25: Concillary orders and costs on conviction Flashcards
When may the Court order a convicted D to pay costs?
Where he breaches:
- court order,
- prison licence or
- post-release supervision
Court may order D pay pros’ costs
Costs on conviction
TEST:
“just and reasonable”.
Costs on conviction
cAN THE JUSTICES’ CLERK DETERMINE WHAT D is to pay?
Court CANNOT delegate to justices’ clerk the duty of determining what D is to pay. Pros + Claimants may have to justify amount claimed.
COSTS ON CONVICTION
Are the courts limited by rates published by CPS?
no
Guideline on imposition of costs on conviction:
- Order to pay costs should NOT exceed sum D can pay+ reasonability or more than what pros has incurred.
- Purpose of order = compensate pros, NOT punish D
- Costs ordered should NOT be grossly disproportionate to find imposed. Where fine + costs imposed = not reasonable, costs should be reduced, rather than fine.
- D facing fine or costs order should disclose financial position. Failure = court draws reasonable inferences
- Court should give D opp to adduce financial info and make submissions.
COMPENSATION ORDERS – A court may require D to:
- Pay comp for PI, loss or damage resulting from offence; or
- Make payments for funeral expenses or bereavement if death resulted from offence, other than death in moto vehicle on road.
What MUST the court do if it doesn’t make a compensation order?
Court MUST give reasons if does not make comp order. Comp must be “appropriate”, having regard to evidence + reps made.
Can a compensation order be imposed instead of or in addition to sentence?
Comp orders MAY be imposed instead of or in addition to other sentence, e.g. CO combine with discharge.
It is encouraged to order
CO and SS, but regard should be had to fact if D breaches SS, its activation may bring an end to payment of comp.
Where fine + CO, but D has insufficient means, court MUST
give preference to compensation, though it may impose fine also = fine should be reduced or dispensed with.
FOREITURE + DEPRIVATION ORDERS
Court can order forfeit of property…
connected with offence
Who can order forefiture?
Both CC and Mags can do this.
FOREITURE + DEPRIVATION ORDERS
TEST
where D convicted and court satisfied lawfully seized/ had in possession had:
- Been used for purpose of committing, facilitating the commission of offence; or
- Intended by him to be used so
FOREITURE + DEPRIVATION ORDERS
The court MUST have regard to:
- value of property, and
- other likely financial effects on D.
This includes RTA punishable with imprisonment.
Order of forfeiture deprives D of
rights in property, but doesn’t affect rights of other person who may apply for recovery in property.
What does the forfeiture power NOT do?
Power DOESN’T extent to offender’s home, or where property in joint ownership.
MISUSE OF DRUGS ACT – MAY have forfeiture of property related to drugs, but MUST be shown
to be related to the offence D was convicted; property is then destroyed or dealt in a manner prescribed by court.
Who can order a CONFISCATION ORDER?
ONLY the CC
Who may apply for a confiscation order?
court may (on own motion, or pros’s request),
TEST
for confiscation order:
Where D sentenced in CC, court may (on own motion, or pros’s request), decide if D has criminal lifestyle and if so if D benefited from “general criminal conduct”.
Confiscation order =
recover from D a sum of money not exceeding value of his proceeds of crime.
Must there be a confiscation hearing?
Confiscation hearing is mandatory if pros apply for determination.
What may be required at a confiscation hearing?
Parties may be required to exchange pleadings
Purpose of confiscation hearing =
determine if D has benefited from crim conduct + if so, its value.
At a confiscation hearing, the court MUST see if:
D has a “criminal lifestyle”, and apply assumptions that property held or obtained should count as benefit from criminal conduct, unless _unjust_.
If D has benefited from a criminal lifestyle, court MUST
make confiscation order, unless D shows amount available is less.
Where the D has a criminal lifestyle, a confiscation order should not be made where
disproportionate
Confiscation order may be made in CC against anyone:
- Convicted of offence in CC
- Committed to CC for sentence; or
- Committed to CC for specific consideration of confiscation order
CONFISCATION ORDER
when must the mags commit convicted D to CC?
Mags MUST commit convicted D to CC “with view to confiscation order being considered” if pros requests, including summary offences. Mags have NO POWER to make confiscation orders.
When may a confiscation order be made?
Confiscation order may be made before sentence, or court may postpone confiscation hearing up to 2 years from date of conviction + sentence D, but must NOT impose financial order/penalties in that period.
In exceptional circumstances, longer postponements are possible.
