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Sentencing - Ancillary Orders

Updated September 2011

Principle

The CPS Core Quality Standards (CQS) make clear in standard 9 that, while sentencing is the responsibility of the court, the role of the prosecution is to assist the court in the sentencing process by making it aware of all relevant information. In applying this section of Legal Guidance prosecutors must have in mind the provisions of CQS standard 9, which sets out the steps that the prosecution will take before and during the sentencing hearing.

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. See: Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2009] and Sentencing - General Principles elsewhere in the Legal Guidance.

See also the Ancillary Orders Toolkit.

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Guidance

Prosecutors should identify appropriate ancillary orders that may be relevant. The Plea and Sentence Document (PSD) prepared for complex or unfamiliar cases in the Crown Court and the magistrates' courts, should identify any relevant orders that the court should be invited to impose on conviction.

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.
 
From 3 December 2012, section 63 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserts section 130(2A) into the PCC(S)A 2000 providing: "A court must consider making a compensation order in any case where this section empowers it to do so". This new requirement is in addition to the long-standing requirement in section 130(3) to "give reasons...if it does not make a compensation order...".

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.

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.

Compensation shall be for such amount as the court considers appropriate, taking into account any evidence and representations by the prosecution and defence.  In order to strengthen a compensation application, prosecutors (via the police) should seek evidence in support, for example an estimate or receipt for the repair where damage has been caused or proof of financial loss in the case of fraud. "Loss" may include a sum by way of interest (Schofield [1978] 1 WLR 979). Where the only realistic prospect of recovering money is through a compensation order and the amount is in dispute then a minimum agreed loss can be used to ensure that an order is made (R v David Edward James [2003] 2 Cr.App.R (S) 97).

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.

It is important that prosecutors 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. Failure to do so could result in a referral to the Independent Assessor of Complaints.

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 Crutchley & Tonks (1994) 15 Cr. App. R. (S.) 627).

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.

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.

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 victims face causing a wound. The defendant was ordered to pay £250 compensation. The defendant argued that the victims 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, provided the property has been recovered: section 130 (5) PCC(S)A.

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 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 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; or the defendant has been charged with an offence under the Theft Act 1968.

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 persons 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.

R. v. Stapylton [2012] EWCA Crim 728 is a damage case involving motor vehicles which reiterated the following key principles (all of which were ignored in this case) in relation to the making of compensation orders:

  • the court has no jurisdiction to make an order where there are real issues as to whether those to benefit have suffered any, and if so, what loss;
  • there must be evidence of loss;
  • compensation orders are for straightforward cases;
  • a court should not embark on a detailed inquiry as to the extent of any injury, loss, or damage - that is better done through civil proceedings;
  • compensation orders must not be made unless there is a realistic prospect of compliance; and
  • orders should not be made if they will be protracted in effect, although much will turn on the nature of the offence and the offender.

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. The Court of Appeal has discouraged criminal courts from undertaking complicated investigations to establish the extent of loss: R v Bewick [2008] 2 Cr. App. R. (S.) 31.

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 (1993) 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.

From 27 November 2012 victims who suffer minor injuries will usually not be eligible to claim under the Criminal Injuries Compensation Scheme as the tarrif for claims starts at £1,000. Therefore prosecutors should ensure appropriate applications for compensation are made using as a guide the starting points for compensating injuries contained in the Magistrates' Courts Sentencing Guidelines at:

http://sentencingcouncil.judiciary.gov.uk/guidelines/guidelines-to-download.htm

Under section 130(2A) of the PCC(S)A 2000 (as amedned by section 63 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012), a court must consider making a compensation order in any case where it is empowered to do so.

Compensation for Damage or Loss

Generally, such an application should only be made where suitable documentary or other evidence is available. The fact that the person who has suffered loss has died is not a reason for not making a compensation order: Holt v DPP [1996] 2 Cr.App.R. (S.) 314.

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.

Interest

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.

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

Although there is a presumption in favour of compensation, a compensation order should not be made unless it is "realistic" in the sense that the court is satisfied that the offender either has the means available, or will have the ability to pay within a reasonable time. Where a judge was considering making a compensation order he is under a duty to raise the matter so a proper enquiry into means can be made (R v Bagga (1989) 11 Cr. App. R. (S.) 497).

Compensation orders were upheld which would take 8 years and 5 1/2 years respectively to discharge (R v Molly Ganyo, Prize Ganyo [2011] EWCA Crim 2491).

A compensation order should not be made against the offender on the assumption that a third party will pay the compensation on behalf of the offender (R v Mortimer [1977] Crim. L. R. 624).

