Ancillary orders - syllabus area 25

Question 1

who shall a convicted accused or unsuccessful appellant or person in breach of various court orders pay costs to?

Answer 1

the prosecutor. or where the appellant is unsuccessful in the court of appeal, to the prosecutor or other named third party - D33.24

Question 2

where a court makes an order for payment of prosecution costs, it orders an amount that it considers what?

Answer 2

just and reasonable - D33.35

The sum must be specified in the order

Question 3

the court may not delegate the duty of determining what D would pay, but may seek assistance from who?

Answer 3

the criminal cases unit of the Legal Aid authority or registration of criminal appeals - D33.25

Question 4

the CPS publish average costs for proceedings brought by them, other prosecutors or claimants must do what?

Answer 4

justify the amount claimed and its connection the the particular prosecution. they cannot rely on a general agreement with the court -D33.25

Question 5

an order should be made under what Act?

Answer 5

the Prosecution of Offences Act 1985, s.18 - D33.27

Question 6

Whenever the court is imposing a financial penalty or making an order for costs, it must have regard to the financial means of the party. True or false?

Answer 6

True - D33.27

the amount of costs ordered should not exceed the sum which the prosecutor has actually and reasonably incurred

Question 7

any costs ordered should not be grossly disproportionate to any fine imposed. what happens when the fine and costs exceed the sum that D could be reasonably expected to pay?

Answer 7

the costs should be reduced rather than the fine - D33.27

Question 8

What should D do when facing a fine or an order as to costs?

Answer 8

D should disclose to the magistrates the data relevant to their financial position. Failure to make the disclosure could lead the court to draw reasonable inferences as to D’s means -D33.27

Question 9

what is the maximum period that a length of payment may be up to?

Answer 9

three years - D33.27

Question 10

When imposing sentence on an offender, what else are the magistrates’ and crown court normally required to impose?

Answer 10

a surcharge - E1.34

Question 11

where the court considers it appropriate to make:
a compensation order
an unlawful profit order
a slavery and trafficking reparation order
but the offender has insufficient means to pay the surcharge and the order, what must the court do?

Answer 11

reduce the surcharge accordingly (if necessary to nil)

Question 12

where an offender is under 18 and is required to pay a surcharge, how do the courts deal with it?

Answer 12

• orders for payment by the parent or guardian applies to the surcharge
• the section should be read as if the reference to the offender’s means were to the means of the offender’s parent or guardian - E1.34

Question 13

When does the court not ‘deal’ with a person?

Answer 13

if it discharges the person absolutely or makes an order under the Mental Health Act 1983 - E1.34

Question 14

What is a compensation order?

Answer 14

An order requiring the offender to pay compensation for any personal injury, loss or damage resulting from the offence or any other offence which is taken into consideration by the court in determining sentence for the offence
OR to make payments for funeral expenses or bereavement in respect of a death resulting from Any such offence - E6.1

Question 15

A compensation order may be imposed on an offender ‘instead of or in addition to dealing with him any other way’. True or false?

Answer 15

True - E6.15

a compensation order may be combined with a discharge

Question 16

can a compensation order be combined with a custodial sentence?

Answer 16

yes, where it appears that the offender is clearly able to pay or has good prospects of employment on release from custody - E6.15

Question 17

Can a custodial sentence be suspended because of the offender’s inability to pay compensation?

Answer 17

no, it cannot be suspended - E6.15

Question 18

where it would be appropriate to impose a fine and to make a compensation order but the offender has insufficient means to pay both, how do the courts deal with it?

Answer 18

the compensation order will be given preference, though the court may impose a fine as well. the fine should be reduced or if necessary dispensed with altogether to enable the compensation to be paid - E6.15

Question 19

If the offender has insufficient means to pay a surcharge imposed, as well as a compensation order, how do the courts deal with this?

Answer 19

the surcharge should be reduced, if necessary to nil, to enable the compensation to be paid - E6.15

Question 20

What is a deprivation order?

Answer 20

an order made in respect of an offender for an offence and deprives the offender of any rights in the property to which it relates - E8.1

Question 21

A deprivation order applies to which court?

