2006 as applied by this article—

(a) “the activation order” means the order under section 91B(1) of NDA 1957;

(b) references to the award of service detention to which the activation order relates are to the SDA sentence of service detention to which the order under section 91B(1) of NDA 1957 relates.

(4) In section 291(2) to (9) of AFA 2006 as modified by section 292(3) of that Act by virtue of paragraph (2) above, “the initial sentence” means the second sentence mentioned in paragraph (2)(b).

Commencement of SDA sentence of service detention activated by CO under AFA 2006

144

(1) This article applies where an officer makes an order under section 193(3) of AFA 2006 by virtue of article 97 (activation of suspended NDA 1957 sentence of service detention by CO).

(2) If the order does not provide that the suspended sentence shall take effect from the end of another sentence, section 290(2) to (8) of AFA 2006 apply as modified by section 292(2) of that Act (except paragraph (c) of that subsection) as if the sentence were a suspended sentence of service detention.

(3) In section 290(2) to (7) of AFA 2006 as applied by paragraph (2), any reference to “the award” (other than one to which section 292(2)(a) or (b) applies) is to the award of detention (under NDA 1957) to which the order relates.

(4) If the order provides that the suspended sentence shall take effect from the end of another sentence, section 291(2) to (9) of AFA 2006 apply as modified by section 292(3) of that Act (except paragraph (c) of that subsection), as if the sentence were a suspended sentence of service detention.

(5) In section 291(4) to (7) of AFA 2006 as applied by paragraph (4), any reference to “the award” is to the award of detention (under NDA 1957) to which the order relates.

Effect of custodial sentence or detention on rank or rate

145

The sentences to which section 294 of AFA 2006 (rank or rate of WOs and NCOs while in custody or detention) applies include—

(a) a custodial sentence passed in respect of an SDA offence;

(b) an SDA custodial sentence; and

Service of SDA sentence of service detention

146

(1) In section 296 of AFA 2006 (service of sentence of service detention), references to a sentence of service detention include an SDA sentence of service detention.

(2) In subsection (2)(b) of that section the reference to section 290 or 291 includes a reference to section 118ZA(3) or (4) of AA 1955 or AFA 1955 or section 85A(4) or (5) of NDA 1957.

Detention in service custody following passing of custodial sentence etc in respect of SDA offence

147

In section 297(1)(a) of AFA 2006 (detention in service custody following passing of custodial sentence etc), the reference to a custodial sentence passed in respect of a service offence includes—

(a) an SDA custodial sentence; and

(b) a custodial sentence passed in respect of an SDA offence.

Removal to England and Wales following passing of custodial sentence etc in respect of SDA offence

148

(1) In section 298(1)(a) of AFA 2006 (removal to England and Wales following passing of custodial sentence etc), the reference to a custodial sentence passed in respect of a service offence includes—

(a) an SDA custodial sentence; and

(b) a custodial sentence passed in respect of an SDA offence.

(2) Nothing in this article applies section 298 of AFA 2006 in relation to a person who, before commencement, was committed to the appropriate establishment in the United Kingdom.

Duty to receive and detain prisoners

149

In section 299 of AFA 2006 (duty to receive prisoners), the reference to rules under section 300 of that Act includes Imprisonment and Detention Rules within the meaning of section 122 of AA 1955.

Service custody etc rules

150

In section 300 of AFA 2006 (service custody etc rules)—

(a) references to a sentence of service detention include an SDA sentence of service detention;

(b) references to a relevant sentence include (as well as, by reason of paragraph (a), an SDA sentence of service detention)—

(i) an SDA custodial sentence; and

(ii) a custodial sentence passed in respect of an SDA offence;

(c) the reference in subsection (4) to a disciplinary offence created by the rules includes a disciplinary offence created by rules under section 122 of AA 1955.

Duration of sentences: persons unlawfully at large or on temporary release

151

(1) In section 301 of AFA 2006 (duration of sentences: persons unlawfully at large or on temporary release)—

(a) references to service detention include an SDA sentence of service detention;

(b) references to a custodial sentence passed in respect of a service offence include—

(i) an SDA custodial sentence; and

(ii) a custodial sentence passed in respect of an SDA offence.

(2) In subsection (3) of that section, the reference to rules under section 300 includes rules made under section 122 of AA 1955.

