Custodial Sentences (W17)

Question 1

E13.1 - Available Custodial Sentences

Answer 1

• ‘custodial sentence’ means—
  (a) a detention and training order,
  (b) a sentence of detention,
  (c) a sentence of detention in a young offender institution,
  (d) a sentence of custody for life, or
  (e) a sentence of imprisonment.
• Offenders aged under 21 at the date of conviction cannot be sentenced to imprisonment.

Question 2

E13.2 - Maximum Custodial Sentences

Answer 2

• Maximum prison terms for indictable offences and offences triable either way are almost always laid down by statutes creating those offences.
• Where a person is convicted on indictment of an offence against any enactment punishable with imprisonment, but the sentence is not limited to a specified term or life by any enactment, the maximum prison sentence available is two years.
• this provision does not apply to common-law offences, for which the penalty which may be imposed by the Crown Court is not subject to any limitation except that it must not be disproportionate to the actual offence committed.

Question 3

E13.3 - Changes to Maximum Sentences

Answer 3

• . Unless there is clear provision to the contrary, where an offender falls to be sentenced for an offence committed before an increase in the relevant maximum sentence, he or she should be sentenced on the basis of the old maximum.
• When the offence is charged as having been committed on a day unknown between specified dates and the maximum sentence was increased between those dates, the lower maximum applies.
• If the maximum penalty is reduced between the time of commission of the offence and the date of conviction then, in the absence of guidance from the relevant provision or commencement order, it seems that the sentencing court should infer the intention of Parliament in a common-sense way.

Question 4

E13.5 - Limits on Imprisonment: Magistrates’ Courts and the Crown Court when Limited to Magistrates’ Courts’ Powers

Answer 4

• General limits on the power of magistrates’ courts to impose imprisonment or detention in a young offender institution: minimum sentence which may be imposed is one of five days and the maximum is six months in respect of any one offence unless a shorter maximum term is provided for a particular offence by statute.
• The maximum aggregate term which magistrates can impose is six months, unless two of the terms are imposed for offences triable either way, in which case the maximum aggregate term is 12 months.
• Care must be taken when sentencing in the Crown Court in the situation where either-way offences have resulted in acquittal or have not been proceeded with, and the defendant falls to be sentenced only for one or more summary offences (such as common assault or an offence of criminal damage below the £5,000 threshold). The Crown Court is limited to a maximum of six months’ imprisonment for common assault and to three months’ imprisonment for the criminal damage and, by the MCA 1980, s. 133, to a maximum aggregate custodial sentence of six months, less any appropriate reduction for a guilty plea.
• A magistrates’ court having power to imprison a person may instead order detention within the precincts of the court-house or at any police station until such hour, not later than 8 p.m. on the day on which the order is made, as the court directs. Such order shall not operate to deprive the person of a reasonable opportunity of returning home on the same day.

Question 5

E13.7 - General Restrictions on custodial sentence

Answer 5

• The court must not pass a custodial sentence unless it is of the opinion that (a) the offence, or
  (b) the combination of the offence and one or more offences associated with it,
  was so serious that neither a fine alone nor a community sentence can be justified for the offence.
• the clear intention of this ‘threshold test’ is to reserve custodial sentences as a punishment for the most serious offences, but that there is no general definition of where the custody threshold lies.
• The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified.
• ‘Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable’.
• exceptional situation where a court may pass a custodial sentence on an offender who has failed to express willingness to comply with a requirement which the court proposes to include in a community order and where the requirement requires an expression of such willingness. Requirements which require the offender’s expression of willingness to comply are a mental health treatment requirement, a drug rehabilitation requirement and an alcohol treatment requirement.
• the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors and the pre-sentence report requirements apply to the court in relation to forming that opinion.

Question 6

E13.8 - Two or More Offences

Answer 6

• Where the offender stands convicted of two or more offences the court, in deciding whether custody is justified, must consider the seriousness of the sum of the offences, provided that these are ‘associated’ with one another.
• For the purposes of this Code, an offence is associated with another if—
  (a) the offender—
  (i) is convicted of it in the proceedings in which the offender is convicted of the other offence, or
  (ii) (although convicted of it in earlier proceedings) is sentenced for it at the same time as being sentenced for that offence, or
  (b) in the proceedings in which the offender is sentenced for the other offence, the offender—
  (i) admits having committed it, and
  (ii) asks the court to take it into consideration in sentencing for that other offence.
• where a sentencer is sentencing for a new offence and at the same time revokes a community sentence which had earlier been passed on D and re-sentences for that offence, or where the sentencer passes a sentence for an offence in respect of which a conditional discharge had earlier been granted, the new offence and the earlier offence are associated offences.
• where D had been committed to the Crown Court in respect of an offence of theft which placed him in breach of a suspended sentence imposed for an earlier offence of theft, the two offences were not associated offences.
• Where D has been convicted in respect of a number of ‘sample counts’, any offences not included in the indictment, nor taken into consideration, are not ‘associated offences’.

