Sentencing and Ancillary Orders Applications

Updated 23/01/08

Principle
Guidance
Annexes
- Annex A - Attorney Generals Guidelines On The Acceptance Of Pleas And The Prosecutor's Role In The Sentencing Exercise
- Annex B - Addendum to the Attorney General's Guidelines of the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise

Principle

By convention the prosecution adopts a neutral stance at the sentencing stage, not seeking by advocacy to influence the court in favour of a heavy sentence.

The prosecution advocate has a clear duty to assist the court to reach its decision as to the appropriate sentence.

Guidance

The Role of the Prosecutor in Sentencing

In the sentencing process the prosecutor plays a less prominent role than during a contested hearing, but nonetheless has an important responsibility to assist the court to reach its decision as to the appropriate sentence.

This will require the prosecutor to draw the court's attention to any of the following matters:

The defendant's background, present circumstances and previous convictions;
Any aggravating or mitigating factors disclosed by the prosecution case;
Any statutory provisions relevant to the offender and the offences under consideration;
Any relevant sentencing guidelines and guideline cases;
Any appropriate ancillary orders, such as compensation, restitution and forfeiture orders , or ASBO's or restraining orders;
The views of any victim through the Victim Personal Statement (see Sentencing And Ancillary Orders Applications - The Victim Personal Statement)
Where appropriate, the impact of the offending on a community

In light of all these factors, the prosecutor may also offer assistance to the court by making submissions as to the appropriate sentencing range.

The prosecution advocate should also challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory <Derogatory Mitigation> elsewhere in this guidance.

The role and responsibilities of the prosecution advocate in the sentencing process are set out in detail in the following documents:

The Code for Crown Prosecutors
The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutors Role in the Sentencing Exercise [2005] and the Addendum[25/07/2007];
The Code of Conduct for the Bar of England and Wales - www.barcouncil.org.uk

The Court of Appeal has also considered the roles and duties of advocates in the following cases:

Attorney General's Reference No 52 of 2003(R v Webb) [2003] EWCA Crim 3731 articulated the requirement that an advocate should assist the court, if requested, as to any statutory provisions relevant to the offender and the offence and as to any relevant guidelines as to sentence. In delivering the judgement of the court, Lord Woolf LCJ re-emphasised the duty of prosecuting counsel to draw to the judge's attention, before sentence is passed, any relevant guideline cases and he exhorted prosecutors not to be inhibited by any reluctance on the part of the judge to receive such assistance.

R v Pepper and others [2005] EWCA Crim 1181 Rose LJ reminded prosecuting counsel of the duty to be ready to draw to the court's attention the relevant statutory provisions and authorities, and to be alive to the possibility of rectifying errors made by a judge when sentencing, by using the "slip rule" provisions of section 155 Powers of Criminal Courts (Sentencing) Act 2000.

R v Cain and others [2006] EWCA Crim 3233 In this case, Lord Phillips LCJ again emphasised the prosecutor's duty to assist the court by drawing attention to relevant statutory guidelines and sentencing guidelines or guideline decisions of the court. He made the particular point that the prosecutor's duty requires that he ensures that the judge, through inadvertence, does not impose a sentence that is outside his powers. Lord Phillips expressed concern that despite earlier judicial admonition there still appeared to be widespread disregard of the propositions set out in earlier cases regarding advocates' duties to the court when sentencing.

R v Reynolds and others [2007] EWCA Crim 538 In this case, Latham LJ repeated that it was the duty of prosecuting and defence advocates to be fully aware of the impact of statutory provisions and to be prepared to assist the judge in that respect and to be alert to any mistakes that the judge makes in passing sentence, so that any problem can be resolved before it was too late.

Refer also to the following Policy Bulletins:

Policy Bulletin 57/2007

Policy Bulletin 60/2007

<refer to the Code for Crown Prosecutor> elsewhere in this guidance

<refer to Attorney General's Guidelines on the acceptance of pleas and the prosecutors role in the sentencing exercise at Annex A>

<refer to the Addendum to the Attorney General's Guidelines on the acceptance of pleas and the prosecutor's role in the sentencing exercise at Annex B>

<refer also to the Sentencing Guidelines Council> below in this section

<refer also to Compensation Orders> and <Compensation and Confiscation, below in this section>

Previous Convictions

Evidence of Character and Antecedents:

After the summary of facts or conviction, it is the responsibility of the prosecution to adduce evidence about the defendant's antecedents and previous convictions. This is usually done by the submission to the court of copies of antecedents and previous convictions prepared by the police in the prescribed manner.

In R v Egan (Paul) The Times, March 9, 2004 CA, it was said that an offender's antecedent history should include dates of release from prior sentence and sentence expiry dates.

A Practice Direction issued by the Lord Chief Justice prescribes minimum standards for the provision of antecedent information in the Crown Court see Practice Direction (Criminal Proceedings: Consolidation), paragraph III.27 [2002] 1 W.L.R. 2870

If the antecedents are challenged, they must be proved by the strict rules of evidence. This can be done by the production of a certificate or document under sections 73 and 82 Police and criminal Evidence Act 1984 or fingerprints under section 39 Criminal Justice Act 1948. Magistrates' orders can be proved using the court register under Part 6 Criminal Procedure Rules 2005.

It is rare for a full list of previous convictions to be read to the court. It will be appropriate for the court to indicate or for the prosecutor to request an indication of which convictions the court wishes to be cited.

The Rehabilitation of Offenders Act 1974:

Under this Act an offender who is sentenced to a period of thirty months imprisonment or less becomes 'rehabilitated' once a certain period of time specified by the Act has passed. This means that the offender is treated for all purposes in law as though he or she had not committed, or been charged or prosecuted or convicted of the offence.

Practice Direction (Criminal Proceedings: Consolidation ), para I..6 2002 1 W.L.R 2870 (Archbold 2007 13-120 et seq)

Prosecutors should refer to the Act to ascertain whether offences on the record of a defendant come within its provisions.

In fact section 7(2)(a) of the Act excludes criminal proceedings from the protection provided by the Act, however the Practice Direction gives guidance to the effect that:

The court and counsel should avoid mention of a spent conviction wherever it can reasonably be avoided: Practice Direction para 1.6.4;
That any spent convictions shown on a record of previous convictions handed to the court should be marked as such: Practice Direction para 1.6.5; and
No reference should be made to the spent conviction in open court without the authority of the judge, which should not be given unless it would be in the interests of justice to do so: Practice Direction para 1.6.6.

Re-Offending During Periods of Post-Release Licence:

Sections 33-51 of the Criminal Justice Act 1991 and later provisions under schedule 9 of the Crime and Disorder Act 1998 and sections 116 - 117 of Powers of Criminal Courts (Sentencing) Act 2000 deal with the return to custody of released prisoners who commit imprisonable offences during the term of the original sentence, i.e. after release but before the whole period of the sentence has expired.

The trigger date is the date of the new offence, not the date of conviction and this is so even where the date of conviction is beyond the date where he has no further liability to be returned. The order to be returned does not depend on the court passing any other sentence for the latest offence.

In effect, the Act provides that the length of time for which a person can be returned is calculated according to the length of the period between the date on which the new offence was committed and the date on which he would have served his sentence in full had he not been released.

The court will need to be informed about these facts. Currently, the probation service will be able to provide this information in the Magistrates' Court and in the Crown Court the prison service may have additional information to assist.

The power does not apply to offenders who have been released in accordance with s.244 Criminal Justice Act 2003 from sentences of 12 months or more imposed for offences committed on or after 4 April 2005

The power does apply to persons released from sentences of less than 12 months committed on or after 4 April 2005.

'Newton' Hearings

Where there is a dispute as to the factual basis on which sentencing should proceed, the prosecutor should consider whether to call evidence in support of the Crown's case (see R v Newton (1982) 77 CA 13). Such a hearing should only be held if the defence, in mitigation, depart from the facts as opened by the prosecution in a manner which is material to the central issue and which is capable of belief, i.e. it is not so manifestly absurd or implausible that it would be a waste of the court's time to hear evidence: (R v Hawkins (1985) 7 Cr App R (S) 351), and the departure is substantial and if accepted, is likely to affect sentence.

In R v Underwood [2005] 1 Cr.App.R.(S.) 90, Judge LJ provided detailed guidance on how the need for a Newton hearing should be raised, and considered this and other issues. The responsibility for alerting the prosecutor to areas of dispute rests with the defence. The Crown should not be taken by surprise, and if suddenly faced with a proposed basis of plea with important facts disputed, it should if necessary take time for proper reflection and consultation. Whatever view may be formed by the Crown on any proposed basis of plea is conditional on the judge's acceptance of it. If the Crown accepts the defendant's account of the disputed facts, the agreement should be reduced into writing and signed by both advocates and be made available to the judge. Many issues raised by the defence are outside the knowledge of the prosecution when the Crown lacks the evidence positively to dispute such assertions. In such cases, the Crown should not normally agree the defendant's account unless supported by other material. Neither the prosecution nor the judge is bound to agree facts for this reason. After submissions from the advocates the judge should decide how to proceed. Whether or not the basis of plea is agreed, the judge is not bound by any such agreement and is entitled of his own motion that he should assist that any evidence relevant to the facts in dispute should be called.

Case-law has established situations when a court is not obliged to hold a Newton hearing. They are:-

The difference in the two versions of the facts is immaterial to sentence. If the sentencer does not hear evidence, he should proceed on the defendant's version.
The defence version can be described as manifestly false or wholly implausible.
Matters put forward by the defendant do not amount to a contradiction of the prosecution case, but rather to extraneous mitigation explaining background of mitigating circumstances. Such matters are likely to be outside the knowledge of the prosecution. In such circumstances, the defendant may advance mitigation through counsel or by calling evidence. The prosecution is not bound to challenge such assertions, but may do so. The court is not bound to accept the truth of matters advanced, whether or not challenged by the prosecution. The civil burden of proof rests on the defence.

An example combining 2 and 3 above is R v Broderick (1994) 15 Cr.App.R.(S.) 476, involving a cocaine smuggler's claims that she thought that the packages contained cannabis rather than cocaine and that she had been threatened with violence if she did not carry them.

Consideration should also be given as to whether evidence should be called where the defence embark on a process of attacking the character of the victim, witnesses or a third party.

See <Legal Guidance> Derogatory Mitigation>

In deciding whether to call evidence regard should be had to:

any distress which giving evidence in open court might cause;
any distress that might be caused by leaving unchallenged a distorted view that may have been given of a witness or that witness's version of events;
the cost and delay that might result from an adjourned hearing;
whether, in all the circumstances, a delay in the sentencing of the offender is justified.

