Armed Forces Act 2006

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

General U.K.

255 Individual sentence for each offence U.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)

C1 S. 255 modified (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, rule 161(2)

Commencement Information

I1 S. 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)

I2 S. 255 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

256 Pre-sentence reports U.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—

• section 242(1) or 243(2) (service detention);

• section 260(2) or 261(2) (custodial sentence); or

• section 265(1) (dismissal or dismissal with disgrace);

(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 [F1 section 219(1), [F2 219A(1)], 221(1) or [F3 221A(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).

[F4 (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

F1 Words in s. 256(1)(c) substituted (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 25 para. 20; S.I. 2009/1028, art. 2(b)

F2 Word in s. 256(1)(c) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 33(2)(a); S.I. 2012/2906, art. 2(t)

F3 Word in s. 256(1)(c) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 33(2)(b); S.I. 2012/2906, art. 2(t)

F4 S. 256(10) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 33(3); S.I. 2012/2906, art. 2(t)

Commencement Information

I3 S. 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)

I4 S. 256 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

257 Pre-sentence reports: supplementary U.K.

(1) In section 256 and this section “pre-sentence report” has the meaning given by [F5 section 31(1) of the Sentencing Code].

(2) In [F6 section 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 [F7 section 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—

[F8 (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) [F9 Section 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 [F10 section 30 of that Code].

Textual Amendments

F5 Words in s. 257(1) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 57(a) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F6 Words in s. 257(2) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 57(b)(i) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F7 Words in s. 257(2) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 57(b)(ii) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F8 S. 257(3)(a) substituted (2.12.2019) by Children and Social Work Act 2017 (c. 16), s. 70(2), Sch. 5 para. 32; S.I. 2019/1436, reg. 2(s)

F9 Words in s. 257(4) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 57(c)(i) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F10 Words in s. 257(4) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 57(c)(ii) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

Commencement Information

I5 S. 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)

I6 S. 257 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

258 Mentally disordered offenders: requirement for medical report U.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—

• “custodial sentence” does not include a custodial sentence fixed by law;

• “medical report” means a report as to an offender's mental condition made or submitted orally or in writing by a registered medical practitioner who is approved for the purposes of section 12 of the Mental Health Act 1983 (c. 20) by the Secretary of State [F11 , or by another person by virtue of section 12ZA or 12ZB of that Act,] as having special experience in the diagnosis or treatment of mental disorder.

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

• section 256 (pre-sentence reports); or

• section 260(4) (information to be taken into account).

Textual Amendments

F11 Words in s. 258(5) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 38(5)(f), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

Commencement Information

I7 S. 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)

I8 S. 258 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

259 Sentencing guidelines U.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.

[F12 (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

F12 S. 259(5) substituted (6.4.2010) by Coroners and Justice Act 2009 (c. 25), s. 182(4)(e), Sch. 21 para. 89 (with s. 180); S.I. 2010/816, art. 2, Sch. para. 20(b)

Commencement Information

I9 S. 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)

I10 S. 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 detention U.K.

260 Discretionary custodial sentences: general restrictions U.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;

[F13 (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 [F14 section 313(2A)] of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);

(f) falls to be imposed under [F15 section 314(2A)] 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.

[F16 (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 [F17 —

(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

F13 S. 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

F14 Words in s. 260(1)(e) substituted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(5)(k), Sch. 12 para. 8(a) (with s. 124(11)(12))

F15 Words in s. 260(1)(f) substituted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(5)(k), Sch. 12 para. 8(b) (with s. 124(11)(12))

F16 S. 260(4A)(4B) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 34(3); S.I. 2012/2906, art. 2(t)

F17 S. 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)

C2 S. 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

I11 S. 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)

I12 S. 260 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

261 Length of discretionary custodial sentences: general provision U.K.

(1) This section applies where a court passes a custodial sentence for a service offence, other than a sentence fixed by law or [F18 imposed under [F19 —

(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 [F20 219A, 221A], 225, 226 [F21 , 227 and 227A] ([F22 sentences that may or must be imposed] for certain offences).

Textual Amendments

F18 Words in s. 261(1) substituted (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 25 para. 22(a); S.I. 2009/1028, art. 2(b)

F19 S. 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

F20 Words in s. 261(3) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 35(3); S.I. 2012/2906, art. 2(t)

F21 Words in s. 261(3) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 26 para. 28; S.I. 2012/2770, art. 2(f)

F22 Words in s. 261(3) substituted (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 25 para. 22(b); S.I. 2009/1028, art. 2(b)

Modifications etc. (not altering text)

C3 S. 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

I13 S. 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)

I14 S. 261 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F23 261A Life sentences: further provision U.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,

[F24 (za) subsection (1C)(b) has effect as if for “section 252A, 254, F25 ... 278 or 279” there were substituted—

(i) section 224A or 224B of the Armed Forces Act 2006, or

(ii) section 254, F26 ... 278 or 279 passed as a result of section 219A, 219ZA or 221A of that Act,]

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;”.]

[F27 (5) Schedule 21, as it applies in relation to a sentence passed by the Court Martial, has effect as if a reference to murder included reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is murder.]

