Offences to be taken into Consideration (TICs)
Principle
The practice of taking offences into consideration has no statutory foundation, although it has been recognised in a number of statutory provisions. (Archbold 2007, 5-107 et seq)
Benefits
Benefits include: the court has a fuller and more accurate picture of the offending and is able to give a longer sentence than it would if it were dealing only with the substantive charge; the defendant receives a reduced overall sentence, possibly tailored sentencing and rehabilitative programmes and is able to clear the slate to avoid the risk of subsequent prosecution for those offences; the victim has an opportunity to claim compensation in respect of an offence admitted by the defendant, detected and acknowledged by the criminal justice system; the police gain valuable intelligence, increase clear up rates, record a fuller picture of offending for possible use in future cases or to support applications for CR/ASBOs or other restrictive orders; the prosecution has a fuller and more accurate picture of the offenders criminal history when considering the public interest test, bail decisions, bad character, dangerousness etc; resources are used efficiently; and the publics confidence in the criminal justice system is improved.
Significance
When assessing the significance of offences being taken into consideration, the court is likely to attach weight to the demonstrable fact that the offender has assisted the police (particularly if they are enabled to clear up offences which might not otherwise have been brought to justice), but the way in which the court deals with them should depend on context; in some cases, the offences may add little or nothing to the sentence which the court would otherwise impose, whereas in other cases, they may aggravate the sentence and lead to a substantial increase (eg where they show a pattern of criminal activity involving careful planning or a deliberate rather than casual involvement in crime, where they show an offence or offences committed on bail, or where they show a return to crime immediately after an offender has been before a court and given a chance to redeem himself, which he has immediately rejected). R v Miles [2006] EWCA Crim 256
Code for Crown Prosecutors
The Code for Crown Prosecutors, revised in November 2004, reflects the change in policy with regard to prosecution of denied TICs.
Paragraph 5.10 states A prosecution is less likely to be needed if: b) the defendant has already been made the subject of a sentence and any further conviction would be unlikely to result in the imposition of an additional sentence or order, unless the nature of the particular offence requires a prosecution or the defendant withdraws consent to have an offence taken into consideration during sentencing.
Paragraph 10.4 states where a defendant has previously indicated that he or she will ask the court to take an offence into consideration when sentencing, but then declines to admit that offence in court, Crown Prosecutors will consider whether a prosecution is required for that offence. Crown Prosecutors should explain to the defence advocate and the court that the prosecution of that offence may be subject to further review.
Guidance
Crown Court Cases TICs
A Crown Court judge may take other offences into consideration even though they have already been charged as offences and committed for trial or sent to that or another Crown Court. The judge should enquire whether there is any prosecution objection before doing so.
If the offence is charged in another CPS Area, the lawyer or caseworker should liaise with that Area in order to ascertain whether the offence is suitable to be taken into consideration.
If the other offence is too serious to take into consideration, it may still be appropriate for the proceedings to be transferred so that all are dealt with by one court.
When deciding whether or not it is appropriate for an offence that is charged to be taken into consideration, prosecutors should consider the factors set out below. See below under General.
The Crown Court should not take into consideration an offence which it is not empowered to try eg a summary offence.
Where a defendant has been committed for sentence after asking for offences to be TICd by the magistrates court, the Crown Court must follow the usual procedure and ascertain whether he wishes the offences to be TICd by the Crown Court. He may decide he no longer wishes them to be taken into account. (Archbold 5-109)
Magistrates Courts Cases TICs
A magistrates court may take outstanding offences into consideration. It must not take into consideration a charge which has been committed or sent to the Crown Court. A magistrates' court should obtain the consent of the relevant legal adviser to the Justices before taking into consideration a matter pending as a charge before another magistrates court. As with Crown Court cases, the prosecutor also should liaise with the CPS in the other area to check whether the offence is one that is suitable to be taken into consideration.
Offences TIC'd which were previously charged in another Area
Where TICs are dealt with in another area to that from which the offences originate, it is essential that liaison takes place between police and CPS Areas, not only to ensure that it is appropriate to deal with the matters as TICs, but also to ensure that any necessary follow up action is taken in the originating area. For example, withdrawal of substantive proceedings and outstanding warrants, once taken into consideration elsewhere.