It should also be borne in mind that the court is bound, so far as it is possible to do so to accept the defendant's version of events in the absence of evidence to challenge it.

For further information concerning the treatment of victims and witnesses see <Care and treatment of victims and witnesses, elsewhere in this guidance>.

The court is entitled to hear argument as to whether leave to call evidence should be granted. Once leave is granted, the hearing follows normal adversarial lines, with both sides able to call such evidence as they wish.

R v Underwood (ante) provides guidance on the procedure that should be followed during the Newton hearing. The advocates should call evidence. If the defendant does not give evidence, subject to any explanation proffered, the judge may draw such inferences he thinks fit from that fact. The judge must direct himself in accordance with ordinary principles, such as the burden and standard of proof. In short, his self-directions should reflect the relevant directions he would give to a jury. The judge must then decide the facts in dispute. He may reject assertions advanced by the defendant or his witnesses even if the Crown does not offer positive contradictory evidence. His conclusions should be explained in a judgement. Limitations on the Newton hearing procedure include any verdict of the jury or pleas to counts accepted by the Crown and approved by the court. From time to time, such as a defendant in a drug case asserting duress short of a defence may give evidence. If there is nothing to support the contention, the judge is entitled to invite the defence advocate to call his client rather than depend on the unsupported assertions of the advocate.

Where a Newton hearing takes place in the Magistrates Court and thereafter a defendant is committed for sentence, unless the defence can point to new evidence between committal and the sentence hearing, the Crown Court are bound by the Magistrates decision on fact. (R -v- Warley Magistrates Court ex. p. DPP 1998 2 CAR 307).

This issue was further considered Gillan v DPP [2007] EWHC 380, in which the Administrative Court held that although a Crown Court does have jurisdiction to hold a further Newton hearing if it is in the interests of fairness and justice to do so, that does not mean that it should do so in any case where it is apparent that the magistrates have already conducted such a hearing and made clear findings of fact as part of their decision-making with regard to committing the defendant to Crown Court for sentence. The court observed that it would not expect the judge in the Crown Court to exercise discretion in favour of allowing a defendant to re-open magistrates' findings of fact unless the defendant was able to point to some significant development or matter, such as (but not confined to) the discovery of important further evidence having occurred since the magistrates reached a conclusion on the facts.

R v Underwood (ante) provides guidance on how discount for a guilty plea is affected by the holding of a Newton Hearing.

If the Newton hearing is resolved wholly in the defendant's favour, credit for pleading guilty should not be reduced. If the defendant is disbelieved, or obliges the prosecution to call the victim who is cross-examined which, because entirely unfounded, causes inappropriate distress, or the defendant conveys to the judge lack of genuine remorse, the judge may reduce the discount for the guilty plea. There may be exceptional cases in which the normal credit for a guilty plea is wholly dissipated by the Newton hearing. In such cases, the judge should explain his reasons.

For detailed information on reduction in sentence for a guilty plea, see Definitive Sentencing Guideline Revised 2007 - Reduction in Sentence for a Guilty Plea (20.07.07) available on the Sentencing Guidelines Council website www.sentencing-guidelines.gov.uk

The Sentencing Guidelines Council

The Sentencing Guidelines Council came into being in April 2004. It produces Guidelines, which all sentencing courts must "have regard to" (section 172 Criminal Justice Act 2003), and with which prosecuting advocates must therefore be familiar.

Guidelines are available from www.sentencing-guidelines.gov.uk

As of 1.8.07 the following Guidelines have been published:

Overarching Principles: Seriousness (16.12.04)

This Guideline describes how a court must start by deciding upon the seriousness of the offence by assessing culpability and harm, taking into account aggravating and mitigating factors, personal mitigation and whether there was a guilty plea. This will enable the court to establish whether the custody or community sentence thresholds have been passed.

New Sentences: Criminal Justice Act 2003 (16.12.04)

This Guideline describes the provisions of the Criminal Justice Act 2003 that are expected to come in on 5^th April 2005, including the new community sentence, the new form of deferred sentence, custodial sentences of more than 12 months, the new suspended sentence and intermittent custody. It is very detailed as to the powers available and also covers the practical aspects and the approach the court should take when imposing any of the new sentences.

Reduction in Sentence for a Guilty Plea (16.12.04 and revised 20.07.07)

This guideline describes a sliding scale of discounts where a plea entered at the first reasonable opportunity will attract the maximum discount of one third, and when entered on the day of trial, the minimum discount of one tenth. Murder cases fall into a special category, and the minimum term will be reduced by between one twentieth and one sixth, but never by more than five years. For the sliding scale to work successfully, it is very important that prosecuting advocates tell the sentencing court at what stage in the proceedings the guilty plea was entered, and this should include whether there was an indication of a willingness to plead guilty before the first court appearance, such as during the police interview.

Manslaughter by Reason of Provocation (28.11.05)

Definitive Sentencing Guideline on Robbery (25.07.06)

Overarching Principles - Domestic Violence (07.12.06)

Breach of a Protective Order (07.12.06)

Definitive Sentencing Guideline - Sexual Offences Act 2003 (30.04.07)

Definitive Sentencing Guideline Revised 2007 - Reduction in Sentence for a Guilty Plea (20.07.07)

Compensation Orders

Compensation orders are governed by sections 130 - 133 Powers of Criminal Courts (Sentencing) Act 2000 (PCC(S)A), while section 40 (1) Magistrates' Courts Act (MCA) lays down the maximum amount a magistrates' court can order, currently £5,000 per charge (see section 133 PCC(S)A for the position on TICs). The Crown Court has unlimited powers, but should have regard to the means of the offender. While the court's powers are very widely drawn, the High Court has stated that compensation orders should only be made in simple straightforward cases.

Compensation and Confiscation:

For guidance relating to confiscation proceedings under Proceeds of Crime Act 2002, prosecutors should refer to the Confiscation and Ancillary Orders, elsewhere in this guidance>.

The Role of the Prosecutor in Compensation Applications:

The prosecutor should be ready to assist the court to reach the appropriate decision as to sentence, which includes drawing the court's attention to its powers to award compensation and inviting them to make such an order where appropriate.

See Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005] - Annex A below.

Victims may have suffered considerable distress, personal injury or financial loss and they are entitled to have these facts and requests for compensation put to the court. Courts attach considerable importance to the making of compensation orders and must give reasons where they do not make an order. Prosecutors should note what compensation was requested, what orders were made and what comments the court may have made in making an award or reducing the amount ordered.

The courts do have some discretion, where information is incomplete to make an assessment of the quantum to be awarded, however if the claim is challenged the court must hear evidence to determine liability see R v Horsham Justices, ex parte Richards [1985] 2 All E R 1114. Where there is a dispute prosecutors should avoid going beyond available information in pressing a victim's case.

It may be appropriate to ask the court to adjourn the proceedings so that evidence can be called in support of a claim.

Compensation - General

Loss, damage or injury has to result from the offence(s) charged, or formally admitted as TICs for a compensation order to be made.

R v Graves (1993) 14 Cr.App.R.(S.) 790

The defendant pleaded guilty to false accounting; he had falsified a document to conceal a loss of £3000. However, it was accepted that he had not benefited from the £3000. Held: the loss of £3000 had not resulted from the offence of false accounting. Accordingly, the compensation order was quashed.

R v Halliwell (1990-91) 12 Cr.App.R.(S.) 692

The defendant pleaded guilty to handling stolen goods. £23,000 of property was stolen. £14,000 of goods was recovered from the defendant, who was ordered to pay £9,000 compensation. Held: the prosecution had to show the loss or damage had occurred as a result of the alleged offence. There was no evidence that the defendant had received more than the £14,000 of goods he had returned.

The amount of compensation ordered is limited to those offences charged in the indictment and / or formally admitted as offences taken into consideration. (See R v Crutchley & Tonks (1994) 15 Cr.App.R. (S.) 627)

R v Hose (1995) 16 Cr.App.R.(S.) 682

The defendant pleaded guilty to 3 specimen counts of theft amounting in total to £426.the defendant admitted stealing £1050, and was ordered to pay compensation of £1050. Held: where an indictment consisted of specimen counts, the amount of the compensation order was limited to the amounts involved in the specimen counts.

It is necessary to have sufficient evidence of causation before a compensation order can be made.

R v Derby (1990-91) 12 Cr.App.R. (S.) 502

The defendant pleaded guilty to affray where he threatened the victim with a knife and another male attacked the victim with a piece of wood causing serious injuries. It was accepted that the defendant did not inflict any actual violence. Held: there must be sufficient evidence of causation before a compensation order can be made. The defendant's conduct was not the cause of the injury and the compensation order was quashed.

R v Deary (1993) 14 Cr.App.R. (S.) 648

The defendant pleaded guilty to affray where she and others threw bottles at a male who had poured drink over the defendant. A bottle hit an innocent bystander who suffered a wound to the head. A count of unlawful wounding was left on the file. The defendant was ordered to pay £400 compensation to the man hit by the bottle. Held: there was no proven causal link between her conduct and the injury suffered by the victim and the compensation order was quashed.

R v Corbett (1993) 14 Cr.App.R (S.) 101

The defendant pleaded guilty to common assault and was acquitted of unlawful wounding. The defendant was involved in an altercation in a pub where the victim assaulted the defendant. In preventing a further assault, the defendant threw beer at the victim but the beer glass contacted victim's face causing a wound. The defendant was ordered to pay £250 compensation. The defendant argued that the victim's injury did not result from the common assault. Held: Any intention to cause injury was irrelevant, the offence need not be the sole cause of the injury. It would suffice if it could fairly be said that the injury resulted from the offence. Accordingly, the assault had led to the injury, and compensation was appropriate.

Damage to Stolen Property:

In cases of offences under the Theft Act 1968 compensation can be ordered against the defendant in respect of damage caused whilst the property was out of the possession of the owner regardless of how and by whom the damage was caused: section 130 (5) PCC(S)A.

Compensation and Motor Vehicles:

The provisions of section 130 (5)PCC(S)A include damage to stolen motor vehicles.

An order for compensation can only be made for damage resulting from an accident to a motor vehicle which was the subject of the charge. In Quigley v Stokes (1977) 64 Cr.App.R. 198, the defendant took a car without permission and while driving it collided with two other cars; all three cars were damaged. A compensation order was appropriate in favour of the owner of the car that had been taken without consent, but not in the case of the owners of the other two cars as there was no power in the Act.