Textual Amendments

F23 S. 261A inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 60 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F24 S. 261A(3)(za) inserted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 129(2), 208(1); S.I. 2022/520, reg. 5(l)

F25 Words in s. 261A(3)(za) omitted (28.6.2022) by 2020 c. 17, Sch. 26 para. 20A(za)(i) (as inserted by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 129(3)(d), 208(1); S.I. 2022/520, reg. 5(n))

F26 Word in s. 261A(3)(za)(ii) omitted (28.6.2022) by 2020 c. 17, Sch. 26 para. 20A(za)(ii) (as inserted by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 129(3)(d), 208(1); S.I. 2022/520, reg. 5(n))

F27 S. 261A(5) inserted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 148, 208(5)(p)

262 Power to recommend licence conditions U.K.

In [F28 section 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

F28 Words 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

I15 S. 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)

I16 S. 262 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F29 262A Conversion of sentence of detention to sentence of imprisonment U.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

F29 S. 262A inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 62 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

Modifications etc. (not altering text)

C4 S. 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

263 Restriction on imposing custodial sentence or service detention on unrepresented offender U.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 F30 ....

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

[F31 (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;

F32 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F30 Words in s. 263(2)(b) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(3)(a), 24(1); S.I. 2023/1102, reg. 4

F31 S. 263(3)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 63 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F32 S. 263(6)(c)(d) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(3)(b), 24(1); S.I. 2023/1102, reg. 4

Commencement Information

I17 S. 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)

I18 S. 263 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

264 Effect of duties to pass custodial sentences on other powers of punishment U.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—

• service detention;

• a service supervision and punishment order;

• minor punishments;

• a community punishment;

• a conditional or absolute discharge.

Commencement Information

I19 S. 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)

I20 S. 264 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Dismissal U.K.

265 Dismissal: general restrictions U.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

I21 S. 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)

I22 S. 265 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Financial punishments U.K.

266 Financial statement orders U.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 [F33 assets 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

F33 Words in s. 266(2) inserted (11.12.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 16 para. 38; S.I. 2013/2981, art. 2(e)

Commencement Information

I23 S. 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)

I24 S. 266 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

267 Power of court to remit fine U.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.

[F34 (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

F34 S. 267(3)(4) inserted (20.12.2013) by The Armed Forces (Remission of Fines) Order 2013 (S.I. 2013/3234), arts. 1, 2

Commencement Information

I25 S. 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)

I26 S. 267 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

268 Order for service parent or service guardian to pay fine or compensation U.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)

C5 S. 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

I27 S. 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)

I28 S. 268 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

269 Fixing of fine or compensation to be paid by parent or guardian U.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)

C6 S. 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

I29 S. 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)

I30 S. 269 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F35 269A Fines: fixing of term of imprisonment for default U.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 [F36 section 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—

• “enforcement order” means an order under regulations made under section 322 (orders for enforcement by prescribed courts of fines etc);

• “relevant service court” means the Court Martial, the Service Civilian Court, the Court Martial Appeal Court or the Supreme Court on an appeal brought from the Court Martial Appeal Court.]

Textual Amendments

F35 Ss. 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)

F36 Words in s. 269A(2) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 64 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

[F35 269B Service compensation orders: power to set maximum term of imprisonment for default U.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 [F37 section 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

F35 Ss. 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)

F37 Words in s. 269B(4) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 65 (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

[F35 269C Orders under section 269A or 269B against service parents or service guardians: appeals U.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

F35 Ss. 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 punishments U.K.

270 Community punishments: general restrictions etc U.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.

[F38 (2A) Subsection (2) is subject to [F39 section 208(10) and (11) of the Sentencing Code] (community orders: punitive elements) as applied by [F40 section 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.

[F41 (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.]

[F42 (7) Subsections (1) and (2)(b) are subject to section 270A.]

Textual Amendments

F38 S. 270(2A) inserted (11.12.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 16 para. 34 (with Sch. 16 para. 35); S.I. 2013/2981, art. 2(e)

F39 Words in s. 270(2A) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 66(a) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F40 Words in s. 270(2A) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 66(b) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F41 S. 270(6A) inserted (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 25 para. 26(2); S.I. 2009/1028, art. 2(b)

F42 S. 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

I31 S. 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)

I32 S. 270 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F43 270A Exception to restrictions on community punishments U.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 F44 ... committed by the offender when aged 16 or over; [F45 or]

(b) passed on the offender on conviction by a civilian court in the British Islands of an offence so committed; F46 ...

F47 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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—

[F48 (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—

[F49 (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 [F50 section 42 of the Sentencing Code (or section 161A of the 2003 Act)] [F51 ;

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

[F52 (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.

F53 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F43 S. 270A inserted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 20(2); S.I. 2012/669, art. 4(d) (with art. 13)

F44 Words in s. 270A(3)(a) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(4)(a)(i), 24(1); S.I. 2023/1102, reg. 4

F45 Word in s. 270A(3)(a) inserted (13.11.2023) by Armed Forces Act 2021 (c. 35), ss. 17(4)(a)(i), 24(1); S.I. 2023/1102, reg. 4

F46 Word in s. 270A(3)(b) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(4)(a)(ii), 24(1); S.I. 2023/1102, reg. 4

F47 S. 270A(3)(c) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(4)(a)(iii), 24(1); S.I. 2023/1102, reg. 4

F48 S. 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

F49 S. 270A(6)(b)(i) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 67(a) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F50 Words in s. 270A(6)(c) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 67(b) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2

F51 S. 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

F52 S. 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

F53 S. 270A(8) omitted (13.11.2023) by virtue of Armed Forces Act 2021 (c. 35), ss. 17(4)(b), 24(1); S.I. 2023/1102, reg. 4