Dangerous Offender Provisions and Ancillary Orders

Question 1

What are the sentences linked with dangerous offender provisions?

Answer 1

Extended sentence (more time on license); discretionary life sentence.

Question 2

When are extended sentences and discretionary life sentences available?

Answer 2

Where the offender is convicted of a specified offence, a custodial term of at least 4y is appropriate, and the court decides that D is ‘dangerous’.

Question 3

Where are the specified offences listed and what do they include?

Answer 3

Listed in a Schedule to CJA 2003. Include violent offences, sexual offences, and terrorism.

Question 4

When is an offender ‘dangerous’?

Answer 4

An offender is ‘dangerous’ if there is a significant risk to members of the public occasioned by the commission of the offender of further specified offences.

Question 5

What does ‘serious harm’ mean in this context?

Answer 5

Death or serious personal injury, whether physical or psychological.

Question 6

What is a ‘significant’ risk?

Answer 6

More than a possibility; note-worthy and of considerable amount or importance.

Question 7

What material will the court make use of to determine dangerousness?

Answer 7

Usually a pre-sentence report, previous convictions, etc. A psychiatric report is appropriate in some cases but should clearly be directed towards the issue of dangerousness.

Question 8

How should the court consider dangerousness in multi-handed cases?

Answer 8

It should consider the dangerousness of each offender separately.

Question 9

Are suggestions in reports binding on the sentencer?

Answer 9

No, but if the judge was minded to depart from the conclusion set out in a report then counsel should be warned in advance.

Question 10

Would there be cross examination in relation to risk?

Answer 10

It would only rarely be appropriate for a judge to permit cross-examination of the author of a pre-sentence report on the assessment of risk.

Question 11

Which previous offences are relevant?

Answer 11

It is not just previous specified offences that are relevant; court may have regard to other previous offences, especially where they indicate an escalating pattern of seriousness. It is not a prerequisite to a finding of dangerous that an offender has previous convictions; a first offender might qualify.

Question 12

How should sentencers approach making a finding of dangerousness in relation to young people?

Answer 12

Sentencers should be careful when reaching a finding of dangerousness in the case of young people, especially when there is no pattern of offending. Young people are more likely to act impulsively, more likely to be responsive to any sentence imposed, and more likely to change.

Question 13

Repetitive violent offending at a relatively low level…

Answer 13

… does not itself give rise to a significant risk of serious harm in the future.

Question 14

When is risk to ‘the public’ made out?

Answer 14

Risk ’to public’ can properly be made out where the risk is specific to a small group of individuals, or perhaps to just one potential victim.

Question 15

Can use be made of past behaviour that has not been proven to the criminal standard?

Answer 15

Incidents (earlier alleged misconduct) not tested in adversarial judicial proceedings can be regarded as ‘hard information’ to be relied upon.

Question 16

What does the sentencer need to do when conveying their decision?

Answer 16

Sentencer should be careful to give reasons for all conclusions, particularly the finding of whether there is significant risk.

Question 17

When will the CA interfere?

Answer 17

CA will not normally interfere with a finding of dangerousness unless the sentencer has not applied the correct principles or has reached a conclusion to which he was not entitled come on the evidence (although there have been some cases that are exceptions).

Question 18

What must the court take into account when assessing dangerousness?

Answer 18

In assessing dangerousness, court must take into account all available information about the nature and circumstances of the offence.

Question 19

What may the court take into account when assessing dangerousness?

Answer 19

The court may take into account all available information about the nature and circumstances of any other offences of which the offender has been convicted, any available information about any pattern of behaviour of which any of these offences forms part, and may take into account any available info about D.

Question 20

What is a compensation order?

Answer 20

Requires offender to pay compensation for any personal injury, loss, or damage resulting from an offence of which they have been convicted or which has been taken into consideration.

Question 21

When must the court consider a compensation order?

Answer 21

Court must consider making a compensation order in any case where it is empowered to do so, and must give reasons if it decides not to make a compensation order.

Question 22

How much will the compensation order be for?

Answer 22

The compensation order will be for such an amount as the court considers appropriate having regard to any evidence and representations by the offender or prosecutor. In the case of adult offenders, the amount of the order has no statutory limit. The offender’s means have to be taken into account.

Question 23

Can a compensation order be combined with other orders?