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).

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).

Where defendants have the means to pay both confiscation and compensation orders, it would not ordinarily be disproportionate to order both orders to be paid if it remains uncertain whether the loser will be repaid.  Both orders would be disproportionate if there was the certainty of both being satisfied e.g. where a defendant had already repaid the loser or where he had put his solicitor into funds with an undertaking (Mohid Jawad and The Queen - [2013] EWCA Crim 644.) 

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.

Where it has in contemplation making an order against a parent or local authority, the court must allow an opportunity for representations (section137 (4) PCC(S)A).

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Confiscation

For guidance relating to confiscation proceedings under Proceeds of Crime Act 2002, prosecutors should refer to Proceeds of Crime - General Guidance and the Proceeds of Crime - Confiscation and Ancillary Orders post POCA 2002, elsewhere in the Legal Guidance.

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. Further, 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.

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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, the trial advocate must be briefed to make the application.

Reference should be made in the PSD to the availability of a deprivation order.

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 does not have any 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; R v Khan (1982) 4 Cr. App. R. (S.) 298. This was confirmed in the case of O'Leary International Limited v The Chief Constable of North Wales [2012] EWHC 1516 (Admin).

A deprivation order should not be made where it will cause the offender undue hardship. R v Tavenor (Unreported) 4 April 1974. In addition, having regard to the totality principle, a deprivation order should not be imposed if other parts of the other sentence imposed for the offence creates an excessive overall penalty. R v Scully (1985) 7 Cr. App. R. (S.) 119.

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.

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 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 to 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 offenders 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. Application should be made where appropriate under the relevant legislation.

Forfeiture - 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 from 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 Legal 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 offence under the Act (other than an offence relating to an air weapon) and is given a custodial sentence or a community order containing a requirement not to possess, use or carry a firearm.

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.

See also Firearms elsewhere in the Legal Guidance.

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.

See also Offensive Weapons, Knives, Bladed and Pointed Articles, elsewhere in the Legal Guidance.

Forfeiture - Obscene Publications

Section 2 Obscene Publications Act 1959 deals 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.

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 the Legal Guidance.

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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 ss.148-149 Power of Criminal Court (Sentencing) Act 2000.

Section 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.

Under s.148 (2) the court 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.

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. However, 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: Archbold [2010] 5 - 431, and Current Sentencing Practice J3 - 1

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Financial Reporting Order

See Financial Reporting Orders elsewhere in Legal Guidance.

Serious Crime Prevention Order

Section 19 Serious Crime Act 2007 provides for the making of a serious crime prevention order (SCPO). A serious crime prevention order (SCPO) can be made:

  • on application to the High Court (section 1 Serious Crime Act 2007); or
  • following conviction for a "serious crime" in the Crown Court.

The defendant must have been convicted of a "serious crime" as defined in section 2 (2) & Sch.1 Serious Crime Act 2007. The order is also subject to safeguards under sections 6-15.

The court can make an order if satisfied there are "reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the defendant in serious crime in England and Wales". The order must be in addition to and not a substitute for sentence for the offence.

Orders are made on the application of the DPP (or Directors of RCPO and SFO). The order can contain such prohibitions, restrictions or requirements and such other terms as court considers appropriate for the purposes above.

Application may also be made to the High Court for a Serious Crime Prevention Order under section 1 Serious Crime Act 2007 in the case of a person who has not been convicted of an offence but who has been "involved in serious crime". The Attorney General must be consulted before any application is made to the High Court.

Procedure

For detailed guidance on these provisions, see Serious Crime Prevention Orders elsewhere in the Legal Guidance.

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Disqualification

Disqualification from driving

In cases requiring a PSD, the PSD should identify the relevant provision(s) relating to disqualification and endorsement that apply in the case of each offender on conviction.

General power

Section 146 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. Somewhat surprisingly, perhaps, it is not a requirement of disqualification that the offence is connected with the use of a motor vehicle: the power to disqualify under s. 146 is a general power.

Disqualification must take effect upon sentence and cannot be postponed until e.g. release (R v McNeill [2008] EWCA Crim. 553). It should be noted that s. 137 and schedule 16 the Coroners and Justice Act 2009 contain powers to extend a period of disqualification so that it takes effect only after the end of a custodial term. However, this has not yet been brought into effect.

Disqualification under section 146 upon conviction of any offence provides both an additional punishment and a preventive measure available to the court, but the court cannot impose a period of disqualification arbitrarily. There must be a sufficient reason for the disqualification (R v Cliff [2004] EWCA Crim 3139).

