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Sentencing - Ancillary Orders

Updated: 29 August 2024|Legal Guidance

Introduction

It is the duty of the prosecution advocate to apply for appropriate ancillary orders or to remind the court of its power to make an order. When considering which ancillary orders to apply for, prosecution advocates must always have regard to the victim, especially the issue of their future protection.

Compensation Orders

Compensation orders are governed by sections 133-135 of the Sentencing Act 2020 [‘SA 2020’] (which applies to all convictions on or after 1st December 2020). There is no statutory limit on the amount of compensation that may be imposed in respect of offences for an offender aged 18 or over (except that a compensation order shall not exceed £5,000 where a magistrates' court imposes such an order on an offender aged under 18). Compensation may also be ordered in respect of offences taken into consideration [‘TICs’] (section 133(a)(ii) SA 2020).

Subject to consideration of the victim’s views, the court has a discretion to order compensation, wherever possible, and should not have regard to the availability of other sources of recompense such as civil litigation or the Criminal Injuries Compensation Scheme which have the power to take into account any compensation ordered in deciding whether to make a further award.

Compensation orders may be imposed on an offender 'instead of or in addition to dealing with him in any other way' (section 134(2) SA 2020). Where it would be appropriate both to impose a fine and to make a compensation order, but the offender has insufficient means to pay both, the court shall give preference to compensation, though it may impose a fine as well (section 135(4) SA 2020).

The Role of the Prosecutor in Compensation Applications

The court is obliged to make a compensation order in any case where it is empowered to, whether on application or not: section 130(2A) PCC(S). Courts must give reasons where they do not make an order (section 55 SA 2020).

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 obligation to consider compensation, inviting them to make such an order where appropriate and providing information in order to assess an appropriate award.

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. 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.

Compensation orders are made 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 there is a dispute between the prosecution and defence as to the amount payable, and the court considers that a complete reconciliation would present a complicated and difficult task, but that the assessment of the minimum loss was a comparatively simple task, it should make an order in a sum representing the minimum loss if it would be in the interests of justice to do so: R v David Edward James [2003] EWCA Crim 811.

Where information is incomplete the courts do have some discretion to make an assessment of the amount to be awarded. However, if the claim is challenged, the court must hear evidence: R v Horsham Justices, ex parte Richards [1985] 1 WLR 986. It may be appropriate to ask the court to adjourn the proceedings so that evidence can be called in support of a claim.

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. The loss must result from the offence and there must be sufficient evidence of causation before a compensation order can be made: R v Derby (1990-91) 12 Cr App R (S) 502 and R v Deary (1993) 14 Cr App R (S) 6480. It is not necessary that the loss, damage or personal injury should be inflicted intentionally: R v Corbett (1993) 14 Cr App R (S) 101.

It is important that Prosecutors note what compensation was requested, what orders were made and any comments the court may have made in making an award or reducing the amount ordered.

Damage to Stolen Property

Section 137 SA 2020 provides that in cases of offences under the Theft Act 1968 or Fraud Act 2006, compensation can be ordered against the defendant in respect of damage caused whilst the property was out of the possession of the owner. This is regardless of how and by whom the damage was caused, provided the property has been recovered. 

Compensation and Motor Vehicles

The provisions of section 137 SA 2020 include damage to stolen motor vehicles which are subject of a charge.

Under section 136 SA 2020 which deals with road accidents, compensation orders are only possible 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.

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 their death due to an accident arising from the presence of a motor vehicle on a road (section 136(1) SA 2020).

R v Stapylton [2012] EWCA Crim 728 (18 April 2012) – a dangerous driving case reiterated the following key principles:

  • 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 - section 133(b) SA 2020.

Compensation for bereavement is limited to those who can claim under the provisions of the Fatal Accidents Act 1976, namely the spouse or civil partner of the deceased, or, in the case of a minor, their parents (or mother in the case of parents who are not married). The current limit is set out in section 1A(3) of the Fatal Accidents Act.

Compensation against the Handlers of Stolen Property

Any request 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 may include medical reports and photographs. Generally, the more serious the injury, the more information will be needed by the court. This will include details of the injury itself, treatment, time lost from work and the likely prognosis. Details of expenses such as dentists or opticians should also be provided.

In large/complex 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 [2007] EWCA Crim 3297.

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. Accordingly, compensation orders in modest amounts for emotional distress may be appropriate. Conversely, no compensation would be appropriate where there was no evidence that a person had suffered distress (for example bystander witnesses): R v Vaughan [1990-91] 12 Cr App R (S) 46.

Evidence of the effect on a victim of the offence should be contained within the Victim Personal Statement.

The Criminal Injuries Compensation Scheme tariff for claims starts at £1,000. Where the injuries are minor it is therefore important that Prosecutors make applications for compensation. A guide to the starting points for compensating injuries is contained in the Magistrates' Courts Sentencing Guidelines.

Compensation for Police Officers

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

Compensation in Cases where there is more than one Defendant

It may be difficult to determine who ought to pay compensation in respect of a particular loss. R v Thomson Holidays Ltd (1974) Q B 592, 58 Cr App R 429 CA and R v Taylor (1993) 14 Cr App R 276 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. However, in some cases it may be appropriate to award compensation against one defendant and not another.

Compensation and the means/ability to pay

A compensation order should not be made unless it is realistic. The court must be satisfied that the offender either has the means available, or will have the ability to pay within a reasonable time. When a sentencer is considering making a compensation order, they are 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.

Reasonable time falls to be assessed by the court, to ensure they do not impose an undue burden. In R v Molly Ganyo, Prize Ganyo [2011] EWCA Crim 2491 the court upheld compensation orders which would take 8 years and 5 1/2 years respectively to discharge.

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 their solicitor into funds with an undertaking: Mohid Jawad and The Queen [2013] EWCA Crim 644.

Enforcement

Enforcement of compensation orders is the function of the magistrates' courts. The maximum terms of imprisonment which a magistrates' court may impose in default of payment of compensation orders are specified in Schedule 4 of the Magistrates’ Courts Act 1980. The maximum terms indicated in Schedule 4 will normally also apply in default of compensation orders imposed by the Crown Court.

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 135(4) SA 2020). 

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 (section 380 SA 2020). Section 380 SA 2020 enables the court to order compensation against a local authority having care of a young offender.

Where the court is considering making an order against a parent or local authority, it must allow an opportunity for representations (section 380(3) SA 2020).