Answer 23

Compensation orders may be imposed on an offender instead of or in addition to dealing with him in any other way. Expressly provided that a compensation order may be combined with a discharge.

Question 24

Things to bear in mind when considering combining a compensation order with custody

Answer 24

May be combined with a sentence of immediate custody where offender is clearly able to pay or has good prospects of employment on release. However, may be undesirable for a compensation order to be hanging over an offender’s head after release, and may be counterproductive and force him back into crime for money. There are exceptions, such as when the sentence is short and it is clear the offender’s job will still be open to him on release, or where there is clear evidence he has sufficient assets to pay compensation.

Question 25

How do compensation orders interrelate with suspended sentences?

Answer 25

Not wrong to combine with a suspended sentence (positively encouraged), but regard should be had to the fact that, if offender breaches suspended sentence, its activation may bring to an end any prospect of payment of compensation. It is contrary to principle to suspend a custodial sentence merely because of the ability to pay compensation.

Question 26

Relationships between fines, compensation, and surcharge

Answer 26

Where both a fine and a compensation order would be appropriate but the offender has insufficient means to pay both, the court shall give preference to compensation (and so reduce any fine, possibly to 0). Surcharges should also be reduced to allow for compensation to be paid.

Question 27

What is a deprivation order?

Answer 27

Forfeiture of property used for the purpose of committing or facilitating the commission of any offence. ‘Full and proper investigation’ should be carried out (e.g. proper inquiries into the origin of money). NB. Deprivation order can be for cash. This tends to be used rather than embarking on compensation proceedings.

Question 28

What is a forfeiture order?

Answer 28

Specific power in drugs cases to order forfeiture of anything related to the offence. The court can destroy the property or deal with it however appropriate. If someone turns up and says they own it, the court must give them an opportunity to be heard.

Question 29

Deprivation order and property rights

Answer 29

Does not affect the property rights of anyone other than the offender (e.g. scenario where car belonged to father). Does not extend to real property, such as the offender’s home. An order should not be made where the property is subject to joint ownership (e.g. hire purchase agreement). Does not extend to property associated with an offence committed to someone other than the offender.

Question 30

What does ‘facilitating the commission of an offence’ mean in the context of a deprivation order?

Answer 30

Taking steps after it has been committed for purpose of disposing of property of avoiding apprehension or detection.

Question 31

Confiscation order

Answer 31

Court determines whether the offender has benefitted from their criminal conduct and if so, by how much. A confiscation order is made for the amount of that benefit or the value of D’s assets (if less).

Question 32

A confiscation order is mandatory…

Answer 32

…in all cases where the prosecution apply for determination (and do not withdraw their application).

Question 33

Confiscation order and ‘criminal lifestyle’

Answer 33

If D has ‘criminal lifestyle’, unless unjust court should make certain assumptions that property held or obtain now and in the past counts as ‘benefit’

Question 34

Exception to confiscation order

Answer 34

Exceptions include whether civil proceedings are anticipated or it would be disproportionate

Question 35

Mags cannot…

Answer 35

Make confiscation orders. CC can make one against someone committed for sentence including someone committed especially for this purpose (this includes summary offences). Mags must commit for sentence for this purpose if the prosecution so request.

Question 36

When may confiscation order be made?

Answer 36

Confiscation order may be made before sentence, or court may postpone confiscation hearing for up to 2 years from date of conviction and proceed first to sentence, but must not impose any financial orders or penalties (such as compensation order or fine) in that period. In exceptional circumstances longer postponements are possible.

Question 37

Costs on conviction

Answer 37

There may be an order that the accused pay prosecution costs (this also applies to committals). The amount is that which the court considers ‘just and reasonable’. The court may not delegate the determination of the amount (e.g. to court officer) but may seek assistance from Legal Aid Authority. Must justify in relation to particular prosecution; can’t rely on general agreement with the court.

Question 38

Where fine + costs exceeds sum which offender could be reasonably ordered to pay

Answer 38

Costs should be reduced rather than fine

Question 39

Disclosure of data relevant to financial position

Answer 39

Should disclose data relevant to financial position. If fails to do so, court may draw reasonable inferences as to means. Court should give offender a fair opportunity to adduce any relevant financial information and make submissions.

Question 40

Surcharge

Answer 40

When imposing sentence, Mags or CC normally required also to impose a surcharge.