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Criminal Litigation > 25 Ancillary Orders > Flashcards

25 Ancillary Orders Flashcards

1
Q

Under what circumstances will court order Costs to be paid to Prosecution?

A
  1. Accused is convicted
  2. Unsuccessful appellant
  3. Person in breach of a court order
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2
Q

When Court makes an order for costs, what must it consider the amount payable to be?

A

Just and Reasonable

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3
Q

True or False: When Court makes an order for costs, the sum must be specified on the order?

A

True

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4
Q

True or False: at Court’s discretion to delegate who should determine costs?

A

False. Court may not delegate the duty of determining costs

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5
Q

What can the court do for help in determining costs?

A

Court may seek assistance from Legal Aid Authority (Criminal Cases Unit)

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6
Q

True or False: The prosecution and claimants of costs need not do anything but wait to be paid costs?

A

False. Must justify the amount claimed and its connection to the particulars.

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7
Q

True or False: Prosecution and Claimants of costs need not do anything more if they have general agreement with the court?

A

False

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8
Q

What is the case of Northallerton Magistrates’ Court, ex parte Dove [2000] in relation to?

A

Imposition of Costs

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9
Q

What is the full name of the case of ex parte Dove [2000]?

A

Northallerton Magistrates’ Court, ex parte Dove [2000]

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10
Q

What year was the case of ex parte Dove?

A

2000

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11
Q

What is the leading case which gives guidelines on the imposition of costs?

A

ex parte Dove [2000]

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12
Q

What guidelines where given in regards to imposition of costs by ex parte Dove [2000]?

A
  1. Order to pay costs should never exceed the sum which offender is able to pay/ reasonable to expect offender to pay having regards to their means
  2. Should not exceed sum which the prosecutor has actually and reasonably incurred
  3. Purpose of imposition of costs is to compensate the prosecutor not punish the offender?
  4. Costs ordered should not be disproportionate to any fine imposed.
  5. Offender should disclose information on financial circumstances
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13
Q

True or False: Purpose of imposition of costs is to compensate the prosecutor not punish the offender?

A

True

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14
Q

True or False: Purpose of imposition of costs is to punish the offender?

A

False. It is to compensate the prosecutor

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15
Q

What should be done if costs and fine ordered on accused exceed sum which offender is reasonably ordered to pay?

A

The costs should be reduced rather than the fine

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16
Q

What are courts required to do when imposing sentence on an offender?

A

Required to impose a surcharge

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17
Q

What happens if offender is unable to pay surcharge alongside any other payment orders?

A

Court must reduce the surcharge accordingly (if necessary to nil)

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18
Q

What does Compensation order mean?

A

An order which requires the offender to

a) pay compensation for any personal (injury, loss or damage) resulting from the offence
b) make payments for bereavement/funeral expenses

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19
Q

What must a compensation order specify?

A

Amount to be paid

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20
Q

What must the amount ordered be?

A

appropriate

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21
Q

What must the court have regards to?

A
  1. Evidence

2. Representation made by or on behalf of offender

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22
Q

Court must have regards to offender’s means when determining…

A
  1. Whether to make a compensation order against an offender

2. the amount to be paid under an order

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23
Q

What happens if court orders both fine and compensation order but offender cannot afford it?

A

Court must give preference to Compensation order (may also impose fine)

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24
Q

True or False: The victim does not have to apply to the court before a compensation order can be made?

A

True

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25
Q

True or False: The victim has to apply to the court before a compensation order can be made?

A

False

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26
Q

What is the limit to the amount of compensation which Crown Court or Magistrates’ court may order?

A

No limit

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27
Q

What is the limit for Compensation orders in the Magistrates’ Court for youth offenders?

A

shall not exceed £5,000

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28
Q

What order and for which offender shall not exceed £5,000?

A

Compensation order for Youth offenders

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29
Q

True or False: Compensation order can be combined with discharge?

A

True

30
Q

True or False: Compensation orders cannot be combined with discharge?

A

False

31
Q

True or False: Compensation order cannot be combined with a sentence of immediate custody? Why?

A

False. Where offender is clearly able to pay and has good prospects of employment following custodial release

32
Q

Why could Compensation orders combined with Sentence be undesirable?

A

Compensation order hanging over offender’s head after release which could be counterproductive and force them back to crime to find the money

33
Q

Why could Compensation orders combined with a suspended Sentence be undesirable?

A

Regard should be given to the fact that if offender breaches suspended sentence = may mean no chance of payment of compensation

34
Q

True or False: Court can suspend a custodial sentence due to offenders ability to pay compensation to the victim in the interest of justice?

A

False. It is contrary to principle.

35
Q

True or False: Compensation orders must always be given with conviction of sentence and cannot be given alone?

A

False. Compensation orders may stand alone on sentence.

36
Q

What happens if offender is unable to pay Compensation order and Surcharge?

A

Surcharge reduce, if necessary to nil (to enable compensation to be paid)

37
Q

What are deprivation orders?

A

Deprivation of property connected with the commission of an offence

38
Q

Deprivation orders applies to property which?

