Defence Act 1954

212A

F298 [ Power to suspend sentence.

212A. (1) In this section

governor includes, in relation to a military prisoner or a person undergoing detention, a person for the time being performing the functions of governor;

imprisonment includes

( a ) detention in a military prison or detention barrack or in other service custody or in a public prison, as referred to in section 229 of this Act,

( b ) F299 [ ]

( c ) detention in a place provided under section 2 of the Prisons Act 1970 , and

( d ) detention in a place specified under section 3 of the Prisons Act 1972 ,

and sentence of imprisonment shall be construed accordingly;

mandatory term of imprisonment includes, in relation to an offence, a term of imprisonment awarded by a court-martial under this Act or any other enactment where provision is made that a person who is guilty of the offence concerned shall be liable to a term of imprisonment of not less than such term as is specified in this Act or that enactment.

(2) Where a person is sentenced by a court-martial in respect of an offence to a term of imprisonment (other than a mandatory term of imprisonment) or to detention, the military judge presiding at the court-martial may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

(3) It shall be a condition of an order under subsection (2) of this section that the person in respect of whom the order is made keep the peace and be of good behaviour during

( a ) the period of suspension of the sentence concerned, or

( b ) in the case of an order that suspends a sentence in part only, the period of imprisonment or detention and the period of suspension of the sentence concerned,

and that condition shall be specified in the order concerned.

(4) The military judge may, when making an order under subsection (2) of this section, impose such conditions in relation to the order as he considers

( a ) appropriate having regard to the nature of the offence, and

( b ) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,

and any condition imposed in accordance with this subsection shall be specified in that order.

(5) In addition to any condition imposed under subsection (4) of this section, the military judge may, when making an order under subsection (2) of this section consisting of the suspension in part of a sentence of imprisonment or detention, impose any one or more of the following conditions in relation to that order:

( a ) that the person cooperate with such support services, and to such extent, as may be specified by the military judge;

( b ) that the person undergo such

(i) treatment for addiction,

(ii) course of education, training or therapy,

(iii) psychological counselling or other treatment,

as may be approved by the military judge.

(6) A condition imposed under subsection (5) of this section shall be specified in the order concerned.

(7) Where an order is made under subsection (2) of this section, a copy of the order shall be given by the Court-Martial Administrator

( a ) to the commanding officer of the person to whom the order applies and the Provost Marshal, or

( b ) in the case of an order consisting of the suspension of a sentence of imprisonment or detention in part only, to the persons referred to in paragraph ( a ) of this subsection, to the governor of the prison or detention barrack to which the person is committed and to such other person, authority or support services as the military judge may direct having regard to the conditions (if any) imposed under subsection (5) of this section.

(8) ( a ) Where a person to whom an order under subsection (2) of this section applies is, during the period of suspension of the sentence concerned, convicted by a court-martial of an offence, the military judge presiding at the court-martial before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or otherwise to appear before a court-martial of the same class as that which made the order.

( b ) Where a person is remanded pursuant to paragraph ( a ) of this subsection, the Court-Martial Administrator shall, subject to the directions of the Director

(i) refer the matter to the summary court-martial, or

(ii) convene a general court-martial or limited court-martial, as specified in the direction, but without a court-martial board,

to deal with the matter.

(9) ( a ) A summary court-martial or the military judge presiding at a general court-martial or limited court-martial, as the case may be, to which a person is remanded under subsection (8) of this section shall revoke the order unless the military judge considers that revocation of that order would be unjust in all the circumstances of the case.

( b ) Where the military judge revokes that order, the person shall be required to serve the entire of the sentence of imprisonment or detention originally awarded, or such part of the sentence as the military judge considers just having regard to all the circumstances of the case, less any period of that sentence already served and any period spent in custody (other than a period during which the person was serving a sentence of imprisonment or detention in respect of an offence referred to in subsection (8) of this section) pending revocation of the said order.

(10) Notwithstanding the provisions of section 211 or of any other section of this Act, a sentence (other than a sentence consisting of imprisonment for life) awarded

( a ) in respect of an offence committed by a person to whom an order under subsection (2) of this section applies, and

( b ) during the period of suspension of sentence to which that order applies,

shall not commence until the expiration of any period of imprisonment or detention that the person is required to serve of the sentence referred to in paragraph ( b ) of this subsection either by virtue of the order under subsection (2) or a revocation under subsection (9) of this section.

(11) Where the Provost Marshal or, as the case may be, the governor of the prison or detention barrack to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened a condition referred to in the order he shall refer the matter to the Director who may

( a ) subject to the court-martial being of the same class as that which made the order, direct the Court-Martial Administrator to

(i) refer the matter to the summary court-martial, or

(ii) convene a general court-martial or limited court-martial, as specified in his direction, but without a court-martial board,

and

( b ) apply in the prescribed manner to that court-martial to fix a date for the hearing of an application for an order revoking the order under subsection (2) of this section.

(12) Where a date for the hearing of an application referred to in subsection (11) of this section is fixed, the person in respect of whom the application will be made, or where that person is in prison or a detention barrack, the governor of the prison or detention barrack, shall be notified in writing in the prescribed manner, and the notice shall require the person to attend at the hearing, or require the said governor to produce the person before the court-martial, on the date and at the time specified in the notice.

(13) A notice under subsection (12) of this section shall be addressed to the person concerned by name, and may be given to the person in the prescribed manner.

(14) If a person who is not in prison or a detention barrack fails to appear before the court-martial in accordance with a requirement contained in a notice under subsection (12) of this section, the military judge presiding at the court-martial concerned may make an order for the arrest of the person.

(15) The military judge presiding at the court-martial shall, where he is satisfied that a person to whom an order under subsection (1) of this section applies has contravened a condition of the order, revoke the order unless he considers that revocation of that order would be unjust in all of the circumstances of the case, and where the military judge revokes that order, the person shall be required to serve the entire of the sentence originally awarded, or such part of the sentence as the military judge considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison or in a detention barrack and any period spent in custody pending the revocation of the order.

(16) The revocation of an order under subsection (9) or (15) of this section shall for the purposes of this Act and the Courts-Martial Appeals Act 1983 be deemed to be a sentence of a court-martial. ]

Annotations:

Amendments:

F298

Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 61, S.I. No. 254 of 2008.

F299

Deleted (7.04.2017) by Prisons Act 2015 (57/2015), s. 7, S.I. No. 134 of 2017.