Answer 21

the court by or before which an offender is convicted of an offence

Question 22

what type of property does a deprivation order apply?

Answer 22

property lawfully seized from the offender or
was in the offender’s possession or under the offender’s control when-
i) the offender was apprehended for the offence, or
ii) a summons in respect of it was issued - E8.1

Question 23

The court makes a deprivation order when what is satisfied?

Answer 23

when the court is satisfied that the property has been used for the purpose of committing or facilitating the commission of any offence, or
was intended by the offender to be used for that purpose - E8.1

Question 24

What does facilitating the commission of an offence include?

Answer 24

• taking any steps after it has been committed for the purpose of
  disposing any property to which the offence relates
  or avoiding apprehension or detection - E8.1

Question 25

In considering whether to make a deprivation order, what must the court have regards to?

Answer 25

the value of the property
the likely financial and other effects on the offender of making the order(taken together with any other likely order ) - E8.1

Question 26

What is the effect of the deprivation order on the offender and any other person?

Answer 26

it is to deprive the offender of any rights in the property to which it relates, but it does not affect the rights of any other person, who may apply under the Police(Property) Act 1897 for recovery of the property - E8.2

Question 27

Should a deprivation order be made to property subject to joint ownership?

Answer 27

it should not - E8.2

The power for deprivation order does not also extend to real property, such as the offender’s home

Question 28

where the making of a deprivation order is being considered what should be made?

Answer 28

full and proper investigation should be made - E8.2

Question 29

The court by or before which a person is convicted of an offence under the Misuse of Drugs Act 1971, s21, may do what?

Answer 29

order anything shown to the satisfaction of the court to relate to the offence, to be forfeited and either destroyed or dealt with in such other manner as the court may order. - E8.7

Question 30

When shall the court not make an order for forfeiture?

Answer 30

where a person claiming to be the owner of or otherwise interested in the property applies to be heard by the court, unless an opportunity has been given to him to show why the order should not be made - E8.7

Question 31

What is the purpose of a consfication order?

Answer 31

to recover from D a sum of money not exceeding the value of D’s proceeds of crime - E19.1

Question 32

Who must decide whether to ask the court whether to proceed to confiscation?

Answer 32

the prosecutor

Question 33

where the prosecutor asks the court to proceed and doesn’t withdraw the application, what must happen?

Answer 33

a confiscation hearing is mandatory - E19.1

Question 34

What happens at the confiscation hearing?

Answer 34

the court will determine whether D has benefited from criminal conduct, and if so, the the value of the benefit

Question 35

how does the court determine benefit in regards to a confiscation hearing?

Answer 35

the court must, if D has a criminal lifestyle, apply certain assumptions that property held or obtained should count as D’s benefit from criminal conduct (unless it would be unjust for those assumptions to be applied) - E19.1

Question 36

What happens where the court finds that D has benefitted in a particular sum?

Answer 36

there is a duty to make a confiscation order in that sum, unless D ha shown that the amount available to him or her is less than that sum - E19.1

Question 37

an order may be made in the Crown Court against who?

Answer 37

anyone convicted of an offence in the cc
committed to the cc for sentence
committed to the cc for specific consideration of a confiscation order - E19.5

Question 38

Must magistrates commit a convicted defendant to the CC with a view to a confiscation being considered if prosecution requests?

Answer 38

yes - E19.5
it includes summary offences. Magistrates have no power to make confiscation orders (until where the Secretary of State exercises power under the SOCPA 2005, s97 which makes provision for summary confiscation )

Question 39

how should a confiscation order be drawn up?

Answer 39

as a formal order - E19.10

but the fact that it is not in writing does not render it invalid

Question 40

when may a confiscation order be made?

Answer 40

Before sentence. Alternatively, the court may postpone the confiscation hearing for up to two years from the date of conviction and proceed first to sentence the defendant E19.10

The court must not impose any financial orders or penalties (i.e compensation order or a fine) during the period of postponement

Question 41

can a confiscation hearing be postponed longer than two years?

Answer 41

In exceptional circumstances, longer postponements are possible - E19.10