C1Part 8Sentencing Powers and Mandatory etc Sentences
Chapter 6Mandatory etc Custodial Sentences for Certain Offences
Mandatory sentences
I1I15217Mandatory life imprisonment
1
This section applies if a person is convicted by the Court Martial of an offence under section 42 (criminal conduct) and the corresponding offence under the law of England and Wales is under that law—
a
murder; or
b
any other offence the sentence for which is fixed by law as imprisonment for life.
F282
Where on conviction the offender is 21 or over, the court must sentence the offender to imprisonment for life.
3
Where on conviction the offender is aged under 21, the court must pass on the offender a sentence of custody for life under section 275 of the Sentencing Code.
4
Subsection (3) does not apply where the offender is liable to be detained under section 218 (detention at Her Majesty's pleasure for offender under 18).
I2I16218Offenders who commit murder etc when under 18: mandatory detention at Her Majesty's pleasure
1
This section applies if—
a
a person is convicted by the Court Martial of an offence under section 42 (criminal conduct);
b
the corresponding offence under the law of England and Wales is under that law—
i
murder; or
ii
any other offence the sentence for which is fixed by law as imprisonment for life; and
c
the offender appears to the court to have been aged under 18 at the time the offence was committed.
2
The court must (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty's pleasure.
3
A person sentenced to be detained under this section is liable to be detained in such place, and under such conditions, as may be determined by the Secretary of State or by such other person as may be authorised by him for the purpose.
4
A person detained in pursuance of a sentence under this section shall be deemed to be in legal custody.
F1Required or discretionary sentences for particular offences
S. 219 cross-heading substituted (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 25 para. 13(4); S.I. 2009/1028, art. 2(b)
C2C4218AF6Life sentence for second listed offence
1
This section applies where—
a
a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct);
b
the corresponding offence under the law of England and Wales is an offence listed in F32Part 1 of Schedule 15 to the Sentencing Code;
c
the offence was committed F33on or after the relevant date; and
d
the sentence condition and the previous offence condition are met.
F291A
In subsection (1)(c), “relevant date”, in relation to an offence, means the date specified for the corresponding offence (as mentioned in subsection (1)(b)) in Part 1 of Schedule 15 to the Sentencing Code.
1B
Where the offender is under 21 when convicted of the offence under section 42, section 273(3) of the Sentencing Code (duty of court to impose custody for life except in exceptional circumstances) applies in relation to the offender.
2
F34Where the offender is 21 or over when convicted of the offence under section 42, section 283(3) of the Sentencing Code (duty of court to impose imprisonment for life except in exceptional circumstances) applies in relation to the offender.
3
a
the reference to F37“the index offence” is to be read as a reference to the offence under section 42; and
b
the reference to “the previous offence referred to in F38subsection (5)” is to be read as a reference to the previous offence referred to in subsection (5) of this section.
4
The sentence condition is that, but for this section, the Court Martial would, in compliance with sections 260(2) and 261(2), impose a sentence of imprisonment for 10 years or more, F39or, in the case of an offender aged under 21 on conviction, a sentence of detention in a young offender institution for 10 years or more, disregarding any extension period imposed under F40section 266 or 279 of the Sentencing Code as applied by section 219A of this Act.
5
The previous offence condition is that—
a
at the time the offence under section 42 was committed, the offender had been convicted of an offence listed in F41Schedule 15 to the Sentencing Code (“the previous offence”); and
b
a relevant life sentence or a relevant sentence of imprisonment or detention for a determinate period was imposed on the offender for the previous offence.
F305A
For the purposes of subsection (5), Schedule 15 is to be read as if Part 1 did not include any offence for which the date specified in that Part is after the date on which the offence under section 42 was committed.
6
A sentence is relevant for the purposes of subsection (5)(b) if it would be relevant for the purposes of F42section 273(5)(b) of the Sentencing Code (see subsections (7) to (12) of that section) or section 283(5)(b) of that Code (see subsections (7) to (12) of that section).
7
A sentence required to be imposed by F43section 273(3) or 283(3) of the Sentencing Code as a result of this section is not to be regarded as a sentence fixed by law.
F258
Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it must be taken for the purposes of subsections (1)(c) F31, (5)(a) and (5A) to have been committed on the last of those days.
I3I10C5219F7Life sentence for certain dangerous offenders aged 18 or over
1
This section applies where F2—
a
a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct),
b
the corresponding offence under the law of England and Wales is a F47Schedule 19 offence within the meaning of Part 10 of the Sentencing Code (see section 307 of that Code), and
c
the court is of the required opinion (defined by section 223).
