Unit 25 Ancillary Orders and Costs on Conviction Flashcards
What are the 5 ancillary orders that can be made?
(1) Costs on conviction
(2) Surcharge
(3) Compensation
(4) Forfeiture and deprivation orders
(5) Confiscation under the Proceeds of Crime Act 2002
What is a ‘costs on conviction’ order?
O is made to pay P’s costs
Which court can make a ‘costs on conviction’ order?
The CC
Who can be ordered to pay costs on conviction?
(1) Convicted D
(2) Unsuccessful appellant
(3) Person in breach of court order, prison license or post-release supervision
–> Incl. breach of suspended sentence, probation order & conditional discharge
NB: applies to proceedings in CC on committals for sentence just as it applies to trials on indictment
What principles govern the amount that O can be ordered to pay in costs?
(1) must be just and reasonable
- should not exceed what O is able to pay, taking into account his means and any other financial order imposed
- should not exceed sum P has actually + reasonably incurred (purpose = compensate P and not to punish D)
- must not be grossly disproportionate to any fine imposed (if it is, costs should be reduced rather than fine)
- D should disclose data on financial position (or court may draw reasonable inferences)
- court must give D fair opportunity to adduce financial info and make submissions before order given
(2) must be specified in order (court may not delegate, though may seek assistance)
(3) P and Crown must justify amount claimed
What do I need to know about ‘surcharges’?
I think all that I need to know is that the Mags/CC must impose a surcharge when sentencing an offender.
This is payment of a sum of money - the amount is set by various guidelines/rules that I don’t need to know. The purpose of this is to contribute towards a fund that assists victims of crime. The money does not go directly to any particular victim. Instead it goes into a fund from which victims generally benefit.
The surcharge will ‘give way’ to other payments that need to be made (e.g. compensation orders) if O does not have sufficient means to pay both.
O can be ordered to make compensation in respect of…?
(1) pay compensation for any PI, loss or damage resulting from offence
(2) make payments for funeral expenses or bereavements in respect of a death resulting from any such offence (except death due to motor accident)
Are compensation orders at the court’s discretion?
Somewhere in the middle of discretionary and mandatory: court must consider making compensation order in any case where empowered
–> Must give reasons if it doesn’t make one on passing sentence
What is a forfeiture/deprivation order?
Order that O forfeits property connected w/ commission of offence.
What kind of property can O be ordered to forfeit?
Property that has been lawfully seized from him or that was in his possession when he was apprehended for the offence or when the summons was issued.
If the property in question is property that O lawfully possessed (e.g. a car used in an RTA case), then it must be property that was used to commit/facilitate the offence and that O intended to use for that purpose.
What property can O not be ordered to forfeit?
(1) Someone else owns property (e.g. car belongs to father)
(2) Real (i.e. real estate)
(3) Property subject to joint ownership
When making a deprivation/forfeiture order, what must the court consider?
(1) value of the property
(2) likely financial and other effects on D of making the order
What power does the court have in relation to property forfeited under the Misuse of Drugs Act 1971?
(1) Court may order anything related to offence to be forfeited and destroyed or dealt with in such manner as the court orders
(2) Shall not order this if person claiming to be owner applies to be heard by court, unless he has been given this opportunity
What is the purpose of confiscation under the Proceeds of Crime Act 2002
To remove value of the proceeds of crime
If the court finds that D has benefited by an amount as a result of the crime what duty is the court under?
Duty to make a confiscation order in that sum, unless D shows amount available to him is less
Exceptions:
(1) Civil proceedings anticipated
(2) Disproportionate