What is sufficient reason will vary from case to case, and while this will fall short of needing to prove use of a vehicle to commit or facilitate the crime, the defendant should at least have shown either bad driving, (as in Cliff) or for there to be some connection with the offending to support the argument that a disqualification will prevent further offending. Examples may include; cases where the defendant regularly meets co-conspirators in his car; makes numerous calls in relation to the conspiracy from his car; or regularly uses the car to go to telephone kiosks to make calls.

While disqualification can undoubtedly be both a punishment and a preventive measure, both aims should be achieved through the disqualification itself, not extraneous effects such as greater difficulty in obtaining insurance as a previously disqualified driver.

In summary, it will be appropriate to invite a judge to consider a disqualification, which would extend beyond the earliest release date, as a preventive measure, if it can be suggested that there is a real risk of re-offending and that the disqualification would serve to prevent or disrupt such offending. So for example, on a sentence of 8 years, a disqualification for 5 years would potentially prevent the offender driving for one year were he to be released, as is likely, following completion of 50% of his nominal sentence. If the sentence is very long, e.g. in the region of 15-20 years, it is doubtful that it will be appropriate. It should be the disqualification from driving that provides the preventive measure sought, not any extraneous collateral effect which may be consequent upon it.

Disqualification - vehicle used for purposes of crime

Section 147 Powers of Criminal Courts (Sentencing) Act 2000.

This power may be exercised in the Crown Court where the offender is convicted of any offence punishable with at least 2 years imprisonment. No minimum or maximum period of disqualification is specified.

Where the substantive offence consists of an assault committed by driving a vehicle, the power to disqualify under s. 147 may be exercised by either the magistrates courts or the Crown Court.

Where disqualification is to be under s. 147, 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 Road Traffic Offences, elsewhere in the Legal Guidance.

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;
  • causing death by driving whilst unlicensed, disqualified or uninsured;
  • 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 three years 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 the defendant is convicted of dangerous driving or 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, 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.

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.

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 from directing a company

Company Directors Disqualification Act 1986, s.2.

The purpose of this disqualification is to remove from a person the privilege of operating with limited liability, in order to protect the public from dishonest operations of companies that are a danger to creditors and to others.

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 companys property.

"Connection with" does not require the offending to take place within the company, rather the offender's status at a company and the offence itself must be related to a company.

The defendant does not need to have been a director, shadow director or de facto director of the company.

The offence does not need to involve misconduct of a company's affairs or dishonesty.

The court does not need to find that the individual is unfit to act as a company director.

There is no statutory minimum period of disqualification for an order made by the criminal courts. (There is a minimum disqualification period of two years for disqualification orders in the civil court). However the maximum period of disqualification is 15 years in the Crown Court and 5 years when imposed in the magistrates' courts.

Guidance on the length of the disqualification was given by the Court of Appeal in Re Sevenoaks Stationers (Retail) Ltd [1991] Ch 164 as follows:

  • 10 years and above for particularly serious cases, such as where a second period of disqualification is appropriate or there is widespread fraud; 
  • 6-10 years for serious cases which do not merit the top bracket; 
  • 2-5 years where the case is relatively not very serious, such as involving a short period of offending with little/no harm caused to creditors.

The PSD should make reference to the power to disqualify in relevant cases, and the court should be made aware of the power to disqualify on conviction.

Where the sentence on a defendant includes an order under section 2 of the Company Directors Disqualification Act 1986, Companies House must be notified of the order. This is the immediate responsibility of the Crown Court making the order, but it would appear that it is not always being done and Companies House has asked that the prosecutor notifies them too. This may be done using the Directors Disqualification Notification Form.

Breach of a disqualification order or undertaking is an either way offence under section 13 of the Company Directors Disqualification Act 1986. The maximum sentences are:

  • Magistrates' Court: six months' imprisonment and/or a fine to the statutory maximum; 
  • Crown Court: two years' imprisonment and/or a fine.

Disqualification from working with children

See Safeguarding Children: Guidance on Children as Victims and Witnesses, elsewhere in the Legal Guidance.

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

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

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 Majestys 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 from 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 and Schedule 30, paragraphs 1 and 2).

Subsequent Applications

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

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 any 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.

Repeal of Disqualification Orders

The Safeguarding Vulnerable Groups Act 2006 (SVGA) provides that the legislation relating to disqualification orders will eventually be fully repealed. The Government intends to initiate full repeal once relevant provisions of the new Vetting and Barring Scheme (VBS) have come into force making disqualification orders redundant.

