ancillary orders

Costs on Conviction

  • Order to Pay Prosecution Costs
    • The court may order the convicted to pay prosecution costs.
    • Authorised by the Prosecution of Offences Act:
    • Convicted accused or unsuccessful appellant can be ordered to pay costs.
  • Amount of Order
    • Court must consider what is "just and reasonable" when deciding the amount.
    • The specified sum must be included in the order, cannot be delegated.
  • Approach on Costs
    • Costs ordered should not exceed what the defendant can reasonably pay.
    • Costs incurred must be actual; not for punitive measures but for compensation.
    • Costs should not be disproportionate to any fines imposed.
    • If unable to pay both fines and costs, the costs will be reduced but not the fine.
  • Defendant's Financial Disclosure
    • Defendants must disclose financial position to the court; failure allows court to draw inferences against them.
    • Courts are required to give defendants an opportunity to present financial information.

Surcharge

  • Imposition of Surcharge
    • Mandatory when sentencing offenders, usually set centrally, varies with the sentence.
    • Funds typically support victim services; does not apply to absolute discharges.
    • If a compensation order is also present and the offender cannot pay both, the surcharge must be reduced.
  • General Rule
    • Courts must impose a surcharge for offences committed since April 1, 2007.
  • Exceptions and Priorities
    • Confiscation orders may postpone surcharge obligations.
    • If insufficient means, courts can reduce the surcharge to nil if necessary but must not consider confiscation orders in the decision.
    • Parents/guardian can be liable for the surcharge under 18 years of age based on affordability.
    • No surcharge applies for absolute discharges or under specific mental health orders.

Compensation

  • Power to Issue Compensation Orders
    • Requires offenders to pay for personal injury, loss, or damages from the offence or considered offences (TIC).
    • Payment for funeral expenses or bereavement compensation if the offence caused death is included.
  • Criteria for Compensation Orders
    • The court must specify the compensation amount and it should be appropriate based on:
    • Evidence from both parties.
    • Offender's financial means.
  • Prioritization of Payments
    • Compensation takes precedence over fines if the offender cannot pay both.
    • Compensation orders can accompany other sentences, including immediate custody but are complex when potential negative consequences arise.

Forfeiture and Deprivation Orders

  • Deprivation Orders
    • Deprives an offender of property rights related to an offence.
    • Types of property include those seized during arrest, used in committing or facilitating an offence.
  • Court Considerations for Deprivation Orders
    • Must consider the property’s value and financial impact on the offender.
    • Proportionality is essential – real property or jointly owned property exceptions apply.
  • Forfeiture Orders
    • These orders transfer ownership of property related to an offence.
    • Items can be divided, destroyed, or otherwise handled per court orders.
  • Protection of Third-Party Claimants
    • Individuals claiming rights to forfeited property must be given the opportunity to object in court.

Confiscation under the Proceeds of Crime Act 2002 (POCA)

  • Purpose of POCA
    • A confiscation order aims to recover the value of proceeds from crime after conviction.
  • Prosecutor’s Role in Confiscation
    • Prosecutor must indicate if the court should proceed with confiscation; if committed, a hearing is mandatory.
  • Confiscation Hearing
    • Determines whether the defendant benefited from criminal conduct and assesses the value of that benefit.
    • Assumptions apply to defendants with a criminal lifestyle unless proven otherwise.
  • Making a Confiscation Order
    • Must produce a confiscation order unless the defendant proves that their available assets are lower than the assessed benefit.
  • Court Guidelines
    • The Crown Court handles confiscation orders; magistrates’ courts must commit cases to Crown Court when requested.
    • Timing and formalities include the potential to postpone confiscation hearings.
  • Consolidation and Ancillary Orders
    • The defendant should pay prosecution costs for trials and hearings, which must be fair, reasonable, and not exceed their financial means.