A
  1. Has been lawfully seized from offender

2. Was in offenders possession when offender was apprehended/ summoned for the offence

39
Q

Before a Deprivation order can be made, the Court must be satisfied that the property -

A
  1. Property has been used for the purpose of committing the offence
  2. Offender intended to use property for that purpose
40
Q

What does facilitating the commission of an offence include?

A
  1. Disposing property related to an offence

2. Avoiding apprehension or detection

41
Q

Which provision relates to deprivation orders of vehicles?

A

s.154 of Sentencing Code 2020

42
Q

In considering whether to make a deprivation order in respect of property, Court must have regards to?

A
  1. Value of property

2. Likely financial and other effects of the order on the offender

43
Q

True or False: Courts may make a deprivation order to offender and any joint ownership?

A

False. Deprivation orders deprive the offender of any rights to the property which it relates but it does not affect the rights of others

44
Q

True or False: Deprivation orders power does not extend to real property?

A

True

45
Q

What must be conducted before a deprivation order is made?

A

conduct a full and proper investigation

46
Q

True or False: Statutes can sometimes contain their own forfeiture provisions relating to offences specified in the statute?

A

True

47
Q

What is the purpose of Confiscation orders?

A

To recover from a defendant a sum of money not exceeding value of his proceeds in crime

48
Q

What is mandatory in the process of making a Confiscation order?

A

A Confiscation hearing

49
Q

What is the purpose of a Confiscation hearing?

A

The purpose is to determine whether the defendant has benefitted from criminal conduct and the value of the benefit

50
Q

If the defendant has a ‘criminal lifestyle’, what will the Court do for the confiscation hearing?

A

apply certain assumptions that property eld or obtained (both currently and historically) should count as benefit from criminal conduct

51
Q

When would the Court NOT apply certain assumptions that property held or obtained (both currently and historically) by defendant with a ‘criminal lifestyle’ should count as benefit from criminal conduct?

A

If it would be unjust to do so

52
Q

What is the Court’s duty in relation to Confiscation orders?

A

If Court finds the defendant has benefitted in a particular sum, there is a duty to make a confiscation order in that sum

53
Q

If Court finds the defendant has benefitted in a particular sum what is the exception to the Court’s duty to make a confiscation order in that sum?

A

If defendant can show that the amount available to him is less than that sum

54
Q

What are the general exceptions to Confiscation orders ?

A
  1. Where civil proceeding is anticipated

2. where the order would be disproportionate

55
Q

Where can an order for Confiscation order be made?

A

In the Crown Court

56
Q

Who can a Confiscation order be made against?

A
  1. anyone convicted of an offence in the Crown Court

2. Anyone committed to crown Court with a view to a confiscation order being considered (if prosecution requests)

57
Q

True or False: Confiscation orders can be made in the Magistrates’ Court?

A

False. Magistrates’ Court have no power to make Confiscation orders

58
Q

True or False: Confiscation orders can be made before sentence?

A

True

59
Q

What is the maximum length the Court can postpone a Confiscation hearing?

A

2 years from date of conviction

60
Q

True or False: Courts can proceed first to sentence before Confiscation hearing?

A

True

61
Q

True or False: Although Courts can proceed first to sentence before Confiscation hearing, they must not impose any financial orders or penalties in that period?

A

True

62
Q

What is the number of hours of unpaid work the court can impose on a defendant as part of an order?

A

must not be less than 40 hours and no more than 300 hours

63
Q

What is the minimum number of hours of unpaid work can the court impose on a defendant as part of an order?

A

40

64
Q

What is the maximum number of hours of unpaid work can the court impose on a defendant as part of an order?

A

300

65
Q

TRUE OR FALSE: If court orders both payment of compensation and a fine, priority will be given to the payment of compensation?

A

TRUE

66
Q

TRUE OR FALSE: The court will determine the level of any fine by reference only to Mike’s income and not by the seriousness of the assault?

A

FALSE

67
Q

Who is responsible for preparing Pre-sentencing reports for adult offenders?

A

Probation officer

68
Q

TRUE OR FALSE: A Pre-sentence report will not generally be disclosed to the prosecution?

A

FALSE. PSR will be disclosed to prosecution unless court considers it inappropriate

69
Q

TRUE OR FALSE: Pre-sentence reports will generally be disclosed to the defence who can then decide whether to disclose it to the court?

A

FLASE. The court obtain a pre-sentence report and then disclose it to the defence

70
Q

What can a discharge not be combined with?

Why?
Exceptions?

A

Custodial sentence
Community order
Fine

Discharge cannot be combined with a punitive measure for the same offence except where permitted by statute

71
Q

TRUE OR FALSE: Absolute discharges are only available in the adult magistrates’ court?

A

False. Absolute discharges are available in all courts

72
Q

TRUE OR FALSE: Court may order an offender aged 25+ to comply with an attendance centre requirement during the court of the community sentence? Why?

A

False. Attendance centre requirement is only available for offenders aged -25 and under

Criminal Litigation (14 decks)

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