Armed Forces Act 2006 (c. 52)

Part 9 U.K. Sentencing: Principles and Procedures

Modifications etc. (not altering text)

C1 Pt. 9 modified (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, s. 163

Chapter 1 U.K. Principles and Procedures applying to Service Courts and Summary Hearings

General sentencing principles U.K.

238 Deciding the seriousness of an offence U.K.

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

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

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

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

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

(ii) on bail,

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

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

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

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

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

(a) a previous conviction of a service offence; F1 ... [F2 or]

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

F3 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F4 (4) Nothing in this section prevents the court or officer from treating a previous conviction by a court outside the British Islands as an aggravating factor in any case where the court or officer considers it appropriate to do so.]

F5 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F6 (6) In section 69 of the Sentencing Code (seriousness of offence with terrorist connection)—

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

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

[F7 (7) In section 69A of the Sentencing Code (seriousness of offence where foreign power condition met)—

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

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

Textual Amendments

F1 Word in s. 238(3)(a) repealed (15.8.2010) by Coroners and Justice Act 2009 (c. 25), s. 182(5), Sch. 17 para. 7(2)(a), Sch. 23 Pt. 5 (with s. 180, Sch. 22 para. 42); S.I. 2010/1858, art. 3(d)(iii)

F2 Word in s. 238(3)(a) inserted (13.11.2023) by Armed Forces Act 2021 (c. 35), ss. 17(2)(a)(i), 24(1); S.I. 2023/1102, reg. 4

F3 S. 238(3)(c)(d) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(2)(a)(ii), 24(1); S.I. 2023/1102, reg. 4

F4 S. 238(4) substituted (13.11.2023) by Armed Forces Act 2021 (c. 35), ss. 17(2)(b), 24(1); S.I. 2023/1102, reg. 4

F5 S. 238(5) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(2)(c), 24(1); S.I. 2023/1102, reg. 4

F6 S. 238(6) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 53 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F7 S. 238(7) inserted (20.12.2023) by National Security Act 2023 (c. 32), ss. 22, 100(1) (with s. 97); S.I. 2023/1272, reg. 2(a)

Commencement Information

I1 S. 238 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. 238 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4