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Part 9U.K.Sentencing: Principles and Procedures

Modifications etc. (not altering text)

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

General sentencing principlesU.K.

237Duty to have regard to purposes of sentencing etcU.K.

(1)A court or officer dealing with an offender for a service offence must have regard to the following purposes of sentencing—

(a)the punishment of offenders;

(b)the maintenance of discipline;

(c)the reduction of service offences and other crime (including reduction by deterrence);

(d)the reform and rehabilitation of offenders;

(e)the protection of the public;

(f)the making of reparation by offenders to persons affected by their offences.

(2)If the offender is aged under 18 the court or officer must also have regard to his welfare.

(3)This section does not apply in relation to—

(a)an offence the sentence for which is fixed by law;

[F1(b)an offence the sentence for which falls to be imposed under section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence);

(ba)an offence the sentence for which falls to be imposed under section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over);

(bb)an offence the sentence for which falls to be imposed under section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18);

(bc)an offence the sentence for which falls to be imposed under section 313(2) of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);

(bd)an offence the sentence for which falls to be imposed under section 314(2) of the Sentencing Code as a result of section 226(2) (third domestic burglary);

(be)an offence the sentence for which falls to be imposed under section 311(2) of the Sentencing Code as a result of section 227(2) (firearms offences);]

(c)an offence the sentence for which falls to be imposed under section [F2227A(1A) or (2) (threatening with a weapon in public or on school premises)].

(4)In this section “sentencing” includes the making of any order when dealing with an offender in respect of his offence.

Textual Amendments

Modifications etc. (not altering text)

C2S. 237 modified in part (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3) (with s. 5(9)); S.I. 2012/1236, reg. 2

Commencement Information

I1S. 237 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. 237 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

238Deciding the seriousness of an offenceU.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; F3...

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

[F4(c)a previous conviction by a court in a member State other than the United Kingdom of a relevant offence under the law of that State, or

(d)a finding of guilt in respect of a member State service offence.]

[F5(4)Nothing in this section prevents the court or officer from treating—

(a)a previous conviction by a court outside both the British Islands and any member State, or

(b)a previous conviction by a court in any member State (other than the United Kingdom) of an offence which is not a relevant offence or a member State service offence,

as an aggravating factor in any case where the court or officer considers it appropriate to do so.

(5)For the purposes of this section—

(a)an offence is “relevant” if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time of the conviction in respect of the current offence,

(b)“member State service offence” means an offence which—

(i)was the subject of proceedings under the service law of a member State other than the United Kingdom, and

(ii)would constitute an offence under the law of any part of the United Kingdom, or a service offence, if it were done in any part of the United Kingdom, by a member of Her Majesty's forces, at the time of the conviction of the defendant for the current offence, and

(c)“service law”, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State.]

[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.]

Textual Amendments

Commencement Information

I3S. 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)

I4S. 238 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

239Reduction in sentences for guilty pleasU.K.

(1)This section applies where an offender—

(a)has pleaded guilty to a service offence in proceedings before a court; or

(b)at a summary hearing in respect of a service offence, has admitted the offence.

(2)In determining what sentence to pass on the offender, the court or officer dealing with him for his offence must take into account—

(a)the stage in the proceedings for the offence at which he indicated his intention to plead guilty or his intention to admit the offence at a summary hearing; and

(b)the circumstances in which this indication was given.

(3)In subsection (2) “sentence” includes any order made when dealing with the offender in respect of his offence.

(4)Subsection (5) applies in the case of an offence the sentence for which, as a result of section 225(2) or 226(2) of this Act (required custodial sentences), falls to be imposed under section [F7313(2) or 314(2) of the Sentencing Code].

(5)Nothing in section [F8313(2) or 314(2) of that Code] prevents the court, after taking into account any matter mentioned in subsection (2) above, from imposing any sentence which is at least 80% of that specified in section [F8313(2) or 314(2) of that Code].

[F9(6)Nothing in section [F10227A(1A) or (2)] prevents the court, after taking into account any matter mentioned in subsection (2) of this section, from imposing any sentence which is at least 80% of that specified in section [F10227A(1A) or (2)].]

Textual Amendments

F7Words in s. 239(4) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 54(a) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F8Words in s. 239(5) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 54(b) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F10Words in s. 239(6) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 54(c) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

Modifications etc. (not altering text)

C3S. 239(6) modified (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3) (with s. 5(9)); S.I. 2012/1236, reg. 2

Commencement Information

I5S. 239 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)

I6S. 239 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

240Increase in sentence for racial or religious aggravationU.K.

(1)This section applies where a court or officer dealing with an offender for a service offence (other than an offence mentioned in subsection (3)) is considering the seriousness of the offence.

(2)If the offence was racially or religiously aggravated the court or officer—

(a)must treat that fact as an aggravating factor; and

(b)must state in open court that the offence was so aggravated.

(3)This section does not apply in relation to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under any of sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37) (racially or religiously aggravated assaults, criminal damage, public order offences and harassment etc).

(4)Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or religiously aggravated”) applies for the purposes of this section as it applies for the purposes of sections 29 to 32 of that Act.

Commencement Information

I7S. 240 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)

I8S. 240 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

241Increase in sentence for aggravation related to disability [F11, sexual orientation or transgender identity] U.K.

(1)This section applies where a court or officer dealing with an offender for a service offence within subsection (2) is considering the seriousness of the offence.

(2)A service offence is within this subsection if—

(a)at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

(i)the sexual orientation (or presumed sexual orientation) of the victim; F12...

(ii)a disability (or presumed disability) of the victim; or

[F13(iii)the victim being (or being presumed to be) transgender, or]

(b)the offence is motivated (wholly or partly)—

(i)by hostility towards persons who are of a particular sexual orientation; F14...

(ii)by hostility towards persons who have a disability or a particular disability [F15, or

(iii)by hostility towards persons who are transgender.]

(3)The court or officer—

(a)must treat as an aggravating factor the fact that the offence was committed in any of the circumstances mentioned in paragraph (a) or (b) of subsection (2); and

(b)must state in open court that the offence was committed in such circumstances.

(4)It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether the offender's hostility is also based to any extent on any other factor not mentioned in that paragraph.