Question 7

E13.9 - Length of Sentence

Answer 7

• The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of—
  (a) the offence, or
  (b) the combination of the offence and one or more offences associated with it.
• when it is necessary to impose a custodial sentence, that sentence should be as short as possible to achieve the goals of that sentence.
• The overarching guideline, Imposition of Community and Custodial Sentences says that when assessing what is the shortest term commensurate with the seriousness of the offence, the court should not take into account any licence or post-sentence supervision requirements which may be imposed upon the offender’s release.
• the court may have regard to ‘the combination of the offence and one or more offences associated with it’ when determining the length of a custodial sentence.
• the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors and the pre-sentence report requirements.

Question 8

E13.10 - Dealing with Several Offences

Answer 8

• Where the offender is being sentenced for several offences, this approach could lead to a total sentence which is disproportionate to the overall seriousness of the offending behaviour.
• nothing shall prevent a court ‘in a case of an offender who is convicted of one or more other offences, from mitigating the offender’s sentence by applying any rule of law as to the totality of sentences’.
• Where a court is dealing with an offender for several offences, one (or more) of which is (or are) so serious that only custody can be justified but the remainder of which are not so serious, the court is not precluded from passing custodial sentences for the lesser offences. However, those sentences should normally be ordered to run concurrently with the sentences for the more serious offences and should not increase the length of the overall term.

Question 9

E13.11 - Relevance of Prison Conditions

Answer 9

• overcrowding of the prison system is a matter of grave concern and that all courts should heed the message ‘imprisonment only when necessary and for no longer than necessary’.

Question 10

E13.12 - Time Remanded in Custody to Count as Time Served

Answer 10

• applies where—
  (a) an offender is serving a term of imprisonment in respect of an offence, and
  (b) the offender has been remanded in custody in connection with the offence or a related offence.
• It is immaterial for that purpose whether, for all or part of the period during which the offender was remanded in custody, the offender was also remanded in custody in connection with other offences.
• The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence.
• If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served.
• A day counts as time served—
  (a) in relation to only one sentence, and
  (b) only once in relation to that sentence.
• For the purposes of this section a suspended sentence—
  (a) is to be treated as a sentence of imprisonment when it takes effect under paragraph 13(1)(a) or (b) of Schedule 16 to the Sentencing Code, and
  (b) is to be treated as being imposed by the order under which it takes effect.

Question 11

E13.13 - Time remanded in custody further requirements

Answer 11

• Periods of remand in custody are counted automatically so that it is not necessary for sentencers to give any direction that time served on remand in custody should count towards sentence.
• The judge has no discretion on the matter.
• This does not apply to a detention and training order, so it remains necessary when imposing a detention and training order to take into account any period spent in custody on remand.
• However, in cases where the offender has spent a substantial period in custody on remand, that issue may still be relevant to the court when deciding whether further punishment is justified or whether, in effect, D has already served the sentence in custody on remand.
• If the appropriate sentence is one of six months’ imprisonment and D has spent three months on remand, the sentence of six months should be imposed but no further punishment (whether by way of immediate custody or a suspended sentence) is necessary.
• where a custodial sentence of more than one day but less than two years is imposed, D will be subject to supervision and licence requirements.
• where a court imposes an immediate custodial sentence and disqualifies D from driving for the same offence, the court is required to add an extension period to the discretionary period of disqualification.
• if D had spent a significant period on remand it was open to the court to avoid injustice by reducing the discretionary period accordingly, although a precise arithmetical calculation was not required. Care should be taken not thereby to infringe any applicable minimum period of disqualification.