F441A
Where the offender is under 21 when convicted of the offence under section 42, section 274(3) of the Sentencing Code (duty to impose custody for life) applies in relation to the offender.
F132
F45Where the offender is 21 or over when convicted of the offence under section 42, section 285(3) of the Sentencing Code (duty to impose imprisonment for life) applies in relation to the offender.
3
In F46sections 274(3) and 285(3) of the Sentencing Code (as applied by subsections (1A) and (2)), references to “the offence” are to be read as references to the offence under section 42 of this Act.
F484
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
A sentence under F49section 274 or 285 of the Sentencing Code passed as a result of this section is not to be regarded as a sentence fixed by law.
C3C6219AF8Extended sentence for certain violent F26, sexual or terrorism offenders aged 18 or over
1
This section applies where—
a
a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct) (whether the offence was committed before or after the commencement of this section);
b
the corresponding offence under the law of England and Wales is a specified offence F51within the meaning of the Sentencing Code (see section 306 of that Code);
c
the court is of the required opinion (defined by section 223);
F52d
the court is not required—
i
by section 273(3) of the Sentencing Code (as applied by section 218A(1B) of this Act) to impose a sentence of custody for life;
ii
by section 283(3) of the Sentencing Code (as applied by section 218A(2) of this Act) to impose a sentence of imprisonment for life;
iii
by section 274(3) of the Sentencing Code (as applied by section 219(1A) of this Act) to impose a sentence of custody for life;
iv
by section 285(3) of the Sentencing Code (as applied by section 219(2) of this Act) to impose a sentence of imprisonment for life; and
e
condition A or B is met.
2
Condition A is that, at the time the offence under section 42 was committed, the offender had been convicted of an offence listed in F53Schedule 14 to the Sentencing Code.
3
Condition B is that, if the court were to impose an F54extended sentence of detention in a young offender institution or an extended sentence of imprisonment as a result of this section, the term that it would specify as the appropriate custodial term would be at least 4 years.
F504
Where the offender is under 21 when convicted of the offence under section 42, an extended sentence of detention in a young offender institution under section 266 of the Sentencing Code is available in respect of the offence.
5
Subsections (2) to (5) of section 268 of the Sentencing Code apply where a court dealing with an offender for an offence imposes, or is considering whether to impose, an extended sentence of detention in a young offender institution under section 266 of the Sentencing Code by virtue of this section.
6
In their application to an offender by virtue of subsection (5), subsections (2) to (5) of section 268 of the Sentencing Code are modified as follows—
a
subsection (2) has effect as if, for “section 231(2)” there were substituted “
section 261(2) of the Armed Forces Act 2006
”
;
b
subsection (3) has effect as if, after “offences” there were inserted “
or further acts or omissions that would be specified offences if committed in England and Wales
”
;
c
in subsection (4)(b), sub-paragraphs (i) and (ii) both have effect as if for “in the case of” there were substituted “
if the offence under section 42 was one for which the corresponding offence under the law of England and Wales was
”
.
7
Where the offender is 21 or over when convicted of the offence under section 42, an extended sentence of imprisonment under section 279 of the Sentencing Code is available in respect of the offence.
8
Subsections (2) to (5) of section 281 of the Sentencing Code apply where a court dealing with an offender for an offence imposes, or is considering whether to impose, an extended sentence of imprisonment under section 279 of the Sentencing Code by virtue of this section.
9
In their application to an offender by virtue of subsection (8), subsections (2) to (5) of section 281 of the Sentencing Code are modified as follows—
a
subsection (2) has effect as if, for “section 231(2)” there were substituted “
section 261(2) of the Armed Forces Act 2006
”
;
b
subsection (3) has effect as if, after “offences” there were inserted “
or further acts or omissions that would be specified offences if committed in England and Wales
”
;
c
in subsection (4)(b), sub-paragraphs (i) and (ii) both have effect as if for “in the case of” there were substituted “
if the offence under section 42 was one for which the corresponding offence under the law of England and Wales was
”
.
F14220Certain violent or sexual offences: offenders aged 18 or over
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I4I11221F9Life sentence for certain dangerous offenders aged under 18
1
This section applies where F3—
a
a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct) F59which was committed on or after 4 April 2005,
b
the corresponding offence under the law of England and Wales is a F60Schedule 19 offence within the meaning of Part 10 of the Sentencing Code (see section 307 of that Code),
F55ba
the court considers that the seriousness of—
i
the offence under section 42, or
ii
that offence and one or more offences associated with it,
is such as to justify the imposition of a sentence of detention for life, and
c
the court is of the required opinion (defined by section 223).