(5)In this section “disability” means any physical or mental impairment.

[F16(6)In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.]

Textual Amendments

Commencement Information

I9S. 241 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)

I10S. 241 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Service detention and custodial sentencesU.K.

242Service detention: general restrictionU.K.

(1)A court may not pass a sentence of service detention in respect of an offence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.

(2)In forming any such opinion as is mentioned in subsection (1) or section 243(2) (length of sentence), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.

(3)In subsections (1) and (2) “court” does not include the Summary Appeal Court.

(4)A sentence of service detention may not be—

(a)passed by an officer at a summary hearing, or

(b)passed or confirmed by the Summary Appeal Court,

unless the officer or court is of the opinion that the offence it is in respect of (or, if it is in respect of two or more offences, the combination of them) was serious enough to warrant such a sentence.

(5)In forming any such opinion as is mentioned in subsection (4) or section 243(3) (length of sentence), an officer or the Summary Appeal Court must take into account all such information as is available to him or it about the circumstances of the offence (or offences), including any aggravating or mitigating factors.

Modifications etc. (not altering text)

Commencement Information

I11S. 242 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)

I12S. 242 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

243Length of term of service detention: general provisionU.K.

(1)This section applies where a sentence of service detention is passed in respect of a service offence.

(2)Where the detention is imposed by a court other than the Summary Appeal Court, it must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it.

(3)Where the detention is imposed by an officer at a summary hearing or by the Summary Appeal Court, it must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the officer or court is commensurate with the seriousness of the offence (or, if it is imposed in respect of two or more offences, the seriousness of them taken together).

Modifications etc. (not altering text)

Commencement Information

I13S. 243 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)

I14S. 243 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

244Limit on combined term of sentences of service detentionU.K.

(1)A court or officer may not—

(a)pass a sentence of service detention,

(b)make a direction under section 189 (consecutive terms of service detention), or

(c)make an order under section 191 or 193 (activation of suspended sentence of service detention),

whose effect would be that a person would (at the relevant time) be subject to sentences of service detention the combined term of which exceeds two years.

(2)In subsection (1) “the relevant time” is the time immediately after the passing of the sentence or the making of the direction or order.

(3)For the purposes of this section, the combined term of sentences of service detention is—

(a)if none of the sentences overlap, the aggregate of the terms of the sentences;

(b)otherwise, the aggregate of—

(i)the period (or periods) during which any of the sentences overlaps any other of them; and

(ii)the period (or periods) for which none of the sentences overlap.

(4)Where subsection (1) is contravened, any part of any sentence of service detention which would (apart from this subsection) have effect after the end of the permitted period is remitted by virtue of this subsection.

(5)In subsection (4) “permitted period” means the period—

(a)beginning with the date of contravention; and

(b)equal in length to the longest sentence of service detention that could have been passed on that date without contravening subsection (1).

(6)For the purposes of the reference in subsection (4) to a part of a sentence which would have effect after the end of the permitted period, any prospect of early release is to be disregarded.

(7)In subsection (1)(a) “sentence of service detention” does not include a suspended sentence of service detention.

Commencement Information

I15S. 244 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)

I16S. 244 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

245Section 244: supplementaryU.K.

(1)Subsections (2) to (5) apply for the purposes of section 244.

(2)A person is to be regarded as not subject to any sentence from which he has been released early.

(3)A person is to be regarded as not subject to a suspended sentence of service detention unless an order that the sentence shall take effect has been made.

(4)Subject to subsection (3), a person is to be regarded as subject to any sentence of service detention that has been passed on him but—

(a)has not taken effect; or

(b)as a result of section 290(5) or (6) or 291(6) or (7), has ceased to have effect and has not resumed effect.

(5)A person who has been detained continuously pursuant to two or more sentences of service detention is to be regarded as subject to all of those sentences (whether or not any of them has been served in full).

(6)For the purposes of subsection (5), any periods of detention which would be continuous but for section 290(3), (5) or (6) or 291(5), (6) or (7) are to be treated as continuous.

Commencement Information

I17S. 245 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)

I18S. 245 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

246Crediting of time in service custody: terms of imprisonment and detentionU.K.

(1)This section applies where—

(a)a court or officer sentences an offender to a term of imprisonment or service detention in respect of a service offence (“the offence in question”); and

(b)the offender has been kept in service custody, in connection with the offence in question or any related offence, for any period since being charged with the offence in question or any related offence.

[F17(2)The number of days for which the offender was kept in service custody in connection with the offence in question or any related offence since being so charged is to count as time served by the offender as part of the sentence.

(2A)If, on any day on which the offender was kept in service custody, the offender was also detained in connection with any other matter, that day is not to count as time served.

(2B)A day counts as time served—

(a)in relation to only one sentence, and

(b)only once in relation to that sentence.

(2C)A day is not to count as time served as part of any [F18automatic release period served by the offender] (see section 255B(1) of the 2003 Act).]

(6)This section applies to—

(a)a determinate sentence of detention under section 209, F19...

(b)a sentence of detention under section [F20226B or] 228 of the 2003 Act passed as a result of section [F21221A or] 222 of this Act [F22,

[F23(ba)an extended sentence of detention under section 254 of the Sentencing Code passed as a result of section 221A of this Act,] and

(c)a determinate sentence of detention in a young offender institution,]

as it applies to an equivalent sentence of imprisonment.

(7)References in this section to “the court” are to the court or officer mentioned in subsection (1).

Textual Amendments

Modifications etc. (not altering text)

C6S. 246 modified by 1968 c. 20, Sch. 1 para. 4 (as substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 54; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059, Sch. 2 para. 13 as amended (E.W.) (3.12.2012) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential and Saving Provisions) Regulations 2012 (S.I. 2012/2824), regs. 1, 5(3)); S.I. 2009/1167, art. 4

Commencement Information

I19S. 246 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, Sch. 2 para. 13 as amended (E.W.) (3.12.2012) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential and Saving Provisions) Regulations 2012 (S.I. 2012/2824), regs. 1, 5(3)); S.I. 2009/1167, art. 4

I20S. 246 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

I21S. 246 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, Sch. 2 para. 13 as amended (E.W.) (3.12.2012) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential and Saving Provisions) Regulations 2012 (S.I. 2012/2824), regs. 1, 5(3)); S.I. 2009/1167, art. 4

247Crediting of time in service custody: supplementaryU.K.