Question 12

E13.16 - Crediting Periods of Bail Spent Subject to a Qualifying Curfew

Answer 12

• where an offender has been remanded on bail and that bail was subject both to a ‘qualifying curfew condition’ (requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day) and an ‘electronic monitoring condition’ , the court must normally direct that the ‘credit period’ is to count as time served by the offender as part of the sentence.
• It is the responsibility of the court to make this direction, unlike the adjustment for time spent on remand in custody.
• The credit period is calculated by taking the following five steps:
  (1) add (a) the day on which the offender’s bail was first subject to the relevant conditions and (b) the number of other days on which the offender’s bail was subject to these conditions (but exclude the last of those days if the offender spends the last part of it in custody).
  (2) deduct the number of days on which the offender, whilst on bail subject to the relevant conditions, was also (a) subject to any requirement of securing the electronic monitoring of the offender’s compliance with a curfew requirement, or (b) on temporary release under rules.
• (3) deduct from the remainder the number of days during that remainder on which the offender has broken either or both of the conditions.
• (4) divide the result by two
• (5) round up to the nearest whole number.
• The sentencer should state in open court the number of days on which the offender was subject to the conditions and the number of days which the court deducted under each of Steps 2 and 3.

Question 13

E13.19 - Concurrent and Consecutive Determinate Custodial Sentences

Answer 13

• Where an offender is to be sentenced for more than one offence, the court should impose separate sentences for each offence, unless one of the offences is to be marked with ‘no separate penalty’.
• Sentences of imprisonment or detention in a young offender institution may run concurrently or consecutively.
• The court should make it clear which sentence relates to which count and whether the sentences are concurrent or consecutive. If it fails to do so, it is presumed that the sentences are concurrent.
• Where a court passes a determinate custodial sentence on a person who is already serving one or more such sentences, it must make clear whether the fresh sentence is to be served concurrently with or consecutively to the existing sentence or sentences. It is unlawful to pass a sentence partly concurrent with and partly consecutive to another sentence.
• A sentence imposed by a court normally takes effect from the beginning of the day on which it is imposed, unless the court otherwise directs.
• There is no power to antedate the commencement of a sentence.
• It is important to note that a court imposing a determinate custodial sentence must not direct that the new sentence shall commence on the expiration of any other custodial sentence from which an offender has been released on licence, whether or not that offender has been recalled from that licence.

Question 14

E13.20 - Guidance on Use of Concurrent Sentences

Answer 14

• concurrent sentences will ordinarily be concurrent where:
  (a) offences arise out of the same incident or facts, or
  (b) there is a series of offences of the same or similar kind, especially when committed against the same person.
• Where concurrent sentences are to be passed the sentence should reflect the overall criminality involved. The sentence should be increased to reflect the presence of the associated offences.

Question 15

E13.21 - Guidance on Use of Consecutive Sentences

Answer 15

consecutive sentences will ordinarily be appropriate where:

(a) offences arise out of unrelated facts or incidents.
(b) offences are of the same or similar kind but the overall criminality will not sufficiently be reflected by concurrent sentences;
(c) one or more offence(s) qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum.
- it is not permissible to impose consecutive sentences for offences committed at the same time in order to evade the statutory maximum penalty.
- Where consecutive sentences are to be passed, the judge should add up the sentences for each offence and consider if the aggregate length is just and appropriate.

Question 16

E13.26 - Automatic Release at the Half-Way Point of the Sentence

Answer 16

• Normally, in the case of determinate sentences of imprisonment, detention in a young offender institution, or detention under the SA 2020, s. 250, there is a duty on the Secretary of State to release the offender on licence once the offender has served one-half of the sentence.
• The licence remains in force until the expiry of the sentence.
• An offender who has been released on licence may have the licence revoked and be required to return to custody to continue serving the sentence.
• Different early release provisions apply in relation to sentences of imprisonment or detention in a young offender institution required to be imposed under the SA 2020, s. 265 or 278, upon certain ‘offenders of particular concern’.
• Different early release provisions apply in relation to extended sentences.
• A different regime applies to the detention and training order.

Question 17

E17.1 - Mandatory life sentences

Answer 17

• An offender aged 21 and over who is convicted of murder (but not related offences such as attempted murder or conspiracy to murder) must be sentenced to imprisonment for life.
• For an offender aged under 21 on the date of conviction, the equivalent sentence is custody for life.
• If, however, the offender who is convicted of murder was aged under 18 when the offence was committed, irrespective of age on the date of conviction, the sentence is one of detention at Her Majesty’s pleasure.