F152
F56Section 258(2) of the Sentencing Code (duty to impose detention for life) applies in relation to the offender.
F573
In section 258(2) of the Sentencing Code (as applied by subsection (2)), the reference to section 250 of that Code is to be read as a reference to section 209 of this Act.
F44
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F585
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
A sentence under F61section 258(2) of the Sentencing Code passed as a result of this section is not to be regarded as a sentence fixed by law.
221AF10Extended sentence for certain violent F27, sexual or terrorism offenders aged under 18
1
This section applies where—
a
a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct) (whether the offence was committed before or after the commencement of this section);
b
the corresponding offence under the law of England and Wales is a specified offence F63within the meaning of the Sentencing Code (see section 306 of that Code);
c
the court is of the required opinion (defined by section 223);
d
the court is not required by F64section 258(2) of the Sentencing Code (as applied by section 221 of this Act) to impose a sentence of detention for life under section 209 of this Act; and
F652
An extended sentence of detention under section 254 of the Sentencing Code is available in respect of the offence.
3
Subsections (2) to (5) of section 256 of the Sentencing Code apply where a court is determining—
a
the appropriate custodial term, and
b
the extension period,
of an extended sentence of detention to be imposed on an offender under section 254 of the Sentencing Code by virtue of this section.
4
In their application to an offender by virtue of subsection (3), subsections (2) to (5) of section 256 of the Sentencing Code are modified as follows—
a
subsection (2) has effect as if, for “section 231(2)” there were substituted “
section 261(2) of the Armed Forces Act 2006
”
;
b
subsection (3) has effect as if, after “offences” there were inserted “
or further acts or omissions that would be specified offences if committed in England and Wales
”
;
c
in subsection (4)(b), sub-paragraphs (i) and (ii) both have effect as if for “in the case of” there were substituted “
if the offence under section 42 was one for which the corresponding offence under the law of England and Wales was
”
.
F16222Offenders aged under 18: certain violent or sexual offences
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I5I12223“The required opinion” for purposes of sections 219 to F11221A
1
“The required opinion” for the purposes of sections F5219(1),F17 219A(1), 221(1) and F18221A(1) is the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of—
a
further specified offences; or
b
further acts or omissions that would be specified offences if committed in England or Wales.
2
F683
In section 308(2)(a) of the Sentencing Code as applied by this section, the reference to the offence is to be read as a reference to the offence under section 42 of this Act.
4
In this section—
“serious harm” has the meaning given by F69section 306 of the Sentencing Code;
“specified offence” has the meaning given by that section.
224F70Place of detention for extended sentences for offenders aged under 18
Section 261 of the Sentencing Code (detention in pursuance of extended sentence) applies to detention imposed by virtue of section 221A of this Act as it applies to detention under section 254 of that Code.
C8224AF24Special custodial sentence for certain offenders of particular concern
1
This section applies where—
a
a person is convicted by the Court Martial of an offence under section 42 (criminal conduct) (whether the offence was committed before or after this section comes into force),
b
the corresponding offence under the law of England and Wales is an offence listed in F72Schedule 13 to the Sentencing Code,
c
the person was aged 18 or over when the offence was committed, and
F712
If—
a
the court imposes a sentence of detention in a young offender institution for the offence, and
b
the offender is aged under 21 when convicted of the offence,
subsections (2) and (3) of section 265 of the Sentencing Code (term of special sentence) apply in relation to the term of the sentence.
2A
If—
a
the court imposes a sentence of imprisonment for the offence, and
b
the offender is aged 21 or over when convicted of the offence,
subsections (2) and (3) of section 278 of the Sentencing Code (term of special sentence) apply in relation to the term of the sentence.
3
The references in subsections (1)(d) F75, (2) and (2A) to a sentence imposed for the offence include a sentence imposed for the offence and one or more offences associated with it.
F764
In Schedule 13 to the Sentencing Code, as applied by subsection (1)(b), the reference in paragraph 10 to section 69 of that Code is to be read as a reference to that section as applied by section 238(6) of this Act.
I6I17225Third drug trafficking offence
1
This section applies where —
a
a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct); and
b
if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, F77section 313 of the Sentencing Code (third class A drug trafficking offence) would apply.
2
The Court Martial must impose the sentence required by F78F93section 313(2A) of that Code, unless it is of the opinion that there are F94exceptional circumstances which—
a
relate to any of the offences or to the offender; and
F95b
justify not doing so.
I7I18226Third domestic burglary
1
This section applies where—
a
a person aged over 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct); and
b
if his conviction had been by a civilian court in England and Wales of the corresponding offence under the law of England and Wales, F79section 314 of the Sentencing Code (third domestic burglary) would apply.