Convictions quashed on appeal
Where on conviction an offence has been taken into consideration, there is no conviction in respect of that offence. If, therefore, on appeal, the conviction for the substantive offence were to be quashed, the defendant could not establish a plea of autrefois convict should he be subsequently prosecuted in respect of the outstanding offence. (Archbold 4-129)
Acquittal
If the defendant is acquitted of the substantive offence and there is a schedule of TICs, the prosecution should still consider whether it is appropriate to charge some or all of the TICs as substantive offences. Where it is thought appropriate to proceed with new charges and where the defendant pleads guilty to those new charges, the court should be informed that the defendant had made early voluntary admissions to those charges.
Prosecuting admitted TICs
Although there is no conviction in respect of offences TICd and a plea of autrefois convict is therefore not available, the practice is not to proceed on an offence previously TICd by the court. If, exceptionally, the practice is not observed, the court should ensure no additional punishment is imposed on account of such offence. A CCP should be consulted before any decision to prosecute is made in these circumstances. An attempt to proceed may be considered to amount to an abuse of process. (Archbold 4-129, 5-108)
General
The defendant must admit the offence and should do so personally rather than through legal representatives. (Archbold 5-109)
When the TICs are put to the defendant, the list need not be read out in full. It is sufficient if the judge confirms with the defendant that he has signed the list, that it contains so many offences, that he agrees he committed those offences and he wishes them to be taken into consideration when sentence is passed for the substantive offence(s).
A defendant should not be invited to have an offence taken into consideration in the following circumstances:-
If the public interest requires that it should be the subject of a separate trial;
If the court has no jurisdiction to deal with the offence;
If the offence attracts mandatory disqualification or endorsement and the offence(s) for which the defendant is to be sentenced do not;
If the offence to be taken into consideration is likely to attract a greater sentence than the offence for which he is to be sentenced;
If the offence to be taken into consideration is not similar to one of the offences for which he is to be sentenced. (Exceptionally a judge may take into consideration dissimilar offences if satisfied that it is in the interest of justice to do so);
If the offence to be taken into consideration might, by virtue of its date, constitute a breach of an earlier sentence giving the court increased powers of sentence (See Archbold 5-108).
For guidance on specimen offences see Drafting the Indictment
Compensation
The court is required pursuant to the Powers of Criminal Courts (Sentencing) Act 2000 section 130(1) to consider the question of compensation in respect of offences being taken into consideration. Evidence to support the extent of the compensation sought must be available in these circumstances and the relevant sections of the MG18 and MG19 completed.
In the magistrates court, the total sum of a compensation order is limited under section 131 of the Act to (currently) £5,000 per offence in respect of which the offender has been formally convicted. Compensation orders in respect of TIC offences cannot therefore exceed those limits. For example, if the defendant is convicted of 1 offence and there are 5 TICs, the total compensation awarded cannot exceed £5,000. If the defendant is convicted of 2 offences and there are 10 TICs, the total compensation awarded cannot exceed £10,000.
There are no such limits in the Crown Court.
If a confiscation order is made against the defendant under the Proceeds of Crime Act 2002, victims can be compensated using money derived from the confiscated sum. If it is clear that there would otherwise be insufficient means to compensate the victim, the court must order the shortfall to be paid from the confiscated sum. Victims of TIC offences are included in these provisions.
Sentence
As the offender is not charged or convicted of the offences taken into consideration, the courts powers of sentence are limited to the maximum for the offences for which he has been convicted. This is not a significant restriction on sentencing options since maximum penalties generally exceed by a considerable margin the penalty that a court is likely to want to impose in any but the most serious of cases.
Dangerousness (Chapter 5 Criminal Justice Act 2003)
Prosecutors should be aware of the potential consequences of the dangerousness provisions where the offence to be TIC'd is a specified offence but none of the offences for which the defendant is to be sentenced is a specified offence. In such cases the defendant would escape the possibility of a public protection sentence being imposed, which would otherwise fall to be considered by the court, had the offence been charged as a substantive offence.
