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Lamb Building welcomes three new tenants

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Following the successful completion of their pupillages, we are delighted that Charlotte Arundale, Ben Hale and Adele Rainsford have each accepted invitations to become tenants. Charlotte and Ben join the Crime Team, whilst Adele has joined the Family and Civil teams.

Service Civilian Courts: Can they impose Sexual Harm Prevention Orders?

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By Charlotte Arundale

A Sexual Harm Prevention Order prohibits an offender or defendant from doing anything described within the order. They can be made by both the Magistrates’ Court and the Crown Court. The purpose is to protect the public or specific individuals from sexual harm committed by the offender or defendant. They can also be made to protect children or vulnerable adults from sexual harm committed by the offender or defendant outside of Britain. Sexual Harm Prevention Orders can be made on conviction, where a defendant is found not guilty by reason of insanity or is suffering from a disability, or by police application. Breaching a Sexual Harm Prevention Order is an offence (Halsbury’s Laws of England, Sentencing and Offender Management, Volume 92 (2021), Chapter 250).

This article explores whether Military Service Civilian Courts are able to impose a Sexual Harm Prevention Order as a form of sentence.

What is a Service Civilian Court?

The Service Civilian Court is somewhat similar to Magistrates’ Courts within the civilian jurisdiction. The Service Civilian Court is a military court which tries minor offences which have allegedly been committed by officials attached to Military Services overseas or dependants and family members of military personnel who reside overseas (as per www.armylegalservices.co.uk). Cases are heard by a single Judge Advocate. Generally, the court can try any Service offence committed by a civilian who is subject to service discipline at the time of the offence, providing that the alleged offence was committed outside of Britain and the offence is not indictable only. There exists a right of appeal from the Service Civilian Court to the Court Martial. The Service Civilian Court does have jurisdiction akin to that of a civilian Youth Court, however this article will solely focus on the sentencing powers which are available when the court is dealing with adults (JAG Master Combined Sentencing Guide, Version 6, 2023, para 2.5).

Sentencing powers specifically available to the Service Civilian Court:

As per section 283 of the Armed Forces Act 2006, the maximum sentence that can be imposed by the Service Civilian Court is no more than 6 months imprisonment. Where the court imposes two or more terms of imprisonment to run consecutively, the total must not be more than 12 months’ imprisonment.

The explicit sentencing options available to the Service Civilian Court are set out at paragraph 4.4.3 within the Guidance on Sentencing in the Court Martial (2018), Version 5. These are:
I. Imprisonment;
II. Fines;
III. Service Community Order;
IV. Overseas Community Order;
V. Service Compensation Order;
VI. Order for a Conditional Discharge;
VII. Order for an Absolute Discharge.

In addition to this specific range of sentencing powers, the Service Civilian Court is also furnished with the same sentencing options as the Court Martial, save for where the maximum sentence available to the Service Civilian Court would be exceeded (Halsbury’s Laws of England, Armed Forces, Volume 3, 2019, Chapter 588).

Sentences available to the Service Civilian Court by extension of the sentences available to the Court Martial.

The full range of sentences available to the Court Martial can be found in the Master Combined Sentencing Guide, Guidance on Sentencing in the Service Courts, Version 6, issued by the Judge Advocate General and effective from the 1st of June 2023.

The critical point is that the Court Martial has the power to issue a Sexual Harm Prevention Order under section 232A of the Armed Forces Act 2006 and section 137 (2) of the Sexual Offences Act 2003. This is confirmed in both the 2023 Master Combined Sentencing Guide (version 6, paragraph 4.19), and within its predecessor document where it is stated that in relation to ancillary orders for sexual offences “the court may also impose a Sexual Harm Prevention Order in the appropriate terms” (2018 JAG Sentencing Guidelines 2018 (version 5, paragraph 5.10.4). Even though applying to the Court Martial, as discussed above, this also extends to Service Civilian Courts under section 232 (A) of the Armed Forces Act 2006.

It is important to note that the Court Martial is also able to “pass the full range of custodial and non-custodial sentences available in the Crown Court (with the exception of Proceeds Of Crime Act Orders and disqualification from driving) and an additional range of sentences available under the Armed Forces Act 2006…” (as per judiciary.uk).

Within the Crown Court, the Sentencing Council Explanatory Materials on Ancillary Orders explains that a Sexual Harm Prevention Order can be imposed for any person who has been convicted of an offence listed in Schedule 3 or Schedule 5 of the Sexual Offences Act 2003. Under section 137 (1) a of the Sexual Offences Act 2003, a reference to a court order…includes a finding by a service court. As stated in chapter 24 of Banks on Sentence “violent and sexual offences may call for similar treatment, whether in a military or civilian context”.

Therefore, if not already clear under the old section 232A of the Armed Forces Act 2006, because a Sexual Harm Prevention Order is open to the Crown Court, it follows that it is also available to the Service Civilian Court as it is afforded the same sentencing powers as the Court Martial.