(1)For the purposes of section 246(1) offences are related if the charges for them were founded on the same facts or evidence.

(2)It is immaterial for the purposes of section 246(1) whether the offender has also been kept in service custody in connection with other offences [F24(but see section 246(2B))]F25....

[F26(2A)The reference in section 246(2A) to detention in connection with any other matter does not include remand in custody in connection with another offence but includes—

(a)detention pursuant to any custodial sentence;

(b)committal in default of payment of any sum of money;

(c)committal for want of sufficient distress to satisfy any sum of money;

(d)committal for failure to do or abstain from doing anything required to be done or left undone.]

(3)For the purposes of section 246 a suspended sentence of imprisonment or a suspended sentence of service detention—

(a)is to be treated as a sentence of imprisonment or (as the case may be) service detention when an order that it shall take effect is made; and

(b)is to be treated as being imposed by that order.

(4)Subsections (5) to (7) apply for the purposes of [F27the references in section 246(2) and (2B)] to the term of imprisonment or detention to which a person has been sentenced (that is to say, the reference to his “sentence”).

(5)Consecutive terms of service detention, and terms of service detention which are wholly or partly concurrent, are to be treated as a single term.

(6)Consecutive relevant custodial terms, and relevant custodial terms which are wholly or partly concurrent, are to be treated as a single term if—

(a)the sentences were passed on the same occasion; or

(b)where they were passed on different occasions, the person has not been released under Chapter 6 of Part 12 of the 2003 Act at any time during the period beginning with the first and ending with the last of those occasions.

(7)For the purposes of subsection (6) [F28a sentence within any of paragraphs (a) to (c)] of section 188(4) is a relevant custodial term.

Textual Amendments

Modifications etc. (not altering text)

C7S. 247 modified by 1968 c. 20, Sch. 1 para. 4 (as substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 54; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

Commencement Information

I22S. 247 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)

I23S. 247 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Forfeiture of seniority and reduction in rankU.K.

248Forfeiture of seniority and reduction in rank or disrating: general restrictionU.K.

(1)A court may not pass a sentence of forfeiture of seniority, reduction in rank or disrating in respect of an offence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.

(2)In forming any such opinion as is mentioned in subsection (1), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.

(3)In subsections (1) and (2) “court” does not include the Summary Appeal Court.

(4)A sentence of forfeiture of seniority, reduction in rank or disrating may not be—

(a)passed by an officer at a summary hearing, or

(b)passed or confirmed by the Summary Appeal Court,

unless the officer or court is of the opinion that the offence it is in respect of (or, if it is in respect of two or more offences, the combination of them) was serious enough to warrant such a sentence.

(5)In forming any such opinion as is mentioned in subsection (4), an officer or the Summary Appeal Court must take into account all such information as is available to him or it about the circumstances of the offence (or offences), including any aggravating or mitigating factors.

Modifications etc. (not altering text)

Commencement Information

I24S. 248 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)

I25S. 248 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Financial punishmentsU.K.

249Fixing of finesU.K.

(1)A court or officer fixing a fine to be imposed on an offender in respect of a service offence must, before fixing the amount of the fine, inquire into the offender's financial circumstances.

(2)The amount of any fine fixed by a court or officer in respect of a service offence must be such as, in the opinion of the court or officer, reflects the seriousness of the offence.

(3)In fixing the amount of any fine to be imposed on an offender in respect of a service offence, a court or officer must take into account the circumstances of the case including, among other things, the offender's financial circumstances so far as they are known, or appear, to the court or officer.

(4)Subsection (3) applies whether taking into account the offender's financial circumstances has the effect of increasing or reducing the amount of the fine.

(5)Where—

(a)the court has inquired into the offender's financial circumstances as required by this section,

(b)the offender has failed to co-operate with the court in its inquiry (whether by failing to comply with a financial statement order under section 266 or otherwise), and

(c)the court considers that it has insufficient information to make a proper determination of the offender's financial circumstances,

the court may make such determination of his financial circumstances as it considers appropriate.

(6)References in subsection (5) to “the court” are to the court or officer fixing a fine in respect of a service offence.

Commencement Information

I26S. 249 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)

I27S. 249 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

250Determination of service compensation orderU.K.

(1)In determining whether to make a service compensation order against any person, and in determining the amount to be paid by any person under such an order, a court or officer must have regard to that person's financial circumstances so far as they appear or are known to the court or officer.

(2)Where the court or officer considers—

(a)that it would be appropriate both to impose a fine and to make a service compensation order, but

(b)that the offender has insufficient means to pay both an appropriate fine and appropriate compensation,

the court or officer must give preference to compensation (but may impose a fine as well).

Commencement Information

I28S. 250 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)

I29S. 250 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

251Power to allow payment of fine or service compensation order by instalmentsU.K.

(1)A court or officer awarding a fine or service compensation order in respect of a service offence may make an order under this section.

(2)An order under this section is an order—

(a)allowing time for payment of the amount due in respect of the fine or service compensation order (“the amount due”); or

(b)directing payment of that amount by instalments of such amounts and on such dates as may be specified in the order.

(3)If no order under this section is made when the fine or service compensation order is imposed, at any later time the appropriate court may make such an order on the application of the person by whom the amount due is payable (“the relevant person”).

(4)The appropriate court may on the application of the relevant person vary an order made under this section.

(5)In this section “the appropriate court” means—

(a)if the fine or service compensation order was imposed by an officer and subsection (6) applies, the commanding officer of the relevant person;

(b)if the fine or service compensation order was imposed by a court and subsection (6) or (7) applies, the Court Martial.

(6)This subsection applies if the relevant person is for the time being—

(a)subject to service law;

(b)a member of a volunteer reserve force; or

(c)a member of an ex-regular reserve force who is subject to an additional duties commitment.

(7)This subsection applies if the relevant person is for the time being a civilian subject to service discipline.

