Ancillary orders and costs on conviction.docx

***[Ancillary orders and costs on conviction -- 1 Q]*** ***[Costs -- ]*** 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 br...

***[Ancillary orders and costs on conviction -- 1 Q]*** ***[Costs -- ]*** 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.** **Apply to proceedings in the Crown Court on committals for sentence** (including committals to be dealt with for breach of a suspended sentence, probation order or conditional discharge) just as it applies to trials on indictment. In short, the **Crown Court when dealing with the committed offender may order him or her to pay costs.** The payment of prosecution costs, it orders the payment of **an amount that it considers 'just and reasonable'** The **court may not delegate (e.g., to a justices' clerk or Crown Court officer)** the duty of determining what D should pay. 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 a general agreement with the court.** Court of Appeal confirmed that where **a local authority properly brought proceedings for obtaining services (a tenancy) by deception, it should be paid its reasonable costs, and was not limited to rates published by the CPS.** However, the use of two counsel in this case was not reasonable. Following series of 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 D**, e.g., for exercising the constitutional right to defend him or herself. 4. 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**. 5. 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**. 6. 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**. ***[What is Surcharge? ]*** **When imposing sentence on an offender, a magistrates' court or the Crown Court is normally required also to impose a surcharge.** Sentencing Act 2020, s. 42 A court when dealing with an offender for one or more offences committed **on or after 1 April 2007 must also order the offender to pay a surcharge**. This is **subject to subsections (2) to (4).** \(2) Subsection (1)--- a. does not apply in such **cases as may be prescribed by regulations made by the Secretary of State, and** b. is **subject to section 15 of the Proceeds of Crime Act 2002 (effect on duty in subsection (1) when proceedings on confiscation order are postponed**). Where a **court dealing with an offender considers**--- a. that **it would be appropriate to make one or more of---** i. a **compensation** order, ii. an **unlawful profit order**, and iii. a **slavery and trafficking reparation order**, but b. that the **offender has insufficient means to pay both the surcharge and appropriate amounts under such of those orders as it would be appropriate to make, the court must reduce the surcharge accordingly** **(if necessary to nil).** But see section 13(4) of the Proceeds of Crime Act 2002 (court not to take confiscation order into account.) Where **an offender aged under 18 is convicted of an offence and, but for this subsection, a court would order the offender to pay a surcharge---** a. section 380 **(orders for payment by parent or guardian) applies to the surcharge**, and b. for the purposes of any order under that section in respect of the surcharge, **subsection (3)(b) of this section is to be read as if the reference to the offender's means were to the means of the offender's parent or guardian**. For the purposes of this section a **court does not 'deal with' a person if it**--- a. **discharges the person absolutely**, or b. **makes an order under the Mental Health Act 1983 in respect of the person**. In this section--- 'slavery and trafficking reparation order' means an order under section 8 of the Modern Slavery Act 2015; 'unlawful profit order' means an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013. Regulations under subsection (2) are subject to the negative resolution procedure. ***[What are compensation orders? ]*** In this Code '**compensation order' means an order under this Chapter made in respect** of an offender for an offence that requires the offender--- a. to **pay compensation for any personal injury, loss or damage resulting from**--- i. **the offence, or** ii. **any other offence which is taken into consideration by the court in determining the sentence for the offence, or** b. to **make payments for**--- i. **funeral expenses, or** ii. **bereavement, in respect of a death resulting from any such offence.** A **compensation order is available to a court by or before which an offender is convicted of an offence.** This is subject to section 136 (road accidents). Where a compensation order is available**, the court may make such an order whether or not it also deals with the offender for the offence in any other way.** 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 the prosecution.** But see also sections 136 to 139. \(3) In determining--- a. whether to make a compensation order against an offender, or b. the amount to be paid under such an order, **the court must have regard to the offender's means, so far as they appear or are known to the court.** Where the court considers--- a. that it **would be appropriate both to impose a fine and to make a compensation order, but** b. **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).** For modifications of this section where the court also makes an order under section 380 (**power to order parent or guardian to pay fine, costs, compensation or surcharge**), see section 140. For the effect of proceedings in relation to confiscation orders on the court's powers in relation to compensation orders, see the following provisions of the Proceeds of Crime Act 2002--- \(a) section 13(4) (where confiscation order has been made); \(b) section 15 (where proceedings on a confiscation order have been postponed). ***[How to combine compensation orders with sentences or other orders? ]*** Compensation orders may be imposed on an offender 'instead of or in addition to dealing with him in any other way'. It is expressly provided that a compensation order may be combined with a discharge 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, however, be undesirable for a compensation order to be hanging over the offender's head after release, and the order may be 'counterproductive, and force him back into crime to find the money'. - there are exceptions, such as where the sentence is a short one and the offender's job will still be open upon release, or where there 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, regard should be had to the fact that if the offender is in breach of the suspended sentence, its activation may bring to an end any prospect of the payment of compensation**. It is contrary to principle to suspend a custodial sentence merely because of the offender's ability to pay compensation. The fine should be reduced or, if necessary, dispensed with altogether, to enable the compensation to be paid. A compensation order may, thus, stand alone on sentence. If the offender has insufficient means to pay a surcharge imposed under s. 42, as well as a compensation order, the surcharge should be reduced, if necessary to nil, to enable the compensation to be paid. ***[What are deprivation orders? ]*** 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. The deprivation power under s. 152 may be exercised by the Crown Court or a magistrates' court, in respect of any offence. In this Code 'deprivation order' means an order under this Chapter which--- a. is made in respect of an offender for an offence, and b. deprives the offender of any rights in the property to which it relates. A **deprivation order relating to any property to which subsection (2) applies is available to the court by or before which an offender is convicted of an offence**. This subsection **applies to property which**--- a. **has been lawfully seized from the offender**, or b. **was in the offender's possession or under the offender's control when**--- i. the offender was apprehended for the offence, or ii. a summons in respect of it was issued, **if subsection (3) or (5) applies.