Armed Forces Act 2006 (c. 52)

Part 8 U.K. Sentencing Powers and Mandatory etc Sentences

Modifications etc. (not altering text)

C1 Pt. 8 applied (with modifications) (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, rule 128(2)

Chapter 3 U.K. Suspended Sentence of Service Detention

190 Suspension of sentence of service detention U.K.

(1) A court which, or officer who, passes a sentence of service detention may order that the sentence shall not have effect unless—

(a) during a period specified in the order (“the operational period”) the offender commits another service offence or [F1 an offence under the law of any part of the British Islands]; and

(b) a court or officer orders under section 191 or 193 that the sentence shall take effect.

(2) The operational period must be a period of at least three months and not more than twelve months beginning with the date of the order made under this section.

(3) In this Act “suspended sentence of service detention” means a sentence to which an order under this section relates.

Textual Amendments

F1 Words in s. 190(1)(a) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 14; S.I. 2012/669, art. 4(d)

Commencement Information

I1 S. 190 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I2 S. 190 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

191 Activation by Court Martial of suspended sentence of service detention U.K.

(1) The Court Martial may make an order under subsection (3) where it convicts a person of an offence committed during the operational period of a suspended sentence of service detention passed on him.

(2) The Court Martial may also make an order under subsection (3) if—

(a) the Court Martial has passed a suspended sentence of service detention on a person;

(b) the person has been convicted of another service offence, or [F2 an offence under the law of any part of the British Islands], committed during the operational period of the suspended sentence; and

(c) the person appears or is brought before the Court Martial following the issue of a summons or warrant under subsection (6).

(3) An order under this subsection is an order—

(a) that the suspended sentence shall take effect with the original term unaltered; or

(b) that the suspended sentence shall take effect with the substitution of a lesser term for the original term.

(4) An order under subsection (3) may provide either—

(a) that the suspended sentence shall take effect immediately; or

(b) that the suspended sentence shall take effect from the end of another sentence of service detention which has been passed on the person on a previous occasion or which the court passes on the person on the same occasion as it makes the order.

(5) Where—

(a) by virtue of subsection (2) the Court Martial orders that a suspended sentence shall take effect, and

(b) the conviction mentioned in subsection (2)(b) is a conviction by an officer or the Summary Appeal Court,

any unserved part of any service supervision and punishment order or minor punishment awarded by the officer or the Summary Appeal Court is remitted by the making of the order.

(6) If it appears to the Court Martial—

(a) that subsection (2)(a) and (b) apply, and

(b) that the offender has not been dealt with in respect of the suspended sentence,

the court may issue a summons requiring him to appear at the time and place specified in it, or a warrant for his arrest.

(7) In subsection (2)(a) the reference to the Court Martial includes—

(a) the Court Martial Appeal Court; and

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

(8) This section is subject to section 244 (limit on combined term of sentences of service detention).

Textual Amendments

F2 Words in s. 191(2)(b) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 14; S.I. 2012/669, art. 4(d)

Commencement Information

I3 S. 191 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I4 S. 191 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

192 Activation by Court Martial: appeals U.K.

(1) This section applies where an order under section 191 is made.

(2) For the purposes of the Court Martial Appeals Act 1968 (c. 20)—

(a) the order is to be treated as a sentence passed on the offender by the Court Martial for the offence for which the suspended sentence was passed; and

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

(3) For the purposes of any appeal against the order references in section 16A of that Act to passing a sentence include making an order.

(4) 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.

Commencement Information

I5 S. 192 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I6 S. 192 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

193 Activation by CO of suspended sentence of service detention U.K.

(1) This section applies in relation to a suspended sentence of service detention passed on an offender by an officer or the Summary Appeal Court.

(2) If—

(a) an officer records a finding that a charge against the offender in respect of an offence committed during the operational period of the suspended sentence is proved, or

(b) the offender is convicted of [F3 an offence under the law of any part of the British Islands] which was committed during that operational period, and subsequently appears before his commanding officer,

the officer may (subject to section 194) make an order under subsection (3).

(3) An order under this subsection is an order—

(a) that the suspended sentence shall take effect with the original term unaltered; or

(b) that the suspended sentence shall take effect with the substitution of a lesser term for the original term.

(4) An order under subsection (3) may provide either—

(a) that the suspended sentence shall take effect immediately; or

(b) that the suspended sentence shall take effect from the end of another sentence of service detention which has been passed on the offender on a previous occasion or which the officer passes on the offender on the same occasion as he makes the order.

