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ANCILLARY ORDERS AND COSTS ON CONVICTION NOTES
ANCILLARY ORDERS AND COSTS ON CONVICTION NOTES - BPTC, Criminal Litigation In conjunction with BPP Criminal Litigation Manual and Blackstone's Criminal Practice 2021.
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ANCILLARY ORDERS AND COSTS ON CONVICTION NOTESa. Order that the Accused Pay Prosecution Costs
s.18(1) and (2) Prosecution of Offences Act 1985 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 a court order, prison licence or post-release
supervision shall pay costs to the prosecutor, or where the appellant is unsuccessful in the
COA to the prosecutor or other named third party.
s.18 applies to CC proceedings on committals for sentence (incl. committals for breach of a
SS, probation order or conditional discharge) just as it applies to trials on indictment. SO, CC
when dealing with the committed offender may order to pay costs (reg 14).
It orders the payment of an amount that it considers 'just and reasonable'. That sum must be
specified in the order (s. 18(3)). The court may not delegate (e.g. to a justices' clerk or CC
officer) the duty of determining what A should pay although 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 C’s must justify
the amount and its connection to the particular prosecution; cannot rely on a general
agreement with the court.
Where a LA 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.
Approach to Orders that the Accused Pay Prosecution Costs (ex parte Dove (1999)).
(1) The order to pay costs should never exceed the sum the offender is able to pay, and which
it is reasonable to expect him to pay, having regard to his means and any other financial
order imposed on him nor should it exceed the sum which the prosecutor has actually and
reasonably incurred.
(2) The purpose of such an order is to compensate the prosecutor and not to punish the
offender e.g. for exercising his constitutional right to defend himself.
(3) 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 the offender could
reasonably be ordered to pay, the costs should be reduced, rather than the fine.
(4) An offender facing a fine or an order as to costs should disclose to the mags the data
relevant to his financial position, so that they can assess what he can reasonably afford
to pay. Failure to make such disclosure could lead the court to draw reasonable inferences
as to his means.
(5) The court should give the offender a fair opportunity to adduce any relevant financial
information and make submissions prior to the determination of any financial order.
Consequences of breach→ a period of imprisonment in default and the sum is still due.
b. Compensation (an order that the D pay a person financial compensation)
s.130 Powers of Criminal Courts (Sentencing) Act 2000 - knowledge of words not required.
,A court, instead of or in addition to dealing with him in any other way, may, on application
or otherwise, make an order requiring him to-
(a) Pay compensation for any PI, loss or damage resulting from that offence or any other
offence which is taken into consideration by the court in determining sentence; or
(b) Make payments for funeral expenses or bereavement in respect of a death resulting
from any such offence, other than a death due to an accident arising out of the presence
of a motor vehicle on a road;
but this is subject to the following provisions of this section and to s.131 below.
Where the person is convicted of an offence the sentence for which is fixed by law or falls to
be imposed under s.1(2B) or 1A(5) PCA 1953, s.51A(2) FA 1968,
s.139(6B), 139A(5B) or 139AA(7) CJA 1988, s.110(2) or 111(2) of this Act, s.224A, 225(2) or
226(2) CJA 2004, s.29(4) or (6) VCRA 2006, subsection (1) shall have effect as if the words
'instead of or' were omitted.
A court must consider making a CO in any case where this section empowers it to do so.
A court shall give reasons, on passing sentence, if it does not make a compensation order in
a case where this section empowers it to do so.
Compensation shall be of such amount as the court considers appropriate, having regard to
any evidence and to any representations made by or on behalf of the accused or the
prosecutor.
Combining Compensation Orders with Other Sentences or Orders
• CO may be combined with a discharge (s12(7)).
• CO may be combined with immediate custodial sentence where the offender is clearly
able to pay or has good prospects of employment on release from custody. Especially if
e.g. sentence is a short one and the offender's job will still be open to him upon release,
or where clear evidence the offender has sufficient assets.
• While not wrong to combine CO with a SS, regard should be had to the fact that if the
offender is in breach of the SS, its activation may bring to an end any prospect of the
payment of compensation. NOTE: it is contrary to principle, to suspend a custodial
sentence merely because of the offender's ability to pay compensation.
• Where appropriate both to impose a fine and CO, but the offender has insufficient means
to pay both, the court shall give preference to compensation, though it may impose a
fine as well (s 130(12))- this means the fine should be reduced or dispensed with to enable
the compensation to be paid. A CO may then stand alone on sentence.
• If the offender has insufficient means to pay a surcharge imposed under s.161A CJA, as
well as a CO the surcharge should be reduced, if necessary to nil, to enable the
compensation to be paid (s 161A(3)).
Consequence of breach→ as per fines.
c. Forfeiture and deprivation orders (forfeiture/destruction of property linked to offence)
s.143 PCC(S)A 2000 – knowledge of words of section not required. The power under s143
may be exercised by the CC or a MC, in respect of any offence.
, Where a person is convicted of an offence and the court is satisfied that any property which
has been lawfully seized from him, or was in his possession or under his control at the time
when he was apprehended for the offence or when a summons in respect of it was issued—
(a) Has been used for the purpose of committing, or facilitating the commission of, any
offence, or
(b) Was intended by him to be used for that purpose,
the court may (subject to (5)) make an order under this section in respect of that property.
Such order shall operate to deprive the offender of his rights, if any, in the property to which
it relates, and the property shall (if not already in their possession) be taken into the
possession of the police.
Any power conferred on a court by subsection (1) or (2) above may be exercised—
(a) Whether or not the court also deals with the offender in any other way in respect of the
offence of which he has been convicted; and
(b) Without regard to any restrictions on forfeiture in any enactment contained in an Act
passed before 29th July 1988.
(5) In considering whether to make an order in respect of any property, a court shall have
regard—(a) to the value of the property and (b) to the likely financial and other effects on
the offender of the making of the order (taken together with any other order that the court
contemplates making).
Where a person commits an offence to which this subsection applies by—
(a) Driving, attempting to drive, or being in charge of a vehicle, or
(b) Failing to provide specimen for analysis or laboratory test or to give permission for such
a test (s.7 or 7A RTA 1988) 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 the duty to stop and give information
or report accident (s.170(2) or (3) RTA 1988).
the vehicle shall be regarded as used for the purpose of committing the offence (and aiding,
abetting, counselling or procuring the commission of the offence).
(6) applies to—an offence under the RTA 1988 punishable with imprisonment, an offence of
manslaughter, and an offence under s.35 OATPA 1861 (wanton and furious driving).
Facilitating the commission of an offence shall be taken to include the taking of any steps
after it has been committed for the purpose of disposing of any property to which it relates
or of avoiding apprehension or detection.
The order not affect the rights of any other person, who may apply for recovery of the
property. E.g. case where car convicted for DD, sold to pay prosecution costs but quashed
when found out belonged to offender’s father, not complicit in offence. Deprivation orders
should be confined to simple cases. The power does not extend to real property e.g. the
offender's home or property associated with an offence committed by some person other
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