Section 139 SA 2020 imposes a limit of £5000 on the amount payable under compensation order of magistrates’ court in case of young offender in respect of the offence, or any one of the offences.

Confiscation

For guidance relating to confiscation proceedings under Proceeds of Crime Act 2002, prosecutors should refer elsewhere in the Legal Guidance to:

Proceeds of Crime - General Guidance and 

Proceeds of Crime - Confiscation and Ancillary Orders – post POCA 2002

Slavery and Trafficking Reparation Orders

Section 8 of the Modern Slavery Act 2015 allows a Slavery and Trafficking Reparation Order to be made against defendants convicted of sections 1, 2 or 4 of the Modern Slavery Act 2015 where a Confiscation Order has been made. Such an order requires the defendant to pay compensation to the victim for any harm resulting from the offence. However, such an order may only be made in conjunction with a fine and/or a compensation order if the defendant has sufficient means to pay all financial orders; and, if not, then priority must be given to compensation (section 8(6) Modern Slavery Act 2015, and, sections 135(4) and 143(5)(b)(iii) SA 2020).

Criminal Behaviour Orders

The CBO is an order on conviction, available following a conviction for any criminal offence in the Crown Court, magistrates' court or youth court. The CBO replaces the Anti-social Behaviour Order (ASBO) on conviction and the Drinking Banning Order on conviction.

The provisions relating to Criminal Behaviour Orders (CBO) are in Part 2 of the Anti-social Behaviour, Crime and Policing Act 2014. For detailed guidance on the policy and procedure relating to CBOs, see the legal guidance about Criminal Behaviour Orders.

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. 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’ (section 38(1) (b)).

In Kluxen, R v [2010] EWCA Crim 1081 (14 May 2010), the court ruled that whether offenders were EU or non-EU nationals, it was not necessary or appropriate for the courts to make recommendations for the deportation of those who qualified as "foreign criminals" under the UK Borders Act 2007, section 32. Where the Act did not apply, the bar to be cleared for recommending deportation was set at a high level and a recommendation for deportation would rarely be appropriate.

The Secretary of State is obliged by section 32(5) to make a deportation order unless one or more of the exceptions specified in section 33 applies, and it is for the Minister to decide whether any of those exceptions did apply.

A recommendation for deportation is not part of the punishment such as to justify a reduction in the sentence: R v. Edgehill (1963) 47 Cr App R 41.

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. This list does not include murder and therefore the court should be invited to recommend deportation.

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 their deportation- (section 3(6) Immigration Act 1971). When deciding whether to recommend deportation, the court must consider whether the accused's continued presence in the United Kingdom is to its detriment, 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 [1980] 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: Carmona v R. [2006] EWCA Crim 508 (14 March 2006) 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.

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

Procedure For Non Automatic Deportation

The court will determine whether the presence of the accused 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 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.

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 decision as to whether the offender would be deported.

Prosecutors should check that form IM3 has been served in appropriate cases and should be ready to assist the court by making submissions as to the appropriateness of a recommendation for deportation.

The Role of the Prosecutor in Deprivation of Property Orders 

It is the responsibility of the prosecutor to ask the court to consider making a deprivation order under the relevant legislation. 

Powers of the Court

Sections 152-155 of the SA 2020 (which applies to all convictions on or after 1st December 2020) govern 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 155(1) SA 2020).

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. Orders have been upheld in respect of vehicles used to transport stolen property by persons convicted of handling: R v Lidster [1976] RTR 240.

The court should not make an order unless there is adequate supporting evidence.

The court does not have any power in relation to real property. This includes land and anything that is built or growing on the land e.g. buildings, crops and mineral rights. In R v Khan (1982) 4 Cr App R (S) 298 the court had made a deprivation order in relation to the defendant’s interest in a house, the Court of Appeal ruled that the orders did not extend to real property or interests therein. Orders should only be made 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 (1979) 1 Cr App R (S) 341 CA; 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 penalty overall: 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 (1991) 92 Cr App R (S) 263.

Trans Berckx BVBA v North Avon Magistrates' Court and others [2011] EWHC 2605 (Admin) [a case decided in relation to the former section 143 PCC(S)A 2000] held that the making of a deprivation order under section 143 PCC(S) must take into account the value of the property and any effect, including financial on the offender, as required by section 143(5) (now section 155(1) SA 2020). If it does not, the order will be invalid.

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

In R v Highbury Corner Stipendiary Magistrate, DC, the court accepted that deprivation orders can serve a dual purpose: namely the removal from public circulation of an article which has been used for the purpose of committing or for facilitating the commission of an offence; and as part of the punishment inflicted upon the offender.

Watkins LJ said that a court considering whether to make an order under sections 152-155 SA 2020 should have regard to the totality principle and the two matters specifically set out in section 155(1) SA 2020 - the value of the property concerned and the likely financial and other effects on the offender of making the order, taken together with any other order which the court contemplated making.

However, the punitive weight of any deprivation order will, and should, be given relatively little weight in relation to the deprivation of illegal items such as counterfeit goods, prohibited drugs, or weapons: even if the financial loss resulting is significant. 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 offender's means (section 159 SA 2020).

In addition to the SA 2020, 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 the Proceeds of Crime 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 permitted 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), however sections 152-155 SA 2020 allow the court to make an order depriving the offender of property used for the purpose of committing, or facilitating the commission, of crime or intended to be used for that purpose.

There is a power under section 6 Knives Act 1997 in relation to unlawfully marketed knives.

Other Powers

Other forfeiture powers exist under other acts, for example:

Forfeiture of Recognizance (Bail)

If the condition of a recognizance (bail) entered into by a surety is broken, the recognizance may be forfeited and on forfeiture the obliged becomes a debtor of the Crown: R v Southampton JJ, ex p. Green [1976] QB 11 CA. The power to declare a recognizance to be forfeited is strictly dependant on there being a breach of the condition of the recognizance; a mere breach of a condition of bail is not sufficient: R (on the application Hart) v Bow Street Magistrates’ Court [2002] 1 WLR 1242 DC. The prosecutor's role is to assist the court with the history of the matter.

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 their recognizance.

Disqualification from driving

In certain circumstances, a person may be disqualified from holding or obtaining a driving licence.

A person appearing before a court may be disqualified:

Sections 163 and 164 of the Sentencing Act 2020 apply to offenders convicted on or after 1 December 2020. In respect of offenders convicted before that date, the equivalent provisions are sections 146 and 147 of the PCC(S)A.