Concluding remarks:

It appears to be the case that the Service Civilian Court is able to impose Sexual Harm Prevention Orders and Orders of a similar nature. This is because the sentencing option is available within the Court Martial and the Crown Court, and therefore the implementation of a Sexual Harm Prevention Order or similar Order should, by virtue, also be at the disposal of the Service Civilian Court. This further mirrors the position in the civilian courts, whereby a Sexual Harm Prevention Order can be made in both the Magistrates’ and Crown Court.

Charlotte Arundale
Second-Six Pupil at Lamb Building.

Reminder: This article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.

Lamb Building has a strong Military Law Group, for more information please see: https://www.lambbuilding.co.uk/practice-area/military-law/courts-martial-military-law-group/

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Download the Article as a file here

Article: Possession of an offensive weapon in a private place, almost strict liability

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It is well established that it is an offence to be in possession of an offensive weapon in a public place without reasonable excuse.

In 2019, Parliament went further by enacting The Offensive Weapons Act. Effective from the 14th July 2021, under section 46 of the Act it was made an offence for a person to possess an offensive weapon in a private place.

What constitutes a private place is anywhere that amounts to a domestic premises. This is largely self-explanatory and, of course, it includes people’s homes, their garages, and gardens (section 141 (1F) of the Criminal Justice Act 1988). Looking at the legislation, it simply means a place which is not a public place, school or further education premises or a prison (section 141 (1C) of the Criminal Justice Act 1988).

Although legislating within our homes, the Offensive Weapons Act does not go quite as far as some might fear.  The Act only applies to specific offensive weapons which are set out in Schedule 1 of the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (SI 1988 No. 2019). To name a few, this includes:

  • Knuckle dusters;
  • Swordsticks;
  • Death stars;
  • Swords with a curved blade of over 50 centimetres;
  • Zombie knives;
  • Cyclone knives.

 

Defences:

The following defences apply to those who are found to be in possession of an offensive weapon in a private place (as set out within section 141 of the Criminal Justice Act 1988).

  • The weapon is of historical importance;
  • The weapon is to be used for historical re-enactments;
  • The weapon is to be used for sporting activities;
  • The weapon is to be used for theatre, film, or television purposes;
  • The weapon is possessed on behalf of a museum or gallery, or is lent or hired by a museum or gallery for proper purposes;
  • The weapon is possessed for religious reasons;
  • The defendant (who has possession of the offensive weapon) is carrying out functions on behalf of the Crown or a visiting force.

Furthermore, under the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (SI 1988 No.2019) Schedule 1, the offence specifically does not apply to the following weapons:

  • Weapons considered to be antiques which are over 100 years old (paragraph 2);
  • Swords with curved blades of 50 cm or more which were made before 1954 or made at any other time according to traditional methods of making swords by hand (paragraph 3 b).

Crucially, it should be noted that having a reasonable excuse does not operate as a defence for those who have an offensive weapon in a private place. This is contrary to the position afforded to those who find themselves charged with having possession of an offensive weapon in a public place, where having a reasonable excuse does amount to a statutory defence.

 

Sentence:

The Sentencing Council are yet to release a set of guidelines in relation to this offence within a private setting.

The only indicator available for those charged with having an offensive weapon in a private place is that the maximum sentence is 51 weeks imprisonment or a fine, or both as set out in section 141 (1A) of the Criminal Justice Act 1988.

 Although it is tempting to use the sentencing guidelines for the possession of an offensive weapon in a public place as a starting point, it should be kept in mind that the public element makes the offence much more serious and therefore the two offences should not be considered as running parallel.

Additionally, for the purposes of mandatory minimum sentences, practitioners should be clear that the offence of possessing an offensive weapon in a private place does not constitute a relevant offence. It does not engage the mandatory minimum sentence of 6 months’ imprisonment where it is a second or further offence. The mandatory minimum sentence regime only applies to those offences which are public facing or committed on school premises.

 

Comment:

At present we are in a situation whereby possessing an offensive weapon in a private place is almost a strict liability offence. Unless you are a museum, gallery, the military, or using the weapon for theatre or film purposes, you cannot possess an offensive weapon in the privacy of your own home.

Although this may appear harsh, ultimately the strict legislative position is tempered by the fact that the offence only applies to those specific weapons contained within Schedule 1 of the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (SI 1988 No. 2019). It does not extend to basic household items, such as kitchen knives, and there does exist exceptions for religious swords and articles of historical importance.

The group left without protection are those who are in possession of the offensive weapon who originally had the intention of disposing of it but subsequently forget that they have the item. Considering the legislation as it stands, this factor would only amount to significant mitigation at best.  The defence of reasonable excuse does not apply and forgetfulness also does not amount to a defence for possessing an offensive weapon in a private place.

It is suspect whether the position we are left in was the true intention of Parliament. Nonetheless, we find ourselves in a situation whereby more defences are available to those in possession of an offensive weapon in a public place, than those with the same weapons in private.

 

Charlotte Arundale

Second-Six Pupil at Lamb Building.

 

Reminder: This article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.

  

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