25. Ancillary orders

Question 1

can costs be ordered in criminal cases?

Answer 1

yes.

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.

Question 2

amount of order against the D for prosecution costs is?

Answer 2

payment of an amount that it is just and reasonable

sum must be specified in order.

Question 3

6 Guidelines for imposition of costs in criminal cases?

Answer 3

• never exceed what D can reasonably pay
• never exceed sum which pros actually and reasonably incurred
• purpose to compensate pros
• not be grossly disproportionate to fines imposed - if exceeds what D can pay - costs reduced not fine
• financial position should be disclosed
• D given fair opp to adduce relevant financial info and make submissions

Question 4

when is a surcharge required?

Answer 4

when MC or CC imposes a sentence on an offender.

Question 5

what orders take priority over the surcharge?

Answer 5

Compensation order
Unlawful profit order and
Slavery and trafficking reparation order

surcharge reduced if D cannot pay both.

Question 6

when is surcharge not imposed?

Answer 6

absolute discharge
order under MHA 1983 made

Question 7

what is a compensation order?

Answer 7

Compensation order means an order which requires offender

To pay compensation for personal injury, loss or damage resulting from
* The offence or
* Any other offence taken into consideration when sentencing or

To make payments for
* Funeral expenses or
* Bereavement

Question 8

when is compensation order available?

Answer 8

when offender convicted of offence regardless of how they are dealth with

Question 8

what should be considered when deciding the amount of a compensation order?

Answer 8

appropriate having regard to evidence and reps from parties

and D’s means as far as they appear/are known to court.

Question 9

where offender cannot pay both a fine and compensation order which is given priority?

Answer 9

compensation order

Question 10

what can compensation orders be combined with?

Answer 10

all other sentences inc discharge, immediate custody, suspended sentence

comp order can also be only sentence

Question 11

when D cannot pay both surcharge and compensation order which is prioritised?

Answer 11

compensation order

Question 12

when can compensation order be combined with custody?

Answer 12

where the offender is clearly able to pay or has good prospects of employment on release from custody

Question 13

deprivation order is an order which…

Answer 13

is made in respect of an offence and deprives offender of any rights in the property to which the order relates

Question 14

what property does a deprivation order apply to?

Answer 14

property which:

• has been lawfully seized from offender or
• was in offenders posession/control when offender was apprehended for offence / summons was issued

IF
court is satisfied that property
- has been used for purpose of committing/facilitating offence or
- was intended to be used for that

faciliation includes - any steps after it has been committed for the purpose of
- Disposing of any property to which the offence relates or
- Avoiding apprehension or detection

Question 15

when will a car be subject to deprivation order?

Answer 15

when person commits one of following offences by driving:
* An offence under RTA 1988 punishable by imprisonment
* Offence of manslaughter
* an offence under section 35 of the Offences Against the Person Act 1861 (wanton and furious driving).

Question 16

what will court consider when deciding if to make deprivation order?

Answer 16

value of property and
likely financial effects on offfender

Question 17

deprivation orders and rights of other persons?

Answer 17

it does not affect the rights of any other person

order should not be made where property is joint ownership

Question 18

what property does deprivation order not apply to?

Answer 18

real property e.g. offenders home

Question 19

under misuse of drugs act 1971 what order can court make?

Answer 19

order anything relating to the offence, to be forfeited and either destroyed or dealt with.

UNLESS

person claiming to be owner applies to be heard and htey have been allowed to say why order should not be made.

Question 20

under what act can a confiscation order be made?

Answer 20

Proceeds of Crime Act 2002

Question 21

what is a confiscation order?

Answer 21

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.

Question 22

who can ask for confiscation?

Answer 22

prosecution

Question 23

when pros ask for confiscation court must…

Answer 23

MUST proceed to confiscation hearing unless application is withdrawn

Question 24

what is a forfeiture and deprivation order?

Answer 24

deprivation - deprives offender of any rights in property

forfeiture - additionally changes ownership

Question 25

who can make a deprivation order?

Answer 25

both MC and CC

Question 26

at a confiscation hearing what will court decide?

Answer 26

• whether D has benefited from criminal conduct and
• if so the value of that benefit

Question 27

if D has a criminal lifestyle what must court do?

Answer 27

apply assumptions that property held or obtained by D should count as D’s benefit from criminal conduct unless unjust

Question 28

once court has decided value of benefit - what is duty?

Answer 28

to make confiscation order in that sum unless D shows that they have less than that sum available

Question 29

who holds confiscation hearings?

Answer 29

Crown court only.

Magistrates must commit a convicted defendant to the Crown Court ‘with a view to a confiscation order being considered’ if the prosecution so requests - includes summary offences

Question 30

what is the duty to make a confiscation order subject to?

Answer 30

exceptions (such as civil proceedings) that would make the order disproportionate

Question 31

what form should confiscation order be in ?

Answer 31

formal order - writing

Question 32

when can confiscation hearing be held?

Answer 32

before sentence or
up to 2 years after date of conviction