Chapter 2 – Principles and Procedures applying to Service Courts only
General
506.Chapter 2 of Part 9 sets out the sentencing principles and procedures which apply to service courts but not to summary hearings.
Section 255: Individual sentence for each offence
507.At present, a court-martial (unlike a civilian court) passes a single sentence on an offender, even if he is convicted of two or more offences. A Standing Civilian Court, on the other hand, passes a separate sentence for each offence. This section requires both the Court Martial and the SCC to pass a separate sentence for each offence. (A CO and the SAC, by contrast, pass a single sentence for all the offences proved: see sections 131 and 147.)
Section 256: Pre-sentence reports
508.This section requires a service court to obtain and consider a pre-sentence report when considering whether to pass a discretionary custodial sentence, a sentence of dismissal, dismissal with disgrace or service detention, or a community punishment; for how long a custodial sentence, or one of service detention, should be passed; or whether there is a significant risk of the offender causing serious harm by committing further offences, so that sections 219 to 222 apply. The pre-sentence report is based on an interview and analysis of the defendant and his offending history and needs. It will contain advice about what punishment might be appropriate, and what rehabilitative work would be likely to prove effective in reducing the risk of re-offending. The section reflects section 156 of the 2003 Act.
509.Subsection (2) allows the court to dispense with the requirement to obtain a pre-sentence report if it considers that it does not need one. But, if the offender is under 18, under subsection (3) the court must not do this unless there is already a report on the offender and the court has considered that.
510.Under subsection (4), no sentence is invalidated by a court’s failure to obtain and consider a pre-sentence report, even where the court was required to do so.
511.If the defendant appeals to the CMAC or the Court Martial against a custodial sentence, a sentence of dismissal, dismissal with disgrace or service detention, or a community punishment, and the lower court did not obtain a pre-sentence report, subsections (5) and (6) require the appellate court to obtain and consider a report unless it thinks that the original court was justified in not obtaining one, or that a report is not now needed. If the offender is under 18, however, subsection (7) requires the appellate court to obtain a report unless it has considered a report previously obtained.
Section 257: Pre-sentence reports: supplementary
512.This section applies the definition of a “pre-sentence report” in the 2003 Act for the purposes of section 256, but allows reports to be prepared for service courts by social workers as well as probation officers.
513.Subsection (4) applies the relevant provisions of section 159 of the 2003 Act, which requires copies of a written report to be given to the offender or his legal representative and the prosecutor. If the offender is under 18 a copy must also be given to any parent or guardian of his who is in court; but a complete copy need not be given to such an offender, or to his parent or guardian, if this would create a risk of significant harm to the offender. The prosecutor must not use the report for any purpose except making representations to the court about the contents of the report.
Section 258: Mentally disordered offenders: requirement for medical report
514.This section requires a service court to obtain and consider a medical report before passing a custodial sentence (other than one fixed by law) on an offender who is, or appears to be, mentally disordered, unless the court considers that no such report is needed. The court must consider any information before it relating to the offender’s mental condition, and the likely effect of a custodial sentence on that condition and on any treatment which may be available for it. If the court does not obtain a medical report this does not invalidate the sentence, but on an appeal against sentence the appellate court must obtain and consider a medical report. The section reflects section 157 of the 2003 Act.
Section 259: Sentencing guidelines
515.This section requires a service court to have regard to any relevant guidelines issued by the Sentencing Guidelines Council under section 170(9) of the 2003 Act, but provides that it may depart from such guidelines if it thinks this is justified by any relevant features of service life or the service disciplinary system.
Custodial sentences and service detention
Section 260: Discretionary custodial sentences: general restrictions
516.This section prohibits a service court from passing a custodial sentence (except one fixed by law, or required under Chapter 6 of Part 8) unless it thinks the offence, or the combination of the offence and any associated offences (see paragraph 483 above), was so serious that no less severe sentence can be justified. The court can also pass a custodial sentence if it would have awarded a community punishment but cannot impose a particular requirement because the offender will not agree to it. The section reflects section 152 of the 2003 Act.
Section 261: Length of discretionary custodial sentences: general provision
517.Where a service court passes a custodial sentence (other than one fixed by law, or one required by section 219(2) or 221(2)), this section requires the sentence to be for the shortest term commensurate with the seriousness of the offence, or the combination of the offence and any associated offences (see paragraph 483 above), unless Chapter 6 of Part 8 requires a longer term. The section reflects section 153 of the 2003 Act.