(3) Section 119(5) of AA 1955 and AFA 1955 (provision corresponding to section 301(4) of AFA 2006) apply for the purposes of section 301 of AFA 2006.

(4) Section 88(2) of NDA 1957 (provision corresponding to section 301(4) of AFA 2006) applies for the purposes of section 301 of AFA 2006, but as if—

(a) the reference to civil custody were omitted; and

(b) in the definition of “the appropriate rules” in section 88(3) of NDA 1957, paragraph (c) were omitted.

Remission of certain sentences on passing of custodial sentence etc

152

(1) In section 302(1) of AFA 2006 (remission of certain sentences on passing of custodial sentence etc)—

(a) the reference to a “relevant sentence” includes—

(i) an SDA sentence of service detention; and

(ii) an SDA minor punishment; and

(b) the reference in paragraph (a) to a service offence includes an SDA offence.

(2) Where part of an SDA minor punishment was unserved immediately before commencement, that part is remitted on commencement if, between the award of that punishment and commencement, there has been passed on the offender (and not quashed)—

(a) an SDA custodial sentence; or

(b) a sentence of imprisonment, or a sentence that corresponds to a custodial sentence within the meaning of AFA 2006, passed by a civilian court in the British Islands.

(3) In this article “an SDA minor punishment” means a minor punishment under section 71(1)(l) or 76C(2)(e) of AA 1955 or AFA 1955 or section 43(1)(m) of NDA 1957.

Power of service policeman to arrest person unlawfully at large

153

(1) In section 303(1) of AFA 2006 (power of service policeman to arrest person sentenced to service detention who is unlawfully at large), the reference to service detention includes an SDA sentence of service detention.

(2) Section 119(5) of AA 1955 and AFA 1955 (provision corresponding to section 303(2) of AFA 2006) apply for the purposes of section 303(1) of AFA 2006.

(3) Section 88(2) of NDA 1957 (provision corresponding to section 303(2) of AFA 2006) applies for the purposes of section 303(1) of AFA 2006, but as if—

(a) the reference to civil custody were omitted; and

(b) in the definition of “the appropriate rules” in section 88(3) of NDA 1957, paragraph (c) were omitted.

Sentences passed by civilian courts

154

In section 304(1) of AFA 2006 (references to custodial sentence do not include sentence passed by civilian court), the reference to a service offence includes an SDA offence.

CHAPTER 3 — Financial penalties

Effect of appeal on SDA service compensation order, etc

155

(1) In section 176(1) of AFA 2006 (suspension of entitlement to payment of service compensation order), the reference to a service compensation order includes a compensation order under paragraph 11 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

(2) In section 176(3) of AFA 2006 (effect of appeal, etc, where service compensation order made in respect of offence taken into consideration), the reference to a service compensation order includes—

(a) stoppages under AA 1955, AFA 1955 or NDA 1957; and

(b) a compensation order under paragraph 11 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

Review of stoppages and SDA compensation order, etc

156

In section 177 of AFA 2006 (review of service compensation order), references to a service compensation order include—

(a) stoppages under AA 1955, AFA 1955 or NDA 1957; and

(b) a compensation order under paragraph 11 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

Power to allow payment of fine or stoppages by instalments

157

In section 251(2) to (7) of AFA 2006 (power to allow payment of fine or service compensation order by instalments)—

(a) references to a fine include one awarded by virtue of any provision of AA 1955, AFA 1955, NDA 1957 or AFA 1976;

(b) references to a service compensation order include—

(i) stoppages under AA 1955, AFA 1955 or NDA 195; and

(ii) a compensation order under paragraph 11 of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957.

Imprisonment in default of payment of fine

158

(1) An order under section 71B(1) of AA 1955 or AFA 1955 or section 43B(1) of NDA 1957 (power to fix further consecutive term of imprisonment or detention in default of payment of fine) shall continue to have effect notwithstanding the repeal of that subsection by AFA 2006.

(2) In relation to such an order—

(a) subsections (3) to (6) of section 71B of AA 1955 or AFA 1955 or of section 43B of NDA 1957 (as the case may be) shall apply notwithstanding their repeal by AFA 2006; and

(b) in relation to any time after commencement, references in subsection (6) of section 71B of AA 1955 or AFA 1955 or of section 43B of NDA 1957 (as the case may be) to deductions from pay and amounts forfeited under Part 3 of AA 1955 or AFA 1955 or Part 4 of NDA 1957 are to be read as references to (respectively) deductions from pay and amounts forfeited in accordance with authority given by or under AFA 2006 or any other enactment.