With effect from 12 October 2009 persons who have already been barred under the VBS from "regulated activity" (which includes, among other things, working with or having overnight contact with children) will no longer be susceptible to having a disqualification order made against them. In respect of such defendants, sections 24, 26 to 38 and schedule 4 to the CJCSA will cease to have effect.

Further, where a person who is already subject to a disqualification order under the CJCSA is barred by the ISA, no breach of that disqualification order will be enforceable under the CJCSA provisions. Instead, where a person is barred from regulated activity, the barring offences in sections 7 and 9 of the SVGA will apply if that person seeks/offers to or engages in regulated activity or where another person knowingly permits the barred person to engage in regulated activity.

Because implementation of the VBS is being phased, repeal of disqualification orders is also being phased. Therefore, disqualification orders remain available to the court, in certain circumstances. Where a person is not barred from regulated activity or is no longer barred from such activity, disqualification orders in relation to that person are still available under the CJCSA provisions and, in relevant cases unless it is clear that the defendant is already barred under the VBS, prosecutors should continue to apply for disqualification orders to be made, for the time being.

Further details of the transitional arrangements for the repeal of Disqualification Orders is contained in Safeguarding Children: Guidance on children as Victims and Witnesses, elsewhere in Legal Guidance.

Separate Guidance will be issued regarding disqualification orders relating to vulnerable adults.

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Exclusion Orders

Licensed Premises

Section 1 Licensed Premises (Exclusion of Certain Persons) Act 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.

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). See further Archbold [2010] 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.

Drinking Banning Orders

Drinking banning orders (DBOs) are provided by sections 1 to 5 of the Violent Crime Reduction Act 2006. A drinking banning order (DBO) is a civil order which is used to address an individual's alcohol misuse behaviour and protect others and their property from such behaviour by imposing 'any prohibition which is necessary for the purpose of protecting other persons from criminal or disorderly conduct by the subject while he is under the influence of alcohol' (s.1 VCRA 2006).

Breach of the terms of a civil DBO, or failure to comply with an interim civil DBO, constitutes a criminal offence. The CPS will prosecute offences of breach of a DBO or an interim DBO and will apply the Code for Crown Prosecutors. Breach, if proved, is punishable with a Level 4 fine.

Sections 6 to 8 of the VCRA 2006 make provision for DBOs to be made on conviction when a person is convicted of an offence which is committed while under the influence of alcohol.

DBOs on conviction are available in the first tranche of 25 Local Justice Areas for offences committed after 1 April 2010. [This is pursuant to the Violent Crime Reduction Act 2006 (Commencement No 8) Order 2010]. DBOs on conviction will be rolled out to a further 25 Local Justice Areas from 1 November 2010. Once DBOs on conviction have been rolled out to every Magistrates' Court in England and Wales, they will become available in the Crown Court as well.

For further details, see Drinking Banning Orders elsewhere in the Legal guidance.

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).

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 s.14A 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. See further; Archbold [2010] 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.

See further guidance on Football Related Offences, elsewhere in the Legal Guidance.

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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 Anti-Social Behaviour Guidance elsewhere in the Legal Guidance.

Violent Offender Orders

Since 3 August 2009 magistrates courts have had power to make Violent Offender Orders under Part 7 of the Criminal Justice and Immigration Act 2008. A violent offender order (VOO) is a civil order which is intended to protect the public from "qualifying offenders" who pose a current risk of "serious violent harm". They are available for offenders over 18 who have been received at least 12 months custody or a hospital order or have been found not guilty by reason of insanity for one of the following 'relevant' offences:

  • Manslaughter
  • Solicitation to murder
  • S. 18 OAPA 1861
  • S. 20 OAPA 1861
  • Attempt or conspiracy to murder
  • Equivalent Service offences

A VOO is a stand alone order, made on complaint by a chief officer of police. There is no power for the CPS to apply for a VOO. A VOO is not an order made ancillary to conviction and cannot therefore be made at the same time as an offender is being sentenced.

However, breach of the terms of a VOO, or failure to comply with the notification requirements of a VOO, constitutes a criminal offence punishable by 5 years imprisonment. The CPS will prosecute offences of breach of VOO or breach of notification requirements and will apply the Code for Crown Prosecutors.

For further details see Violent Offender Orders elsewhere in Legal Guidance.

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Restraining Orders

Protection from Harassment Act 1997.

Section 12 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) came into force on 30 September 2009. This amended section 5 of the Protection from Harassment Act 1997 (PHA 1997). Previously a criminal court could only make a restraining order when sentencing or otherwise dealing with a defendant convicted of offences of harassment or putting a person in fear of violence under the PHA 1997. The amendment allows a court to make a restraining order on conviction or acquittal for any offence.