Question 18

E17.2 - Setting of min terms in murder cases

Answer 18

• the court must normally make an order that the early release provisions of the Crime (Sentences) Act 1997, s. 28(5) to (8), are to apply to the offender as soon as the part of the sentence which is specified in the order has been served.
• that part is to be such as the court considers appropriate, taking into account (a) the seriousness of the offence, or the combination of the offence and any one or more offences associated with it, and (b) the effect that the following provisions would have if the court had sentenced the offender to a term of imprisonment: (i) the CJA 2003, s. 240ZA (crediting periods of remand in custody), and (ii) the CJA 2003, s. 240A (crediting periods on bail subject to qualifying curfew).
• If the offender was aged 21 or over when the offence was committed, the court may, however, because of the seriousness of the offence, or the combination of the offence and one or more offences associated with it, order that the early release provisions are not to apply. An order under s. 321(3) has the effect of imposing a ‘whole life’ minimum term.
• A judge fixing the minimum term to be served as part of the mandatory life sentence for murder is concerned with the seriousness of the offence itself, and not the dangerousness of the offender.
• The element of public protection is provided by the indeterminate nature of the life sentence and becomes the responsibility of the Parole Board once the minimum term has been served.
• It is, however, open to a judge to express the view that D should not be released immediately upon expiry of the minimum term, or perhaps that D should not be released at all. The judge may direct that a transcript of those comments be made available to the Parole Board.
• Where the court makes a minimum term order or a whole life order the court, in compliance with the duty under s. 52(2) to state its reasons for deciding on the order made, must state in open court, in ordinary language, its reasons; in particular, which of the starting points in sch. 21 it has chosen and its reasons for doing so and for any departure from that starting point

Question 19

E18.2 - Minimum Custodial Sentence for Third Class A Drug Offence

Answer 19

• This section applies where—
  (a) a person is convicted of a class A drug trafficking offence committed on or after 1 October 1997,
  (b) when the index offence was committed, the offender—
  (i) was aged 18 or over, and
  (ii) had 2 other relevant drug convictions, and
  (c) one of the offences to which those other relevant drug convictions related was committed after the offender had been convicted of the other.
  (2) The court must impose an appropriate custodial sentence for a term of at least 7 years unless the court is of the opinion that there are particular circumstances which—
  (a) relate to any of the offences or to the offender, and
  (b) would make it unjust to do so in all the circumstances.
• ‘relevant drug conviction’ means—
  (a) a conviction in any part of the United Kingdom of a class A drug trafficking offence,
  (c) a conviction of an offence under section 42 of the Armed Forces Act 2006 in respect of which the corresponding offence under the law of England and Wales (within the meaning of that section) is a class A drug trafficking offence, or
  (d) a conviction of an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 in respect of which the corresponding civil offence (within the meaning of the Act in question) is a class A drug trafficking offence.
• (4) Where—
  (a) a person is charged with a class A drug trafficking offence (which, apart from this subsection, would be triable either way), and
  (b) the circumstances are such that, if convicted of the offence, the person could be sentenced for it under subsection (2),
  the offence is to be triable only on indictment.

Question 20

E18.4 - Guilty Plea in the context of third Class A drug trafficking offences

Answer 20

• the court may not impose a sentence which would be less than 80 per cent of the minimum sentence specified.
• Eighty per cent of seven years produces a sentence slightly less than five years and eight months.
• where the sentencing judge is of the opinion that there are particular circumstances which would make it unjust to impose the minimum sentence, the limited reduction permissible for a guilty plea no longer applies and the judge may in an appropriate case reduce sentence to reflect a guilty plea to a sentence which is less than 80 per cent of the minimum sentence specified.

Question 21

E18.5 - Minimum Custodial Sentence for Third Domestic Burglary

Answer 21

• This applies where—
  (a) a person is convicted of a domestic burglary (‘the index offence’) committed on or after 1 December 1999,
  (b) when the index offence was committed—
  (i) the offender was aged 18 or over, and
  (ii) had 2 other relevant domestic burglary convictions, and
  (c) one of the burglaries to which those other relevant domestic burglary convictions relate was committed after the person had been convicted of the other.
  (2) The court must impose an appropriate custodial sentence for a term of at least 3 years except where the court is of the opinion that there are particular circumstances which—
  (a) relate to any of the offences or to the offender, and
  (b) would make it unjust to do so in all the circumstances.
• (4) Where—
  (a) a person is charged with a domestic burglary which, apart from this subsection, would be triable either way, and
  (b) the circumstances are such that, if convicted of the burglary, the person could be sentenced for it under subsection (2),
  the burglary is to be triable only on indictment.
• (5) In this section ‘domestic burglary’ means a burglary committed in respect of a building or part of a building which is a dwelling.