General power to disqualify

Section 163 of the Sentencing Act 2020 provides that a court may impose a driving disqualification order on a person convicted of an offence instead of or in addition to dealing with them in any other way. The power is available to the Crown Court and magistrates' courts and applies in relation to any offence.

The order provides both an additional punishment and a preventive measure. However, there must be sufficient reason for the disqualification. The following are examples of cases in which such orders have been imposed:

  • Cliff [2004] EWCA Crim 3139 - the offender had admitted that before committing affray he had driven a car whilst affected by drink or drugs or both.
  • Bye [2005] EWCA Crim 1230 - disqualification for 12 months in conjunction with a prison sentence of 8 months was upheld where the offender got out of their car and attacked another motorist.
  • Waring [2005] EWCA Crim 1080 - disqualification for 18 months in conjunction with a prison sentence of 4 months for escape from lawful custody was upheld. The offender had been stopped by the police, provided a positive breath test but, in the process of being taken to the police station, had jumped from the police car and escaped. He thereby avoided a secondary breath test and any possibility of being prosecuted for driving with excess alcohol.
  • Sofekun [2008] EWCA Crim 2035 - disqualification upheld where the offender had cannabis concealed within the bonnet of their car in small bags ready for supply.

Vehicle used for purposes of crime

Section 164 of the Sentencing Act 2020 provides powers to impose a driving disqualification order in two sets of circumstances.

Under section 164(1) and 164(2) SA 2020, the Crown Court may impose a driving disqualification order where:

  • a person is convicted on indictment (this includes where the person is committed to the Crown Court for sentence and the Crown Court has the power to deal with them as if they had been convicted on indictment, see sections 21, 22 and 23 of the Sentencing Act 2020 for where this applies), and
  • the offence is punishable with imprisonment for 2 years or more, and
  • the court is satisfied that a motor vehicle was used (by the offender or by anyone else) for the purpose of committing the offence, or to facilitate the commission of the offence (which includes any taken steps after the offence was committed to dispose of any property to which the offence relates or to avoid apprehension or detection).

Under section 164(3), any court may impose a driving disqualification order where:

  • a person is convicted before the court of common assault or any other offence involving an assault (including an offence under Part 2 of the Serious Crime Act 2007, which relates to encouraging or assisting crime), and
  • the court is satisfied that the assault was committed by driving a motor vehicle.

Offences attracting obligatory disqualification

For detailed guidance on road traffic offences see the Road Traffic legal guidance.

Under section 34 of the Road Traffic Offenders Act 1988, where an offence is subject to obligatory disqualification the court must disqualify unless it finds special reasons not to do so.

Under section 97 of and Schedule 2 to the Road Traffic Offenders Act 1988, the following offences are subject to obligatory disqualification:

  • causing death by dangerous driving 
  • causing serious injury by dangerous driving
  • dangerous driving
  • causing death by careless or inconsiderate driving
  • causing death by driving whilst unlicensed or uninsured 
  • causing death by driving whilst disqualified
  • causing serious injury by driving whilst disqualified
  • causing death by careless driving when under influence of drink or drugs
  • driving or attempting to drive when unfit to drive through drink or drugs
  • driving or attempting to drive with excess alcohol
  • driving or attempting to drive with a concentration of a specified controlled drug above a specified limit
  • failing to provide a specimen for analysis (driving or attempting to drive)
  • failing to allow a specimen to be subjected to a laboratory test
  • motor racing or speed trials on public ways
  • Using vehicle in dangerous condition (if committed within three years of a previous conviction for the same offence)
  • manslaughter by the driver of a motor vehicle
  • aggravated vehicle taking.

Offences attracting discretionary disqualification

The court may also disqualify a person under section 34 of the Road Traffic Offenders Act 1988 for an offence carrying discretionary disqualification.

Under section 97 of and Schedule 2 to the Road Traffic Offenders Act 1988, the following offences are subject to discretionary disqualification:

  • stealing or attempting to steal a motor vehicle
  • taking a motor vehicle without consent, or being carried 
  • going equipped to steal a motor vehicle
  • wanton or furious driving (section 35 of the Offences against the Person Act 1861), and
  • most endorsed offences under the Traffic Acts which do not attract obligatory disqualification (see part 1 of Schedule 2 of the Road Traffic Act 1988).

Penalty Points and 'totting up'

When an offender is convicted of an offence subject to obligatory endorsement, the court must determine the number of points to be awarded and these points are added to the offender's licence.

Under section 35 of the Road Traffic Offenders Act 1988, if the total number of points to be taken into account on that occasion is 12 or more, the defendant must be disqualified unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit not to order him to be disqualified.

Period of disqualification and extended driving tests

In general, a court may impose disqualification for such a period as it thinks fit. However, this is subject to various minimum period requirements.

Under section 34 of the Road Traffic Offenders Act 1988, for offences subject to obligatory disqualification the minimum period is 12 months unless the court for special reasons thinks fit to order a shorter period. However, there are longer minimum periods for some offences subject to obligatory disqualification:

  • offences of manslaughter by the driver of a motor vehicle, causing death by dangerous driving, causing serious injury by dangerous driving, causing death by driving whilst disqualified, causing serious injury by driving whilst disqualified, and causing death by careless driving whilst under the influence of drink or drugs: two years, unless the court for special reasons thinks fit to order a shorter period
  • an offence subject to obligatory disqualification where the person has been disqualified two or more times for periods of 56 days or more in the three years preceding the commission of the present offence (subject to certain exceptions set out in section 34(4A) and not counting any extension period towards the 56 days – see below regarding extension periods): two years, unless the court for special reasons thinks fit to order a shorter period
  • offences of driving with excess alcohol and various other offences relating to driving under the influence of drink or drugs (set out in section 34(3)), where the defendant has been convicted such an offence in the 10 years preceding the commission of the present offence: three years, unless the court for special reasons thinks fit to order a shorter period

Under section 36 of the Road Traffic Offenders Act 1988, where a person is disqualified under section 34 for an offence of manslaughter by the driver of a motor vehicle, causing serious injury by dangerous driving, dangerous driving, causing death by driving whilst disqualified, or causing serious injury by driving whilst disqualified, that person must also be disqualified until they have passed an extended driving test.