(5) Any provision included by virtue of subsection (4) in an order made by an officer has effect subject to section 292 (postponement of commencement of suspended sentence on activation by CO).

Textual Amendments

F3 Words in s. 193(2)(b) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 14; S.I. 2012/669, art. 4(d)

Commencement Information

I7 S. 193 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I8 S. 193 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

194 Activation by CO: maximum term U.K.

(1) The term of a suspended sentence as it takes effect by virtue of an order under section 193 must not exceed 28 days unless the officer has extended powers for the purposes of this section.

(2) If—

(a) section 193(2)(a) applies and the officer awards a term of service detention in respect of the offence mentioned there (“the new sentence”), and

(b) the officer makes an order under section 193 and the order provides for the suspended sentence to take effect from the end of the new sentence,

the aggregate of the terms of the two sentences must not exceed 28 days or, if the officer has extended powers for the purposes of this section, 90 days.

(3) Nothing in subsection (2) affects section 133 (which determines the maximum length etc of the new sentence).

(4) An officer has extended powers for the purposes of this section if he has, [F4 within the relevant time (defined by section 194A)] —

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

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

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

F5 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Section 193 is subject to section 244 (limit on combined term of sentences of service detention).

Textual Amendments

F4 Words in s. 194(4) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 15(2); S.I. 2012/669, art. 4(d)

F5 S. 194(6) repealed (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 15(3), Sch. 5; S.I. 2012/669, art. 4(d)(f)(i)

Commencement Information

I9 S. 194 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I10 S. 194 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F6 194A Extended powers of activation: time for obtaining U.K.

(1) In section 194(4) “within the relevant time” means—

(a) where section 193(2)(a) applies, before the start of the summary hearing of the charge mentioned there (but this is subject to subsections (2) and (3));

(b) where section 193(2)(b) applies, before the start of the hearing as to whether an order under section 193 should be made.

(2) Subsection (3) applies where the summary hearing of the charge mentioned in section 193(2)(a) is one where, after the start of the hearing—

(a) a charge is amended under section 123(2)(a);

(b) a charge is substituted for another charge under section 123(2)(b); or

(c) an additional charge is brought under section 123(2)(c).

(3) Any application for or grant of extended powers which is made in the period between—

(a) the making of the amendment, substitution or addition, and

(b) the time when the summary hearing is proceeded with after the amendment, substitution or addition,

is to be treated for the purposes of section 194(4) as made within the relevant time.]

Textual Amendments

F6 S. 194A inserted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 16; S.I. 2012/669, art. 4(d)

195 Suspended sentences: powers of SAC U.K.

(1) For the purposes of Chapters 2 and 3 of Part 6 (appeals and reviews), an order under section 193 is to be treated as a punishment awarded for the offence for which the suspended sentence was awarded.

(2) Where an order under section 193 was made by virtue of a finding within section 193(2)(a)—

(a) any appeal, or application for leave to appeal, against the finding or the punishment awarded in respect of it is for the purposes of Chapter 2 of Part 6 to be treated as also being an appeal or application for leave to appeal against the order;

(b) any appeal, or application for leave to appeal, against the order is for those purposes to be treated as also being an appeal or application for leave to appeal against the punishment.

(3) Subsections (4) to (7) apply on an appeal to the Summary Appeal Court in a case in which section 193(2)(a) applied (power of CO to activate suspended sentence following finding of guilt).

(4) If the officer made an order under section 193, the Summary Appeal Court may (as an alternative to confirming the order)—

(a) quash the order; or

(b) make, in substitution for the order, any order under that section that the officer could have made.

(5) If the officer did not make an order under that section, the Summary Appeal Court may make any order under that section that the officer could have made.

(6) Section 147(3) has effect, as regards the Summary Appeal Court's powers of punishment in respect of the officer's finding (or any substituted finding), as if paragraph (b)(ii) were omitted.

(7) But the court may not exercise its powers under section 147(3) or subsection (4) or (5) above 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 officer.

(8) On an appeal against an order under section 193 made by virtue of section 193(2)(b), the Summary Appeal Court may (as an alternative to confirming the order)—

(a) quash the order; or

(b) make, in substitution for the order, any order under section 193 that—

(i) the officer could have made; and

(ii) is no more severe than the order appealed against.

(9) In determining in any case—

(a) whether to substitute an order under section 193, or

(b) the terms of any such substituted order,

the Summary Appeal Court must take account of any period of the suspended sentence that the appellant served.

Commencement Information

I11 S. 195 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I12 S. 195 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4