Question 22

E18.9 - Guilty Plea in relation to third domestic burglary

Answer 22

• Where D has pleaded guilty, the sentencing court is required to take into account the stage at which D indicated the intention to plead guilty and the circumstances in which this indication was given.
• the court may not impose a sentence which would be less than 80 per cent of the minimum sentence specified.
• Eighty per cent of three years produces a sentence of just less than two years and five months.

Question 23

E14.1 - Power to Impose Suspended Sentences

Answer 23

• applies to sentences of imprisonment and to sentences of detention in a young offender institution.
• available where a court imposes a determinate custodial sentence of not more than two years.
• Sentences of less than 14 days’ imprisonment cannot be suspended.
• For the sentence of detention in a young offender institution, sentences of less than 21 days cannot be suspended, 21 days being the minimum term available for that sentence.
• DTOs cannot be suspended.

Question 24

E14.3 - When a suspended sentence can be ordered

Answer 24

• A suspended sentence cannot be ordered unless all the statutory provisions as to the imposition of a sentence of immediate imprisonment (or detention in a young offender institution) have been observed.
• The power to impose a suspended sentence in a magistrates’ court is limited in the same way in which magistrates’ powers to impose prison sentences are limited.
• The overarching sentencing guideline, Imposition of Community and Custodial Sentences applies.
• ‘a suspended sentence must not be imposed as a more severe form of community order. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.’
• a custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.
• As far as the operational period is concerned, the guideline says that ‘the time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to six months’.
• The factors indicating that it would not be appropriate to suspend a custodial sentence are:
  ‘offender presents a risk/danger to the public’;
  ‘appropriate punishment can only be achieved by immediate custody’ and
  ‘history of poor compliance with court orders’.
• The factors indicating that it may be appropriate to suspend a custodial sentence are:
  ‘realistic prospect of conviction’;
  ‘strong personal mitigation’ and
  ‘immediate custody will result in significant harmful impact on others’.
• The absence of a plea of guilty is not a good reason for failing to consider whether sentence should be suspended.

Question 25

E14.5 - Consecutive Terms for suspended sentences

Answer 25

Where two or more sentences imposed on the same occasion are to be served consecutively, the power to suspend sentence is not exercisable in relation to any of the sentences unless the aggregate of the terms does not exceed two years.

Question 26

E14.6 - Combining with Other Sentences or Orders

Answer 26

• An immediate prison sentence and a suspended sentence should not be imposed on the same occasion, nor should a suspended sentence be imposed on an offender currently serving a term of imprisonment.
• A court which passes a suspended sentence on an offender must not on the same occasion impose a community order in respect of that offence or any other offence for which the offender is dealt with by the court.
• a suspended sentence cannot be combined with a discharge when sentencing for a single offence but a discharge could be given for one offence when a suspended sentence was passed in respect of another offence sentenced on the same occasion.
• A fine may be combined with a suspended sentence, but it is improper to combine them when a fine standing alone would have been the proper sentence.
• There is no restriction on imposing ancillary provisions such as compensation orders, restitution orders, or deprivation orders, at the same time as a suspended sentence.

Question 27

E14.7 - Requirements for suspended sentence

Answer 27

• While it is usual to include one or more community requirements when imposing a suspended sentence, it is lawful to impose a suspended sentence without including a community requirement.
• Requirements available are the same as those for a community order.

Question 28

E14.8 - Compatibility of requirements on a suspended sentence

Answer 28

• Whenever the court passes a suspended sentence which contains two or more different requirements, it must consider whether, in the circumstances of the case, the requirements are compatible with each other.
• A suspended sentence must specify the local justice area in which the offender will reside.

Question 29

E14.13 - Breach, Commission of Further Offence and Amendment

Answer 29

• if the responsible officer is of the opinion that the offender has without reasonable excuse breached a community requirement of the suspended sentence, the officer must give a warning describing the circumstances of the failure, stating that the failure is unacceptable, and informing the offender that if within the next 12 months any requirement of the order is again breached, the offender will be brought back before the court
• The responsible officer need not give a warning if a previous warning was given within the preceding 12 months or if the matter is referred to an enforcement officer.
• if there has been a warning, and within 12 months there is a further breach, the responsible officer must refer the matter to an enforcement officer. The enforcement officer is then under a duty ‘to consider the case and, where appropriate, cause an information to be laid’ before the appropriate court in respect of the breach.
• the plain purpose of the warning provisions was to provide the probation officer with a discretion which could be exercised just once. If there is a further breach within the 12-month period, the matter must come back before the court.