A compensation order can only be made in respect of injury, loss or damage due to an accident arising from the presence of a motor vehicle on the road if:

It is damage treated by section 130 (5) as resulting from an offence under the Theft Act 1968; or
It is in respect of injury, loss or damage for which the offender was uninsured and for which compensation is not payable by the Motor Insurer's Bureau.

Section 130 (5) PCC(S) A 2000 is limited to damage to property recovered (not to property that is not returned to the owner) where the offence is committed under the Theft Act 1968. In

R v Ahmad (1992) Cr.App.R. (S.) 212, the defendant pleaded guilty to taking a car without permission, reckless driving and driving whilst disqualified. Compensation was ordered for damage to the vehicle, travelling expenses incurred by the victim while the vehicle was out of his possession and the loss of certain property which had been in the vehicle at the time of the taking. The defendant maintained that others before him had taken the vehicle. On appeal, it was held that compensation could not be ordered in respect of the contents which were missing when the car was recovered.

Compensation can include the loss of the whole or a reduction of a 'no claims' bonus.

Compensation is not payable for loss or funeral expenses or bereavement suffered by a person's dependants because of his or her death due to an accident arising from the presence of a motor vehicle on a road - s.130(1)(b) PCC(S)A.

Compensation for Cases Involving Death:

Subject to the exception of cases involving death arising from an accident owing to the presence of a motor vehicle on a road, compensation is payable in respect of funeral expenses to any person who incurs them - s.130(1)(b) PCC(S)A

Compensation for bereavement is limited to those who can claim under the provisions of the Fatal Accidents Act 1976 that is, the spouse of the deceased, or, in the case of a minor, his parents (or mother in the case of an illegitimate child). The current limit is £7,500.

Compensation against the Handlers Of Stolen Property:

Whether to request an order for compensation against a person convicted of handling stolen goods will depend on the facts of the case. It is likely to be appropriate where the handler has sold the stolen property to an innocent purchaser who will not have title and will have to return the property to its owner.

Compensation for Personal Injury:

Where compensation for personal injury is sought there should be up to date and detailed information provided by the prosecution to the court concerning the extent of the injury. This will usually involve medical reports and photographs. As a general rule, the more serious the injury, the more information will be needed by the court including details of the injury itself, treatment, time lost from work and the likely prognosis. Details of expenses such as dentists or opticians should be available.

In complicated and large cases the question of compensation is more likely to be a matter for the civil courts.

A compensation order can be made in respect of terror and distress falling short of actual physical injury: Bond v The Chief Constable of Kent [1983] 1 All E R 456. Conversely, no compensation would be appropriate where there was no evidence that a person had suffered distress (in the instant case, bystander witnesses): R v Vaughan [1990] 12 Cr.App.R (S) 314

The Court of Appeal have stressed that the effect of the offence on the victim must be demonstrable by potentially admissible evidence (R v Hobstaff (1983) Crim L R 318). Such evidence in statement form must be served in advance on the defence and form part of the judge's papers. In practice this is likely now to be provided in the Victim Personal Statement.

Compensation for Damage or Loss:

Generally, such an application should only be made where suitable documentary or other evidence is available. Where the full amount of the loss is not known, it may be necessary to seek an adjournment to ascertain the full loss. Where possible the victim's estimate of the loss should be supported by appropriate evidence. Prosecutors should be wary of making claims which appear on the surface to be unjustified or exaggerated.

The amount of the loss must be agreed by the defendant, or established by evidence. In R v Horsham Justices Ex p. Richards (1985) 82 Cr.App.R.(S.) 158, two defendants pleaded guilty to theft and asked for other offences to betaken into consideration. The prosecutor applied for compensation of unrecovered property. The defendants disputed the claim and the prosecution could not substantiate the application through evidence. Held: where the evidence is incomplete the court should not make a compensation order where there are outstanding issues as to actual loss suffered and actual amount.

Evidence may be heard by the sentencer where there is a dispute as to loss or damage. But such hearings should be straightforward and simple. In Hyde v Emery (1984) Cr.App.R. (S.) 206, the defendant pleaded guilty to three charges of benefit fraud and was ordered to pay compensation of £500. The court refused to take into account the defendant's supplementary benefit, which would have reduced the figure. Held: The court should avoid making compensation in any case other than a simple and straightforward one.

A compensation order should not be made where the amount cannot be ascertained readily and easily: In R v Donovan (1981) 3 Cr.App.R. (S.) 192 the defendant pleaded guilty to the taking without consent of a car he had hired from a rental company for 2 days but had kept for 4 months. The car was recovered undamaged. A compensation order was made on the basis of what the owners might have recovered in the civil courts for loss of use. Held: Compensation orders were for amounts readily and easily ascertained. The quantum for loss of use was open to argument.

The fact that a victim may be insured in respect of the loss should not necessarily affect the application since insured parties have a duty to mitigate their losses.

In appropriate cases, the court can award a sum representing the loss of interest if the order is large and the period long: R v Schofield [1978] 2 All E R 705.

Where the person who has suffered loss has died this is not a reason for not making a compensation order: Holt v DPP [1996] 2 Cr.App.R. (S.) 314

Compensation in Cases Where There Is More Than One Defendant:

It may be difficult to determine, for example in a public order situation, exactly who did what and consequently who ought to pay compensation in respect of a particular loss. R v Thompson Holidays (1974) QB 592 and R v Taylor 1993) 12 Cr App R (s) 502 allow the court to make an award where it can fairly be said that a particular loss results from an offence, without having regard to the technical issues of causation. It may, however be appropriate to award compensation against one defendant and not another.

Compensation and the means/ability to pay:

An order for compensation should be made where the offender has the financial resources to pay the compensation immediately or within a reasonable period of time.

R v Bagga (1989) 11 Cr.App.R. (S.) 497

The defendant and 2 others caused criminal damage in a restaurant. All 3 ordered to pay compensation. The 2 co - defendants were employed whereas the defendant was in receipt of benefit. Held: the compensation order against D would be quashed as an enquiry into his means revealed he did not have the ability to pay such an order.

R v Yehou [1997] 2 Cr.App.R. (S.) 48

The defendant pleaded guilty to dishonesty offences and asked for 35 offences to be tic'd. A compensation order of £9,110 was made. This would have taken more than 3 years to pay. Held: a payment period of over 3 years was inappropriate and a compensation order of £3,900 would be substituted instead.

A compensation order should not be made against the offender on the assumption that a 3^rd party will pay the compensation on behalf of the offender.

R v Mortimer [1977] Crim. L.R. 624

The defendant was convicted of obtaining property by deception and a compensation order of £4,261.32 was made, which would be paid by the defendant's wife and friend being willing to obtain second mortgages. Held: the appropriate course was to see money repaid before sentencing hearing or to defer sentence for representations to be carried out.

A compensation order may be appropriate where an offender has no source of income from which to pay compensation but is in possession of assets which have been bought with the proceeds of the theft.

R v Workman (1979) 1 Cr.App.R. (S.) 335

The defendant was convicted of 13 dishonesty offences from post office frauds amounting to £2,000. The defendant was on low wages and at the time of sentence had spent most of the proceeds on household goods and towards a house purchase in which she would live when released. Held: compensation order was appropriate.

A compensation order should not be made on the basis that the appellant will raise the money by selling an asset when there may be difficulty in doing so.

R v Hackett (1988) 10 Cr.App.R.(S.) 388

The defendant pleaded guilty to offences of dishonesty against a company and was ordered to pay compensation of £15,000. The order was made on the basis that the defendant's home would be sold and there was sufficient equity to cover the compensation order. Held: the compensation order was quashed; the loser should employ civil remedies, particularly when the home was in joint names and there were small children.

R v McGuire (1992) 13 Cr.App.R. (S.) 332

The defendant was convicted of dishonesty offences and ordered to pay compensation of £1,425. He contended that he would have to sell his house in order to comply with the order. Held: The defendant had £65,000 equity in his house and was able to buy a house in his area for £55,000. Therefore, there was no justifiable reason why he should not put his house for sale and pay the compensation ordered.

Competing Claims:

Where a defendant has insufficient means to pay a number of competing claims, the court can decide on an appropriate figure and apportion it on a pro rata basis. This does not preclude the court from preferring one claim to another. Further, preference must be given to compensation over fines: section 130 PCC(S)A.

Compensation For Police Officers:

Officers injured in the execution of their duty have the same right to compensation as anyone else.

Compensation Orders And Young Offenders:

Any order for compensation must be made against the parents of a young person under 16 years of age and may be made against the parents of a young person under 18 years of age, unless the parent cannot be found or it would be unreasonable to do so: see section 137 PCC(S)A

Section 137 (8) PCC(S)A enables the court to order compensation against a local authority having care of a young offender.

In either case the court must allow an opportunity for representations (section137 (4) PCC(S)A).

Useful links

Archbold paragraphs 5-411 - 5-430

Reparation Orders

Powers of Criminal Courts (Sentencing)Act 2000 - sections 73 -75

A reparation order may be made in respect of a person under 18 by a court that has been notified that arrangements for implementing such orders have been made.

A reparation order may not be made if the court proposes to pass a custodial sentence or make any of the orders specified in section 73(4)(b) -(a community order under s177 Criminal Justice Act 2003; a supervision order which includes requirements authorised by Schedule 6 PCC(S)A; an action plan order; or a referral order.).

A reparation order may not require an offender to work for more than 24 hours in all.

A reparation order may not require an offender to make reparation to any person without that person's consent.

The requirements of the reparation order must try as far as possible to avoid conflict with:

the offender's religious beliefs;
with any community order or youth community order;
the times at which he normally attends school or work.

The reparation must be made within three months of the making of the order.

<Archbold 5-435 et seq.>

Deprivation of property

Role of the Prosecutor:

It is the responsibility of the prosecutor to ask the court to consider making a deprivation order under the relevant legislation. Where appropriate, counsel must be briefed to make the application.

Usually, the relevant items will be before the court. It is the responsibility of the prosecution to arrange with the police for their production, although procedure may vary from court to court and prosecutors will need to be aware of local practice.

Section 143 PCC(S)A governs the powers of the courts to deprive an offender of property, used, or intended to be used to commit or facilitate the commission of any offence (not necessarily the offence of which the offender has been convicted); facilitation includes taking steps to dispose of the property or avoid conviction. The court must have regard to the value of the property and the likely financial and other effects of the making of the order on the offender (section 143 (5)).

