SCHEDULES

F1 SCHEDULE 5AU.K. Powers of Court on Trial of Civilian

Textual Amendments

F1Sch. 5A inserted by Armed Forces Act 1976 (c. 52), Sch. 4 paras. 1,2

Modifications etc. (not altering text)

C1Sch. 5A referred to (1.4.1997) by S.I. 1997/579, regs. 4, 7, 10, 12

Custodial ordersF26U.K.

Textual Amendments applied to the whole legislation

F26Act: the provisions of the 1955 Acts providing for findings of courts-martial to be subject to confirmation and to revision at the direction of the confirming officer cease to have effect (1.4.1997 subject to art. 3 of the commencing S.I.) by virtue of 1996 c. 46, s. 15; S.I. 1997/304, arts. 2, 3, Sch. 2

10(1)Where a civilian who has attained [F2the minimum age] but is under 21 years of age is found guilty of an offence punishable under this Act with imprisonment, the court shall have power, [F3subject to [F4sub-paragraphs (1A) and (1AA) below]], to make an order (in this Schedule referred to as a “custodial order”) committing him to be [F5 detained for a period, to be specified in the order, which—U.K.

(a)shall not be less than the appropriate minimum period, that is to say—

(i)in the case of an offender who has attained the age of 18, the period of 21 days; or

(ii)in the case of an offender who is under 18 years of age, the period of two months;

(b)shall not exceed the maximum period for which he could have been sentenced to imprisonment if he had attained the age of 21; and

(c)if the order is made by a Standing Civilian Court, shall not exceed six months.]

[and in this sub-paragraph “the minimum age”, in relation to a male offender, means 15 years of age and, in relation to a female offender, means 17 years of age.]

[F6(1A)F7. . . [F8F7. . . the court shall not make a custodial order committing an offender under [F918 years] of age to be detained for a period which exceeds twelve months or for a period such that the continuous period for which he is committed to be detained under that order and any one or more other custodial orders exceeds twelve months.]

[F10(1AA)The court may not make a custodial order unless it is satisfied—

(a)that the circumstances, including the nature and the gravity of the offence, are such that if the offender were aged 21 or over the court would pass a sentence of imprisonment; and

(b)that he qualifies for a custodial sentence.

(1AB)An offender qualifies for a custodial sentence if—

(a)he has a history of failure to respond to non-custodial sentences and is unable or unwilling to respond to them; or

(b)only a custodial sentence would be adequate to protect the public from serious harm from him; or

(c)the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it cannot be justified.]

F6(1B)For the purposes of determining whether [F11it is satisfied as mentioned in paragraphs (a) and (b) of sub-paragraph (1AA) above with respect to an offender] the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his mental and physical condition.]

(2)Before making a custodial order, the court shall consider any report made in respect of the offender by or on behalf of the Secretary of State.

(3)The court shall give a copy of any such report to the offender or any person representing him.

[F12(3A)Where the court makes a custodial order it shall be its duty—

(a)to state in open court and to record in the proceedings that it is satisfied that the offender qualifies for a custodial sentence under one or more of the paragraphs of sub-paragraph (1AB) above, the paragraph or paragraphs in question, and why it is so satisfied; and

(b)to explain to the offender in open court and in ordinary language why it is passing a custodial sentence on him.

(3B)Where the court makes a custodial order and, in accordance with its duty under sub-paragraph (3A) above, makes the statement required by paragraph (a) of that sub-paragraph, the matters stated shall be specified in the order (made under Imprisonment and Detention Rules) pursuant to which the offender is committed into custody.]

[F13(4)If a person is outside the United Kingdom at the time a custodial order is made in respect of him, he shall as soon as practicable be removed to the United Kingdom.

(4A)A person in respect of whom a custodial order has been made shall be detained in such appropriate institution as the Secretary of State may direct, and any enactment applying to persons detained in any such institution shall apply to a person so detained under this paragraph.]

(5)A custodial order shall be sufficient authority for the detention of the person subject to it in service custody until he is received into the institution specified in the Secretary of State’s direction.

[F14(5A)The following provisions shall apply in the case of a sentence under a custodial order as they apply in the case of a sentence of imprisonment by the same court, that is to say—

(a)where the court is a court-martial, sections 118(1) and 118A(1) and (3) of this Act; and

(b)where the court is a Standing Civilian Court, section 8(2) of the Armed Forces Act M11976;

and, accordingly, references in those provisions to a sentence of imprisonment shall include for the purposes of this sub-paragraph references to a sentence under a custodial order.]

[F15(5B)For the period before a person sentenced under a custodial order is received into the institution where he is to be detained (or for the currency of the sentence if its term ends before he is so received), sections 119(2), (4) and (5), 122, 123, 129, 142 and 190B of this Act shall apply in the case of the sentence as they apply in the case of a sentence of [F16imprisonment].]

(6)In this paragraph “appropriate institution” means—

[F17(a)where the offender is [F18in or] removed to England or Wales, any institution in which a person sentenced to detention in a young offender institution could be detained, [F19section 98 of the Powers of Criminal Courts (Sentencing) Act 2000] having effect in relation to the offender as it has effect in relation to an offender sentenced to detention in a young offender institution;]

[F20(b)where the offender is [F18in or] removed to Scotland, a young offenders institution;]

[F21(c)where the offender is [F18in or] removed to Northern Ireland,

[F22(i)if the offender is a male person who is under the age of 17 years, a remand home; and

(ii)in any other case, a young offenders centre;]]

and in sub-paragraph (4) above “enactment”, in relation to an offender who is removed to Northern Ireland, includes an enactment of the Parliament of Northern Ireland and a Measure of the Northern Ireland Assembly.

[F23(6A)[F24Section 65 of the Criminal Justice Act 1991] (release of young offenders) shall apply to persons released from a term of detention under a custodial order as it applies to persons released from a term of detention under a detention centre order or a term of youth custody.]

F25(6B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2Words substituted by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 11(1)(a)(6)

F3Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 7(a)(i)

F4Words in Sch. 5A para. 10(1) substituted (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 5(2)(a); S.I. 1991/2719, art. 2 (with art. 3(1))

F5Words in Sch. 5A para. 10(1) substituted (1.10.1992) by Criminal Justice 1991 (c. 53, SIF 39:1), ss. 71, 102(2), Sch. 9 para. 4 (a); S.I. 1992/333, art. 2(2), Sch. 2

F6Sch. 5A para. 10(1A)(1B) inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 7(b)

F7Words in Sch. 5A para. 10(1A) repealed (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 5(3), 26(2), Sch. 3; S.I. 1991/2719, art. 2, Sch. (with art. 3(1))