Question 30

E14.14 - Powers Available to Deal with Breach

Answer 30

(a) the court may order that the suspended sentence is to take effect with its original term unaltered;
(b) the court may order that the suspended sentence is to take effect with the substitution for the original term of a lesser term;
(c) the court may order the offender to pay a fine of an amount not exceeding £2,500;
(d) in the case of a suspended sentence order that imposes one or more community requirements, the court may amend the order by doing any one or more of the following—
(i) imposing more onerous community requirements
(ii) extending the supervision period, or
(iii) extending the operational period;
(e) in the case of a suspended sentence order that does not impose any community requirement, the court may, subject to section 288(2), amend the order by extending the operational period.
- It should be noted that, where the offender is before the court in respect of breach of a suspended sentence order, the court must deal with the offender in one of the ways listed in para. 13; it is not permissible simply to revoke the order, or to revoke it and re-sentence,

Question 31

E14.16 - Suspended sentence breach offences

Answer 31

• The guideline distinguishes between the approach to be taken where breach is in the form of (a) conviction for a further offence committed during the operational period of the suspended sentence and (b) failure to comply with a community requirement during the supervision period.
• In respect of (a) the guideline states that ‘the facts/nature of the new offence is the primary consideration’ and sets out four categories of breach and the approach which may be taken, subject to the question whether activation of the sentence in whole or in part would be unjust in all the circumstances. Relevant factors include any strong personal mitigation, whether there is a realistic prospect of rehabilitation, or whether immediate custody will result in significant impact on others. The guideline states that in considering this question ‘only new and exceptional factors/circumstances not present at the time the suspended sentence order was imposed should be taken into account’. Apart from the most serious cases, the court should apply an appropriate reduction to the activated sentence to reflect unpaid work or curfew requirements completed.
• In respect of (b) the court must take into account ‘the extent to which the offender has complied’ with the suspended sentence order, and sets out three categories of breach and the approach which may be taken, subject to the question whether activation of the sentence in whole or in part would be unjust in all the circumstances. The relevant factors listed above are repeated, as is the need to take into account only ‘new and exceptional’ matters.

Question 32

D33.24 - Order that the Accused Pay Prosecution Costs

Answer 32

• The making of orders that a convicted accused or unsuccessful appellant or person in breach of various court orders shall pay costs to the prosecutor, or where the appellant is unsuccessful in the Court of Appeal to the prosecutor or other named third party.
• This applies on committal for sentence too.
• It may apply where an appeal to the Crown Court from the magistrates has been unsuccessful but this is better for the magistrates to decide.
• Time limit of 28 days for the making of a costs order when confiscation proceedings have been postponed, and this cannot be extended.

Question 33

D33.25 - Amount of order against the defendant for prosecution costs

Answer 33

• The amount must be ‘just and reasonable’ and the sum must be specified in the order.
• The CPS publish average costs for proceedings brought by them, but other prosecutors and claimants must justify the amount claimed and its connection to the particular prosecution.

Question 34

D33.27 - Proper approach to orders that the accused pay prosecution costs: ex parte Dove

Answer 34

(1) The order to pay costs should never exceed the sum which the offender is able to pay, and which it is reasonable to expect the offender to pay, having regard to their means and any other financial order imposed.
(2) Nor should it exceed the sum which the prosecutor has actually and reasonably incurred.
(3) The purpose for the order is to compensate the prosecutor and not to punish the offender.
(4) Any costs ordered should not be grossly disproportionate to any fine imposed. Where the fine and the costs exceed the sum which the offender could reasonably pay, the costs should be reduced, not the fine.
(5) An offending facing a fine or order as to costs should disclose to the magistrates the data relating to their financial position, so that they can assess what the offender can reasonably afford to pay. Failure to make such disclosure could lead the court to draw reasonable inferences.
(6) The court should give the offender a fair opportunity to adduce any relevant financial information and make submissions prior to the determination of any financial order.