Modifications etc. (not altering text)

C9S. 251 applied (1.12.2020) by 2020 c. 17, Sch. 10 para. 11A(1) (as modified by 2006 c. 52, Sch. 6A para. 7 (as inserted by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 12 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2))

Commencement Information

I30S. 251 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)

I31S. 251 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

ReasonsU.K.

252Duty to give reasons and explain sentenceU.K.

(1)Any court or officer passing sentence on an offender for a service offence—

(a)must state in open court, in ordinary language and in general terms and in accordance with section 253, its (or his) reasons for deciding on the sentence passed; and

(b)must explain to the offender in ordinary language—

(i)the effect of the sentence;

(ii)where the offender is required to comply with any order forming part of the sentence, the effects of non-compliance with the order;

(iii)any power, on the application of the offender or any other person, to vary or review any order forming part of the sentence; and

(iv)where the sentence consists of or includes a fine, the effects of failure to pay the fine.

F29(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The Secretary of State may by order—

(a)prescribe cases in which subsection (1)(a) or (b) does not apply;

(b)prescribe cases in which the statement referred to in subsection (1)(a) or the explanation referred to in subsection (1)(b) may be made in the absence of the offender, or may be provided in written form.

(4)In this section and section 253 “sentence” includes any order made when dealing with the offender in respect of his offence.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I32S. 252 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)

I33S. 252 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

253Duties in complying with section 252U.K.

(1)In complying with section 252(1)(a) an officer or the Summary Appeal Court must—

F30(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)if section 239 (guilty pleas) applies and as a result of taking into account a matter mentioned in section 239(2) the officer or court has imposed a punishment on the offender which is less severe than the punishment that would otherwise have been imposed, state that fact;

F31(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)In complying with section 252(1)(a) a court other than the Summary Appeal Court must—

(a)where guidelines indicate that a sentence of a particular kind, or within a particular range, would normally be appropriate for the offence and the sentence is of a different kind or is outside that range, state the court's reasons for deciding on a sentence of a different kind or outside that range;

F32(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)if section 239 (guilty pleas) applies and as a result of taking into account a matter mentioned in section 239(2) the court has imposed a punishment on the offender which is less severe than the punishment it would otherwise have imposed, state that fact;

F33(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In this section “guidelines” has the same meaning as in section 259.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I34S. 253 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)

I35S. 253 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

SavingsU.K.

254Savings for powers to mitigate sentence etcU.K.

(1)Nothing in any of sections 242, 243, 248, 249, 250, 256, 258, 260, 261, 265 and 270 prevents a court or officer from mitigating an offender's sentence by taking into account any such matters as, in the court's or officer's opinion, are relevant in mitigation of sentence.

(2)Nothing in those sections prevents a court or officer from mitigating any punishment included in an offender's sentence by taking into account any other punishment included in that sentence.

(3)Nothing in those sections or section 255 prevents a court, in the case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying any rule of law as to the totality of sentences.

(4)Subsections (2) and (3) do not affect the generality of subsection (1).

Commencement Information

I36S. 254 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)

I37S. 254 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 2U.K.Principles and Procedures applying to Service Courts Only

GeneralU.K.

255Individual sentence for each offenceU.K.

Where the Court Martial or the Service Civilian Court convicts a person, the court must pass a separate sentence in respect of each offence of which he is convicted.

Modifications etc. (not altering text)

Commencement Information

I38S. 255 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)

I39S. 255 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

256Pre-sentence reportsU.K.

(1)Subject to subsection (2), a court must obtain and consider a pre-sentence report before—

(a)forming any such opinion as is mentioned in—

(b)forming any such opinion as is mentioned in section 270(1) or (2)(b) (community punishment) or any opinion as to the suitability for the offender of the particular requirement or requirements to be included in a community punishment; or

(c)forming the required opinion for the purposes of [F34section 219(1), [F35219A(1)], 221(1) or [F36221A(1)] (sentences for dangerous offenders).]

(2)Subsection (1) does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report.

(3)Where the offender is aged under 18, the court must not form the opinion mentioned in subsection (2) unless—

(a)there exists a previous pre-sentence report obtained in respect of the offender; and

(b)the court has had regard to the information contained in that report, or, if there is more than one such report, the most recent report.

(4)No sentence is invalidated by a failure of a court to obtain and consider a pre-sentence report before doing any of the things mentioned in paragraphs (a) to (c) of subsection (1).

(5)However, any court on appeal against a custodial sentence in respect of a service offence, a sentence of dismissal or dismissal with disgrace, a sentence of service detention or a community punishment—

(a)must (subject to subsection (6)) obtain a pre-sentence report if none was obtained by the court below; and

(b)must consider any such report obtained by it or by that court.

(6)Subsection (5)(a) does not apply if the court is of the opinion—

(a)that the court below was justified in forming an opinion that it was unnecessary to obtain a pre-sentence report; or

(b)that, although the court below was not justified in forming that opinion, in the circumstances of the case at the time it is before the court it is unnecessary to obtain a pre-sentence report.

(7)Where the offender is aged under 18, the court must not form the opinion mentioned in subsection (6) unless—

(a)there exists a previous pre-sentence report obtained in respect of the offender; and

(b)the court has had regard to the information contained in that report or, if there is more than one such report, the most recent report.

(8)Subsections (5) to (7) do not apply to the Summary Appeal Court on an appeal to it.

(9)Subsections (1) to (4) do apply to the Summary Appeal Court in relation to a sentence of service detention, but as if the opinions referred to in subsection (1)(a) were any such opinion as is mentioned in section 242(4) or 243(3).

[F37(10)The reference in subsection (1)(a) to a court forming any such opinion as is mentioned in section 260(2) or 261(2) includes a court forming such an opinion for the purposes of section 218A(4).]

Textual Amendments

Commencement Information

I40S. 256 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)

I41S. 256 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

257Pre-sentence reports: supplementaryU.K.

(1)In section 256 and this section “pre-sentence report” has the meaning given by [F38section 31(1) of the Sentencing Code].

(2)In [F39section 31(1) of that Code] as applied by this section, “an appropriate officer” includes any registered social worker (as well as any person who is an appropriate officer within the meaning given by [F40section 31(2) of that Code]).