A deprivation order can only be made where the property has been used to commit or facilitate the commission of an offence or was intended for that purpose. R v McDonald (1990) 12 Cr.App.R.(S) 408

The court should not make an order unless there is adequate supporting evidence. The prosecution should demonstrate to the court that a full and proper investigation has been carried out for the order to be granted and so any application should be fully prepared. R v Pemberton (1982) 4 Cr App R (S) 328

The court has no power in relation to real property, nor should orders be made except in simple uncomplicated cases. Where property is in multiple ownership or subject to encumbrances, it might be appropriate for the court to consider an increased financial penalty instead: R v Troth, 1 Cr App R (S) 341CA.

The court has no power to order a deprivation order of an offender who has rights in real property. R v Khan (1982) 4 Cr.App.R.(S) 298

A deprivation order should not be made where it will cause the offender undue hardship. R v Tavenor (Unreported) 4^th April 1974

A deprivation order should not be made unless the court has before it the value of the property concerned and the effect the order will have on the offender in making the order. The court has the power to deprive an offender of a motor vehicle having been convicted of driving whilst disqualified. R v Highbury Corner Magistrates' Court ex p Di Matteo (1990) 12 Cr.App.R.(S) 594

A deprivation order made against one of several offenders who are equally liable may give rise to an objectionable disparity. R v Ottey (1984) 6 Cr.App.R.(S) 163

The imposition of a deprivation order was to be considered as part of the overall sentence and any disparity between a defendant and his co-defendant was a relevant issue for the court. R v Burgess (2001) 2 Cr.App.R.(S) 2

A deprivation order should not be imposed if part of other sentences for the offence creates an excessive overall penalty. R v Scully (1985) 7 Cr.App.R.(S) 119

A deprivation order cannot be ordered in conjunction with a conditional discharge unless the court considered it "inexpedient to inflict punishment." R v Savage (1983) 5 Cr.App.R.(S) 216

The court may order the proceeds of forfeited property to be paid the anyone who has suffered personal injury, loss or damage as the result of an offence where it might have awarded compensation but for the inadequacy of the offender's means; (section 145 PCC(S)A).

In addition to the PCC(S)A there are specific statutory provisions for forfeiture for example, in relation to drugs, firearms, offensive weapons and obscene articles. Obviously application should be made where appropriate under the relevant legislation:

Forfeiture Of Drugs

Section 27 Misuse of Drugs Act 1971 allows the court to order forfeiture of anything shown to the satisfaction of the court to relate to an offence of which an offender is convicted under The Misuse of Drugs Act 1971 or The Drug Trafficking Act 1994, subject to the courts allowing representations form a third party as to why an order should not be made.

For further information on drug trafficking and confiscation orders see <Confiscation, elsewhere in this guidance>

Forfeiture - Firearms

Section 52 Firearms Act 1968 provides for the forfeiture and disposal of firearms and the cancellation of firearms and shotgun certificates where:

A person is convicted of one or more of most, but not all offences under the Act; and
A person is convicted of any offence and is given a custodial sentence.

The power extends to any firearm found in the offender's possession and any certificate he or she might hold.

Section 52 (3) allows a constable to seize and retain any firearm or ammunition which might be the subject of an order.

The forfeiture of air weapons is allowed under paragraphs 7 and 8 Part II to Schedule Six Firearms Act 1968

Forfeiture - Offensive Weapons

Section 1(2) Prevention of Crime Act 1953 enables forfeiture and disposal of any weapon in respect of which an offence under the Act was committed. There is no similar power in relation to offences committed under sections 139 and 139A Criminal Justice Act 1988 (possessing bladed or pointed article in a public place). There is power in section 6 Knives Act 1997 in relation to unlawfully marketed knives.

Forfeiture - Obscene Publications

Sections 2 Obscene Publications Act 1959 deal with prosecutions for the possession for gain of obscene articles. The procedure for seizure and forfeiture of such material however is separately dealt with under section 3 and a summons for seizure and forfeiture must be issued under that section. The Director is obliged to take over all proceedings issued under section 3: Section 3 (2) (d) Prosecution of Offences Act 1984.

It may also be appropriate for the CPS to make representations to the court in cases where the court is being invited not to issue a summons after the seizure of material pursuant to a search warrant.

See also <Non-Prosecution functions performed by the CPS> and <Obscene Publications> elsewhere in this guidance

Other powers exist under other acts, for example:

Section 24 Forgery and Counterfeiting Act 1981;
Section 25 Public Order Act 1986 - written material within the provisions relating to racial hatred;
Section 6 Crossbows Act 1987;
Section 3 Children and Young Persons (Harmful Publications) Act 1955

Forfeiture of Recognizance (Bail):

The prosecutor's role is to assist the court with the history of the matter. Should it be needed, there is a considerable body of case law in the footnotes to section 7 (4) and section 8 (1) Bail Act 1976 in Stones' Justice's Manual.

It should be noted that there is no power to secure the attendance of a surety before a court which is to consider the forfeiture of all or part of his or her recognizance.

See also <Bail, elsewhere in this guidance>.

Restitution Orders

Role of the Prosecutor

The Court on its own motion can make a restitution order.

Prosecutors should however, consider making an application for a restitution order prior to sentence.

The relevant legislation is s.148 - 149 Power of Criminal Court (Sentencing) Act 2000

These provisions came in to effect on 25^thMay 2000

s.148 is applicable where goods have been stolen and either-

(a) the offender is convicted of any offence with reference to the theft (whether the stealing is the gist of his offence or not) or

(b) the offender is convicted of any other offence as in (a) above, which is taken into consideration in determining the offenders sentence.

The court under s.148 (2) can exercise the following powers:

(a) order anyone having control or possession of the stolen goods to restore them to any person who is entitled to them from him; or

(b) on an application of a person entitled to recover goods from the convicted offender, the court may order those goods which either directly or indirectly represents the stolen goods (whether being the proceeds of any realisation of the whole or part of them) to be delivered or transferred to the applicant; or

(c) the court may order a sum not exceeding the value of the stolen goods shall be paid, out of any money of the offender, which was taken out of his possession to a person who is entitled to recover from the convicted offender.

Under s.148 (4) if it appears to the court (having made an order under s.148 (2) (a) for the restoration of any goods from the offender) that the offender:

(a) has sold the goods to a person acting in good faith or

(b) has borrowed money on the security of the goods from a person acting in good faith,

then the court may order monies to be repaid to the purchaser or lender in a sum not exceeding the amount paid to the purchaser or the amount owed to the lender.

"Stolen" for the purposes of making a restitution order includes obtained by deception or blackmail, or by fraud contrary to the Fraud Act 2006.

Failure to comply with a restitution order is a contempt of court.

Evidence on which a restitution order is based upon is to be given to the court before sentence is passed. R v Church (1970) 55 Cr.App.R. 65

A restitution order should not be made if there is a doubt that the money in the defendant's possession belongs to a third party. Restitution orders should only be made "in the plainest cases." R v Ferguson (1970) 54 Cr.App.R. 410

Where an offender has been convicted of an offence where goods have been recovered, it is an incorrect exercise of discretion to make a restitution order of money taken out of the offenders possession in respect of other offences with which he has not been charged. R v Parker (1970) 54 Cr.App.R. 339

An offender cannot complain about a restitution order being made against him where it is for a greater sum than he actually received from the share of the proceeds of crime but less than the total amount stolen. Also, there is no objectionable disparity where a restitution order is made against an offender who is in possession of monies but his co-offenders are not in possession of the same when apprehended. R v Lewis, unreported January 31, 1975

A restitution order should not be made where it compensates the victim of the offence to a greater extent than his losses. R v Parsons & Haley unreported October 14, 1976

Useful links

Current Sentencing Practice J3 - 1

Archbold 5-431

Disqualification

Disqualification from driving:

General Power

Powers of Criminal Courts (Sentencing) Act 2000

Any court may disqualify an offender from driving on conviction for any offence, either in addition to or instead of any other sentence.

It is not a requirement that the offence is connected with the use of a motor vehicle.

Discretionary disqualification

Road Traffic Offenders Act 1988, s.34

If an offender is convicted of:

stealing or attempting to steal a vehicle;
taking a motor vehicle without consent, or being carried;
going equipped to steal a motor vehicle;

the court can order discretionary disqualification (but not endorsement) for such period as it thinks fit.

Road Traffic Offenders Act 1988, Schedule 2

Most offences subject to obligatory endorsement are also subject to discretionary disqualification for such period as the court thinks fit.

Obligatory disqualification

Road Traffic Offenders Act 1988, s.34

The following offences are subject to obligatory disqualification:

causing death by dangerous driving;
dangerous driving;
causing death by dangerous driving whilst under the influence of drink or drugs;
causing death by careless or inconsiderate driving (when in force);
causing death by driving whilst unlicensed, disqualified or uninsured(when in force);
driving or attempting to drive whilst unfit;
driving or attempting to drive with excess alcohol;
failing to provide a specimen for analysis (driving or attempting to drive);
racing or speeding trials;
manslaughter;
aggravated vehicle taking.

The court must disqualify unless it finds special reasons for not disqualifying.

Disqualification must be for a minimum of 12 months, unless:

the defendant is convicted of manslaughter, causing death by dangerous driving, or causing death whilst under the influence of drink or drugs - in which case, for a minimum of 2 years;
the defendant has been twice disqualified for 56 days or more in the thre yers prior to the commission of the present offence - in which case for a minimum of 2 years;
the defendant has been convicted of an excess alcohol offence and has previously been convicted of an excess alcohol offence within the last 10 years - in which case for a minimum of 3 years.

If convicted of manslaughter, causing death by dangerous driving, or causing death whilst under the influence of drink or drugs, in relation to an offence committed after 31 January 2002, or is convicted of dangerous driving, the court must order the defendant to take an extended driving test.

In any other case involving obligatory disqualification, the court may order the defendant to take a further driving test.

Disqualification - Penalty Points and "totting up".

Road Traffic Offenders Act 1988, s.35

Where an offender is convicted of an offence subject to obligatory endorsement, the court must determine the number of points to be awarded. These points are added to the offenders licence.

If the total number of points on the licence within the relevant period is 12 or more, the defendant must be disqualified unless there are mitigating grounds.

If the court finds mitigating grounds, it may either reduce the period of disqualification, or not disqualify at all.

Disqualification - vehicle used for purposes of crime.

Powers of Criminal Courts (Sentencing) Act 2000

There is no minimum or maximum period specified.

The power may be exercised in the Crown Court where the offender is convicted of any offence punishable with at least 2 years imprisonment.

The power may be exercised by either the magistrates' court of the Crown Court where the offence consists of an assault committed by driving a vehicle.

