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Armed Forces Act 2006, Section 238 is up to date with all changes known to be in force on or before 25 April 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
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(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... [F2or]
(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
F1Word 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)
F2Word 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
F3S. 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
F4S. 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
F5S. 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
F6S. 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
F7S. 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
I1S. 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)
I2S. 238 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4
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