(3)In this section “registered social worker” means a person registered as a social worker in a register maintained by—

[F41(a)Social Work England;]

(b)the Care Council for Wales;

(c)the Scottish Social Services Council; or

(d)the Northern Ireland Social Care Council.

(4)[F42Section 32(1) to (4) and (6) of the Sentencing Code] (disclosure of reports) apply in relation to a pre-sentence report obtained by a court for the purposes of section 256 of this Act as they apply in relation to a report obtained by a court for the purposes of [F43section 30 of that Code].

Textual Amendments

Commencement Information

I42S. 257 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)

I43S. 257 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

258Mentally disordered offenders: requirement for medical reportU.K.

(1)Subject to subsection (2), before passing a custodial sentence for a service offence on an offender who is or appears to be mentally disordered, a court must obtain and consider a medical report.

(2)Subsection (1) does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a medical report.

(3)Before passing a custodial sentence for a service offence on an offender who is or appears to be mentally disordered, a court must consider—

(a)any information before it which relates to his mental condition (whether given in a medical report, a pre-sentence report or otherwise); and

(b)the likely effect of such a sentence on that condition and on any treatment which may be available for it.

(4)No custodial sentence which is passed in a case to which subsection (1) applies is invalidated by a failure of a court to comply with that subsection, but any court on an appeal against such a sentence—

(a)must obtain a medical report if none was obtained by the court below; and

(b)must consider any such report obtained by it or by that court.

(5)In this section—

(6)Nothing in this section is to be taken to limit the generality of—

Textual Amendments

Commencement Information

I44S. 258 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)

I45S. 258 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

259Sentencing guidelinesU.K.

(1)A court must—

(a)in sentencing an offender for a service offence, have regard to any guidelines that are relevant to the offender's case; and

(b)in exercising any other function relating to the sentencing of offenders for service offences, have regard to any guidelines which are relevant to the exercise of the function.

(2)However, the court may depart from the guidelines mentioned in subsection (1)(a) or (b) if in its opinion the departure is justified by any features of service life or of the service disciplinary system that are relevant to the case.

(3)Subsection (2) does not limit any power existing apart from that subsection to depart from guidelines.

(4)References in subsection (1)(a) and (b) to sentencing an offender for a service offence include making any order when dealing with an offender in respect of such an offence.

[F45(5)In this section “guidelines” means sentencing guidelines issued by the Sentencing Council for England and Wales under section 120 of the Coroners and Justice Act 2009 as definitive guidelines, as revised by any subsequent guidelines so issued.]

Textual Amendments

Commencement Information

I46S. 259 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)

I47S. 259 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Custodial sentences and service detentionU.K.

260Discretionary custodial sentences: general restrictionsU.K.

(1)This section applies where a court is dealing with an offender for a service offence punishable with a custodial sentence, other than an offence the sentence for which—

(a)is fixed by law;

[F46(b)falls to be imposed under section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence);

(c)falls to be imposed under section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over);

(d)falls to be imposed under section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18);

(e)falls to be imposed under section 313(2) of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);

(f)falls to be imposed under section 314(2) of the Sentencing Code as a result of section 226(2) (third domestic burglary);

(g)falls to be imposed under section 311(2) of the Sentencing Code as a result of section 227(2) (firearms offences); or

(h)falls to be imposed under section 227A(1A) or (2) (threatening with a weapon in public or on school premises).]

(2)The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that no less severe sentence can be justified for the offence.

(3)Nothing in subsection (2) prevents the court from passing a custodial sentence where—

(a)the court had proposed to award a community punishment; and

(b)the offender failed to express his willingness to comply with a requirement which the court proposed to include in the community punishment and which required an expression of such willingness.

(4)In forming any such opinion as is mentioned in subsection (2) or section 261(2) (length of sentence), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.

[F47(4A)The reference in subsection (4) to a court forming any such opinion as is mentioned in subsection (2) or section 261(2) includes a court forming such an opinion for the purposes of section 218A(4).

(4B)The reference in subsection (4) to a court forming any such opinion as is mentioned in section 261(2) also includes a court forming such an opinion for the purposes of [F48—

(a)section 268(2) or 281(2) of the Sentencing Code, as applied by section 219A of this Act (extended sentences for offenders aged 18 or over), or

(b)section 256(2) of the Sentencing Code, as applied by section 221A of this Act (extended sentences for offenders aged under 18).]]

(5)For the purposes of this section a sentence falls to be imposed as a result of subsection (2) of section 225, 226 or 227 if it is required by that subsection and the court is not of the opinion there mentioned.

Textual Amendments

F46S. 260(1)(b)-(h) substituted for s. 260(1)(b) and word (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 58(a) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F48S. 260(4B)(a)(b) substituted (1.12.2020) for words by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 58(b) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

Modifications etc. (not altering text)

C13S. 260 modified (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3) (with s. 5(9)); S.I. 2012/1236, reg. 2

Commencement Information

I48S. 260 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)

I49S. 260 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

261Length of discretionary custodial sentences: general provisionU.K.

(1)This section applies where a court passes a custodial sentence for a service offence, other than a sentence fixed by law or [F49imposed under [F50—

(a)section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence),

(b)section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over), or

(c)section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18).]]

(2)The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it.

(3)Subsection (2) is subject to sections [F51219A, 221A], 225, 226 [F52, 227 and 227A] ([F53sentences that may or must be imposed] for certain offences).

Textual Amendments

F50S. 261(1)(a)-(c) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 59 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

Modifications etc. (not altering text)

C14S. 261(1) modified in part (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3) (with s. 5(9)); S.I. 2012/1236, reg. 2

Commencement Information

I50S. 261 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)

I51S. 261 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F54261ALife sentences: further provisionU.K.

(1)In Chapter 8 of Part 10 of the Sentencing Code (sections 321 to 324: effect of life sentences), references to a court include the Court Martial.

(2)In section 322 of that Code as it applies in relation to a life sentence passed by the Court Martial—

(a)subsection (2)(b)(i) has effect as if, for “section 240ZA of the Criminal Justice Act 2003” there were substituted “ section 246 of the Armed Forces Act 2006 ”;

(b)subsection (4) has effect as if, for “section 52(2)” there were substituted “ section 252(1)(a) of the Armed Forces Act 2006 ”.