The vehicle must have been used by the offender or an accomplice for the purpose of committing or facilitating the commission of an offence of which the offender has been convicted.

For detailed guidance on road traffic offences, see Legal Guidance> Road Traffic Offences.

Disqualification from directing a company:

Company Directors Disqualification Act 1986, s.2

The court may make a disqualification order if the offender has been convicted of any indictable offence committed in connection with the promotion, formation, management or liquidation of a company, or with the receivership of the company's property.

The maximum period of disqualification is 15 years in the Crown Court and 5 years when imposed in the magistrates' court.

Disqualification from working with children:

Criminal Justice and Court Services Act 2000, s.26

The CJCSA, Part II introduced a power to make a disqualification order by which a person convicted of "an offence against a child" may, and in some case must, be disqualified indefinitely from working with children.

"Offence against a child" is defined in section 26 and Schedule 4. It includes both sexual and violent offences, and offences relating to the supply of drugs to persons under the age of 18.

A child for this purpose is a person under the age of 18 years.

The conditions for making a disqualification order are set out in sections 28 and 29.

Offenders over 18

If the offender is over 18 when convicted of a qualifying offence and is sentenced by the Crown Court to a period of imprisonment of 12 months or more, (or a hospital or guardianship order), the court must order the accused to be disqualified from working with children, unless it is satisfied having regard to all the circumstances that it is unlikely that the accused will commit any further offence against a child. If the court does not make an order, it must state its reasons and those reasons must be recorded. Section 28 CJCSA 2000

Offenders under 18

If the offender is convicted of a qualifying offence committed when under 18 and is sentenced by the Crown Court to:

a term of imprisonment of 12 months or more;
detention under s.91 PCC(S)A 2000 for 12 months or more;
a detention and training order of 12 months or more;
a sentence of detention during her Majesty's pleasure;
a sentence of detention for public protection;
an extended sentence of detention;
a hospital or guardianship order,

the Crown Court must order the offender to be disqualified form working with children if it is satisfied having regard to all the circumstances, that it is likely that the offender will commit a further offence against a child. If the court makes an order, it must state its reasons and cause those reasons to be recorded. Section 29 CJCSA 2000

All offenders - discretionary power to disqualify.

If the Crown Court does not impose a sentence of 12 months imprisonment on any person convicted of a qualifying offence, it has a discretionary power to make a disqualification order if satisfied that the offender will commit a further offence against a child. S. 29A CJCSA 2000 (as inserted by s.299 Criminal Justice Act 2003 & Schedule 30, paras.1 & 2)

Subsequent applications - Section 29B CJCSA 2000, (as inserted by s.299 Criminal Justice Act 2003 & Schedule 30, paras.1 & 2)

A prosecutor may make subsequent application at any time for an order under either s. 28 or s. 29 provided certain conditions are fulfilled.

Offenders over 18

In the case of an adult, an application pursuant to s.28 may be made if the requirements of s.28 are met, and the court has not made an order nor has complied with the requirement to give reasons for not making an order. In such circumstances, on application by the prosecutor, the court must make an order unless satisfied that it is unlikely that the offender will commit a further offence against a child

Offenders under 18

In the case of a person under 18, an application pursuant to s.29 may be made if the requirements of s.29 are met, but the court has not made an order and it appears to the prosecutor that the court has not considered the making of an order. In such a case, the court must make an order if satisfied that it is likely that the accused will commit further offences against a child.

Procedure

Prosecutors should identify in the Plea and Sentence document (PSD) prepared for the court that the offence is a qualifying offence and that, if convicted, and if a qualifying sentence is imposed, the provisions of sections 28 and 29 will be engaged.

If, following conviction, a disqualification order is not made by the court, prosecutors should consider whether it is appropriate to make an application under s.29B. Before making a subsequent application, prosecutors should ensure that they are satisfied that the qualifying conditions are met.

The provisions came into effect on 11 January 2001. They were further amended by provisions of the Criminal Justice Act 2003.

Exclusion Orders

Licensed Premises:

Section 1 Licensed Premises (Exclusion of Certain Persons) At 1980, provides for the exclusion of a person who is convicted of an offence committed on licensed premises (justice's on-license) provided that the court is satisfied that in committing the offence he resorted to violence, or offered or threatened to resort to violence.. Orders excluding persons from entering licensed premises were designed for those who make a nuisance of themselves in public houses and therefore qualify to be debarred from going in to such premises to the annoyance of other customers and the possible danger of the licensee R v O Grady 12 Cr App R (S) 152, CA- Archbold 2007 5-843

Section 2 Licensed Premises (Exclusion of Certain Persons) Act 1980 provides that an exclusion order may be made either -

(a) in addition to any sentence which is imposed in respect of the offence of which the person is convicted or

(b) in addition to an order discharging him absolutely or conditionally.

Section 3 provides that the exclusion order shall have effect for such period not less than three months or more than two years unless terminated by Section 2 (2)

<Archbold 5-841>

Procedure

Although the police will, on most occasions indicate if an exclusion order is being sought, prosecutors should nevertheless, where appropriate, remind the court of its powers under the Act.

An exclusion order may be made by the court of its own motion. It is undesirable for a third party who is not a victim or party to the proceedings to make application for an exclusion order, the normal procedure should be for such an interested party to make such representation to the prosecuting authority - R v Penn [1996] 2 Cr App.R.(S) 46 CA.

Sporting Events:

Legislation in this area is primarily concerned with football matches. Powers to exclude from football matches are given to the courts in the provisions of The Football Spectators Act 1989 as amended by The Football (Disorder) Act 2000.

Under section 14A where a defendant is convicted of a relevant offence, that is an offence to which Schedule 1 of the Act applies, the court must make a banning order if it is satisfied that there are reasonable grounds to believe that making an order would help to prevent violence or disorder at, or in connection with any regulated football matches. If the Court is not so satisfied, it must state its reasons in open court - s.14 A(2) <Archbold - 5-821 et seq.>

Section 14B enacts the same provisions in relation to an application made to the court on a complaint made by the chief officer of police for the area in which the respondent resides or appears to reside.

A Banning Order whether made under S14A or S14B does not constitute a penalty within Article 7 of the European Convention on Human Rights - it is not part of the purpose of such an order to inflict punishment, the purpose being to protect the public here and abroad.

Section 14C provides for the interpretation of "violence" and "disorder" and makes clear that they are not limited to violence or disorder in connection with football. <Archbold 5-821>

A 'Regulated football match' includes matches outside England and Wales: section 14(2).

The court may also make, on application by the prosecutor, an order requiring either a constable to take a photograph of a banned person or the banned person to attend at a police station to have the photograph taken: section 35 Public Order Act 1986. The importance of the identification of a banned person is self-evident and prosecutors should, where the court makes an order following conviction, ascertain whether a photograph was taken at arrest or charge and apply to the court if necessary.

Anti Social Behaviour Orders

Under section 1C(2) Crime and Disorder Act 1998, an anti social behaviour order may be

made by a court following conviction for a relevant offence if the court considers:

That the offender has acted, at any time since [1 April 1999], in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and
That an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him.

For detailed guidance on the policy and procedure relating to anti-social behaviour orders, see Legal Guidance> ASBOs

Restraining Orders

Protection from Harassment Act 1997

Under section 5 Protection from Harassment Act 1997 on conviction for an offence under section 2 or section 4 of the Act, the court may make an order (a restraining order) prohibiting the defendant from doing anything described in the order, for the purpose of protecting the victim, or any other person mentioned in the order, from further conduct that amounts to harassment, or will cause fear of violence.

For detailed guidance on the procedure and policy relating to harassment, see Legal Guidance> Harassment.

Sexual Offences:

Sexual Offences Prevention Order (SOPO)

SOPOs replace restraining orders under s.5A Sex Offenders Act 1997 and sex offender orders under s.2 Crime and Disorder Act 1998. However, it is possible that there may still be cases where an offender is subject to one of the orders that pre-date the Sexual Offences Act 2003, and that he comes before the court for breach of the order (see below).

Protecting the public from serious sexual harm

Before making a SOPO the court must be satisfied that a SOPO is necessary to protect the public or any particular member of the public from serious sexual harm. This is defined as protecting the public in the UK or any particular members of the public from serious physical or psychological harm, caused by the defendant committing any of the offences listed in Schedule 3 of the Act - s.106(3) Sexual Offences Act 2003

Orders on conviction

A court dealing with an offender for one of the offences listed in Schedule 3 or Schedule 5 Sexual Offences Act 2003 may make a Sexual Offences Prevention Order (SOPO) if it is satisfied that it is necessary to make such an order for the purposes of protecting the public (or any particular members of the public) from serious sexual harm from the defendant: s.104(2) Sexual Offences Act 2003

A court which finds that the offender is not guilty of an offence in either Schedule 3 or 5 by reason of insanity, or that he is under a disability and has done the act charged against him in respect of an offence may make a SOPO if it is satisfied that it is necessary to make such an order for the purposes of protecting the public (or any particular members of the public) from serious sexual harm from the defendant: s.104(3) Sexual Offences Act 2003

Orders on complaint by a Chief Officer of Police.

A Chief Officer of Police may by complaint to a magistrates' court apply for a SOPO in respect of a person who resides in his area or who he believes is in or is intending to come to his area. The criteria which must be satisfied are:

That the person is a "qualifying offender" as defined by section 106(5);
That the person has since "the appropriate date" as defined in section 106(8) has acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made;
That it is necessary to make a SOPO for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant: s.104(5)Sexual Offences Act 2003.

For the purposes of section 104(5), a qualifying offender as defined by section 106(5) is either a person who has been:

convicted;
cautioned;
found not guilty by reason of insanity;
found under a disability

of an offence in Schedule 3 or Schedule 5.s.106(6)

or, has, under the law in force in a country outside the United Kingdom, been:

convicted;
cautioned;
found not guilty by reason of insanity; or,
found under a disability

of a "relevant offence", defined as an act which constituted an offence under the law in force of the country concerned and which would have constituted an offence under Schedule 3 or Schedule 5 if done in any part of the UK.

The court may make an interim SOPO if the main application has not been determined - s.109 Sexual Offences Act 2003

The power to make a SOPO may be exercised in relation to an offence committed before the commencement of the Act.

The order may be for a fixed period of not less than 5 years, or until further order.

Breach of a Sexual Offences Prevention Order

A person commits an offence if, without reasonable excuse, he does anything that he is prohibited from doing by:

a sexual offences prevention order;
an interim sexual offences prevention order;
a restraining order under s5A Sex Offenders Act 1997
a sex offender order or interim order under s2,2A or 20 Crime and Disorder Act 1998 made in England and Wales or Scotland;
a sex offender order or interim order made in Northern Ireland under Article 6 or 6A Criminal Justice (Northern Ireland) Order 1998 (S! 1998/2839 (NI 20).