Question 35

E1.34 - Surcharge

Answer 35

• When sentencing an offender, a magistrates or Crown Court is normally required to also impose a surcharge.
• Where a court dealing with an offender considers—
  (a) that it would be appropriate to make one or more of—
  (i) a compensation order,
  (ii) an unlawful profit order, and
  (iii) a slavery and trafficking reparation order, but
  (b) that the offender has insufficient means to pay both the surcharge and appropriate amounts under such of those orders as it would be appropriate to make, the court must reduce the surcharge accordingly (if necessary to nil).
• Where an offender aged under 18 is convicted of an offence and, but for this subsection, a court would order the offender to pay a surcharge—
  (a) section 380 (orders for payment by parent or guardian) applies to the surcharge, and
  (b) for the purposes of any order under that section in respect of the surcharge, subsection (3)(b) of this section is to be read as if the reference to the offender’s means were to the means of the offender’s parent or guardian.
• For the purposes of this section a court does not ‘deal with’ a person if it—
  (a) discharges the person absolutely, or
  (b) makes an order under the Mental Health Act 1983 in respect of the person.

Question 36

E6.1 - Compensation order

Answer 36

• ‘compensation order’ means an order under this Chapter made in respect of an offender for an offence that requires the offender—
  (a) to pay compensation for any personal injury, loss or damage resulting from—
  (i) the offence, or
  (ii) any other offence which is taken into consideration by the court in determining the sentence for the offence, or
  (b) to make payments for—
  (i) funeral expenses, or
  (ii) bereavement, in respect of a death resulting from any such offence.
• A compensation order is available to a court by or before which an offender is convicted of an offence.
• A compensation order must specify the amount to be paid under it.
• That amount must be the amount that the court considers appropriate, having regard to any evidence and any representations that are made by or on behalf of the offender or the prosecution.
• In determining—
  (a) whether to make a compensation order against an offender, or
  (b) the amount to be paid under such an order,
  the court must have regard to the offender’s means, so far as they appear or are known to the court.
• Where the court considers—
  (a) that it would be appropriate both to impose a fine and to make a compensation order, but
  (b) that the offender has insufficient means to pay both an appropriate fine and appropriate compensation,
  the court must give preference to compensation (though it may impose a fine as well).

Question 37

E6.15 - Combining compensation orders with other orders or sentences

Answer 37

• May be imposed on an offender instead or in addition to dealing with them in any other way.
• Can be imposed with a discharge.
• May be combined with a sentence of immediate custody where the offender is clearly able to pay or has good prospects of employment on release from custody.
• It may, however, be undesirable for a compensation order to be hanging over the offender’s head after release, and the order may be ‘counterproductive, and force him back into crime to find the money’.
• While it is not wrong to combine a compensation order with a suspended sentence, regard should be had to the fact that if the offender is in breach of the suspended sentence, its activation may bring to an end any prospect of the payment of compensation.
• It is contrary to principle to suspend a custodial sentence merely because of the offender’s ability to pay compensation.
• Where it would be appropriate both to impose a fine and to make a compensation order, but the offender has insufficient means to pay both, the court shall give preference to compensation, though it may impose a fine as well.
• If the offender has insufficient means to pay a surcharge imposed under s. 42, as well as a compensation order, the surcharge should be reduced, if necessary to nil, to enable the compensation to be paid.

Question 38

E8.1 - Nature and effect of deprivation orders

Answer 38

• The effect of such an order is simply to 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.
• The position is different where an order for forfeiture is made, which has the effect of changing the ownership of the property rather than simply depriving D of it.
• The deprivation power under s. 152 may be exercised by the Crown Court or a magistrates’ court, in respect of any offence.
• applies if the court is satisfied that the property—
  (a) has been used for the purpose of committing, or facilitating the commission of, any offence, or
  (b) was intended by the offender to be used for that purpose.
• In considering whether to make a deprivation order in respect of any property, a court must have regard to—
  (a) the value of the property, and
  (b) the likely financial and other effects on the offender of making the order (taken together with any other order that the court contemplates making).
• Where a deprivation order is available for an offence, the court may make such an order whether or not it deals with the offender in any other way for the offence.

Question 39

E8.2 - Effects of deprivation orders

Answer 39

• Deprive the offender of any rights in the property to which the order relates, but does not affect the rights of any other person.
• The power does not extend to real property, e.g. the offender’s home.
• Nor should an order be made where it relates to joint property.

Question 40

E8.7 - Statutory powers to make forfeiture orders

Answer 40

• Many statutes contain forfeiture provisions relating to offences committed under those statutes, or to property regulated under those statutes.
• e.g. Misuse of Drugs Act 1971:
• the court by or before which a person is convicted of an offence under this Act may 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.
• The court shall not order anything to be forfeited under this section, where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made.

