Ancillary orders and costs on conviction

Question 1

What type (5) of ancillary orders can the court make?

Answer 1

(1) Costs on conviction
(2) Surcharge
(3) Compensation
(4) Forfeiture & deprivation orders
(5) Confiscation under the Proceeds of Crime Act 2002

Question 2

Costs on conviction - What is it?

Answer 2

CC can order D to pay P costs

Question 3

Who can be ordered to pay costs on conviction?

Answer 3

(1) Convicted D
(2) Unsuccessful appellant
(3) Person in breach of court order, prison license or post-release supervision

NB: applies to proceedings in CC on committals for sentence just as it applies to trials on indictment

• Incl. breach of suspended sentence, probation order & conditional discharge

Question 4

The amount of costs on costs on conviction ancillary orders must be (3)?

Answer 4

(1) must be just & reasonable:
(a) should never exceed what D is able to pay + reasonable to expect him to pay, taking into account his means & any other financial order imposed

• (b) should not exceed sum P has actually & reasonably incurred

-(c) purpose = compensate P & not to punish D

• (d) must not be grossly disproportionate to any fine imposed
• Where costs + fine exceed amount reasonable to order D to pay = costs should be reduced rather than fine
• (e) D should disclose data on his financial position so court can assess (a) above (else, court may draw reasonable inferences as to D’s means)
• (f) court should give D fair opportunity to adduce any relevant financial info & make submissions before order determined

(2) must be specified in order (court may not delegate task to justices’ clerk / CC officer; though may seek assistance from LAA)

(3) CPS publish average costs for proceedings brought by them — but other Ps/Cs must justify amount claimed & cannot rely on a general agreement w/ the court

Question 5

What’s a Surcharge order?

Answer 5

If a defendant can afford to make payment in addition to one or more of those orders, the court must impose a surcharge, rather than another financial order such as costs.

When imposing sentence on D, court normally also required to impose a surcharge

• Does not include where D ‘dealt with’ by means of:
  (1) absolute discharge
  (2) hospital / supervision order

Where D = U18 when convicted, D’s parent/guardian is liable to pay the surcharge & their means are relevant for purposes of below qualification

Question 6

Court must reduce surcharge amount accordingly if (2)?

Answer 6

(1) appropriate in D’s case to impose one/more of:
(a) compensation order
(b) unlawful profit order
(c) slavery & trafficking reparation order,

and

(2) D has insufficient means to pay both the surcharge & that amount
- But court is not to take any confiscation order into account

Question 7

What a compensation order?

Answer 7

May require a convicted A to:
(1) pay compensation for any PI, loss or damage resulting from offence (or any other offence court takes into account in determining sentence)

(2) make payments for funeral expenses or bereavements in respect of a death resulting from any such offence (except death due to motor accident)

Question 8

When can the court make a compensation order?

Answer 8

• Court must consider making compensation order in any case where empowered
• Must give reasons if it doesn’t make one on passing sentence
• Can be made instead of / in addition to dealing w/ D in any other way –>Unless mandatory or minimum sentence

Question 9

What is the maximum amount that can be awarded in a compensation order?

Answer 9

No max/min

• Such amount as court considers appropriate, having regard to:

(1) any evidence, and
(2) any representations made by D & P

• Court must also, in deciding whether to make an award + amount, have regard to D’s means (so far as known/appear)

Question 10

A compensation order can be combined with 5 other others. What are they?

Answer 10

(1) Discharge

(2) Sentence of immediate custody
- Where D clearly able to pay / good prospects of employment on release (e.g. the sentence is short & D’s job will still be open upon release)

(3) Suspended sentence
- But regard should be had to fact that if D is in breach of SS = activation may bring end to prospect of payment of compensation

• Contrary to principle to suspend merely b/c of D’s ability to pay comp

(4) Fine
- Where court considers that both fine & compensation order are appropriate, but that D cannot afford both = must give preference to compensation (i.e. fine accordingly reduced/dispensed w/ altogether)
- Compensation order may thus stand alone on sentence

(5) Surcharge
- Should also be reduced as necessary to prioritise compensation order

Question 11

What is a Deprivation order ?