The offence is triable either way and is punishable:

on summary conviction - 6 months imprisonment or a fine not exceeding the statutory maximum;
on indictment - imprisonment not exceeding 5 years.

Procedure

The Role of the Prosecutor

The prosecutor should be in a position to make application for relevant ancillary orders and to assist the court generally when sentencing. In particular, it is important that the prosecutor has regard to the protection of a particular victim or of the wider community.

Prosecutors must ensure that they have identified in the Plea and Sentence document (PSD) (in cases where a PSD is required) that an offence may attract a SOPO in the event of conviction. This requires the prosecutor to identify that the offence is one to which either Schedule 3 or Schedule 5 applies.

In all cases, the prosecutor must be ready to assist the court by drawing the court's attention to the power to make a SOPO on conviction for an offence to which Schedule 3 or Schedule 5 applies.

Thereafter, it will be important for prosecutors to be in a position to assist the court if required in determining whether the offender presents a risk that requires the public to be protected and that an order is required. This may be by way of information about previous convictions or cautions, or by drawing attention to certain features of the case under consideration.. Equally, such considerations may form part of the wider assessment of "dangerousness" under the dangerous offender provisions of the Criminal Justice Act 2003. See <Dangerous Offenders> elsewhere in this guidance.

It is not the role of the prosecutor to make application for a SOPO under section 104(5) Sexual Offences Act 2003 - that is for the Chief Officer of police or lawyers acting on his behalf.

It is the responsibility of the CPS to prosecute the offence of breach of a SOPO under s.113 Sexual Offences Act, irrespective of how the order was first made.

When making the decision to prosecute, prosecutors should apply the Code for Crown Prosecutors.

Notification requirements - sections 80 - 92 Sexual Offences Act 2003

Section 80 deals with persons becoming subject to notification requirements. A person is subject to notification requirements if convicted of an offence in Schedule 3 (or cautioned, or found not guilty by reason of insanity, or found to be under a disability having done such an act).

Initial notification must be made to the police within 3 days of the "relevant date" - s.83(1).

The offender must notify the police of the information required in s.83(5).

The offender must inform the police of any changes to the information already provided - s.84.

If an offender fails to comply with the notification requirements of the Act, or gives false information, he commits an offence. Such offences are triable either way and are punishable:

on summary conviction - 6 months imprisonment or a fine not exceeding the statutory maximum;
on indictment - imprisonment not exceeding 5 years. S.91

Procedure

The role of the prosecutor

Notification obligations do not depend on a court order, and a criminal court has no power to order anything.

In practice, courts will inform offenders of any notification requirements that apply to them. Prosecutors should be familiar with the notification requirements and be in a position to assist the court to ensure that an offender is reminded of the requirements of notification in appropriate cases.

In making a decision about prosecuting an offence under s.91, prosecutors should make their decision in accordance with the Code for Crown Prosecutors.

Breach Of Community Penalty

Where an offender is brought before the court for breach of a community penalty, there is no power for a CPS prosecuting advocates to prosecute the breach. Breaches should be prosecuted by the probation service or, in the case of curfew orders, the monitoring contractor (or lawyers instructed by them).

However once the breach has been proved and the court has determined that the offender falls to be re-sentenced for the original offence, prosecutors are under a duty to present the facts of the original offence and will take over conduct of proceedings.

If there is no CPS prosecuting advocate in the breach court, one can often be found in the court building that can step in to assist. Failing that, the case will need to be adjourned. This system is successfully practised in many CPS areas and represents good practice, particularly where breach proceedings are heard in an otherwise CPS prosecuted court.

The Availability of The Information

In order to re-sentence, the prosecuting advocate must provide to the court sufficient information about the original offence and ensure its availability if required.

What constitutes 'sufficient information' was outlined by Toulson J. in R v David Clarke [1997] 2 Cr. App Reports 163. Not only should the prosecution be in a position to put before the court the breach but also the facts of the original offence - at least in outline - together with any relevant information about his co-defendants, their antecedent histories and the sentences passed on them.

The necessary information required for re-sentencing can be found in the pre-sentence report (PSR) information package that the CPS would have sent to probation prior to the imposition of the community sentence that is the subject of the breach proceedings. Probation will also have the necessary evidence from its own sources to prove the breach.

Another way is for the CPS to obtain the original file in advance and bring it to court. This is not always easy or practical given the age and location of such files.

Alternatively, the CPS could wait until the breach is proved and then seek to obtain the file, but this would necessitate an adjournment in the case. To follow this practice is inconvenient and expensive for the offender and other court users. Plus it is good practice to have the court that dealt with the breach do the re-sentencing, and this may not be practicable when there is an adjournment.

Curfew Orders

Whereas with most breaches the probation service can provide papers to the prosecuting advocate, where there is a breach of a curfew order, the breach is likely to be prosecuted by the monitoring contractor who will not have had access to the PSR package (as this would be a breach of the Data Protection Act) and so would not be in a position to hand it to the prosecuting advocate at court.

CPS will negotiate their own arrangements with the local Probation Service.

CPS areas need to agree locally how best to resolve the questions of how and when the prosecuting advocate obtains the requisite information. Arrangements will need to be made that will achieve the best solution depending on local conditions, such as the location and ease of access to original files, the local listing arrangements, attitudes to adjournments and the likely levels of co-operation between the organisations involved.

Breach Of Attendance Centre Order

Powers of Criminal Courts (Sentencing) Act 2000, Schedule 5

Breaches of these orders are dealt with by the person in charge of the order. The CPS prosecutor is simply required, on conviction, to alert the court to the existence of such an order.

Deportation

A person who is not a British citizen is liable to deportation if, being over 17 years of age, he has been convicted of an offence which is punishable by imprisonment (if he were an adult) and the court recommends it. Section 3 (6) Immigration Act 1971

In deciding whether to recommend deportation, the court must consider whether the accused's continued presence in the United Kingdom is to its detriment, on the basis that the country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records; and the more serious the crime and the longer the record, the more obvious it is that there should be a recommendation for deportation: R v Nazari 71 Cr App.R. 87 CA. However, this should be read in conjunction with the Regulations relating to EU citizens (see below).

In considering whether to make a recommendation, the sentencing court need not consider the rights of the offender under Articles 2, 3 and 8 of the European Convention on Human Rights - such matters are for the Secretary of State to consider when deciding whether to act on the recommendation - R v Carmona [2006] 1 WLR 2264, CA

In the case of non EU citizens, the only question to be addressed is whether the offender's continued presence in the UK is contrary to the public interest.

In the case of citizens of the EU, the procedure to be adopted is contained in Directive 2004/38/EC of the European Parliament and the Council and article 28 of the E.C.Treaty.

Article 28 provides:

that before taking an expulsion decision on the grounds of public policy or public security the host state shall take account of considerations such as the length of residence in the host country, age, state of health, family and economic situation, social and cultural integration in the host state and the extent of links with his country of origin;
that the host state may not take an expulsion decision against EU citizens or their family members, irrespective of nationality, who have a right of permanent residence, except on serious grounds of public policy or public security;
that an expulsion decision may not be taken against EU citizens (except if based on imperative grounds of public security) if they have
(a) resided in the host state for 10 years, or
(b) are a minor, except if expulsion is necessary in the best interests of the child.

These provisions are given effect in domestic law, as from 30 April 2006 by the Immigration (European Economic Area) Regulations 2006 (SI 2006 No.1003) (which extends the provisions to citizens of Norway, Iceland, Liechtenstein and Switzerland).

Regulation 21(5) requires an expulsion decision taken on public policy or public security grounds also to comply with the following principles:

(a) proportionality;

(b) that it be based exclusively on the personal conduct of the person concerned, which must

(c) represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention must be left out of account, and;

(e) a person's previous criminal convictions cannot in themselves justify the decision.

In Carmona (ante) the Court was of the view that the Directive (and subsequent regulations) would have a significant effect on the exercise by the courts of the power to recommend deportation, "since it would not be right to make a recommendation...where the Directive precludes actual deportation".

Archbold - 2007 5-919

There are restrictions on the deportation of Commonwealth and Irish Republic citizens of long standing; Section 7 Immigration Act 1971. However the onus of proving an exemption is on the person claiming it: section 3(8) Immigration Act 1971.

Procedure

The court is likely to be concerned to determine whether the accused's presence in the UK is likely to be to the detriment of the community.

In order for the court to recommend to the Secretary of State that a convicted foreign national be deported, it is necessary for that foreign national to have been served with a copy of a notice known as Form IM3, at least seven days before the date of sentence. It is for the police to serve the notice, to which the prosecutor may then draw the attention of the court.

Without service of form IM3, the court has no power to recommend deportation, but it is always open to the prosecutor to apply for an adjournment in order that the notice might be served. A recommendation for deportation should not be added as if by an afterthought; there should be a full inquiry into all the circumstances and counsel should be invited to address the court specifically on the possibility of a recommendation being made R v Nazari (see above) <Archbold 5-918>

The Court of Appeal in R v Bozat 1997 1 Cr App R (S) 270 stressed the importance of giving reasons for making a recommendation for deportation, in fairness to the defendant and to assist the Secretary of State who would have to make the ultimate decision as to whether the offender would be deported.

Prosecutors should check that form IM3 has been served in appropriate cases. Section 6(2) Immigration Act 1971 contains power for the court to adjourn for the service of form IM3, or for a period long enough to allow for seven days to have elapsed where an insufficient period of notice has been given to the defendant prior to the date of conviction.

Prosecutors should ensure that the Plea and Sentence document (PSD) prepared for the sentencing court refers to the fact that the accused is liable to be considered for deportation and that a form IM3 has been served.

Prosecutors should be ready to assist the court by making submissions as to the appropriateness of a recommendation for deportation (see Nazari, above).

The Victim Personal Statement

The Victim Personal Statement was introduced on 1 October 2001. It is intended to give the victims of crime an opportunity to describe the wider effects of the crime upon them and express their concerns.

The purpose of the VPS is to:

give victims an opportunity to state how the crime has affected them - physically, emotionally, psychologically, financially or in any other way;
allow victims to express their concerns in relation to bail or the fear of intimidation by or on behalf of the defendant;
provide victims with a means by which they can state whether they want information about for example, the progress of the case;
provide victims with the opportunity to state whether they want to claim compensation or request support from the Victim Support or any other agency;
provide the criminal justice agencies with a ready source of information on how the particular crime has affected the victim involved.