** This subsection applies **if the court is satisfied that the property---** a. **has been used for the purpose of committing, or facilitating the commission** of, any offence, or b. **was intended by the offender to be used for that purpose**. For the purposes of subsection (3**), facilitating the commission of an offence includes taking any steps after it has been committed for the purpose of**--- a. disposing of any property to which the offence relates, or b. avoiding apprehension or detection. This subsection applies if--- a. the **offence mentioned in subsection (1),** or b. **an offence which is taken into consideration by the court in determining the offender's sentence,** **consists of unlawful possession of the property**. Subsection (1) is subject to--- a. **any restriction on forfeiture in any enactment contained in an Act passed** on or after 29 July 1988, b. section 33C(8) of the Environmental Protection Act 1990 (subsection (1) not to apply where section 33C of that Act provides for forfeiture of vehicles in connection with offence under that section), and c. paragraph 7 of Schedule 5 to the Wireless Telegraphy Act 2006 (subsection (1) not to apply where person convicted of offence under Part 2, 3 or 5 of that Act). 154.--- \(1) This **section applies where a person commits an offence listed in subsection (2) by---** a. driving, attempting to drive, or being in charge of, a vehicle, b. failing to comply with a requirement made under section 7 or 7A of the Road Traffic Act 1988 (failure to provide specimen for analysis or laboratory test or to give permission for such a test) **in the course of an investigation into whether the offender had committed an offence while driving, attempting to drive, or being in charge of, a vehicle, or** c. failing, as the driver of a vehicle, to comply with subsection (2) or (3) of section 170 of the Road Traffic Act 1988 (duty to stop and give information or report accident). Those offences are--- a. an offence under the Road Traffic Act 1988 which is **punishable with imprisonment** b. an **offence of manslaughter** c. an offence under section 35 of the Offences Against the Person Act 1861 (**wanton and furious driving).** The **vehicle is to be regarded for the purposes of section 153** (and section 157(3)(b)) as used for the purpose of committing the offence (**including where it is committed by aiding, abetting, counselling or procuring).** 155.--- 1. In **considering whether to make a deprivation order in respect of any property, a court must have regard to---** a. **the value of the property, and** b. **the likely financial and other effects on the offender of making the order** (taken together with **any other order that the court contemplates making**). 2. Where **a deprivation order is available for an offence, the court may make such an order whether or not it deals with the offender in any other way for the offence.** 3. For the effect of proceedings relating to confiscation orders on the court's powers under this section, see the following provisions of the Proceeds of Crime Act 2002--- c. section 13(2) (where confiscation order is made); d. section 15 (where proceedings in relation to confiscation orders are postponed). 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. Where **D was convicted of dangerous driving, the judge made a deprivation order in respect of the car, saying that it would be sold to help defray prosecution costs**. The order was quashed on appeal when **it was found that the car belonged to D's father, who was in no way complicit in the offence. The power does not extend to real property, such as the offender's home.** Nor should an order be made where the property is subject to joint ownership. Where D had committed six offences of making off without payment by filling his car with fuel and driving away without paying. The judge dealt with the matter by a community order together with an order depriving D of his rights in the vehicle. The deprivation order was quashed on appeal, it now having emerged that the car had been purchased on a hire purchase agreement. 154(3) makes it clear that an **offender's vehicle 'is to be regarded' as having been used for the purpose of any offence specified therein. This** provision, however, in **no way limits the courts' power to order forfeiture of an offender's car in respect of other offences under the general provision in s. 153.** Where the making of a deprivation order is being considered, 'full and proper investigation' should be made -- D admitted possession of crack cocaine with intent to supply. His car had been stopped by the police, who found drugs in the car. A search of D's home revealed drugs paraphernalia and £4,600 in cash. In addition to a custodial sentence the judge made deprivation orders in respect of the car, mobile phones, the drugs paraphernalia and the cash. The Court of Appeal quashed the order in relation to the money. D had put forward an innocent explanation at police interview as to where the money had come from, and said that £400 of it belonged to his girlfriend. It had been open to the judge to find that D's account was untrue, and the money was in fact D's working capital for future drug dealing, but there had been no inquiry into the origins of that money, and so the order had not been made on a proper basis. ***[What are forfeiture orders? ]*** Many statutes cont**ain forfeiture provisions relating to offences committed under those statutes, or to property regulated under those statutes.** Misuse of Drugs Act 1971, s. 27 1. Subject to subsection (2) below, **the court by or before which a person is convicted of an offence under this Act or an offence falling within subsection (3) below... 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.** 2. 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.** ***[What are confiscation orders? ]*** 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**. The prosecutor must decide whether to ask the court to proceed to confiscation. **Where the prosecutor asks the court to proceed (and does not withdraw the application), a confiscation hearing is mandatory.** **The parties may be required to exchange pleadings** (see E19.12). At the confiscation hearing **the court will determine whether D has benefited from criminal conduct and, if so, the value of that benefit** (see E19.46). 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** (unless it would be unjust for those assumptions to be applied. 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'. Under s. 6(2) **an order may be made in the Crown Court against anyone (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** (s. 70). - This includes summary offences **The magistrates themselves have no power to make confiscation orders** (until such time as the Secretary of State may exercise the power under the SOCPA 2005, s. 97, to make provision for summary confiscation). 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 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 must not impose any financial orders or penalties in that period, such as a compensation order or fine** (POCA 2002, s. 15). In '**exceptional circumstances' longer postponements are possible**