Armed Forces Act 2006

Service detention and custodial sentences U.K.

242 Service detention: general restriction U.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)

C1 S. 242 applied (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, rule 161(9)

Commencement Information

I1 S. 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)

I2 S. 242 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

243 Length of term of service detention: general provision U.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)

C2 S. 243 applied (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, rule 161(9)

Commencement Information

I3 S. 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)

I4 S. 243 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

244 Limit on combined term of sentences of service detention U.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

I5 S. 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)

I6 S. 244 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

245 Section 244: supplementary U.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

I7 S. 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)

I8 S. 245 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

246 Crediting of time in service custody: terms of imprisonment and detention U.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.

(2) The court must direct that the number of days for which the offender has been 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 him as part of the sentence.

(3) Subsection (2) does not apply if and to the extent that—

(a) rules made by the Secretary of State so provide in the case of—

(i) a period of service custody which is wholly or partly concurrent with a sentence of imprisonment or service detention; or

(ii) sentences of imprisonment or service detention for consecutive terms or for terms which are wholly or partly concurrent; or

(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.

(4) Where the court gives a direction under subsection (2) it must state in open court—

(a) the number of days for which the offender was kept in service custody as mentioned in that subsection; and

(b) the number of days in relation to which the direction is given.

(5) Where the court does not give a direction under subsection (2), or gives such a direction in relation to a number of days less than that for which the offender was kept in service custody as mentioned in that subsection, it must state in open court—

(a) that its decision is in accordance with rules made under paragraph (a) of subsection (3); or

(b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.

(6) This section applies to—

(a) a determinate sentence of detention under section 209, and

(b) a sentence of detention under section 228 of the 2003 Act passed as a result of section 222 of this Act,

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).

Modifications etc. (not altering text)

C3 S. 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); S.I. 2009/1167, art. 4)

Commencement Information

I9 S. 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

I10 S. 246 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

247 Crediting of time in service custody: supplementary U.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, or has also been detained in connection with other matters.

(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 the reference in section 246(2) 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) any sentence within paragraph (a), (b) or (c) of section 188(4) is a relevant custodial term.

Modifications etc. (not altering text)

C4 S. 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

I11 S. 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)

I12 S. 247 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4