2
The Court Martial must impose the sentence required by F80F96section 314(2A) of that Code, unless it is of the opinion that there are F97exceptional circumstances which—
a
relate to any of the offences or to the offender; and
F98b
justify not doing so.
I8I14227Firearms offences
1
This section applies if—
a
a person is convicted by the Court Martial of an offence under section 42 (criminal conduct);
F81aa
the corresponding offence under the law of England and Wales is an offence listed in any of paragraphs 1 to 4 of Schedule 20 to the Sentencing Code; and
b
if his conviction had been by a civilian court in England and Wales of F82that corresponding offence, section 311 of the Sentencing Code (minimum sentences for certain firearms offences) would apply.
2
The Court Martial must impose the sentence required by F83section 311(2) of the Sentencing Code (as that provision has effect in relation to England and Wales), unless it is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
3
C9227AF12Offences of threatening with a weapon in public or on school premises
1
This section applies if—
a
a person aged 18 or over is convicted by a court of an offence under section 42 (criminal conduct); and
b
the corresponding offence under the law of England and Wales is an offence under section 1A of the Prevention of Crime Act 1953 or section 139AA of the Criminal Justice Act 1988 (threatening with article with blade or point or offensive weapon in public or on school premises).
F861A
Where the offender is aged under 21 at the time of conviction, the court must impose a sentence of detention in a young offender institution for a term of at least 6 months unless the court is of the opinion that there are F99exceptional circumstances which—
a
relate to the offence or to the offender, and
F100b
justify not doing so.
2
F87Where the offender is aged 21 or over at the time of conviction, the court must impose a sentence of imprisonment for a term of at least 6 months unless the court is of the opinion that there are F101exceptional circumstances which—
a
relate to the offence or to the offender, and
F102b
justify not doing so.
F883
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I9I13228Appeals where previous convictions set aside
F191A
Subsection (3) applies in the cases described in subsections (1B) to (2).
1B
The first case is where—
a
a sentence has been imposed on any person under F89section 273(3) or 283(3) of the Sentencing Code (life sentence for second listed offence) as applied by section 218A of this Act;
b
a previous conviction of that person has been subsequently set aside on appeal; and
c
without that conviction, the previous offence condition mentioned in section 218A(1)(d) would not have been met.
1C
The second case is where—
a
a sentence has been imposed on any person under section 225(3) of the 2003 Act (as applied by section 219(2) of this Act);
b
the condition in section 225(3A) of the 2003 Act was met but the condition in section 225(3B) of that Act was not; and
c
any previous conviction of the person without which the condition in section 225(3A) would not have been met is subsequently set aside on appeal.
1D
The third case is where—
a
a sentence has been imposed on any person under F90section 266 or 279 of the Sentencing Code (extended sentence for certain violent, sexual or terrorism offenders aged 18 or over) as applied by section 219A of this Act;
b
the condition in section 219A(2) was met, but the condition in section 219A(3) was not; and
c
any previous conviction of the person without which the condition in section 219A(2) would not have been met is subsequently set aside on appeal.
1E
The fourth case is where—
a
a sentence has been imposed on any person under section 227(2) of the 2003 Act (as applied by section 220(2) of this Act);
b
the condition in section 227(2A) of the 2003 Act was met but the condition in section 227(2B) of that Act was not; and
c
any previous conviction of the person without which the condition in section 227(2A) would not have been met is subsequently set aside on appeal.
2
F22The fifth case is where—
a
a sentence has been imposed on any person by virtue of section 225 or 226 F23of this Act; and
b
any previous conviction of his without which that section would not have applied has subsequently been set aside on appeal.
3
Where this subsection applies, an application for leave to appeal against the sentence may be lodged at any time within 29 days beginning with the day on which the previous conviction was set aside.
F203A
Subsection (3B) applies where—
a
a sentence has been imposed on a person under F91section 273(3) or 283(3) of the Sentencing Code (life sentence for second listed offence) as applied by section 218A of this Act;
b
a previous sentence imposed on that person has been subsequently modified on appeal; and
c
taking account of that modification, the previous offence condition mentioned in section 218A(1)(d) would not have been met.
3B
An application for leave to appeal against the sentence mentioned in subsection (3A)(a) may be lodged at any time within 29 days beginning with the day on which the previous sentence was modified.
4
F21Subsections (3) and (3B) have effect notwithstanding anything in section 9(1) of the Court Martial Appeals Act 1968 (c. 20).
Pt. 8 applied (with modifications) (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, rule 128(2)