Question 41

E19.1 - Confiscation orders

Answer 41

• The purpose of a confiscation order is to recover from D a sum of money not exceeding the value of D’s proceeds of crime.
• The prosecutor must decide whether to ask the court to proceed to confiscation.
• Where the prosecutor asks the court to proceed (and does not withdraw the application), a confiscation hearing is mandatory.
• The parties may be required to exchange pleadings.
• At the confiscation hearing the court will determine whether D has benefited from criminal conduct and, if so, the value of that benefit.
• In determining these questions the court must, if D has a ‘criminal lifestyle’, as defined, apply certain assumptions that property held or obtained (both currently and historically) should count as D’s benefit from criminal conduct (unless it would be unjust for those assumptions to be applied.
• If the court finds that D has benefited in a particular sum, there is a duty to make a confiscation order in that sum, unless D shows that the amount available to him or her is less than that sum.
• The duty to make a confiscation order is subject to exceptions, including where civil proceedings are anticipated and where to make the order would be ‘disproportionate’.

Question 42

E19.5 - Where the court may make a confiscation order

Answer 42

• An order may be made in the Crown Court against anyone (a) convicted of an offence in the Crown Court; (b) committed to the Crown Court for sentence; or (c) committed to the Crown Court for specific consideration of a confiscation order.
• Magistrates must commit a convicted defendant to the Crown Court ‘with a view to a confiscation order being considered’ if the prosecution so requests. This includes summary offences. The magistrates themselves have no power to make confiscation orders.
• confiscation may not be pursued against a deceased defendant
• Stage (1) - whether D has a criminal lifestyle
• Stage (2) - whether D has benefitted from criminal conduct
• Stage (3) - determine the value of D’s proceeds of crime or benefit
• Stage (4) - court must make a confiscation order unless D succeeds in convincing the court that all of his assets amount to less than the confiscation order.

Question 43

E19.10 - How to make a confiscation order

Answer 43

• It is good practice for a confiscation order to be drawn up as a formal order, but the fact that an order is not in writing does render it invalid.
• The confiscation order may be made 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, but must not impose any financial orders or penalties in that period, such as a compensation order or fine.
• In ‘exceptional circumstances’ longer postponements are possible.

Question 44

E16.1 - Dangerous offenders

Answer 44

Required life sentence or extended sentence where an offender is found ‘dangerous’, i.e. the offender poses ‘significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.’

Question 45

E16.3 - Offence classification

Answer 45

• ‘Specified offences’ are those violent, sexual or terrorism offences listed in sch.18. All offences listed in sch.18 carry a maximum penalty of 2 years imprisonment or more.
• A sch.19 offence is an offence which carries a maximum penalty of imprisonment for life.
• Serious harm means death or personal injury, whether physical or psychological.

Question 46

E16.24 - Assessment of dangerousness

Answer 46

In making the assessment the court must take into account:

(a) all the information about the nature and circumstances of the offence
(b) all the information it has about other offences the offender has been convicted with anywhere in the world
(c) any information about the pattern of behaviour of the offender
(d) any other information about the offender that is before it.

Question 47

E16.25 - ‘Significant risk’

Answer 47

• For a risk to be significant it must be more than a possibility – it must be ‘noteworthy, of considerable amount or importance.’
• The court will rely on the facts of the offence, the offender’s previous convictions, and the pre-sentence report.
• A psychiatric report would be appropriate in many circumstances, but must be directed to the issue of dangerousness and not a general assessment.
• Previous offences do not have to be specified ones, particularly if they show signs of escalation of seriousness.
• There is nothing wrong in principle of a finding of dangerousness on the basis of one single incident.
• Sentencers should be careful on a finding of dangerousness in young people. Young people are more likely to act impulsively, be responsive to any sentence given, and are more likely to change.

Question 48

E16.26 - ‘Serious harm’

Answer 48

• ‘serious harm’ is defined as ‘death or serious personal injury, whether physical or psychological.’
• a risk to the public can be made out where there is a risk to a specific group of individuals, or to just one victim.
• The sentencer should give reasons for all conclusions made. Counsel can make representations on the issue.

Question 49

E16.26 - CoA interfering with a finding of dangerousness

Answer 49

• CoA will not normally interfere with a finding of dangerousness unless it can be shown that the sentencer has failed to apply the relevant principles, or come to a conclusion they were not entitled to.
• on an A-G’s application that dangerousness should have been found, it must be shown that the decision could not properly be reached if the sentencer had applied their minds to the principles and facts.