Under section 35 of the Road Traffic Offenders Act 1988, where a person is disqualified under the ‘totting up’ procedure, the minimum period of disqualification is six months. However, if a previous disqualification of 56 days or more was imposed within three years of the commission of the latest offence (not counting any extension period towards the 56 days – see below regarding extension periods), the minimum period is one year. If there are two or more such disqualifications imposed within three years of the commission of the latest offence, the minimum period is two years. Where there are grounds for mitigating the normal consequences and the court thinks fit it may order a shorter period of disqualification.

There are particular provisions that apply where an offender is sentenced both to disqualification and a custodial sentence or is already serving a custodial sentence:

  • Where a court orders disqualification and also imposes a custodial sentence for the same offence, the disqualification must include an extension period: see section 35A of the Road Traffic Offenders Act 1988 in respect of disqualification under section 34 or 35 of that Act, and section 166 of the Sentencing Act 2020 in respect of disqualification under section 163 or 164 of that Act (or, for offenders convicted before 1 December 2020, section 147A PCC(S)A 2000 in respect of disqualification under sections 146 and 147 PCC(S)A) 2000. The extension period depends on the type of custodial sentence imposed, but broadly corresponds to the period that the person might be expected to spend in custody – see section 35A(4) of the Road Traffic Offenders Act 1988 and section 166(5) of the Sentencing Act 2020 for details (or section 147A(4) PCC(S)A 2000 where applicable). (Note that, as a result of section 141 of the Police, Crime, Sentencing and Courts Act 2022, where a person is serving a sentence to which section 244ZA or 247A of the Criminal Justice Act 2003 applies, the extension period is increased to the period currently specified in those sections even if the extension period when the sentence was imposed was shorter.)
  • Where a court proposes to order disqualification for one offence and proposes to impose custody for another offence or the person is already serving a custodial sentence, in determining the period for which the person is to be disqualified the court must have regard to the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also in custody for another offence, so far as it is appropriate to do so: section 35B of the Road Traffic Offenders Act 1988 in respect of disqualification under section 34 or 35 of that Act and section 167 Sentencing Act 2020 in respect of disqualification under section 163 or 164 of that Act (or, for offenders convicted before 1 December 2020, section 147B PCC(S)A 2000 in respect of disqualification under sections 146 and 147 PCC(S)A) 2000.

The following checklist was set out in Needham and others [2016] EWCA Crim 455 regarding how to approach sections 35A and 35B RTOA 1988, and the same reasoning should apply to sections 166 and 167 SA 2020:

“Step 1 — Does the court intend to impose a “discretionary” disqualification under section 34 RTOA 1988 or section 35 RTOA 1988 for any offence?

YES – go to step 2

Step 2 – Does the court intend to impose a custodial term for that same offence?

YES – section 35A RTOA 1988 applies and the court must impose an extension period […] for that same offence and consider step 3.

NO – section 35A RTOA 1988 does not apply at all – go on to consider section 35B RTOA 1988 and step 4

Step 3 – does the court intend to impose a custodial term for another offence (which is longer or consecutive) or is the defendant already serving a custodial sentence?

YES – then consider what increase (“uplift”) in the period of “discretionary disqualification” is required to comply with section 35B(2) and (3) RTOA 1988. In accordance with section 35B(4) RTOA 1988 ignore any custodial term imposed for an offence involving disqualification under section 35A RTOA 1988.

Discretionary period + extension period + uplift = total period of disqualification

NO – no need to consider section 35B RTOA 1988 at all

Discretionary period + extension period = total period of disqualification

Step 4 – does the court intend to impose a custodial term for another offence or is the defendant already serving a custodial sentence?

YES – then consider what increase (“uplift”) in the period of “discretionary disqualification” is required to comply with section 35B(2) and (3) RTOA 1988.

Discretionary period + uplift = total period of disqualification.”

Under section 42 of the Road Traffic Offenders Act 1988, a person can ask the court to reduce their disqualification period after they have been banned from driving for:

  • 2 years if the disqualification was for fewer than 4 years (disregarding any extension period)
  • half the disqualification period (disregarding any extension period) if the disqualification was for at least 4 but less than 10 years (disregarding any extension period), or
  • 5 years in any other case.

Mutual recognition of disqualification

There is mutual recognition of driving disqualification between the United Kingdom and the Republic of Ireland. For more information, see the prosecution guidance on Mutual Recognition of Driving Disqualification.

Disqualification from directing a company

The purpose of this order is to prevent a person from operating with limited liability in order to protect the public from dishonest operations of companies that are a danger to creditors ,to others and protect who trade, invest and deal with companies from fraud, regulatory failings, incompetence, to support the limited liability regime and to serve as a deterrent to those who might abuse their role and status as a director.

Section 2 Company Directors Disqualification Act 1986 (‘The Act’) sets out when an order can be made:

The offence itself is connected with the promotion, formation, management, liquidation or striking off of a company. (“Connected 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. (“Shadow director”: an individual who does not claim to be a director but whose directions and instructions the company is following; "De facto director”: an individual who acts as a director and purports to do so without being validly appointed).

The offence does not need to involve misconduct of a company’s affairs nor dishonesty.

The court does not need to find that the individual is unfit to act as a company director (as under section 6 of the Act – where disqualification is ordered by a civil court).

Promotion. There is no definition in the Act but generally means an individual who is raising capital for a company but is not acting in (or beyond) a professional capacity – for example, “promotion” would not include the activities of a professional financier who has been instructed to raise capital and does so within the boundaries of professional propriety.

Formation. This term includes any steps taken to incorporate a company.

Management. Management is generally considered to be a wide concept. If an individual is making decisions that affect the company as a whole such as hiring/firing staff, choosing suppliers, dealing with financial institutions and acting in a manner which has the potential to affect the solvency of the company (positively or negatively), they will likely fall within the definition.

There is no statutory minimum period of disqualification for an order made by a criminal court. Maximum disqualification periods are 15 years in the Crown Court and 5 years in the Magistrates’ Court.

Procedure

It is a matter for the court exercising its sentencing powers to determine whether to disqualify a defendant based solely upon the facts which formed part of the prosecution case.

There is no statutory basis for a free-standing disqualification application to be made to a criminal court, nor for the same to disqualify a non-defendant.

The court should be informed of its power to make a disqualification order, the principles involved and the sentencing guidelines surrounding such an order.

If the court is considering making an order, it should be invited to read out section 1(1) of the Act and to state the matters taken into account when making the order and in determining the length.

Ordinarily the disqualification period will commence 21 days from the date of the order.

Whilst it is the responsibility of the court making the order to notify Companies House, it is prudent to inform them of the disqualification (see below).