CHAPTER 4 — Second class for conduct

Second class for conduct

159

(1) This article applies to a punishment of Reduction to the Second Class for Conduct, awarded by virtue of regulation 43 of the Naval Summary Discipline Regulations (February) 2009 , all or any of which falls to be served after commencement.

(2) Regulation 55 of those Regulations shall continue in force for the purposes of any such punishment, but with the following amendments.

(3) For paragraphs (c) and (d) substitute—

(c) perform extra duties (that is, work, training or any other duty performed by the rating at times when he would not otherwise be required to perform any duty)— (i) during the first 14 days of the punishment, for a period not exceeding 5½ hours each day; (ii) during the remainder of the punishment, for a period not exceeding 1 hour each day.

(4) In relation to a punishment of Reduction to the Second Class for Conduct to which this article applies, the offender's commanding officer—

(a) must decide in respect of each day of the punishment—

(i) what extra duties the rating must perform;

(ii) the period (not exceeding the permitted maximum) for which extra duties are to be performed; and

(iii) the time or times for performing the extra duties; and

(b) must inform the rating accordingly.

(5) The commanding officer may delegate any functions under paragraph (4) to a person of or above the rate of chief petty officer.

CHAPTER 5 — Restitution orders

Restitution orders

160

(1) Paragraph (2) applies in any case where an order under section 138 of AA 1955 or AFA 1955 or section 76 of NDA 1957 (restitution orders) was, immediately before commencement, suspended by virtue of section 138(10) of AA 1955 or AFA 1955 or section 77(1) of NDA 1957.

(2) The following provisions shall continue in force for the purposes of any such case—

(a) section 138(9), (10), and (12) of AA 1955 or AFA 1955 or, as the case may be, section 77 of NDA 1957 (with the substitution for references to the Courts-Martial Appeal Court of references to the Court Martial Appeal Court);

(b) section 46 of CMAA 1968.

(3) Section 46 of CMAA 1968 shall continue in force for the purposes of any case where, immediately before commencement, an order under section 138 of AA 1955 or AFA 1955 or section 76 of NDA 1957 is suspended by virtue of section 46 of CMAA 1968.

(4) For the avoidance of doubt, the operation of an order under section 138 of AA 1955 or AFA 1955 or section 76 of NDA 1957 which has taken effect (either before or after commencement) is not affected by the coming into force of the repeal of those sections.

CHAPTER 6 — SDA orders for conditional discharge

SDA orders for conditional discharge

161

In this Chapter—

“SDA order for conditional discharge” means an order under paragraph 3(1) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 discharging a person subject to a condition;

“the period of conditional discharge” means the period specified in the SDA order for conditional discharge.

Order of court-martial: conviction of further offence by Court Martial

162

(1) This article applies where—

(a) a person in whose case an SDA order for conditional discharge has been made is convicted by the Court Martial of an offence committed during the period of conditional discharge; and

(b) the order was made by a court-martial or the Appeal Court.

(2) The Court Martial may deal with the offender for the offence for which the order was made in any way in which it could deal with the offender if it had just convicted the offender of that offence.

Order of any SDA court: conviction of further offence by Service Civilian Court

163

(1) This article applies where a person in whose case an SDA order for conditional discharge has been made is convicted by the Service Civilian Court of an offence committed during the period of conditional discharge.

(2) The Service Civilian Court may deal with the offender for the offence for which the order was made in any way in which it could deal with the offender if it had just convicted the offender of that offence.

(3) It is to be assumed for the purposes of paragraph (2) that the offence is one the Service Civilian Court would have jurisdiction to try.

Order of Standing Civilian Court: conviction of further offence by Court Martial

164

(1) This article applies where—

(a) a person in whose case an SDA order for conditional discharge has been made is convicted by the Court Martial of an offence committed during the period of conditional discharge; and

(b) the order was made by a Standing Civilian Court.

(2) The Court Martial may deal with the offender for the offence for which the order was made in any way in which the Service Civilian Court could deal with the offender if it had just convicted the offender of that offence.