The principles relating to victim impact and victim statements expounded in R v Hobstaff [193] 14 Cr App R (S) 606 and R v Perks, the Times 11/5/00 remain valid for a VPS, that is to say that:

the evidence must be in admissible form;
the court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender taking into account so far as the court thinks it appropriate, the consequences of the offence to the victim;
the opinions of the victim or the victim's close relatives as to the appropriate level of sentence are not relevant.

Procedure

Full guidance is contained in a Practice Direction on Victim Personal Statements issued by the Lord Chief Justice on 1 October 2001, now contained in Practice Direction (Criminal Proceedings: Consolidation), para. III.28 [2002] 1 WLR 2870.

Prosecutors should receive the VPS from the police and consider its contents in the normal way.

In either the Magistrates' Court or the Crown Court where the VPS is contained in the body of a witness statement it should be served on the defence either as part of the prosecution case if it is intended to adduce the evidence contained in the statement or as unused material if it is not.

If it is intended to use only part of the statement, the defence should be informed a soon as possible which parts are not to be used and suitable editing agreed.

The defence and the court should be informed that where it has not otherwise been placed before the court that part of the statement which forms the VPS may be placed before the court in the event of a conviction.

Where the VPS is a separate statement, it should be served on the defence. If it is to be used at trial, this should be done under cover of notice under section 9 Criminal Justice Act 1967 or, in the Crown Court as part of the committal bundle. If it is not to be used the defence should be informed as soon as possible of the position with the caveat that the VPS may be placed before the court in the event of a conviction. At the Crown Court the original should be sent to the court with a notice to the effect that the VPS is not to be adduced in evidence and that it is served in accordance with the Victim Personal Statement provisions.

The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005] see <Annex A> make clear the importance of drawing the court's attention to any Victim Personal Statement or other information about the impact of the offence on the victim: (Paragraph B4).

The importance attached to a Victim Personal Statement was highlighted in R v Black & Gowan [2006] EWCA Crim 2306. In this case, the Court of Appeal, considering an unduly lenient sentence appeal, commented that it was incumbent on the prosecution to ensure that the judge had as much information as possible about the impact on the victim of the offence before proceeding to sentence, and that it was incumbent on the judge to call for such a statement before proceeding to sentence.

Annexes

Annex A

Attorney General's Guidelines On The Acceptance Of Pleas And The Prosecutor's Role In The Sentencing Exercise

A Foreword

A1. Prosecutors have an important role in protecting the victim's interests in the criminal justice process, not least in the acceptance of pleas and the sentencing exercise. The basis of plea, particularly in a case that is not contested, is the vehicle through which the victim's voice is heard. Factual inaccuracies in pleas in mitigation cause distress and offence to victims, the families of victims and witnesses. This can take many forms but may be most acutely felt when the victim is dead and the family hears inaccurate assertions about the victim's character or lifestyle. Prosecution advocates are reminded that they are required to adhere to the standards set out in the Victim's Charter, which places the needs of the victim at the heart of the criminal justice process, and that they will be subject to a similar obligation in respect of the Code of Practice for Victims of Crime when it comes into force.

A2. The principle of fairness is central to the administration of justice. The implementation of Human Rights Act 1998 in October 2000 incorporated into domestic law the principle of fairness to the accused articulated in the European Convention on Human Rights. Accuracy and reasonableness of plea plays an important part in ensuring fairness both to the accused and to the victim.

A3. The Attorney General's Guidelines on the Acceptance of Pleas issued on December 7, 2000 highlighted the importance of transparency in the conduct of justice. The basis of plea agreed by the parties in a criminal trial is central to the sentencing process. An illogical or unsupported basis of plea can lead to the passing of an unduly lenient sentence and has a consequential effect where consideration arises as to whether to refer the sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988.

A4. These Guidelines, which expand upon and now replace the Guidelines issued on the 7 December 2000, give guidance on how prosecutors should meet these objectives of protection of victims' interests and of securing fairness and transparency in the process. They take into account the guidance issued by the Court of Appeal (Criminal) Division in R -v- Beswick [1996] 1 Cr.App.R. 343, R -v- Tolera [1999] 1 Cr.App.R. 25 and R v Underwood [2005] 1 Cr.App.R 178. They complement the Bar Council Guidance on Written Standards for the Conduct of Professional Work issued with the 7^th edition of the Code of Conduct for the Bar of England and Wales and the Law Society's Professional Conduct Rules. When considering the acceptance of a guilty plea prosecution advocates are also reminded of the need to apply "The Farquharson Guidelines on The Role and Responsibilities of the Prosecution Advocate".

A5. The Guidelines should be followed by all prosecutors and those persons designated under section 7 of the Prosecution of Offences Act 1985 (designated caseworkers) and apply to prosecutions conducted in England and Wales.

B General Principles

B1. Justice in this jurisdiction, save in the most exceptional circumstances, is conducted in public. This includes the acceptance of pleas by the prosecution and sentencing.

B2. The Code for Crown Prosecutors governs the prosecutor's decision-making prior to the commencement of the trial hearing and sets out the circumstances in which pleas to a reduced number of charges, or less serious charges, can be accepted.

B3. When a case is listed for trial and the prosecution form the view that the appropriate course is to accept a plea before the proceedings commence or continue, or to offer no evidence on the indictment or any part of it, the prosecution should whenever practicable speak to the victim or the victim's family, so that the position can be explained. The views of the victim or the family may assist in informing the prosecutor's decision as to whether it is the public interest, as defined by the Code for Crown Prosecutors, to accept or reject the plea. The victim or victim's family should then be kept informed and decisions explained once they are made at court.

B4. The appropriate disposal of a criminal case after conviction is as much a part of the criminal justice process as the trial of guilt or innocence. The prosecution advocate represents the public interest, and should be ready to assist the court to reach its decision as to the appropriate sentence. This will include drawing the court's attention to:

any victim personal statement or other information available to the prosecution advocate as to the impact of the offence on the victim;
where appropriate, to any evidence of the impact of the offending on a community;
any statutory provisions relevant to the offender and the offences under consideration;
any relevant sentencing guidelines and guideline cases; and
the aggravating and mitigating factors of the offence under consideration;

The prosecution advocate may also offer assistance to the court by making submissions, in the light of all these factors, as to the appropriate sentencing range.

In all cases, it is the prosecution advocate's duty to apply for appropriate ancillary orders, such as anti-social behaviour orders and confiscation orders. When considering which ancillary orders to apply for, prosecution advocates must always have regard to the victim's needs, including the question of his or her future protection.

C. The Basis of Plea

C1. The basis of a guilty plea must not be agreed on a misleading or untrue set of facts and must take proper account of the victim's interests. An illogical or insupportable basis of plea will inevitably result in the imposition of an inappropriate sentence and is capable of damaging public confidence in the criminal justice system.

C2. When the defendant indicates an acceptable plea, the defence advocate should reduce the basis of the plea to writing. This should be done in all cases save for those in which the issue is simple or where the defendant has indicated that the guilty plea has been or will be tendered on the basis of the prosecution case.

C3. The written basis of plea must be considered with great care, taking account of the position of any other relevant defendant where appropriate. The prosecution should not lend itself to any agreement whereby a case is presented to the sentencing judge on a misleading or untrue set of facts or on a basis that is detrimental to the victim's interests. There will be cases where a defendant seeks to mitigate on the basis of assertions of fact which are outside the scope of the prosecution's knowledge. A typical example concerns the defendant's state of mind. If a defendant wishes to be sentenced on this basis, the prosecution advocate should invite the judge not to accept the defendant's version unless he or she gives evidence on oath to be tested in cross-examination.

C4. The prosecution advocate should show the prosecuting authority any written record relating to the plea and agree with them the basis on which the case will be opened to the court.

C5. It is the responsibility of the prosecution advocate thereafter to ensure that the defence advocate is aware of the basis on which the plea is accepted by the prosecution and the way in which the prosecution case will be opened to the court.

C6. In all cases, to ensure clarity before the court the prosecution advocate should consider committing to writing the aggravating and mitigating factors that will form the opening of the prosecution case. Equally, the defence advocate should consider reducing to writing the mitigating factors relied upon on behalf of the accused. Where the issues are complex or there is scope for misunderstanding the prosecution advocate must commit to writing the aggravating and mitigating factors that will form the opening of the prosecution case. The basis of plea document is intended to deal only with the circumstances of the offence. Personal mitigation should not appear in it.

C7 When the prosecution advocate has agreed the written basis of plea submitted by the defence advocate, he or she should endorse the document accordingly. If the prosecution advocate takes issue with all or part of the written basis of plea, he or she should set out in writing what is accepted and what is rejected or not accepted. Where there is a dispute about a particular fact which the defence advocate believes to be effectively immaterial to the sentencing decision, the difference should be recorded so that the judge can make up his or her own mind. The signed original document should be made available to the trial judge and thereafter lodged with the court papers, as it will form part of the record of the hearing.

C8. Where a defendant declines to admit an offence that he or she previously indicated should be taken into consideration, the prosecution advocate should indicate to the defence advocate and the court that, subject to further review, the offence may now form the basis of a new prosecution.

C9. Where the basis of plea cannot be agreed and the discrepancy between the two accounts is such as to have a potentially significant effect on the level of sentence, it is the duty of the defence advocate so to inform the court before the sentencing process begins. There remains an overriding duty on the prosecution advocate to ensure that the sentencing judge is made aware of the discrepancy and of the consideration which must be given to the holding of a Newton hearing to resolve the issue. The court should be told where a derogatory reference to a victim, witness or third party is not accepted, even though there may be no effect on sentence.

C10. Whenever an agreement as to the basis of plea is made between the prosecution and defence, any such agreement will be subject to the approval of the trial judge, who may of his or her own motion disregard the agreement and direct that a Newton hearing should be held to determine the proper basis on which sentence should be passed.

D. Sentence Indications

D1. Only in the Crown Court may sentence indications be sought. Advocates there are reminded that indications as to sentence should not be sought from the trial judge unless issues between the prosecution and defence have been addressed and resolved. Therefore, in difficult or complicated cases, no less than seven days notice in writing of an intention to seek an indication should normally be given to the prosecution and the court. When deciding whether the circumstances of a case require such notice to be given, defence advocates are reminded that prosecutors should not agree a basis of plea unless and until the necessary consultation has taken place first with the victim and/or the victim's family and second, in the case of an independent prosecution advocate, with the prosecuting authority.

