Flashcards in Dangerous Offender Provisions and Ancillary Orders Deck (40)
What are the sentences linked with dangerous offender provisions?
Extended sentence (more time on license); discretionary life sentence.
When are extended sentences and discretionary life sentences available?
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'.
Where are the specified offences listed and what do they include?
Listed in a Schedule to CJA 2003. Include violent offences, sexual offences, and terrorism.
When is an offender 'dangerous'?
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.
What does 'serious harm' mean in this context?
Death or serious personal injury, whether physical or psychological.
What is a 'significant' risk?
More than a possibility; note-worthy and of considerable amount or importance.
What material will the court make use of to determine dangerousness?
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.
How should the court consider dangerousness in multi-handed cases?
It should consider the dangerousness of each offender separately.
Are suggestions in reports binding on the sentencer?
No, but if the judge was minded to depart from the conclusion set out in a report then counsel should be warned in advance.
Would there be cross examination in relation to risk?
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.
Which previous offences are relevant?
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.
How should sentencers approach making a finding of dangerousness in relation to young people?
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.
Repetitive violent offending at a relatively low level...
... does not itself give rise to a significant risk of serious harm in the future.
When is risk to 'the public' made out?
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.
Can use be made of past behaviour that has not been proven to the criminal standard?
Incidents (earlier alleged misconduct) not tested in adversarial judicial proceedings can be regarded as ‘hard information’ to be relied upon.
What does the sentencer need to do when conveying their decision?
Sentencer should be careful to give reasons for all conclusions, particularly the finding of whether there is significant risk.
When will the CA interfere?
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).
What must the court take into account when assessing dangerousness?
In assessing dangerousness, court must take into account all available information about the nature and circumstances of the offence.
What may the court take into account when assessing dangerousness?
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.
What is a compensation order?
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.
When must the court consider a compensation order?
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.
How much will the compensation order be for?
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.
Can a compensation order be combined with other orders?
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.
Things to bear in mind when considering combining a compensation order with custody
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.
How do compensation orders interrelate with suspended sentences?
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.
Relationships between fines, compensation, and surcharge
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.
What is a deprivation order?
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.
What is a forfeiture order?
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.
Deprivation order and property rights
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.