(3) It is to be assumed for the purposes of paragraph (2) that the offence is one the Service Civilian Court would have jurisdiction to try.

Appeals against re-sentence, etc

165

(1) Paragraph (2) applies where a person is sentenced by a court under this Chapter for an offence in respect of which an SDA order for conditional discharge was made.

(2) The person is to be treated, for the purpose of enabling the making of an appeal against the sentence under CMAA 1968 or section 285 of AFA 2006, as if the conviction of that offence had been by the court which sentenced the person under this Chapter.

(3) Paragraph 5 of Schedule 5A to AA 1955 and AFA 1955 and of Schedule 4A to NDA 1957 continues to have effect in relation to SDA orders for conditional discharge, but as if the references in sub-paragraphs (1)(i) and (6) to paragraph 3(2) or (3) were to this Chapter.

CHAPTER 7 — Community supervision orders

Community supervision orders

166

(1) In this Chapter “a community supervision order” means an order under paragraph 4(1) of Schedule 5A to AA 1955 or of Schedule 5A to AFA 1955 or of Schedule 4A to NDA 1957.

(2) For the purposes of this Chapter a community supervision order is “current at commencement” if by commencement—

(a) the order has not been discharged under paragraph 4(11) of that Schedule or ceased to have effect by reason of paragraph 5(5) of that Schedule; and

(b) the supervision period has not ended.

(3) In this Chapter “the supervision period” means the period specified in a community supervision order.

Savings in respect of community supervision orders: provisions of SDAs

167

(1) In this article “the Schedule” means each of Schedule 5A to AA 1955, Schedule 5A to AFA 1955 and Schedule 4A to NDA 1957.

(2) The following provisions of paragraph 4 of the Schedule continue to have effect in relation to a community supervision order which is current at commencement—

(a) sub-paragraph (6) (failure to comply with order), subject to the modification in paragraph (3) below;

(b) sub-paragraph (7D) (limitation period for proceedings in respect of failure to comply);

(d) sub-paragraph (2) (definitions), so far as relating to the provisions saved by this Chapter.

(3) In paragraph 4(6) of the Schedule, as saved by this article, the words “triable by court-martial” are omitted.

Offence of failure to comply to be treated as service offence for certain purposes

168

(1) An offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed after commencement is to be treated as a service offence for the purposes of the following provisions of AFA 2006—

(a) section 50(1) (jurisdiction of Court Martial);

(b) section 51(1) (jurisdiction of Service Civilian Court);

(d) sections 67 and 68(3) (powers of arrest);

(e) Part 4 (custody);

(f) section 116(2) and (5) (duty of service policeman to refer case to DSP), subject to the modification in paragraph (4)(a) below;

(g) section 118 (duty of service policeman to notify CO of referral to DSP), subject to the modification in paragraph (4)(b) below;

(h) section 127(1) (direction barring further proceedings).

(2) A person may not be arrested under section 67 of AFA 2006 by virtue of paragraph (1)(d) above after the end of 6 months beginning with the end of the supervision period.

(3) In section 92 of AFA 2006 (power to make provision conferring powers of entry and search after arrest), the reference to a person who has been arrested under section 67 of that Act does not include a person so arrested by virtue of paragraph (1)(d) above.

(4) In their application to an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed after commencement—

(a) section 116(2)(b) of AFA 2006 has effect as if the words from “and is aware” to the end of the paragraph were omitted; and

(b) section 118 of that Act has effect as if subsection (3)(b) were omitted.

Community supervision order made by court-martial: conviction of further offence by Court Martial

169

(1) This article applies where—

(a) a person in whose case a community supervision order has been made is convicted by the Court Martial of any offence committed during the supervision period (including an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957); and

(b) the order was made by a court-martial or the Appeal Court.

(2) The Court Martial may deal with the offender for the offence for which the order was made in any way in which it could deal with the offender if it had just convicted the offender of that offence.

CSO made by any SDA court: conviction of further offence by Service Civilian Court

170

(1) This article applies where a person in whose case a community supervision order has been made is convicted by the Service Civilian Court of an offence committed during the supervision period (including an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957).

(2) The Service Civilian Court may deal with the offender for the offence for which the order was made in any way in which it could deal with the offender if it had just convicted the offender of that offence.