(3)In section 323 of that Code as it applies in relation to a life sentence passed by the Court Martial, subsection (2)(c)(i) has effect as if, for “section 240ZA of the Criminal Justice Act 2003” there were substituted “ section 246 of the Armed Forces Act 2006 ”.

(4)Section 324, as it applies in relation to a sentence passed by the Court Martial, has effect as if for the definition of “life sentence” there were substituted—

““life sentence” means any of the following sentences imposed under or by virtue of the Armed Forces Act 2006—

(a)a sentence of imprisonment for life,

(b)a sentence of detention for life or during Her Majesty's pleasure, or

(c)a sentence of custody for life;”.]

Textual Amendments

262Power to recommend licence conditionsU.K.

In [F55section 328 of the Sentencing Code] (court imposing prison term of 12 months or more may recommend licence conditions) “court” includes a court dealing with an offender for a service offence.

Textual Amendments

F55Words in s. 262 substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 61 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

Commencement Information

I52S. 262 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)

I53S. 262 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F56262AConversion of sentence of detention to sentence of imprisonmentU.K.

(1)In section 329 of the Sentencing Code (conversion of sentence of detention to sentence of imprisonment), “court” includes a court dealing with an offender for a service offence.

(2)In its application to a court dealing with an offender for a service offence, that section has effect with the following modifications.

(3)In subsection (5)—

(a)paragraph (a) has effect as if, after “254,” there were inserted “ passed as a result of section 221A of the Armed Forces Act 2006 ”;

(b)the words following paragraph (b) have effect as if, after “279” there were inserted “ passed as a result of section 219A(7) of the Armed Forces Act 2006 ”.

(4)Subsection (7) has effect as if, for paragraphs (a) to (f) there were substituted—

“(a)a sentence of detention under section 209 of the Armed Forces Act 2006 (including one imposed under section 221 of that Act (detention for life));

(b)an extended sentence of detention under section 254 passed as a result of section 221A of the Armed Forces Act 2006;

(c)a sentence of detention during Her Majesty's pleasure (see section 218 of the Armed Forces Act 2006);

(d)a sentence of detention in a young offender institution;

(e)an extended sentence of detention in a young offender institution (see section 219A(4) of the Armed Forces Act 2006);

(f)a sentence of custody for life (see sections 210A, 217, 218A(1B) and 219(1A) of the Armed Forces Act 2006).”]

Textual Amendments

Modifications etc. (not altering text)

C15S. 262A(4) modified (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3) (with s. 5(9)); S.I. 2012/1236, reg. 2

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 [F57, or sentenced to detention by a court in any other member State or for a member State service offence].

(3)The Court Martial or the Service Civilian Court must not—

[F58(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;

[F59(c)member State service offence” means an offence which—

(i)was the subject of proceedings under the service law of a member State other than the United Kingdom, and

(ii)at the time it was done, would have constituted an offence in any part of the United Kingdom, or a service offence, if it had been done in any part of the United Kingdom by a member of Her Majesty's forces;

(d)“service law”, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State.]

Textual Amendments

Commencement Information

I54S. 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)

I55S. 263 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

264Effect of duties to pass custodial sentences on other powers of punishmentU.K.

(1)Where a provision of this Act requires a court to impose a particular custodial sentence in respect of an offence, it is not to be taken to prevent the court from including in its sentence for that offence any other authorised punishment.

(2)In this section an “authorised punishment” means any punishment authorised by this Act apart from—

Commencement Information

I56S. 264 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)

I57S. 264 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

DismissalU.K.

265Dismissal: general restrictionsU.K.

(1)A court may not pass a sentence of dismissal or dismissal with disgrace in respect of an offence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.

(2)In forming any such opinion as is mentioned in subsection (1), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.

(3)The Court Martial must not pass a sentence of dismissal or dismissal with disgrace on an offender who is not legally represented in that court.

(4)Subsection (3) does not apply if 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.

(5)For the purposes of this section an offender is “legally represented” in the Court Martial 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.

Commencement Information

I58S. 265 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)

I59S. 265 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Financial punishmentsU.K.

266Financial statement ordersU.K.

(1)Before sentencing a person who has been convicted of a service offence, a court may make a financial statement order; but this does not apply to the Summary Appeal Court.

(2)A financial statement order is an order requiring the person to give to the court, within such period as may be specified in the order, such a statement of his [F60assets and other] financial circumstances as the court may require.

(3)A person who without reasonable excuse fails to comply with a financial statement order commits an offence and is liable to a fine not exceeding level 3 on the standard scale.

(4)A person who in providing any statement in pursuance of a financial statement order—

(a)makes a statement which he knows to be false in a material particular,

(b)recklessly provides a statement which is false in a material particular, or

(c)knowingly fails to disclose any material fact,

commits an offence and is liable to a fine not exceeding level 4 on the standard scale.

Textual Amendments

Commencement Information

I60S. 266 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)

I61S. 266 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

267Power of court to remit fineU.K.

(1)This section applies where a court has, in fixing the amount of a fine in respect of a service offence, determined the offender's financial circumstances under section 249(5).

(2)If on subsequently inquiring into the offender's financial circumstances the court is satisfied that had it had the results of that inquiry when sentencing the offender it would—

(a)have fixed a smaller amount, or

(b)not have fined him,

it may remit the whole or part of the fine.

[F61(3)Where under this section the court remits the whole or part of a fine after a term of imprisonment has been fixed under section 269A, it must reduce the term by the corresponding proportion.

(4)In calculating any reduction required by subsection (3), any fraction of a day is to be ignored.]

Textual Amendments

Commencement Information

I62S. 267 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)

I63S. 267 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

268Order for service parent or service guardian to pay fine or compensationU.K.

(1)This section applies where—

(a)a person aged under 18 is convicted of an offence by the Court Martial or the Service Civilian Court;

(b)he is a civilian subject to service discipline;

(c)he has a service parent or service guardian; and

(d)the court is of the opinion that the case would best be met by the imposition of a fine or the making of a service compensation order (with or without any other punishment).

(2)The court may, and if the offender is under 16 when convicted must, order that the fine or compensation awarded be paid by the service parent or service guardian instead of by the offender himself; but this is subject to subsection (3).