The court’s reasoning will be of particular importance as the disqualified person may subsequently seek leave to act as a director and/or when parallel civil proceedings are contemplated, as there may be abuse of process issues raised. It is imperative that the prosecution advocate at the sentencing hearing notes the judge’s remarks in relation to the disqualification order.

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 using form DQ0. This is the immediate responsibility of the Crown Court making the order.

However, Companies House has asked that the prosecutor notifies them too. This may be done using the Director's Disqualification Notification Form, a copy of which is shown at Annex A to this guidance.

Companies House request that the following MUST be included to allow them to complete their register:

  • Date of birth of the defendant
  • All names used by the defendant, including any middle names.

Breach of a disqualification order or undertaking is an either way offence under section 13 of the Company Directors Disqualification Act 1986. The maximum sentence on indictment is 2 years imprisonment and/or an unlimited fine.

Disqualification from working with children and vulnerable adults

The Safeguarding Vulnerable Groups Act 2006 introduced a barring scheme in relation to working with children or vulnerable adults. There are two types of barring; automatic and discretionary. Automatic barring is contingent upon a caution or conviction for a listed offence. Discretionary barring usually follows from a referral by a third party, e.g. an employer.

The Disclosure and Barring Service has a duty to establish and maintain the “children’s barred list” and the “adults’ barred list”.

The court before which the offender is convicted must inform the person at the time he is convicted that the Service will include him in the barred list concerned.

There are two types of triggering offence:

  • automatic inclusion offences, where the defendant has no right to make representations
  • automatic inclusion offences, where the defendant has a right to make representations before they are included in the list

In the case of the former, the DBS will inform the person in writing of their inclusion in the adult and/or child barred lists. If the person satisfies the “test for regulated activity” the DBS will seek representations from the person and consider any representations prior to making a barring decision. If no representations are received, the person will be barred. The person will be informed in writing whether or not they are barred.

See Annex B for lists of offences that result in automatic inclusion to the Children’s List and Vulnerable Adults’ List.

Disqualification from standing for or holding elected office.

Part 5 of the Elections Act 22 provides that where an adult is convicted of an offence specified in Schedule 9 of that Act,  and the court is satisfied beyond reasonable doubt that the offence was aggravated by hostility related to the status, or perceived status, of the victim being a candidate, elected office holder, or campaigner, it must (unless it considers it unjust in all the circumstances) impose a disqualification order disqualifying the person from standing for election, being elected to, and holding a relevant elected office for a period of 5 years. The specified offences include: offences against the person, sexual offences,  criminal damage, public order act offences and malicious communications.

This order only applies to convictions on or after 1 November 2023.

This not an order for which prosecutors must apply but rather an order the court must make, unless it is unjust in all the circumstances to do so.  However, prosecutors should be alert to the context of any case where the victim falls within the scope of Part 5 of the Elections Act 2022 and be prepared to advise the police on relevant lines of enquiry and assist the court with the evidential basis for the making of any such order where there is a conviction for a specified offence. It is immaterial whether evidence that relates to the imposition of the disqualification order would have been admissible in the proceedings in which the offender was convicted.

This disqualification order applies to all elected offices in the UK except for membership of the Scottish Parliament and Scottish local government elected offices i.e. offenders cannot be disqualified from these offices.   However, all individuals protected by the sanction are protected in any part of the UK, and any court in the UK would need to consider the sanction and apply it in relevant cases.  

Exclusion Orders

Licensed Premises

Section 1 Licensed Premises (Exclusion of Certain Persons) Act 1980 ['LP(ECP)A 1980'] provides for the exclusion from either the premises subject of the conviction or any other specified premises of a person who is convicted of an offence committed on licensed premises, provided that the court is satisfied that in committing the offence they 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 Grady [1990-1991] 12 Cr App R (S) 152 CA.

Section 2 LP(ECP)A 1980 provides that an exclusion order may be made either:

in addition to any sentence which is imposed in respect of the offence of which the person is convicted; or

in addition to an order discharging him absolutely or conditionally.

This section also creates a summary offence of non-compliance with an Exclusion Order, punishable by means of a fine not exceeding level 3 on the standard scale or imprisonment for one month.

Section 1(3) LP(ECP)A 1980 provides that the exclusion order shall have effect for a period of not less than three months or more than two years, unless it is terminated under the provisions of section 2(2).

Procedure

Usually the police will indicate if an exclusion order is being sought, however prosecutors should where appropriate, remind the court of its powers under the LP(ECP)A 1980.

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.

In Arrowsmith [2003] 2 Cr App R (S) 46 (301), the offender had head-butted a man in a public house, breaking his nose. The sentencer, in addition to passing a sentence of 12 months' imprisonment for the offence, made an exclusion order relating to 165 specified licensed premises within the Borough of Crewe and Nantwich, where the offender resided. The Court of Appeal upheld the order on the particular facts of the case, but said that courts should not regard the decision as an invitation to draft overly wide exclusion orders.

Sporting Events

Legislation in this area is primarily concerned with football matches. See further guidance on Football Related Offences and Football Banning Orders elsewhere in the Legal Guidance.

Financial Reporting Orders

Financial Reporting Orders can be made under sections 76 & 79 - 81 Serious Organised Crime and Police Act (SOPCA) 2005.

For more information on SOCPA 2005 see the Serious Crime Prevention Orders guidance, elsewhere in the Legal Guidance.

The Role of the Prosecutor in Restitution Orders 

A restitution order is available in both the Magistrates and Crown Courts. It is designed to restore, to a person entitled to them, goods which have been stolen or otherwise unlawfully removed from him, or to restore to them a sum of money representing the proceeds of the goods, out of money found in the offender's possession on apprehension.

The relevant legislation is in sections 147-151 of the Sentencing Act 2020. "Stolen" for the purposes of making a restitution order includes property 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.

Unlike compensation orders, there is no requirement under these provisions that account should be taken of the offender's means.

Evidence on which a restitution order is based upon is to be given to the court before sentence is passed: R v Church (1971) 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.

Restraining Orders

Restraining Orders on acquittal - section 5A of the Protection from Harassment Act 1997 allows a Court to make a restraining order on acquittal for any offence.  If the Court considers a Restraining Order is necessary to protect a person from harassment by the defendant, the Court may make an order prohibiting the defendant from doing anything described in the order.