(3) It is to be assumed for the purposes of paragraph (2) that the offence is one the Service Civilian Court would have jurisdiction to try.

CSO made by Standing Civilian Court: conviction of further offence by Court Martial

171

(1) This article applies where—

(a) a person in whose case a community supervision order has been made is convicted by the Court Martial of an offence committed during the supervision period (including an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957); and

(b) the order was made by a Standing Civilian Court.

(2) The Court Martial may deal with the offender for the offence for which the order was made in any way in which the Service Civilian Court could deal with the offender if it had just convicted the offender of that offence.

(3) It is to be assumed for the purposes of paragraph (2) that the offence is one the Service Civilian Court would have jurisdiction to try.

Restriction on other powers of punishment in respect of failure to comply with order

172

(1) Where the Court Martial or the Service Civilian Court convicts a person of an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed before commencement, the court—

(a) may, instead of dealing with the offender under article 169, 170 or 171 for the offence for which the order was made, impose on the offender a fine not exceeding £1,000 for the offence under paragraph 4(6);

(b) may not impose any other punishment on the offender for that offence.

(2) Where the Court Martial or the Service Civilian Court convicts a person of an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed after commencement, the court may not impose any punishment for that offence (but this is without prejudice to its power to deal with the offender under article 169, 170 or 171 for the offence for which the order was made).

Appeals against re-sentence, etc

173

(1) Paragraph (2) applies where a person is sentenced by a court under this Chapter for an offence in respect of which a community supervision order was made.

(2) The person is to be treated, for the purpose of enabling the making of an appeal against the sentence under CMAA 1968 or section 285 of AFA 2006, as if the conviction of that offence had been by the court which sentenced the offender under this Chapter.

(3) Paragraph 5 of Schedule 5A to AA 1955 and AFA 1955 and of Schedule 4A to NDA 1957 continues to have effect in relation to community supervision orders, but as if the references in sub-paragraphs (1)(i) and (6) to paragraph 4(8) or (9) were to this Chapter.

(4) A conviction of an offence under paragraph 4(6) of Schedule 5A to AA 1955 or AFA 1955 or of Schedule 4A to NDA 1957 committed after commencement shall be deemed not to be a conviction except for the purposes of—

(a) this Chapter; and

(b) any appeal against the conviction or against a sentence passed by reason of the conviction.

Savings of regulations

174

(1) The following provisions of the Courts-Martial and Standing Civilian Courts (Army and Royal Air Force) (Additional Powers on Trial of Civilians) Regulations 1997 continue to have effect in relation to a community supervision order—

(a) regulation 4 (persons fit to be supervisors);

(b) regulation 6 (general duty of supervisor);

(d) regulation 9 (calculation of periods specified);

(e) regulation 12 (discharge or modification of order or replacement of supervisor), together with—

(i) row 1 of the Table in Part 2 of Schedule 2 as applied by regulation 12(1)(b); and

(ii) regulation 3 so far as relating to regulation 12(1)(b);

(f) the definition of “the 1955 Act” in regulation 2.

(2) In row 1 of the Table in Part 2 of Schedule 2 to those Regulations as saved by paragraph (1)(e) above, the reference to “the commanding officer of the offender” is to be read as to the person who is the offender's commanding officer within the meaning of AFA 2006.

CHAPTER 8 — Supplementary provisions relating to trial of civilians

Service of documents

175

(1) Regulation 11 of and Part 2 of Schedule 2 to the Additional Powers on Trial of Civilians Regulations (duty to serve court orders and copies) shall continue to have effect in relation to any case where, immediately before commencement, they required an order or certified copy to be served on a person.

(2) Regulation 3 of those regulations (method of service) shall continue in effect for the purposes of the provisions saved by paragraph (1).

(3) In those provisions—

(a) “the court administration officer” has the meaning given by section 374 of AFA 2006; and

(b) any reference to the commanding officer of the offender is to be read as to the person who is the offender's commanding officer within the meaning of AFA 2006.

(4) In this article “the Additional Powers on Trial of Civilians Regulations” means the Courts-Martial and Standing Civilian Courts (Army and Royal Air Force) (Additional Powers on Trial of Civilians) Regulations 1997.

PART 18 — DISCIPLINE: MISCELLANEOUS

Findings and sentences passed by reviewing authority

176

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.