Section 262: Power to recommend licence conditions
518.This section enables a service court (like a civilian court) to recommend, when passing a sentence of imprisonment for 12 months or more, particular conditions that in its view should be included in the offender’s licence when he is released. Section 238 of the 2003 Act requires the Secretary of State to have regard to any such recommendation when setting the licence conditions.
Section 263: Restriction on imposing custodial sentence or service detention on unrepresented offender
519.This section prohibits a service court from passing a sentence of imprisonment, a sentence of detention under section 209 or 218, a detention and training order or a sentence of service detention on an offender who is not legally represented. But this does not apply if the offender refused or failed to apply for representation after being informed of his right to apply for it, or was aged 21 or more when convicted and has previously been sentenced to imprisonment (not counting a suspended sentence which has not been activated). The section reflects section 83 of the Sentencing Act.
Section 264: Effect of duties to pass custodial sentences on other powers of punishment
520.This section makes it clear that, where any provision of the Act requires a court to pass a particular custodial sentence, the court can also include in its sentence any another punishment, except those listed in subsection (2).
Dismissal
Section 265: Dismissal: general restrictions
521.Subsections (1) and (2) prohibit a court from passing a sentence of dismissal, or dismissal with disgrace, unless it considers that the offence (or the combination of the offence and any associated offences: see paragraph 483 above) was serious enough to warrant such a sentence.
522.Subsections (3) to (5) prohibit the Court Martial from passing such a sentence on an offender who is not legally represented, unless he refused or failed to apply for representation after being informed of his right to apply for it.
Financial punishments
Section 266: Financial statement orders
523.This section enables a service court (other than the SAC) to order an offender to give the court a statement of his financial circumstances before it passes sentence. The offender commits a further offence (punishable with a fine) if he fails to comply, or provides false or incomplete information. This section reflects section 162 of the 2003 Act.
Section 267: Power of court to remit fine
524.This section enables a service court to reduce or remit a fine if it did not have full information about the offender’s financial circumstances when it imposed the fine. The section reflects section 165 of the 2003 Act.
Section 268: Order for service parent or service guardian to pay fine or compensation
525.Where the offender was convicted aged under 18, is a civilian subject to service discipline, and has a parent or guardian who is subject to service law or who is a civilian subject to service discipline, this section enables the court to order that parent or guardian to pay any fine or compensation awarded against the offender. If the offender is under 16 on conviction, the court must do so unless satisfied that this would be unreasonable, or that the parent or guardian cannot be found. The court must give the parent or guardian an opportunity to be heard. The parent or guardian can appeal against the order as if it were a sentence, except that the appellate court can quash the order without substituting another. The section reflects section 137 of the Sentencing Act.
Section 269: Fixing of fine or compensation to be paid by parent or guardian
526.Under this section, various provisions of the Act relating to the fixing of fines and compensation orders are modified in relation to an order under section 268 that the offender’s parent or guardian must pay a fine or compensation.
Community punishments
Section 270: Community punishments: general restrictions
527.Under subsections (1) and (2)(b) a service court must not award a community punishment unless it thinks the offence (or the combination of the offence and any associated offences: see paragraph 483 above) was serious enough to warrant one, and the restrictions imposed must be commensurate with the seriousness of the offence (or offences). This reflects part of section 148 of the 2003 Act. Subsection (3) requires the court to take into account all available information about the offence in forming an opinion on these matters. But under subsection (7) (which applies section 151 of the 2003 Act) the court can also award a community punishment if the offender has at least three times been fined for service or civilian offences committed when he was aged 16 or over, and the court considers that this would be in the interests of justice.
528.Subsection (2)(a) further provides that the requirements included in the order must be such as the court considers the most suitable for the offender. This reflects part of section 148 of the 2003 Act. For this purpose subsection (4) allows the court to take into account any information about the offender that it may have.
529.Subsections (5) and (6) allow the court, in determining what restrictions a community punishment should impose, to have regard to any period for which the offender has been kept in service custody since being charged with the offence or any other offence the charge for which was founded on the same facts or evidence. This reflects section 149 of the 2003 Act.