D2. If there is no final agreement about the plea to the indictment, or the basis of plea, and the defence nevertheless proceeds to seek an indication of sentence, which the judge appears minded to give, the prosecution advocate should remind him or her of the guidance given in R v Goodyear (Karl) [2005] EWCA 888 that normally speaking an indication of sentence should not be given until the basis of the plea has been agreed or the judge has concluded that he or she can properly deal with the case without the need for a trial of the issue.

D3. If an indication is sought, the prosecution advocate should normally enquire whether the judge is in possession of or has access to all the evidence relied on by the prosecution, including any victim personal statement, as well as any information about relevant previous convictions recorded against the defendant.

D4. Before the judge gives the indication, the prosecution advocate should draw the judge's attention to any minimum or mandatory statutory sentencing requirements. Where the prosecution advocate would be expected to offer the judge assistance with relevant guideline cases or the views of the Sentencing Guidelines Council, he or she should invite the judge to allow them to do so. Where it applies, the prosecution advocate should remind the judge that the position of the Attorney General to refer any sentencing decision as unduly lenient is unaffected. In any event, the prosecution advocate should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.

E. Pleas in Mitigation

E1. The prosecution advocate must challenge any assertion by the defence in mitigation which is derogatory to a person's character, (for instance, because it suggests that his or her conduct is or has been criminal, immoral or improper) and which is either false or irrelevant to proper sentencing considerations. If the defence advocate persists in that assertion, the prosecution advocate should invite the court to consider holding a Newton hearing to determine the issue.

E2. The defence advocate must not submit in mitigation anything that is derogatory to a person's character without giving advance notice in writing so as to afford the prosecution advocate the opportunity to consider their position under paragraph E1. When the prosecution advocate is so notified they must take all reasonable steps to establish whether the assertions are true. Reasonable steps will include seeking the views of the victim. This will involve seeking the views of the victim's family if the victim is deceased, and the victim's parents or legal guardian where the victim is a child. Reasonable steps may also include seeking the views of the police or other law enforcement authority, as appropriate. An assertion which is derogatory to a person's character will rarely amount to mitigation unless it has a causal connection to the circumstances of the offence or is otherwise relevant to proper sentencing considerations.

E3. Where notice has not been given in accordance with paragraph E2, the prosecution advocate must not acquiesce in permitting mitigation which is derogatory to a person's character. In such circumstances, the prosecution advocate should draw the attention of the court to the failure to give advance notice and seek time, and if necessary, an adjournment to investigate the assertion in the same way as if proper notice had been given. Where, in the opinion of the prosecution advocate, there are substantial grounds for believing that such an assertion is false or irrelevant to sentence, he or she should inform the court of their opinion and invite the court to consider making an order under section 58(8) of the Criminal Procedure and Investigations Act 1996, preventing publication of the assertion.

E4. Where the prosecution advocate considers that the assertion is, if true, relevant to sentence, or the court has so indicated, he or she should seek time, and if necessary an adjournment, to establish whether the assertion is true. If the matter cannot be resolved to the satisfaction of the parties, the prosecution advocate should invite the court to consider holding a Newton hearing to determine the issue.

HER MAJESTY'S ATTORNEY GENERAL

Dated this day of October 2005

Attorney General's Chambers
9 Buckingham Gate
London SW1E 6JP

Annex B

Flag 1

To All Prosecutors

The Attorney General's Guidelines On The Acceptance Of Pleas And The Prosecutor's Role In The Sentencing Exercise 2005

I am writing to advise you of an addendum I have made to my Guidelines on the Acceptance of Pleas and Prosecutor's Role in the Sentencing Exercise, issued in October 2005. The addendum makes it mandatory for prosecutors to produce plea and sentence documentation that will outline the basis on which the case is to be opened and provide relevant sentencing information.

The addendum reflects the concerns expressed by the Court of Appeal in R v Cain and others, December 2006. In that case, the Lord Chief Justice was rightly critical of the lack of assistance provided to the sentencing judges in conjoined appeals. He reiterated the important role prosecutors must play in the sentencing exercise.

I have discussed my addendum with the Directors of the CPS, SFO and RCPO. All agree that it will further enhance the role of the prosecutor in the sentencing process by ensuring that there is an accurate record of the basis on which a case is brought and that the court has the necessary assistance in its sentencing exercise.

The addendum is a new paragraph C6 of my Guidelines. It requires prosecutors reviewing Crown Court cases to ensure that material is before the court which identifies the aggravating and mitigating factors that will form the opening of the case. It also requires prosecutors to address issues relevant to the case at the point of sentence. This will include statutory provisions and limitations, relevant sentencing guidelines and/or guideline cases, together with potential and appropriate ancillary orders. In most instances all this information will be included in one document - the plea and sentence document. Whilst I am making this requirement mandatory in cases before the Crown Court, I would also expect C6 to be followed for cases before the magistrates' court where the issues are complex or there is scope for misunderstanding the basis on which the case is presented before the court.

The plea and sentence document should be lodged with the court and served on the defence at least 7 days before the Plea and Case Management Hearing (PCMH) in the Crown Court and at an equivalent point in the magistrates' court. This will allow for occasions where the defendant enters

a guilty plea at such a hearing and the court moves immediately to sentence.

Where the case goes to trial, the prosecution advocate will be required to review the plea and sentence document post conviction and prior to sentence to reflect any changes on which the case was presented to the court and ensure that the relevant statutory provisions, sentencing guidelines and guideline cases are up-to-date and reflective of the verdict.

I will expect local managers to monitor the production of the plea and sentence document and ensure that it is of a high standard and served in good time. To this end, I will ask the Chief Inspector of HMCPSI to scrutinise the process and provide assurance as part of the inspection regime.

No doubt prosecution authorities will wish to issue their own internal guidance to reflect differing case management procedures, but I must emphasise the importance of my Guidelines underpinned by the Prosecutors' Pledge that collectively champion victims' interests and promote and secure fairness and transparency in the criminal justice process.

The addendum comes into effect on 25 June 2007.

8 June 2007

Flag 2

Addendum To The Attorney General's Guidelines On The Acceptance Of Pleas And The Prosecutor's Role In The Sentencing Exercise 2005

New paragraph C6

(1) In all cases before the Crown Court, and in cases before the magistrates' court where the issues are complex or there is scope for misunderstanding, the prosecution must commit to writing the aggravating and mitigating factors that will form the opening of the prosecution case as well any statutory limitations on sentencing. The prosecution will address, where relevant, the factors outlined at B4 including the matters set out in the next sub-paragraph.

(2) The matters to be dealt with are:

the aggravating and mitigating factors of the offence (not personal mitigation);

any statutory provisions relevant to the offender and the offence under consideration so that the judge is made aware of any statutory limitations on sentencing;

any relevant sentencing Guidelines and guideline cases;

identifying any victim personal statement or other information available to the prosecution advocate as to the impact of the offence on the victim;

where appropriate, any evidence of the impact of the offending on a community

an indication, where applicable, of an intention to apply for any ancillary orders, such as anti-social behaviour orders and confiscation orders, and so far as possible, indicating the nature of the order to be sought.

See Policy Bulletin 57/2007

How to use this Legal Guidance

CPS Public Consultations

PDF Information

Sentencing and Ancillary Orders Applications

Principle

Guidance

The Role of the Prosecutor in Sentencing

Previous Convictions

Evidence of Character and Antecedents:

The Rehabilitation of Offenders Act 1974:

Re-Offending During Periods of Post-Release Licence:

'Newton' Hearings

The Sentencing Guidelines Council

Overarching Principles: Seriousness (16.12.04)

New Sentences: Criminal Justice Act 2003 (16.12.04)

Reduction in Sentence for a Guilty Plea (16.12.04 and revised 20.07.07)

Manslaughter by Reason of Provocation (28.11.05)

Definitive Sentencing Guideline on Robbery (25.07.06)

Overarching Principles - Domestic Violence (07.12.06)

Breach of a Protective Order (07.12.06)

Definitive Sentencing Guideline - Sexual Offences Act 2003 (30.04.07)

Definitive Sentencing Guideline Revised 2007 - Reduction in Sentence for a Guilty Plea (20.07.07)

Compensation Orders

Compensation and Confiscation:

The Role of the Prosecutor in Compensation Applications:

Compensation - General

R v Graves (1993) 14 Cr.App.R.(S.) 790

R v Halliwell (1990-91) 12 Cr.App.R.(S.) 692

R v Hose (1995) 16 Cr.App.R.(S.) 682

R v Derby (1990-91) 12 Cr.App.R. (S.) 502

R v Deary (1993) 14 Cr.App.R. (S.) 648

R v Corbett (1993) 14 Cr.App.R (S.) 101

Damage to Stolen Property:

Compensation and Motor Vehicles:

Compensation for Cases Involving Death:

Compensation against the Handlers Of Stolen Property:

Compensation for Personal Injury:

Compensation for Damage or Loss:

Compensation in Cases Where There Is More Than One Defendant:

Compensation and the means/ability to pay:

R v Bagga (1989) 11 Cr.App.R. (S.) 497

R v Yehou [1997] 2 Cr.App.R. (S.) 48

R v Mortimer [1977] Crim. L.R. 624

R v Workman (1979) 1 Cr.App.R. (S.) 335

R v Hackett (1988) 10 Cr.App.R.(S.) 388

R v McGuire (1992) 13 Cr.App.R. (S.) 332

Competing Claims:

Compensation For Police Officers:

Compensation Orders And Young Offenders:

Useful links

Reparation Orders

Deprivation of property

Role of the Prosecutor:

Forfeiture Of Drugs

Forfeiture - Firearms

Forfeiture - Offensive Weapons

Forfeiture - Obscene Publications

Forfeiture of Recognizance (Bail):

Restitution Orders

Role of the Prosecutor

Useful links

Disqualification

Disqualification from driving:

General Power

Discretionary disqualification

Obligatory disqualification

Disqualification - Penalty Points and "totting up".

Disqualification - vehicle used for purposes of crime.

Disqualification from directing a company:

Disqualification from working with children:

Offenders over 18

Offenders under 18

All offenders - discretionary power to disqualify.

Offenders over 18

Offenders under 18

Procedure

Exclusion Orders

Licensed Premises:

Procedure

Sporting Events:

Annex A

Attorney General's Guidelines On The Acceptance Of Pleas And The Prosecutor's Role In The Sentencing Exercise

To All Prosecutors

The Attorney General's Guidelines On The Acceptance Of Pleas And The Prosecutor's Role In The Sentencing Exercise 2005