(3)Where (apart from this subsection) the court would be required by subsection (2) to make an order against a service parent or service guardian, the court need not make such an order if it is satisfied—

(a)that no service parent or service guardian can be found; or

(b)that it would be unreasonable to make such an order having regard to the circumstances of the case.

(4)No order may be made under this section without giving the parent or guardian an opportunity of being heard, unless the parent or guardian has failed to attend having been required to do so.

(5)For the purposes of sections 285 to 287 (appeals from Service Civilian Court) or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)—

(a)an order under this section is to be treated as a sentence passed on the parent or guardian for the offence; and

(b)the parent or guardian is to be treated for the purpose of enabling him to appeal against the order as if he had been convicted of the offence by the court that made the order.

(6)For the purposes of any appeal against the order, references in section 16A of the Court Martial Appeals Act 1968 to passing a sentence include making an order.

(7)On an appeal against the order the Court Martial Appeal Court may (as an alternative to exercising its powers under section 16A(2) of that Act) quash the order.

(8)A parent or guardian is a “service parent” or “service guardian” for the purposes of this section if he is a person subject to service law or a civilian subject to service discipline.

Modifications etc. (not altering text)

C16S. 268(2)-(4) applied (with modifications) (1.12.2020) by 2020 c. 17, Sch. 10 para. 11A(2)(3) (as modified by 2006 c. 52, Sch. 6A para. 7 (as inserted by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 12 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2))

Commencement Information

I64S. 268 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)

I65S. 268 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

269Fixing of fine or compensation to be paid by parent or guardianU.K.

(1)For the purposes of any order under section 268 against the parent or guardian of an offender—

(a)section 249 (fixing of fine) has effect as if any reference to the offender's financial circumstances were to the parent's or guardian's financial circumstances, and as if the reference in subsection (5)(b) to the offender were to the parent or guardian;

(b)section 250(1) (determination of service compensation order) has effect as if any reference to the financial circumstances of the person against whom the service compensation order is made were to the financial circumstances of the parent or guardian;

(c)section 250(2) (preference to be given to compensation if insufficient means to pay both compensation and fine) has effect as if the reference to the offender were to the parent or guardian;

(d)section 267 (power to remit fine) has effect as if any reference to the offender's financial circumstances were to the parent's or guardian's financial circumstances.

(2)Before making an order under section 268 against a parent or guardian, the court may make a financial statement order with respect to him.

(3)In subsection (2) “financial statement order” has the meaning given by subsection (2) of section 266, and subsections (3) and (4) of that section apply in relation to a financial statement order made under this section as they apply in relation to such an order made under that section.

Modifications etc. (not altering text)

C17S. 269(2) excluded (1.12.2020) by 2020 c. 17, Sch. 10 para. 11A(4) (as modified by 2006 c. 52, Sch. 6A para. 7 (as inserted by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 12 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2))

Commencement Information

I66S. 269 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)

I67S. 269 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F62269AFines: fixing of term of imprisonment for defaultU.K.

(1)Where the Court Martial imposes a fine on a person aged 18 or over, the court must make an order fixing a term of imprisonment which the person is to undergo if—

(a)any sum which the person is liable to pay is not duly paid or recovered; and

(b)an enforcement order is made.

(2)The Table in [F63section 129(4) of the Sentencing Code] (maximum periods of imprisonment for default), as for the time being in force, applies for the purpose of determining the maximum periods of imprisonment that may be fixed under this section for fines of the amounts set out in that Table.

(3)Where the person mentioned in subsection (1) is sentenced by the court to, or is serving or otherwise liable to serve, a term of—

(a)imprisonment,

(b)detention in a young offender institution, or

(c)detention under section 108 of the Sentencing Act (detention of persons aged 18 to 21 for default or contempt),

the court may order that any term of imprisonment fixed under subsection (1) shall not begin to run until after the end of that other term.

(4)For the purposes of references in subsection (3) to a term of imprisonment or detention which a person has been sentenced to or is serving or liable to serve, consecutive terms and terms which are wholly or partly concurrent are to be treated as a single term.

(5)References in subsection (3) to a term which a person is serving or liable to serve are to a term imposed—

(a)by a relevant service court; or

(b)by a civilian court in any part of the United Kingdom.

(6)In this section—

Textual Amendments

F62Ss. 269A-269C inserted (1.11.2013) by Armed Forces Act 2011 (c. 18), ss. 16(1), 32(3); S.I. 2013/2501, art. 3(c)

[F62269BService compensation orders: power to set maximum term of imprisonment for defaultU.K.

(1)This section applies where—

(a)the Court Martial makes a service compensation order and the person by whom the compensation is payable is aged 18 or over; and

(b)the court thinks that the usual default term is insufficient.

(2)In subsection (1) “the usual default term” means the period for which the person would be liable to be committed to prison for default if—

(a)an enforcement order were made; and

(b)by virtue of that order, the amount payable under the service compensation order were treated as if it had been a fine imposed on a conviction by a magistrates' court in England and Wales.

(3)Where this section applies, the court may specify a longer period as the maximum term to which the person is liable to be committed to prison for default if an enforcement order is made.

(4)The Table in [F64section 129(4) of the Sentencing Code] (maximum periods of imprisonment for default), as for the time being in force, applies for the purpose of determining the maximum periods of imprisonment that may be specified under this section for service compensation orders of the amounts set out in that Table.

(5)In this section “enforcement order” has the same meaning as in section 269A.]

Textual Amendments

F62Ss. 269A-269C inserted (1.11.2013) by Armed Forces Act 2011 (c. 18), ss. 16(1), 32(3); S.I. 2013/2501, art. 3(c)

[F62269COrders under section 269A or 269B against service parents or service guardians: appealsU.K.

(1)This section applies where—

(a)the Court Martial makes an order under section 268 in respect of a fine or service compensation order (fine or compensation to be paid by service parent or service guardian); and

(b)the court also makes an order under section 269A or 269B (“a default term order”) in respect of the parent or guardian (“P”).

