Ancillary Orders

Question 1

Are the ancillary orders available in both CC and MC?

Answer 1

Yes
except confiscation orders - CC only

Question 2

What is a Prosecution Costs Order?

Answer 2

An order that D shall pay a ‘just and reasonable amount’ of the prosecution costs.

Question 3

Who decides the amount in the prosecution costs order?

Answer 3

The amount must be
decided by the court and
specified in the order.

Question 4

When can a prosecution costs order be
imposed?

Answer 4

Where a D is convicted (plea/verdict) of any
offence, and also on an unsuccessful appellant or person in breach of a court order, prison licence or post-release supervision. Also applies to proceedings in Crown Court on committals for sentence, just as it applies to trials on indictment.

Question 5

What is the consequence of not paying the prosecution costs order?

Answer 5

1. A period of imprisonment in default;
   AND
2. the sum is still due.

Question 6

Ex p Dove, guidelines on imposing costs through a prosecution costs order

Question 7

Imposing costs through a prosecution costs order. What should the court ensure?

Answer 7

1. The order should never exceed the sum which the offender is able to pay, and which it is ‘reasonable’ to expect him to pay,
   considering his means and any
   other financial order imposed on him.
2. Should never exceed the sum
   which the prosecutor has
   actually and reasonable incurred.
3. The purpose is to compensate the prosecutor, not to punish the offender
4. Should not be grossly disproportioned to any fine imposed. Where the fine & costs together exceed what D could reasonably be ordered to pay, the costs should be reduced rather than the fine (CF compensation order which takes priority over fine)
5. An offender facing a fine/order for costs should disclose to the magistrate the data relevant to his financial position (failure to disclose could lead to court drawing reasonable inferences as to his means).
6. Court should give offender a fair opportunity to adduce any relevant financial info, and make submissions, prior to any financial order.

Question 8

If claiming costs from D and the the party claiming costs is not the CPS, (eg private prosecution/claimants) can the cost be of any value?

Answer 8

sums involved should not differ substantially from those incurred by a public prosecutor

& must justify the amount claimed and its connection to the particular prosecution

Question 9

When seeking an order for costs against D, the prosecution must give notice to D of their intention to apply for such an order - when should this notice be served?

Answer 9

At the earliest time

+

to include full details of its costs

Question 10

Can the D dispute the whole/part of the costs claimed by the prosecution?

Answer 10

• yes
• should give proper notice to the P

Question 11

If D wishes to dispute the whole/part of the costs claimed by the prosecution, what must he do?

Answer 11

he should give proper notice to the prosecution of the objections which it was proposed to make and should at least make it clear to the court what the objections were

THIS MAY NEED A HEARING IN EXCEPTIONAL CIRCS

Question 12

Surcharge

Answer 12

When imposing sentence on an offender, a magistrates’ court or the Crown Court is normally required also to impose a surcharge.

Question 13

What is a Compensation Order?

Answer 13

An order that D pay a personal financial compensation

Question 14

When can the court consider a Compensation Order?

Answer 14

• Where a D is convicted of any offence.
• Can be imposed in addition to OR instead of any sentence
• Where imposed with a fine, compensation should take preference

Question 15

What determines the sum of a compensation order should take preference?

Answer 15

• considering the victim’s loss
• if no damage, no compensation order can be made
• D’s means

Question 16

What can a Compensation Order be for?

Answer 16

• pay compensation of any personal injury, loss or damage resulting from that offence
• funeral experiences/ bereavement in respect of death resulting from any offence

Question 17

What happens if D refuses to pay a Compensation Order?

Answer 17

can be sentenced to a period of imprisonment in default.

The court must have tried other means of obtaining the money first

Question 18

What is a deprivation order?

Answer 18

Orders that allow the forfeiture and destruction of property linked to the offence.

Question 19

What is a forfeiture order?

Answer 19

deprive D of the property, which will then be held by the police subject to any application made under the Police (Property) Act 1897 from the purported owner.

Question 20

What is a forfeiture order?

Answer 20

the effect of changing the ownership of the property rather than simply depriving D of it

Question 21

When making a forfeiture/deprivation order, does it affect the rights of any other person who owns the property?

Answer 21

NO!

Question 22

Can the court make a forfeiture/deprivation order where the property is subject to joint ownership?

Answer 22

NO!

Question 23

When can the court make a a forfeiture/deprivation order?

Answer 23

Where a person is convicted of an offence,
and any property seized from him or that was
in his possession/control at the time when he was apprehended/a summons was issued,
which was used for the purposes of
committing or facilitating the commission of any offence, or was intended to be used for
that purpose

• OR when convicted of an offence which
  consists of unlawful possession of such
  property.
• [facilitating the commission of an
  offence includes steps taken after it is committed to dispose of any related property to avoid apprehension]

Question 24

can you make a forfeiture/deprivation order on the offenders’ home?

Answer 24

NO!

Question 25

can a forfeiture/deprivation order include deprivation of D’s car?

Answer 25

YES!

in certain road traffic offences punishable
with imprisonment and offences of
manslaughter, where the person commits an
offence by:

• driving/attempting to drive/being in charge of a vehicle; or by failing re duty to stop & give inform

or report accident;

or by failing to provide specimen for test in the course of an investigation.

Question 26

when making a forfeiture/deprivation order, what should the court consider?

Answer 26

(a) The value of the property; and

(b) The likely financial and other effects on
the offender

Question 27

Under s27 Misuse of Drugs Act 1971,

Where person convicted of an offence under this Act, or other specified drug trafficking
offences:

Answer 27

• court may order anything related to the
  offence to be forfeited and either destroyed or dealt with in such manner as court may order.

If there is another person claiming to be the owner of the property, the court must given them an opportunity to be heard by the court

Question 28

There are many other statutes contain forfeiture provisions relating to offences committed under those statutes, like Under s27 Misuse of Drugs Act 1971,

Question 29

What is the purpose of confiscation order?

Answer 29

An order that requires an offender to pay a sum of money to the court that represents his benefit from criminal conduct.

Question 30

Which court can make a confiscation order?

Answer 30

CROWN COURT ONLY

Question 31

when can a confiscation order be made?

Answer 31

possible both before and after sentence

Question 32

What are the determinations the court needs to make when making a confiscation order?

Answer 32

• Where the prosecutor asks the court to proceed (and does not withdraw the application), a confiscation hearing is mandatory.
• At the confiscation hearing the court will determine whether D has benefited from criminal conduct and, if so, the value of that benefit

Question 33

What must a MC do when faced with a confiscation order/request for confiscation?

Answer 33

Magistrates must commit a convicted defendant to the Crown Court ‘with a view to a confiscation order being considered’ if the prosecution so requests