UK Offence Report

Special measures

paragraph 12(1) of SCHEDULE 2 of The Armed Forces (Service Civilian Court) Rules 2009

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 In Chapter 6 of Part 12, “sexual offence” includes an SDA civil offence as respects which the corresponding civil offence is— a an offence under Part 1 of the Sexual Offences Act 2003; b a relevant superseded offence, within the meaning of section 62 of the 1999 Act; c an offence of attempting or conspiring to commit, or inciting the commission of, an offence within paragraph (a) or (b) above; or d an offence under Part 2 of the Serious Crime Act 2007 where the offence (or one of the offences) which the offender intended or believed would be committed is an offence under Part 1 of the Sexual Offences Act 2003.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach paragraph 12(1) of SCHEDULE 2?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the Armed Forces (Service Civilian Court) Rules 2009.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
7 May 2009
In force from
31 October 2009
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Rules) — the explanatory note published with the instrument, © Crown copyright.

The Armed Forces Act 2006 (c. 52) (“the Act”) creates a standing Service Civilian Court. These Rules provide for the practice and procedure to be followed at the Service Civilian Court, administrative matters of the court and also make provision with regard to evidential matters such as special measures directions and hearsay evidence. Part 2 of these Rules makes provision with regard to the service of documents on different people and sets out when service is deemed to have occurred depending upon the method of service. Part 3 deals with administrative matters including listing and notification of proceedings (rules 16 and 17), providing that a judge advocate may direct attendance at court by live link (rule 18) and the making and retention of records of proceedings (rule 22). Rule 20 provides that oaths taken at the Servcie Civilian Court are to be the same as those in sections 1 to 3 and 6 of the Oaths Act 1978 (c. 19) as modified by Schedule 1 to these Rules. Rule 24 sets out the circumstances in which a judge advocate must terminate proceedings. Part 4 sets out who may be a legal representative at court (rule 26) and provides, when a defendant who is a young person has not appointed a legal representative, which rights of the defendant may be exercised by the parent or guardian of that defendant (rule 27). Part 5 applies section 111 of the Act (power to arrest a defendant during proceedings of the court) to pre-arraignment where a defendant is to be tried by the court. A judge advocate may either direct his arrest or issue a warrant for his arrest under this part. Part 6 provides for service of advance information and when that information must include notice that a defendant could become subject to an activation order (rule 31). Part 7 makes provision with regard to preliminary hearings including the power of a judge advocate to make orders or rulings on matters such as the admissibility of evidence, joinder or severance of charges and other questions of law, practice or procedure (rule 36). Part 8 provides for the joinder or severance of charges and the amendment of charges. Part 9 provides for the consideration of the court for trial by the Court Martial and for a defendant to exercise his right to trial that court. Part 10 deals with arraignment of defendants and the ability of defendants to change their pleas. Part 11 is concerned with the attendance of witnesses at court and provides for matters such as the notification of witnesses (rule 48), summonsing of witnesses (rules 49 to 53) and the powers of a judge advocate to issue warrants for the arrest of witnesses in order to secure their attendance at court (rule 54). Part 12 deals with evidence and applies provisions that operate in the civilian courts. This part is divided into chapters that in their turn deal with: general evidential matters (chapter 1) (applying provisions of the Criminal Justice Act 1967 (c. 80) to the Service Civilian Court); evidence of bad character (chapter 2) (applying provisions of the Criminal Justice Act 2003 (c. 44) to the Service Civilian Court); hearsay evidence (chapter 3) (applying further provisions of the 2003 Act to the court); evidence of service matters (chapter 4) (which is equivalent to provisions made under section 372 of the Act for civilian courts); expert evidence (chapter 5); and special measures directions (chapter 6) (applying provisions of the Youth Justice and Criminal Evidence Act 1999 (c. 23) to the Service Civilian Court). Part 13 sets out the procedure to be followed at trial. Part 14 is concerned with sentencing matters and procedure and includes (at rule 99) that the reasons for a sentence are explained to the offender by the judge advocate. Part 15 is concerned with ancillary proceedings. Chapter 1 applies when an overseas community order made by the court is in force and the offender has breached the terms of that order. Chapter 2 deals with other ancillary proceedings such as the remission of a fine under section 267 of the Act. It also provides for the procedure to be followed when the court decides to exercise its powers under section 311(2) of the Act and certify a person for contempt of court (rule 108). Part 16 sets out the power of a judge advocate to order that proceedings are held in camera, including on the bases that otherwise information useful to an enemy may be disclosed or national security endangered (rule 109). Part 17 makes transitory and transitional provisions. Rule 111 provides that until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005 (c. 4) is in force all references in the Rules to the Court of Judicature of Northern Ireland are to be read as references to the Supreme Court of Northern Ireland. Rule 112 introduces Schedule 2 which sets out transitional provisions.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.62.

Basis
the provision says an offence is committed “if” something happens
Confidence
0.62 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source