(2)For the purposes of the Court Martial Appeals Act 1968—

(a)the default term order is to be treated as a sentence passed on P for the offence in respect of which the fine or service compensation order was imposed; and

(b)P is to be treated, for the purpose of enabling P to appeal against the default term order, as if P had been convicted of the offence by the Court Martial.

(3)For the purposes of any appeal against the default term order, references in section 16A of the Court Martial Appeals Act 1968 to passing a sentence include making an order.

(4)On an appeal against the default term order, the Court Martial Appeal Court may (as an alternative to exercising its powers under section 16A(2) of that Act) quash the order; but this is subject to subsection (5).

(5)If the default term order was made under section 269A, the power under subsection (4) may only be exercised if the court also quashes the order under section 268.]

Textual Amendments

F62Ss. 269A-269C inserted (1.11.2013) by Armed Forces Act 2011 (c. 18), ss. 16(1), 32(3); S.I. 2013/2501, art. 3(c)

Community punishmentsU.K.

270Community punishments: general restrictions etcU.K.

(1)A court must not award a community punishment in respect of an offence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a punishment.

(2)Where a court awards a community punishment—

(a)the particular requirement (or requirements) included in the order must be such as the court considers the most suitable for the offender; and

(b)the restrictions on liberty imposed by the order must be such as in the opinion of the court are commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.

[F65(2A)Subsection (2) is subject to [F66section 208(10) and (11) of the Sentencing Code] (community orders: punitive elements) as applied by [F67section 178(3) and section 182(3A)].]

(3)In forming any such opinion as is mentioned in subsection (1) or (2)(b), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.

(4)In forming an opinion for the purposes of subsection (2)(a) the court may take into account any information about the offender which is before it.

(5)In determining the restrictions on liberty to be imposed by a community punishment in respect of an offence, the court may have regard to any period for which the offender has, since being charged with the offence or any related offence, been kept in service custody in connection with the offence or any related offence.

(6)In subsection (5) “related offence” has the meaning given by section 247.

[F68(6A)The fact that by virtue of any provision of this section—

(a)a community punishment may be awarded in respect of an offence, or

(b)particular restrictions on liberty may be imposed by a community punishment,

does not require a court to award such a punishment or to impose those restrictions.]

[F69(7)Subsections (1) and (2)(b) are subject to section 270A.]

Textual Amendments

F69S. 270(7) substituted for s. 270(7)(8) (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 20(1); S.I. 2012/669, art. 4(d)

Commencement Information

I68S. 270 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)

I69S. 270 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F70270AException to restrictions on community punishmentsU.K.

(1)If the conditions in subsection (2) are met, the power to award a community punishment in respect of an offence (“the current offence”) may be exercised even though the court would not otherwise regard—

(a)the current offence, or

(b)the combination of the current offence and one or more offences associated with it,

as serious enough to warrant a community punishment (despite the effect of section 238(1)(b)).

(2)The conditions referred to in subsection (1) are—

(a)that the offender was aged 16 or over when convicted of the current offence;

(b)that on three or more previous occasions the offender has been awarded a relevant financial penalty; and

(c)that the court, having regard to all the circumstances, considers that it would be in the interests of justice to award a community punishment.

(3)In subsection (2)(b) a “relevant financial penalty” means a sentence consisting only of a fine—

(a)passed on the offender in respect of a service offence, or member State service offence, committed by the offender when aged 16 or over;

(b)passed on the offender on conviction by a civilian court in the British Islands of an offence so committed; or

(c)passed on the offender on conviction by a civilian court in another member State of a relevant offence so committed.

(4)For the purposes of subsection (2)(b) it is immaterial whether the offender has on other previous occasions been awarded a sentence other than a relevant financial penalty.

(5)The circumstances which must be had regard to under subsection (2)(c) include—

(a)the nature of the offences for which the relevant financial penalties were awarded;

(b)the relevance of those offences to the current offence; and

(c)the time that has elapsed since those penalties were awarded.

(6)For the purposes of subsection (3), none of the following forms part of an offender's sentence—

[F71(za)a criminal courts charge order (or an order under section 21A of the Prosecution of Offences Act 1985 (criminal courts charge));]

(a)a service compensation order;

(b)a compensation order under—

[F72(i)section 133 of the Sentencing Code (or section 130 of the Powers of Criminal Courts (Sentencing) Act 2000);]

(ii)section 249 of the Criminal Procedure (Scotland) Act 1995; or

(iii)Article 14 of the Criminal Justice (Northern Ireland) Order 1994;

(c)a surcharge under [F73section 42 of the Sentencing Code (or section 161A of the 2003 Act)] [F74;

(d)an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.]

[F75(e)a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015.]

(7)This section does not limit the extent to which a court may, in accordance with section 238, treat previous convictions of the offender as increasing the seriousness of an offence.

(8)In this section—

(a)“member State service office” means an offence which—

(i)was the subject of proceedings under the law governing all or any of the naval, military or air forces of a member State other than the United Kingdom; and

(ii)would constitute a service offence or an offence under the law of any part of the United Kingdom if it were committed in any part of the United Kingdom, by a person subject to service law, at the time of the conviction of the current offence;

(b)“relevant offence” means an offence which would constitute an offence under the law of any part of the United Kingdom if it were committed in any part of the United Kingdom at the time of the conviction of the current offence.]

Textual Amendments

F71S. 270A(6)(za) inserted (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), s. 5(2)(3), Sch. 2 para. 123(7)(a) (with s. 5(9)); S.I. 2012/1236, reg. 2

F74S. 270A(6)(d) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 31; S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2

F75S. 270A(6)(e) inserted (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), s. 5(2)(3), Sch. 2 para. 123(7)(b) (with s. 5(9)); S.I. 2012/1236, reg. 2

Chapter 3U.K.Supplementary

271Civilian courts dealing with service offencesU.K.

(1)Nothing in this Part affects a civilian court dealing with an offender for a service offence.

(2)The Secretary of State may by regulations modify—

F76(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)any F77... enactment that confers functions on sentencing courts,

in its application to a civilian court dealing with an offender for a service offence.

Textual Amendments

Modifications etc. (not altering text)

C18S. 271(2) modified in part (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3) (with s. 5(9)); S.I. 2012/1236, reg. 2

Commencement Information

I70S. 271 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)

I71S. 271 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4