Armed Forces Act 1991

5 Young civilian offenders: custodial orders

(1) In Schedule 5A to each of the 1955 Acts and Schedule 4A to the 1957 Act (powers of court on trial of civilian), paragraph 10 (custodial orders) shall be amended in accordance with the following provisions of this section.

(2) Subject to subsection (9) below, in sub-paragraph (1)—

(a) for the words “subsection (1A) below” there shall be substituted “sub-paragraphs (1A) and (1AA) below”; and

(b) for the words from “in accordance” to the end of paragraph (b) there shall be substituted— “for a period, to be specified in the order, which—

(a) shall not be less than 21 days;

(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”.

(3) In sub-paragraph (1A) the words from the beginning to “appropriate and” shall be omitted.

(4) After sub-paragraph (1A) there shall be inserted the following sub-paragraphs—

“(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.”

(5) In sub-paragraph (1B) for the words from “there is” to “in respect of him” there shall be substituted “it is satisfied as mentioned in paragraphs (a) and (b) of sub-paragraph (1AA) above with respect to an offender”.

(6) Subject to subsection (10) below, for sub-paragraphs (3A) and (3B) there shall be substituted the following sub-paragraphs—

“(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.”

(7) For sub-paragraph (4) there shall be substituted the following sub-paragraphs—

“(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.”

(8) In sub-paragraph (6), in each of paragraphs (a), (b) and (c) after the words “where the offender is” there shall be inserted “in or”.

(9) In the application of subsection (2) above to paragraph 10 of Schedule 4A to the 1957 Act, for paragraph (b) there shall be substituted—

“(b) for the words from “in accordance” to the end of paragraph (b) there shall be substituted “for a period to be specified in the order, being not less than 21 days and not exceeding the maximum period for which he could have been sentenced to imprisonment if he had attained the age of 21”.”

(10) In the application of subsection (6) above to paragraph 10 of Schedule 4A to the 1957 Act, for the words from “order (made under” onwards there shall be substituted “committal order”.