263Restriction on imposing custodial sentence or service detention on unrepresented offenderU.K.
(1)A sentence of—
(a)imprisonment, or
(b)service detention,
must not be passed by the Court Martial or the Service Civilian Court, or passed or confirmed by the Summary Appeal Court, in respect of an offender who is not legally represented in that court.
(2)Subsection (1) does not apply if the offender—
(a)having been informed of his right to apply for legal representation and having had the opportunity to do so, refused or failed to apply; or
(b)was aged 21 or over when convicted, and has previously been sentenced to imprisonment by a civilian court in any part of the United Kingdom or for a service offence F1....
(3)The Court Martial or the Service Civilian Court must not—
[F2(a)pass a custodial sentence on an offender who is aged under 21 on conviction, or]
(b)make an order under section 211 (detention and training),
on or in respect of an offender who is not legally represented in that court unless the offender, having been informed of his right to apply for legal representation and having had the opportunity to do so, refused or failed to apply.
(4)For the purposes of this section an offender is “legally represented” in the Court Martial or the Service Civilian Court only if he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before he is sentenced.
(5)For the purposes of this section an offender is “legally represented” in the Summary Appeal Court—
(a)in a case where his appeal was only against punishment, if he has the assistance of counsel or a solicitor to represent him at some time during the proceedings in that court;
(b)in any other case, only if he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after the court confirms or substitutes the finding and before it confirms or passes sentence.
(6)For the purposes of subsection (2)(b)—
(a)a previous sentence of imprisonment which has been suspended and has not taken effect is to be disregarded;
(b)“sentence of imprisonment” does not include a committal for contempt of court or any kindred offence;
F3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F1Words in s. 263(2)(b) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(3)(a), 24(1); S.I. 2023/1102, reg. 4
F2S. 263(3)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 63 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2
F3S. 263(6)(c)(d) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(3)(b), 24(1); S.I. 2023/1102, reg. 4
Commencement Information
I1S. 263 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)
I2S. 263 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4