These orders are intended to be preventative and protective. The guiding principle is that there must be a need for the order to protect a person. Police Officers should provide any additional information required for prosecutors to decide whether to invite the court to make a restraining order using section 8 of the MG5 form (Application for Orders on conviction). This information should be requested from the police as early as possible.

Separate guidance on Restraining Orders, is available elsewhere in the Legal Guidance.

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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 PreventionOrder (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.

R v Steven Smith, Wayne Clarke, Bryan Hall, and Jonathan Dodd [2011] EWCA Crim 1772 provides guidance on the use and terms of SOPOs.

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 s.5A Sex Offenders Act 1997;
  • a sex offender order or interim order under s.2, 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 (SI 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.

R v Beeden [2013] EWCA Crim 63 held that the defendant had to comply with the terms of the order until such time as it was varied. It was not mitigation in breach proceedings to argue that the term that was breached was later removed.

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 courts 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 Sentencing - Dangerous Offenders, elsewhere in the Legal 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.

Breach proceedings can fail due to discrepancies in the terms of the order as recorded by the court office and the actual order made by the judge in court. To avoid this prosecutors should deliver a written document setting out in draft the proposed order. This can then be adopted or amended by the court as appropriate and so reduce the risk of error in translation. (R. v. P , unreported, 10 May 2012)

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

The role of the prosecutor

Notification obligations do not depend on a court order, and a criminal court does not have any 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.

It is the responsibility of the CPS to prosecute the offence of breaching notification requirements.

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

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Travel Restriction Order

The power to make a Travel Restriction Order is contained in section 33 Criminal Justice and Police Act 2001. It may be exercised following a conviction for a "drug trafficking offence" where the term of imprisonment is four years or more. It is applicable to offences committed after 1 April 2002.

The court must consider making such an order, and must give reasons for not making such order where otherwise appropriate. The order should restrict the travel of the offender for at least two years from the date of his release; section 34 defines "drug trafficking offence" for these purposes. The purpose of the order is the reduction of risk of re-offending after release.

The definition of "drug trafficking offence" for the purpose of this section is significantly narrower than the definition of the same expression in Drug Trafficking Act 1994 (s.1). In particular, it does not appear to include either possession with intent to supply or "money laundering" offences.

The court should be reminded of the power to impose such an order on conviction for a relevant offence.

A person who leaves the United Kingdom when prohibited by a travel restriction order commits a criminal offence - section 36(1) Criminal Justice and Police Act 2001.

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.

A person who is not in the United Kingdom at the end of a period during which a prohibition imposed on him by a travel restriction order has been suspended commits an offence.

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.

A person who fails to comply with:

  • a direction contained in a travel restriction order to deliver up a passport to a court, or to cause such a passport to be delivered up, or
  • any duty imposed on him to surrender a passport to the Secretary of State,

shall be guilty of an offence and liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

Procedure

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 Travel Restriction Order in the event of conviction. This requires the prosecutor to identify that the offence is one to which section 33 Criminal Justice and Police Act 2001 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 Travel Restriction Order in appropriate cases.

It is the responsibility of the CPS to prosecute the offence of breach of a Travel Restriction Order. When making the decision to prosecute, prosecutors should apply the Code for Crown Prosecutors.

Deportation

Section 32 of the of the UK Borders Act 2007 provides for automatic deportation by order of the Secretary of State of any person who is not a British citizen who has been convicted of a specified criminal offence anywhere in the U.K., and as a result of that conviction has been sentenced to imprisonment for at least 12 months. Note: this does not apply to a person who has been sentenced to a period of at least 12 months only by reason of having been sentenced to a number of consecutive shorter periods having an aggregate length of over 12 months (s. 38(1)(b)).

The list of specified offences is set out in the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004/1910 and includes many common offences under the Sexual Offences Act 2003, the Theft Acts and the Misuse of Drugs Act 1971 as well as more serious offences such as manslaughter. The Secretary of State must make a deportation order where section 32 applies unless one or more of the exceptions in section 33 are made out.

In addition to automatic deportation, a court which convicts a person over the age of 17 who is not a British citizen of an offence which is punishable by imprisonment (if he were an adult) may recommends his or her deportation: section 3 (6) Immigration Act 1971. In deciding whether to recommend deportation, the court must consider whether the accuseds 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 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".

See further: Archbold - [2010] 5 - 910 and following paragraphs.

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).

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