Statutory references
A number of statutory provisions make reference to offences taken into consideration; for example the Powers of Criminal Courts (Sentencing) Act 2000, ss130(1) compensation orders and 148(1) restitution orders and 161(1) (associated offences) (Archbold 5-110)
Where a defendant has been indicted on a small number of charges representing a greater number of offences as sample counts or specimen charges, the offences which are not included in the indictment are not associated offences as section 161(1) limits the expression to offences of which the offender has been convicted, or which he has asked the court to take into consideration. The charges which are represented by the specimen charges cannot be treated as offences taken into consideration unless they are identified and admitted in the usual way. (Archbold 5274)
Conditional cautions
Prosecutors can give a conditional caution to a person aged over 18 (s 22 Criminal Justice Act 2003). This is a form of pre-court diversion. An offender may be Conditionally Cautioned for more than one offence on the same cautioning occasion. Generally, it will be appropriate to offer a single Conditional Caution for the totality of the offending rather than prefer individual Conditional Cautions for each offence.
The more offences committed, the less likely it will be that the case remains suitable for a pre-court disposal, even if, individually, the cases would be suitable for a Conditional Caution. However, where the totality of the offending does not cause the case to become so serious that a prosecution must follow, the offer of a Conditional Caution may still be appropriate.
Since the Conditional Cautioning process does not allow for the preparation of a normal TIC schedule, it is important to ensure that the possibility of including a condition to pay compensation covers all the victims affected by the individuals offending. The extent to which compensation can be included as a reparative condition is always subject to the proportionality principle.
Proceeds of Crime Act 2002
If the offender does not have a criminal lifestyle (as defined in the Act) the court must determine the benefit of his particular criminal conduct. Section 76(3) permits the Crown Court to include TICs when making this determination. If he does have a criminal lifestyle, the court must determine his benefit from his general criminal conduct, which includes TIC's.
Procedure
Accepted TIC's
The police should include five copies of the TIC schedule with the prosecution file.
A copy of the TIC schedule should be included in advance information to the defence or pre-sentence information to the Probation Service
There should be sufficient information in the case papers to enable the prosecution and defendant to decide whether to ask the court to take such offences into consideration and to enable the offence(s) to be properly outlined to the court.
Any interview record should include adequate and sufficient details of any admissions made by a defendant to offences appearing in the TIC schedule.
Two copies of the TIC schedule (MG18) and a Compensation schedule (MG19) should be presented to the Court when the defendant pleads guilty or is convicted so that the defendant can be asked whether s/he wishes the Court to take into consideration all or some of the offences included in the TIC schedule and so that compensation orders can be made where appropriate.
The number of offences which the defendant wishes to be taken into consideration should be endorsed on the file. The original schedule, suitably endorsed, should be retained by the Court and a copy supplied by the court to the police. A copy of the TIC schedule, clearly marked as to which offences were admitted by the defendant, should be retained in the file.
Rejected TICs
Where, in court, a defendant rejects previously admitted TICs, the CPS file should be clearly marked and immediate consideration given to prosecuting the now denied offences.
Earlier in the process (preferably at the charging / review stage), prosecutors should have agreed with the police which TICs were to be proceeded with in the event of the defendants refusal to accept them. That decision would have been based, in the usual way, on the sufficiency of evidence, the public interest test and the guidance provided in the Code for Crown Prosecutors.
Where possible, the prosecutor should immediately inform the court and defendant that the prosecution intends to proceed on the relevant denied offences and, if in the magistrates court, lay information there and then. The police should be notified by CPS that this has happened. If it is not possible to lay the relevant information there and then, for example in a Crown Court case, the police will need to be notified so that they can take the appropriate action.
The defendant can be invited, in court, to give a reason for his denial of the previously admitted offences. Any explanation given should be taken into account by the prosecutor when deciding whether or not to proceed with charges.
Prosecutors should not ask for sentencing on the substantive offences to be delayed to await the outcome on the new offence(s). However, the new file should be fully endorsed to record the context in which the decision to prosecute was made so that, in the event of sentencing on the new offence(s), the court can be properly apprised and can sentence appropriately, reflecting the lack of credit for any guilty plea and the denial in court of a previously admitted TIC.
If a decision is made not to prosecute a denied TIC offence, the police should notify the victim, especially because the court will not be empowered to make a compensation order.
Further Information
Can be found on the Infonet under:
Prosecution Team Guidance