Ancilliary Orders + Flashcards
(23 cards)
1
Q
Order that the accused pays prosecution costs
A
- The Prosecution of Offences Act 1985, s. 18(1) and (2), and the Costs in Criminal Cases (General) Regulations 1986, reg. 14, authorise 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
- In addition, the Crown Court when dealing with the committed offender may order him or her to pay costs.
2
Q
Amount of order against D for the prosecutions costs
A
- When a court makes an order under the Prosecution of Offences Act 1985, s. 18, for the payment of prosecution costs, it orders the payment of an amount that it considers ‘just and reasonable’
3
Q
Proper approach to order that the accused pats the prosecution costs
A
- 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.
- Nor should it exceed the sum which the prosecutor has actually and reasonably incurred.
- The purpose of such an order is to compensate the prosecutor and not to punish D
- Any costs ordered should not in the ordinary way be grossly disproportionate to any fine imposed.
- Where the fine and the costs exceeded the sum which D could reasonably be ordered to pay, the costs should be reduced, rather than the fine.
- When facing a fine or an order as to costs, D should disclose to the magistrates the data relevant to his or her financial position, so that they can assess what D can reasonably afford to pay.
- Failure to make such disclosure could lead the court to draw reasonable inferences as to D’s means
- The court should give D a fair opportunity to adduce any relevant financial information and make submissions prior to the determination of any financial order.
4
Q
Surcharge
A
- When imposing a sentence on an offender a MC or the CC is normally required to also impose a surcharge
5
Q
where court wants fine and compensation order
A
- (4) Where the court considers—
- that it would be appropriate both to impose a fine and to make a compensation order, but
- 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).
6
Q
Combining compensation orders with other sentences of orders
A
- Compensation order can be imposed on an offender ‘instead of or in addition to dealing with him in any other way’
7
Q
Effect of a deprivation orders
A
- 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.
8
Q
To which property does a deprivation order apply to
A
- has been lawfully seized from the offender, or
- was in the offender’s possession or under the offender’s control when—
- the offender was apprehended for the offence, or
- a summons in respect of it was issued,
- if subsection (3) or (5) applies.
- (3) This subsection applies if the court is satisfied that the property—
- has been used for the purpose of committing, or facilitating the commission of, any offence, or
- was intended by the offender to be used for that purpose.
- (5) This subsection applies if—
- the offence , or
- an offence which is taken into consideration by the court in determining the offender’s sentence,
- consists of unlawful possession of the property.
- (6) Subsection (1) is subject to—
- any restriction on forfeiture in any enactment contained in an Act passed on or after 29 July 1988,
9
Q
What must court consider when deciding if to make a deprivation order
A
- In considering whether to make a deprivation order in respect of any property, a court must have regard to—
- the value of the property, and
- the likely financial and other effects on the offender of making the order (taken together with any other order that the court contemplates making).
10
Q
Effect of a deprivation order on other parties
A
- The effect of an order under these provisions is to deprive the offender of any rights in the property to which it relates (s. 152), but it does not affect the rights of any other person, who may apply under the Police (Property) Act 1897 for recovery of the property
11
Q
Extent of deprivation order + who proves it
A
- It is for the prosecution to prove that items in respect of which a deprivation order was sought had indeed been used in the offending.
12
Q
Power to make forfeiture orders
A
- the court by or before which a person is convicted of an offence under this Act (drug misuse 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.
13
Q
Purpose of Confiscation order
A
- Purpose of a confiscation order is to recover from D a sum of money not exceeding the value of D’s proceeds of crime
14
Q
Process where prosecutor asks for confiscation order
A
- 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
15
Q
Process ar confiscation hearing
A
- 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
- 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’ (see E19.61).
16
Q
A confiscation order may be made in the Crown Court against anyone
A
- (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
17
Q
Format and timing of confiscation order
A
- 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 .
18
Q
- These sentences require, inter alia, a finding by the court that the offender is ‘dangerous’.
A
- The required life sentence
- the extended sentence, and
- the serious terrorism sentence.
- These sentences require, inter alia, a finding by the court that the offender is ‘dangerous’.
19
Q
Meaning of dangerous offender
A
- offender poses a ‘significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences’
20
Q
What are ‘further specified offences’
A
- ‘Specified offences’ are those violent, sexual, or terrorism offences which are listed in sch. 18.
- All the offences listed in sch. 18 carry a maximum penalty of two years’ imprisonment or more.
- In the Sentencing Code a ‘schedule 19 offence’ means a specified offence listed in that schedule which carries a maximum sentence of imprisonment for life
21
Q
What is serious harm
A
- ‘Serious harm’ means death or serious personal injury, whether physical or psychological
22
Q
Factors for assessment of dangerousness
A
- When making the assessment of whether there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offence
- the court—
- (a) must take into account all the information that is available to it about the nature and circumstances of the offence,
- (b) may take into account all the information that is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,
- (c) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (b) forms part, and
- (d) may take into account any information about the offender which is before it.
- ‘significant ‘ means more than a possibility
23
Q
v
A
