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Armed Forces Act 2006

Conditional or absolute discharge (civilians only)
Section 185: Conditional or absolute discharge

383.This section defines a conditional discharge and an absolute discharge. Conditional discharge is available only for civilian offenders (see Schedule 3, paragraph 1(1) for the sentencing powers of the Court Martial in relation to civilians, and section 282 for those of the SCC). Absolute discharge is available for civilians and also for persons previously subject to service law (under Schedule 3, paragraph 3(1)).

384.Subsection (1) defines a conditional discharge as an order discharging the offender on condition that he commits no further service offence during a specified period. Under subsection (2) the maximum period that can be specified is the same as that for which a civilian court in England and Wales can impose a conditional discharge (currently three years).

385.An absolute discharge is defined in subsection (3) as an order that discharges the offender absolutely (i.e. without conditions).

386.Subsection (4) prohibits a conditional or absolute discharge from being combined with any other punishment, except a service compensation order.

Section 186: Commission of further offence by person conditionally discharged

387.Where an offender has been conditionally discharged, and is then convicted by the Court Martial or the SCC of another offence committed during the period of discharge, this section enables the court to re-sentence him for the original offence. It corresponds to section 13 of the Sentencing Act.

388.Where the original conviction was by the SCC and the second conviction is by the Court Martial, under subsection (2) the sentence passed by the Court Martial for the original offence must be one that the SCC could pass. Where the second conviction is by the SCC, under subsection (3) the sentence passed by the SCC must be one that it could have passed if it had just convicted the offender of the original offence (even if it was in fact the Court Martial that convicted him of that offence).

389.Subsection (5) ensures that the offender can appeal against a sentence passed under this section by the Court Martial where the original conviction was by the SCC, or vice versa.

Section 187: Effect of discharge

390.This section corresponds to section 14 of the Sentencing Act. Under subsection (1), an offender who is conditionally or absolutely discharged is deemed not to have been convicted of an offence, except for the purposes of the proceedings in which the order was made and any re-sentencing of the offender under section 186. Under subsection (2) this rule ceases to apply if the offender is later re-sentenced under section 186 (provided that he was aged 18 or over when he was convicted of the original offence).

391.Under subsection (3), where a conditional or absolute discharge is imposed the conviction is also to be disregarded for the purposes of legislation imposing a disqualification or disability.

392.Subsection (5) ensures that the section does not affect the offender’s rights of appeal, his right not to be tried again for the same offence, or an order to restore property.

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