Answer 11

Order the deprivation of property connected w/ commission of offence from convicted D

NB: 3Ps (owners) can then apply to recover the property

Question 12

A deprivation order can be made for Property lawfully seized from D / which was in D’s possession/control when apprehended for offence or when summons issued in re: of it, if?

Answer 12

(1)(a) the property was used in committing/facilitating offence,

or
- Where offence in Q = RTA offence punishable w/ imprisonment, manslaughter, or wanton + furious driving, & offence is committed by driving / attempting to drive / being in charge of a vehicle, or failing to provide specimen, or failing to report accident = vehicle was ‘used in committing the offence’’;

‘Facilitation’ includes steps taken to dispose of property to which offence relates / avoiding apprehension/detection

(1)(b) was intended to be used for that purpose

(2) The offence (or any others which court considers in determining sentence) consisted of unlawful possession of the property

Question 13

A vehicle was used in committing an RTA offence. Can this vehicle be part of a deprivation order?

Answer 13

Yes, where the offence if an RTA offence punishable with:

Imprisonment
manslaughter
wanton + furious driving,

AND

Offence is committed by driving / attempting to drive / being in charge of a vehicle, or failing to provide specimen, or failing to report accident

Facilitation includes steps to:

• Dispose of property to which offence relates
• Avoiding apprehension/detection

Question 14

When a deprivation order is considered, a full & proper investigation should be made in regards to?

Answer 14

e.g. does anyone else have rights in the property?

(1) the value of the property, and

(2) likely financial & other effects on D of making the order (taken w/ any other order made against D)

Question 15

Property to which a deprivation order does not apply?

Answer 15

(1) Real property, e.g. D’s home

(2) Property subject to joint ownership

(3) Property on hire-purchase

Question 16

What’s a Forfeiture order?

Answer 16

Power under specific statutes to order the forfeiture of property related to offence

• Changes ownership of property rather than simply deprive D of it

Question 17

Court may order anything related to drugs offence to be forfeited & destroyed, or dealt with in such other manner as the court orders. Is this statement true?

Answer 17

Yes

Misuse of Drugs Act 1971

Question 18

Court shall not order forfeiture if a person claiming to be owner applies to be heard by court - unless?

Answer 18

Unless the person has already been given an opportunity to show why forfeiture order should not be made

Question 19

What’s the purpose of ordering a Confiscation under the Proceeds of Crime Act 2002?

Answer 19

To remove value of proceeds of D’s crime

Question 20

Who has the power to make a Confiscation order?

Answer 20

CC → order may be made against anyone:

(1) convicted of offence in the CC
(2) committed to CC for sentence
(3) committed to CC for specific consideration of a confiscation order

Mags → cannot make confiscation orders

• Must commit convicted D to CC ‘with a view to confiscation order being considered’ if P requests

NB: this includes summary offences

Question 21

A confiscation hearing is mandatory where requested by P and accepted by CC. What’s the process?

Answer 21

• Parties may be required to exchange pleadings
• Purpose is to determine whether D has benefited from crime &, if so, value of that benefit

▪ If court finds D has benefited in a given sum = has duty to make a confiscation order in that sum unless D shows amount available to him is less
* Except where:
o Civil proceedings anticipated
o Would be ‘disproportionate’ to make an order

Question 22

Re confiscation orders: Where court determines that D has a ‘criminal lifestyle’ , can P make assumptions?

Answer 22

Yes

• D must apply certain assumptions that property held / obtained (currently & historically)
• should count as D’s benefit from crime (unless unjust for assumption to apply)

Question 23

Re confiscation orders: Where court finds D has benefited in a given sum?

Answer 23

Court has duty to make a confiscation order in that sum unless:
- D shows amount available to him is less

Except where:
1)Civil proceedings anticipated
2) Would be ‘disproportionate’ to make an order

Question 24

Court may postpone confiscation hearing for up x years?

Answer 24

Pp to 2 years from the date of conviction & proceed to sentence D first

• But court must not impose any financial orders / penalties in that period (e.g. compensation, deprivation order / fine)
• In ‘exceptional circumstances’ longer postponements are possible

Question 25

Confiscation order may be made before sentence - is this statement true?

Answer 25

Yes

Question 26

A confiscation order was not drawn up in formal order (in writing). Does this render the order invalid?

Answer 26

No