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Ancillary Orders and Costs on Conviction - Coggle Diagram
Ancillary Orders and Costs on Conviction
ORDER THAT THE ACCUSED PAY PROSECUTION COSTS
It is authorised that orders can be made that a convicted accused or unsuccessful appellant or a 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 third party
This applies to proceedings in the Crown Court on committals for sentence just as it applies to trials on indictment
When the Crown Court deals with the committed offender may order him or her to pay costs
CONFISCATION ORDERS
The purpose of a confiscation order is to recover from the Defendant the sum of money not exceeding the value of the Defendants proceeds of crime
The prosecutor must decide whether to ask the court to proceed to confiscation
Where the prosecutor asks the court to proceed a confiscation hearing is mandatory
If the prosecutor seeks to withdraw the application it is for the court to decide whether the proceedings should continue
The parties may be required to exchange pleadings
At a confiscation hearing the court will determine whether the Defendant has benefitted from the criminal conduct and if so the value of that benefit
In determining these questions the court must if the Defendant has a criminal lifestyle apply certain assumptions that property held or obtained should count as the Defendants benefit from criminal conduct unless it would be unjust to do so
If the court finds that the defendant has benefitted from a particular sum there is a duty to make a confiscation order in that sum unless the Defendant shows that the amount available to them was less than that sum
The duty to make confiscation orders is subject to exceptions including where civil proceedings are anticipated and where to make that order would be disproportionate
An order may be made in the Crown Court against anyone convicted of an offence in the Crown Court committed to the Crown Court for sentence or 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 made if the prosecution so requests
This includes summary offences
The magistrates have no power to make confiscation orders
It is good practice for a confiscation order to be drawn up as a formal order but the fact that an order is not it writing does not 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 it must not impose financial orders or penalties in that period such as a compensation order or a fine
In exceptional circumstances longer postponements are possible
STATUTORY POWERS TO MAKE FORFEITURE ORDERS
Orders for forfeiture are commonplace but must always be made under the correct provision
It is the responsibility of the prosecution and the defence lawyers to ensure that an application of this kind is lawful and properly made
Section 27 The Misuse of Drugs Act 1971
The court 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 where a person claiming to be the owner of or is otherwise interested in it applies to be heard by the court unless an opportunity has been given to them to show cause why the order should not be made
COMBINING COMPENSATION ORDERS WITH THE OTHER SENTENCES OR ORDERS
Compensation orders may be imposed on the offender instead of or in addition to dealing with them in any other way
It is expressly provided that a compensation order may be continued with a discharge
Totality states that a compensation order 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 be undesirable for a compensation order to be hanging over the offenders head after release and the order may be counterproductive and force them back to crime to find the money
The exceptions are where the sentence is short and the offenders job will still be open on release or where it is clear evidence that the offender has sufficient assets to pay the compensation
While it is not wrong to combine a compensation order with a suspended sentence its activation may bring to an end any prospect of payment of the compensation
Where it would be appropriate to both 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
This means the fine should be reduced or if necessary dispensed with altogether to enable the compensation to be paid
If the offender has insufficient means to pay a surcharge imposed as well as a compensation order the surcharge should be reduced if necessary to nil to enable the compensation to be paid
PROPER APPROACH TO ORDERS THAT THE ACCUSED PAY PROSECUTION COSTS
An costs order should be made where the court is satisfied that the offender or appellant has the means and ability to pay
When imposing financial penalties including costs the court must have regard to the means of a convicted person
The decision on costs must be viewed in the light of the overall financial orders made by the court in particular any fines or compensation D is required to pay
The court must have regard to the means of the individual
The fines and compensation may now be fixed at amounts requiring payment by instalments over a two or even a three year period
There is a need to impose periods which are proportionate only
It is recommended that payment periods should be depended on the band in which the fine is fixed
Mortgage debts should be taken into account to
EX PARTE DOVE GUIDELINES ON THE IMPOSITION OF COSTS
1) The order to pay costs should never exceed the sum which D is able to pay and which it is reasonable to expect D to pay having regard to his or her 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 of such an order is to compensate the prosecutor and not to punish the D
4) Any costs ordered should not in the ordinary way be grossly disproportionate to any fine imposed
The costs should be reduced rather than the fine where the fine and the fine exceeded the sum D could reasonably be ordered to pay
5) When facing a fine or an order as to costs the Defendant should disclose to the magistrates the data relevant to their financial position so that they can asses what the Defendant can reasonably afford to pay
Failure to make such disclosure could lead the court to draw reasonable inferences as to the Defendants means
6) The court should give the Defendant a fair opportunity to adduce any relevant financial information and make submissions prior to the determination of any financial order
POWER TO MAKE COMPENSATION ORDERS
Section 133 to 135 of the Sentencing Act 2020
Section 133- Compensation order means an order made in respect on an offender for an offence that requires 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 the sentence for the offence OR
To make payments for funeral expenses or bereavement in respect of the death resulting for the offence
Section 134- A compensation order is available to a court by or before which an offender is convicted of an offence
Where an compensation order is available the court may make an order whether or not it also deals with the offender for the offence in any other way
Section 135- 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 prosecution
The court must have regard to the offenders means so far that they appear or are known to the court
A compensation order could be made in respect of a victim of theft who had died before the sentence was imposed
There is no limit to the amount of compensation which the Crown Court or a Magistrates court may order except that a compensation order shall not exceed £5000 where a magistrates court imposes such an order on an offender aged 18
Where an offender pleads guilty on the basis of specimen counts the amount of compensation is limited to the losses resulting from the offences charged
AMOUNT OF ORDER AGAINST THE DEFENDANT FOR PROSECUTION COSTS
Where the court makes the order for the payment of prosecution costs it orders the payment of the amount that it considers just and reasonable
The sum must be specified in the order
The court may not delegate the duty of determining what the Defendant should pay although it may seek assistance from the Criminal Cases Unit of the Legal Aid Authority or Registrar of Criminal Appeals
While the CPS publish average costs for proceedings brought by them other prosecutors and claimants must justify the amount claimed and its connection to the particular prosecution they cannot rely on the general agreement with the court
POWERS TO MAKE DEPRIVATION ORDERS UNDER THE SENTENCING ACT SECTION 152 TO 159
It relates to the power of the courts to order the deprivation of property connected with the commission of an offence
The effect of such an order is simply to deprive the Defendant of the property which will then be held in the police subject to any application made 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 the Defendant of it
The deprivation order may be exercised by the Crown Court or a magistrates court irrespective of any offence
It is for the prosecution to prove that the items in respect of which the deprivation order was sought had indeed been used in the offending
The power does not extend to real property such as the offenders home
Nor should an order be made where the property is subject to joint ownership
Deprivation orders should be confined to simple and uncomplicated cases
The courts powers are not limited to order forfeiture of the offenders car
Full and proper investigations should be made when considering a deprivation order
The order must be proportionate
SURCHARGE
When imposing sentence on an offender a magistrates court or the crown court is normally required to impose a surcharge
Section 42 of the Sentencing Act 2020
The court must also order an offender to pay a surcharge
Where a court is dealing with an offender and considers that it would be appropriate to make one or more of a compensated order, an unlawful profit order, and a slavery and trafficking reparation order
But that offender has insufficient means to pay both the surcharge and the appropriate amounts the court must reduce the surcharge accordingly