25: Concillary orders and costs on conviction

Question 1

When may the Court order a convicted D to pay costs?

Where he breaches:

Answer 1

• court order,
• prison licence or
• post-release supervision

Court may order D pay pros’ costs

Question 2

Costs on conviction

TEST:

Answer 2

“just and reasonable”.

Question 3

Costs on conviction

cAN THE JUSTICES’ CLERK DETERMINE WHAT D is to pay?

Answer 3

Court CANNOT delegate to justices’ clerk the duty of determining what D is to pay. Pros + Claimants may have to justify amount claimed.

Question 4

COSTS ON CONVICTION

Are the courts limited by rates published by CPS?

Answer 4

no

Question 5

Guideline on imposition of costs on conviction:

Answer 5

1. Order to pay costs should NOT exceed sum D can pay+ reasonability or more than what pros has incurred.
2. Purpose of order = compensate pros, NOT punish D
3. Costs ordered should NOT be grossly disproportionate to find imposed. Where fine + costs imposed = not reasonable, costs should be reduced, rather than fine.
4. D facing fine or costs order should disclose financial position. Failure = court draws reasonable inferences
5. Court should give D opp to adduce financial info and make submissions.

Question 6

COMPENSATION ORDERS – A court may require D to:

Answer 6

1. Pay comp for PI, loss or damage resulting from offence; or
2. Make payments for funeral expenses or bereavement if death resulted from offence, other than death in moto vehicle on road.

Question 7

What MUST the court do if it doesn’t make a compensation order?

Answer 7

Court MUST give reasons if does not make comp order. Comp must be “appropriate”, having regard to evidence + reps made.

Question 8

Can a compensation order be imposed instead of or in addition to sentence?

Answer 8

Comp orders MAY be imposed instead of or in addition to other sentence, e.g. CO combine with discharge.

Question 9

It is encouraged to order

Answer 9

CO and SS, but regard should be had to fact if D breaches SS, its activation may bring an end to payment of comp.

Question 10

Where fine + CO, but D has insufficient means, court MUST

Answer 10

give preference to compensation, though it may impose fine also = fine should be reduced or dispensed with.

Question 11

FOREITURE + DEPRIVATION ORDERS

Court can order forfeit of property…

Answer 11

connected with offence

Question 12

Who can order forefiture?

Answer 12

Both CC and Mags can do this.

Question 13

FOREITURE + DEPRIVATION ORDERS

TEST

Answer 13

where D convicted and court satisfied lawfully seized/ had in possession had:

1. Been used for purpose of committing, facilitating the commission of offence; or
2. Intended by him to be used so

Question 14

FOREITURE + DEPRIVATION ORDERS

The court MUST have regard to:

Answer 14

• value of property, and
• other likely financial effects on D.

This includes RTA punishable with imprisonment.

Question 15

Order of forfeiture deprives D of

Answer 15

rights in property, but doesn’t affect rights of other person who may apply for recovery in property.

Question 16

What does the forfeiture power NOT do?

Answer 16

Power DOESN’T extent to offender’s home, or where property in joint ownership.

Question 17

MISUSE OF DRUGS ACT – MAY have forfeiture of property related to drugs, but MUST be shown

Answer 17

to be related to the offence D was convicted; property is then destroyed or dealt in a manner prescribed by court.

Question 18

Who can order a CONFISCATION ORDER?

Answer 18

ONLY the CC

Question 19

Who may apply for a confiscation order?

Answer 19

court may (on own motion, or pros’s request),

Question 20

TEST

for confiscation order:

Answer 20

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”.

Question 21

Confiscation order =

Answer 21

recover from D a sum of money not exceeding value of his proceeds of crime.

Question 22

Must there be a confiscation hearing?

Answer 22

Confiscation hearing is mandatory if pros apply for determination.

Question 23

What may be required at a confiscation hearing?

Answer 23

Parties may be required to exchange pleadings

Question 24

Purpose of confiscation hearing =

Answer 24

determine if D has benefited from crim conduct + if so, its value.

Question 25

At a confiscation hearing, the court MUST see if:

Answer 25

D has a “criminal lifestyle”, and apply assumptions that property held or obtained should count as benefit from criminal conduct, unless _unjust_.

Question 26

If D has benefited from a criminal lifestyle, court MUST

Answer 26

make confiscation order, unless D shows amount available is less.

Question 27

Where the D has a criminal lifestyle, a confiscation order should not be made where

Answer 27

disproportionate

Question 28

Confiscation order may be made in CC against anyone:

Answer 28

1. Convicted of offence in CC
2. Committed to CC for sentence; or
3. Committed to CC for specific consideration of confiscation order

Question 29

CONFISCATION ORDER

when must the mags commit convicted D to CC?

Answer 29

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.

Question 30

When may a confiscation order be made?

Answer 30

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.