25. Ancillary Orders and costs on conviction Flashcards
When can costs be ordered in criminal proceedings?
An convict/unsuccessful appellant or person who has breached court orders can be made to pay prosecution costs (or other third parties in appeals).
The crown court when dealing with committed offenders can order costs against them.
The costs should be just and reasonable and specified in the order.
Court may not delegate responsibility for ordering costs to a clerk or crown court officer (though assistance may be provided by the LAA or registrar of criminal appeals).
CPS publish average costs, though other prosecutors and claimants must justify the amount (must be reasonable).
What are the guidelines on ordering costs in criminal proceedings?
In Northallerton Magistrates’ Court, ex parte Dove [2000] 1 Cr App R (S) 136, the Divisional Court gave the following series of guidelines on the imposition of costs.
(1) The order to pay costs should never exceed the sum which D is able to pay, and which it is reasonable to expect D to pay, having regard to his or her means and any other financial order imposed.
(2) Nor should it exceed the sum which the prosecutor has actually and reasonably incurred.
(3) The purpose of such an order is to compensate the prosecutor and not to punish D, e.g., for exercising the constitutional right to defend him or herself.
(4) Any costs ordered should not in the ordinary way be grossly disproportionate to any fine imposed. Where the fine and the costs exceeded the sum which D could reasonably be ordered to pay, the costs should be reduced, rather than the fine.
(5) When facing a fine or an order as to costs, D should disclose to the magistrates the data relevant to his or her financial position, so that they can assess what D can reasonably afford to pay. Failure to make such disclosure could lead the court to draw reasonable inferences as to D’s means.
(6) The court should give D a fair opportunity to adduce any relevant financial information and make submissions prior to the determination of any financial order.
What usually should a court impose in respect of all offenders it sentences?
When sentencing an offender, a court is normally required to impose a surcharge for all offenders who have committed an offence on or after 1st April 2007. Should not be made until confiscation proceedings are postponed.
Where a court dealing with an offender considers—
(a) that it would be appropriate to make one or more of—
(i) a compensation order,
(ii) an unlawful profit order, and
(iii) a slavery and trafficking reparation order, but
(b) that the offender has insufficient means to pay both the surcharge and appropriate amounts under such of those orders as it would be appropriate to make, the court must reduce the surcharge accordingly (if necessary to nil).
For those under 18, a parent or guardian may need to pay.
Does not apply for those discharged absolutely or those to whom an order is made under the Mental Health Act 1983.
When may a court make a compensation order?
A court can make a compensation order for an offender to pay for any personal injury, loss, or damage resulting from their offence or any other taken into consideration or to make payments for funeral expenses/bereavement for a death resulting from the offence.
Available to any to which a person is convicted (subject to road accidents exclusion).
Can make such an order even where dealing with the offender in another way.
Must specify the amount to be paid.
Amount must be appropriate, having regard to representations made by advocates, the offenders means, e.c.t.
Where defendants means only stretches to compensation but not a fine, court must give priority to compensation.
They can be combined with a discharge.
Can be combined with custody where an offender clearly could pay
If combining with a suspended sentence, thought must be had to the fact that a breach would mean they couldn’t pay.
What is a deprivation order?
The court can make a deprivation order for property connected with a commission of the offence.
The effect will be to deprive the person of the property until an application is made by a purported owner.
The position for forfeiture orders is different as forfeiture orders legally change the ownership of the property.
May be exercised by crown or magistrates court.
The effect of the order is to deprive the offender of any rights to the property but not of anyone else.
When can a deprivation order be made?
Only applies to property which has been lawfully seized or was in the offenders control when he was apprehended.
If a summons was issued, property can be ssiezed if the court is satisfied the property has been used for the purpose of committing or facilitating the commission of any offence (including by avoiding apprehension or detection or by disposing of property to which the offence relates) and was intended by the offender to be used for that purpose OR the offence to which he is being sentenced/an offence which is taken into account consist of unlawful possession.
Can deprivation orders be made of vehicles?
Where a person has committed one of the offences below by driving/attempt drive/in charge of a vehicle or failing to provide specimen or failing to stop and report accident –
And the offence is an RTA offence which is punishable with imprisonment
An offence of manslaughter
Or wanton and furious driving
The vehicle is to be regarded as used for the purpose of committing the offence.
What should the court take into account when deciding whether to make a deprivation order?
When considering whether to make a deprivation order a court must have regard to:
The value of the property
The financial/other effect of making the order
When should a deprivation order not be made?
Does not extend to real property like a home.
An order should not be made where the property is subject to joint ownership.
When can deprivation orders be made under the Misuse of Drugs Act s 27?
Under the misuse of drugs act 27(1), an order for deprivation/destruction may be made
(3) for any property related to the offences of drug trafficking or attempting to traffick.
What is a confiscation order?
Part 2 of POCA allows for confiscation orders following criminal conviction.,
The purpose of this is to recover a sum of money not exceeding the value of D’s proceeds of crime.
Prosecutor must decide whether to ask the court to proceed to confiscation.
Where he does so ask, a confiscation hearing is mandatory.
How does a court determine whether to make a confiscation order?
For a confiscation hearing, the parties may be required to exchange pleadings.
The court, at the hearing, will determine whether D has benefitted from criminal conduct and, if so, the value of that benefit.
In so determining, the court may decide D had a criminal lifestyle which, if he does, would mean that certain assumption about property held or obtained apply and should count as the proceeds (unless unjust to do so).
If the court finds that D has benefitted from a particular sum, there is a duty to make a confiscation order in that sum, unless D shows that the amount available to him or her is less than that.
Subject to exceptions, including where civil proceedings are anticipated and where making the order would be disproportionate.
Where may a confiscation order be made?
An order may be made against anyone convicted of an offence in the crown, committed to the crown for sentence or committed to the crown for specific consideration of a confiscation order.
Magistrates must commit a convicted defendant to the crown with a view to a confiscation order being considered if the prosecution so requests (includes summary offences).
Magistrates have no power to make confiscation orders.
May be made before sentence, or can be postponed for up to two years. Must not impose any financial penalties before deciding on confiscation. In exceptional circumstances, longer postponements are available.
Does a confiscation order need to be in writing?
It is good practice for a confiscation order to be drawn up as a formal order, but the fact that an order is not in writing does not render it invalid.
