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:
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.
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.
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/
- The Armed Forces Act 2006, sections 232 (A) and 283
- The Sexual Offences Act 2003, section 137, schedule 3 and schedule 5
- Guidance on Sentencing in the Court Martial 2018, Version 5, paragraph 5.10.4
- JAG Master Combined Sentencing Guide, version 6, 2023, https://www.judiciary.uk/wp-content/uploads/2023/06/Master-Combined-Sentencing-Guides.pdf
- Halsbury’s Laws of England, Sentencing and Offender Management (Volume 92 (2021), 4. Preventive Orders, Orders Made on Conviction,Sexual Harm Prevention Orders, Chapter 250. Meaning of ‘sexual harm prevention order’
- Halsbury’s Laws of England, Armed Forces (Volume 3 (2019)), 5. Discipline in the Armed Forces, (9) The Service Civilian Court, Chapter 588. Sentencing Powers of the Service Civilian Court.
- Banks of Sentence, Volume 1, Chapter, 24 Court Martial, 24.10 Parity with sentences at civilian courts