Restraining Orders on conviction – section 360 of the Sentencing Act 2020 (which applies to all convictions on or after 1st December 2020) allows a Court to make a Restraining Order on conviction for any offence. The Court may make an order for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from conduct which amounts to harassment, or will cause a fear of violence.  A Court may impose a Restraining Order on conviction only if it does so in addition to dealing with the defendant for the offence.

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

Serious Crime Prevention Orders

A Serious Crime Prevention Order (SCPO) can be made on application by the Director of Public Prosecutions, the Director of the Serious Fraud Office, the Director of Public Prosecutions for Northern Ireland and the Lord Advocate in Scotland. Applications are made to the Crown Court, if a person has been convicted of a serious offence, or the High Court on standalone application, if the person has been involved in serious crime. 

Procedure

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

Sexual Harm Prevention Orders (SHPO)

On 8 March 2015, Sexual Offences Prevention Orders (SOPO) were replaced by Sexual Harm Prevention Orders (SHPO).

Section 103A onwards of the Sexual Offences Act (SOA) 2003 deals with SHPOs.

Section 103A(2) SOA 2003 applies where:

the Crown Court or a magistrates' court deals with the defendant in respect of an offence listed in Schedule 3 or 5 SOA 2003 (or the defendant is found not guilty by reason of insanity or is found to be under a disability and has done the act charged);

and the court is satisfied that it is necessary to make a SHPO for the purpose of (i) protecting the public or any particular members of the public from sexual harm from the defendant, or (ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the UK.

(Section 103 A(3) SOA 2003 allows a court to make a SHPO upon a complaint by the Police or NCA )

Application under section 103A(2) SOA 2003 (application made by a CPS prosecutor)

SHPOs are available in the Crown Court, an adult magistrates' court, a youth court or the Court of Appeal.

Schedule 3 Sexual Offences Act 2003 deals with most of the substantive sexual offences (for example rape both under SOA 1956 and SOA 2003 as well as indecent images of children). Prosecutors should consult the schedule when considering a SHPO as some offences have specific conditions placed on when a SHPO can be ordered.

Schedule 5 contains a range of generally violent offences, such as murder and GBH as well as theft, child cruelty and harassment.

An SHPO can be ordered for offenders whose convictions pre-date the commencement of the SOA 2003.

A court can make an interim SHPO before the main application has been determined. Where a Court makes a SHPO in relation to a person already subject to such an order, the earlier order or interim order ceases to have effect. 

Test to be applied

Sexual Harm is defined in section 103B of the SOA 2003. It should also be noted that under the SHPO regime, a 'child' means a person aged under 18, whereas in relation to a SOPO it meant a person aged under 16.

The Sentencing Council outlines that the court may want to consider:

  1. Would an order minimise the risk of harm to the public or to any particular members of the public?
  2. Is it proportionate?
  3. Can it be policed effectively?

Prohibitions

The only prohibitions which can be imposed by a SHPO are those which are necessary for the purpose of protecting the public from sexual harm from the defendant. These can, however, be wide ranging. An order may, for example, prohibit someone from undertaking certain forms of employment. It may also prohibit the offender from engaging in particular activities on the internet. SHPOs may be used to limit and manage internet use by an offender, where it is considered proportionate and necessary to do so. The order may include only negative prohibitions; there is no power to impose positive obligations.

Where contact with children is prohibited, it is essential to include an exemption for incidental contact such as is inherent in everyday life. In relation to offences involving indecent images the Court of Appeal has repeatedly said (including in R v Aldridge and R v Eaton [2012] ECWA Crim 1456) that conditions prohibiting contact with children should be made only on the basis of evidence to suggest progression by the defendant to contact offences.

"Smith compliant" prohibitions

In R v Smith and Others [2011] EWCA Crim 1772, a case considering SOPOs rather than SHPOs but whose general principles apply, the Court emphasised the need for the terms of an order to be specific to the exact requirements of the case. The Court quashed a number of existing blanket prohibitions which they replaced with more focused and balanced conditions, particularly in relation to computer use or internet access. In R v Parsons and another [2017] EWCA Crim 2163, the Court of Appeal emphasised the need for the terms of any SHPO to be effective, clear, realistic, proportionate, and tailored to the facts. The Court confirmed the previous approach to blanket bans on internet access stating that such a prohibition would not be appropriate in anything other than the most exceptional cases.

The Court in Parsons also addressed developments in technology stating that changes in everyday living called for an adapted and targeted approach particularly in relation to risk management monitoring software, cloud storage and encryption software. Prohibitions have to be aimed at the deliberate installation of software other than that which is intrinsic to the operation of a device.

The Court of Appeal in Franklin [2018] EWCA Crim 1080 said that where there was no evidence that the defendant posed a risk to boys, as opposed to girls, a restriction in the SHPO in respect of 'any child' could not be justified as an example of restrictions needing to be justified as ‘necessary’ as distinct from ‘just in case’.

In the case of Kish [2022] EWCA Crim 1161, the defendant was convicted of possessing extreme pornography depicting sexual activity with animals. The Court of Appeal held that SHPOs should not include prohibitions covering harm to animals and their owners, as the statutory scheme is concerned with sexual harm against people.

Examples of SHPO prohibitions

This list is non-exhaustive and the prohibitions ordered will depend on the nature of the case before the Court.

The Defendant is prohibited from:

  1. using any device capable of accessing the internet unless:

1.1 he has notified the police VISOR team within 3 days of the acquisition of any such device;

1.2 it has the capacity to retain and display the history of internet use, and he does not delete such history;

1.3 They make the device available on request for inspection by a police officer, or police staff employee, and they allow such person to install risk management monitoring software if they so choose.

This prohibition shall not apply to a computer at their place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to their place of work, within 3 days of him commencing use of such a computer, he notifies the police VISOR team of this use

  1. Interfering with or bypassing the normal running of any such computer monitoring software.
  2. Using or activation any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using "incognito" mode or private browsing.
  3. Using any "cloud" or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless, within 3 days of the creation of an account for such storage, he notifies the police of that activity, and provides access to such storage on request for inspection by a police officer or police staff employee.
  4. Possessing any device capable of storing digital images i.e. a USB stick or external hard drive unless he makes it available on request for inspection by a police officer.
  5. Installing any encryption or wiping software on any device other than that which is intrinsic to the operation of the device.
  6. Having any contact of any kind with any person they know or believe to be under the age of 18, whether directly or indirectly via social media or skype or in any other way, other than:

7.1 such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or

7.2 with the supervision of an adult approved in advance by social services, who has knowledge of their convictions.

Section 103C SOA 2003 outlines that the order may have effect for a fixed period of at least five years, or until further order. The Court may specify that some of the prohibitions have effect until further order and some for a fixed period or different periods for different prohibitions.

The Court of Appeal in McLellan [2018] 1 Cr App R (S) 18 said that a SHPO should not be made for an indefinite period unless the court was satisfied of the need to do so, and such an order should not be made without careful consideration. An indefinite SHPO would result in indefinite notification requirements: inadvertent extension of notification requirements was to be avoided. As a matter of good practice a court should explain, even if only briefly, the justification for making an indefinite SHPO.

Section 103D SOA 2003 outlines that a prohibition on foreign travel contained in a SHPO must be for a fixed period of not more than five years. The prohibition can be extended for a further period but must be for no more than five years each time.

Service

A written draft order should be served not less than two business days in advance of the hearing at which the order may be made The Court has emphasised the responsibility of the prosecution advocate in this regard: R v Jackson [2012] EWCA Crim 2602.

Breach and sentencing

Breach of a SHPO is an offence which is triable either way. The maximum penalty for conviction on indictment is imprisonment for a term not exceeding five years.

The Court in 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.

It is the responsibility of the CPS to prosecute the offence of Breach of a SOPO, SHPO and of any interim orders under section 103I of the Sexual Offences Act 2003, irrespective of how the order was first made.

Role of the Prosecutor - SHPO's

Prosecutors should both at the charging stage and when preparing the PTPH form clearly highlight that an offence may attract a SHPO in the event of conviction. They should identify that the offence is one to which either Schedule 3 or Schedule 5 SOA 2003 applies.

Advocates must also, where appropriate, draw to the Court' attention the power to make a SHPO on conviction for an offence to which Schedule 3 or Schedule 5 2003 applies. Thereafter, they should assist the court, if required, to determine whether the offender presents a risk that requires the public to be protected and to suggest that an order is required. This may be by way of information about previous convictions or cautions, or by drawing attention to particular 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.

In R v Smith & Ors [2011] EWCA Crim 1772 the Court of Appeal considered whether the use of a SOPO was appropriate in conjunction with an indeterminate sentence and concluded: "the usual rule ought to be that an indeterminate sentence needs no SOPO", the rationale of the Court being that it was wrong in principle to try and assess the risk at the sentencing stage as it would in all likelihood be different from that presenting itself on any eventual release.

When considering a determinate or extended term, the Court of Appeal acknowledged that, "a SOPO may plainly be necessary", albeit that the framing of suitable prohibitions may, in the case of a very long sentence, be more meaningful at the point that the offender is about to be released rather than when they are just beginning their sentence.

These principles will also apply in relation to SHPOs.

Variation of a SHPO

Persons who may apply to vary a SHPO are restricted to the police and the defendant (section 103E SOA 2003). The CPS is not authorised to make an application for a variation. Where the police require representation this should be through the Force Solicitor or equivalent.

In R v Terence Hoath [2011] EWCA Crim 274 the Court of Appeal made it clear that powers to vary a SOPO should be exercised only when there was a change of circumstances. Where the defendant objects in principle to the terms of a SOPO imposed by the Crown Court the correct approach is an appeal. This is a useful point as there has been a tendency for defendants to seek to fundamentally change the terms by way of a variation rather than embarking on an appeal.

The Court of Appeal in Hoath suggested that the CPS might correctly be involved in a variation following close on the heels of the making of the SOPO and involving "particular and unanticipated difficulties arising from the form and/or wording of the order". The Court continued, "those difficulties should be identified promptly (in writing and with particularity) and sent to the prosecuting authority so as to see whether the matter can be put before the Crown Court on an agreed basis and in any event to narrow the area of dispute".

Appeal against variation or refusal to vary a SHPO

Following the decision in Hoath, there was questioning of the Court of Appeal's decision to the affect that any appeal against a variation of a SOPO or a refusal to vary, should be to the Civil (rather than the Criminal) Division of the Court of Appeal. The Lord Chief Justice addressed this in R v Aldridge and R v Eaton [2012] ECWA Crim 1456, saying the absence of an express provision for an appeal against a variation or refusal to vary the original order to be treated as an appeal against sentence was "a clear legislative oversight". Repeating the decision in Hoath he said it was, "a matter of complete indifference" to the defendant which division of the Court of Appeal heard the appeal.

The relationship between SHPOs and the Sex Offender Notification Rules

Unlike a SHPO which must be ordered by a court, the sex offender notification rules (sections 80 - 102 SOA 2003) follow automatically upon conviction for most sexual offences. The term for which the notification requirements apply depends upon the length or nature of the sentence and range from 2 years in the case of a caution to indefinitely if the sentence is imprisonment for 30 months or more. SHPOs and the notification provisions are entirely different. The first prohibit the subject from doing specified things, whilst the second requires the carrying out of certain actions.

In R v Smith and Others the Court of Appeal considered the relationship between SOPOs and the notification provisions and agreed that, "a SOPO must operate in tandem with the statutory notification requirements" and "not conflict with any of those requirements". They decried any use of a SOPO to extend notification periods beyond the time prescribed by law as, "not a proper use of ... power". The Court of Appeal considered whether any SOPO should be for the same period as any notification and decided this was not necessary. The Court could: "see no objection to the ... provisions of a SOPO extending beyond the notification requirements", and added: "It may also be possible that a SOPO for less than an indefinite period might be found to be the right order in a case where the notification requirements endure for ever".

Additional Useful Case Law

The Court has no power to order a SHPO for breach of a SOPO: R v Hamer [2017] EWCA Crim 192 as the breach is not a qualifying offence but can vary the SOPO using the test for a SHPO.

Similarly, breach of a SHPO is not a qualifying offence for the court to order a SHPO.

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 SOA 2003 (or cautioned, or found not guilty by reason of insanity, or found to be under a disability having done such an act). The Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012 amends and strengthens the notification requirements for relevant offenders.

Initial notification must be made to the police within 3 days of the "relevant date": section 83(1) SOA 2003.

The offender must notify the police of the information required in section 83(5) SOA 2003.

The offender must inform the police of any changes to the information already provided – section 84 S0A 2003.

If an offender fails to comply with the notification requirements of the SOA 2003, or gives false information, he commits an offence. Such offences are triable either way and are punishable: 

  • on summary conviction;
  • on indictment – imprisonment not exceeding 5 years: section 91.

Role of the Prosecutor - Notification Requirements

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. All decisions to prosecute a breach of an order are made in accordance with the Code for Crown Prosecutors.

Slavery and Trafficking Prevention Order

See the Legal Guidance on Modern Slavery, Human Trafficking and Smuggling.

Travel Restriction Orders

The power to make a Travel Restriction Order is contained in section 33 Criminal Justice and Police Act 2001 [‘CJPA 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 effect of the order is to restrict the offender's freedom to leave the UK for a period specified by the court, and it may require delivery up of their passport (or 'travel authorisation'). The minimum duration of a travel restriction order is two years’, starting from the date of the offender's release from custody. There is no maximum period prescribed in the legislation. The court must always consider whether such an order should be made and must give reasons where it does not consider such an order to be appropriate (section 33(2)). According to Leveson LJ in Shaw [2011] EWCA Crim 98, given the terms of the statute, it is not sufficient for the judge simply to assert that the offences did not contain a foreign element.

'Drug trafficking offence' is defined by section 34 CJPA 2001. It may be noted that this is a different definition from that provided by the POCA 2002, sch. 2. 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.

Section 36 CJPA 2001 creates offences in relation to contravention of these orders.

Procedure

In all relevant 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.

Orders where the CPS have responsibility for prosecuting breaches

The CPS has no authority to apply for the following orders, but may be responsible for prosecuting any breaches: see section 3 Prosecution of Offences Act 1985 for guidance as to when it is a CPS function to prosecute. 

Although the CPS cannot apply for these orders, it may be appropriate during Early Investigative Advice to advise the police about applying for appropriate orders.

Community Protection Notice 

Part 4 Chapter 1 of the Anti-social Behaviour, Crime and Policing Act 2014 provides that a community protection notice (CPN) can be issued by:

  • Council officers
  • Police officers
  • PCSO - if designated
  • Social landlords - if designated by the council

It is intended to deal with particular, ongoing problems or nuisances which are having a detrimental effect on the quality of life of those in the locality.

Failure to comply with the terms of a CPN is a criminal offence. The agency issuing the CPN will generally be responsible for the enforcement of the breach, either by way of a Fixed Penalty Notice (FPN) or prosecution. Where the police issue a CPN, they are responsible for issuing the FPN or gathering evidence for prosecution and the CPS is responsible for prosecuting the offence of failure to comply with the terms of the CPN.

The following sanctions are available:

  • Fine - Level 4 (for individuals) or £20,000 for businesses;
  • Fixed penalty notice - this should not be for more than £100 and can specify a lower payment if settled early;
  • Remedial action - taken by the council to address the issue;
  • Remedial orders - on conviction for an offence of failing to comply with a CPN the prosecuting authority may ask the court to impose a remedial order requiring the defendant:
    • to carry out specified work (this could set out the original CPN requirements); or
    • to allow work to be carried out by, or on behalf, of a specified local authority.
  • Forfeiture orders - following conviction the court may also order the forfeiture of any item that was used in the commission of the offence.
  • Seizure - the court may issue a warrant authoring the seizure of items that have been used in the commission of the offence of failing to comply with a CPN.

Failure to comply with any of the requirements in the court order constitutes contempt of court. 

Dispersal Power

Part 3 of the Anti-social Behaviour, Crime and Policing Act 2014 introduces this preventative power which the police can use in a range of situations to disperse anti-social individuals. It requires a person committing or likely to commit anti-social behaviour, crime or disorder to leave an area for up to 48 hours. The officer can also require the person given the direction to hand over items causing or likely to cause anti-social behaviour e.g. alcohol, fireworks, spray paint. 

The dispersal power is for use in public places; this includes places to which the public has access by virtue of express or implied permission, for example a shopping centre. 

Failure to comply with the direction is a summary only criminal offence. On conviction it carries a maximum penalty of a level 4 fine and/or three months imprisonment. Failure to surrender items is also a criminal offence with a maximum penalty of a level 2 fine.

Female Genital Mutilation (FGM) Protection Orders

Female Genital Mutilation Protection Orders (FGMPOs) offer a legal means to protect and safeguard victims and potential victims of FGM.

FGMPOs can be obtained upon application to the Family Court in England and Wales by:

  • The person who has had or is at risk of FGM; or
  • A local authority; or
  • Any other person with the permission of the court (for example, the police, a teacher, a charity or a family member).

The order will have conditions to protect a victim or potential victim from FGM. This could include, for example, surrendering a passport to prevent the person at risk from being taken abroad for FGM or requirements that no one arranges for FGM to be performed on the person being protected. 

The applicant must serve a copy of the order and any other court documents on the respondents. The court can, if asked, serve the documents on behalf of the applicant.

The police must also receive a copy of the order, together with a statement showing that the respondents and any other persons directed by the court have been served with the order or informed of its terms. This should be delivered to the police station for where the person being protected by the order resides, unless the court specifies another police station. 

Any breach can be reported to the police or alternatively can be dealt with in the Family Court as a contempt of court matter.

Where breach is reported to the police, the police can arrest the person/people suspected of breaching the terms of the FGMPO and any prosecution will be conducted by the CPS. 

The maximum penalty for breaching an FGMPO is five years imprisonment. For guidance on prosecuting FGM offences see Female Genital Mutilation Prosecution Guidance.

Forced Marriage Protection Orders (FMPOs)

Section 63A Family Law Act 1996 (FLA 1996) provides for the making of a FMPO, for the purposes of protecting a person from being forced into a marriage or from any attempt to be forced into a marriage, or a person who has been forced into a marriage. 

Breach of a FMPO can be treated as a criminal offence under section 63CA FLA 1996 or as a civil contempt of court matter. 

Further Guidance can be found in So-Called Honour-Based Abuse and Forced Marriage legal guidance.

Non Molestation Orders (NMOs)

Section 1 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA) came into force on 1 July 2007. It amended the Family Law Act 1996 by inserting a new section 42A FLA 1996, which makes it a criminal offence to breach a non-molestation order. The offence may be punished either as a criminal offence with a maximum penalty of five years imprisonment, or as a civil contempt of court.

The complainant can either call the police to have the breach dealt with within the criminal jurisdiction, or they can make an application to have the person committed to custody for contempt application in the civil jurisdiction.

The two jurisdictions are exclusive and prosecutors will not be involved in civil proceedings.

Further Guidance can be found in the Domestic Abuse legal guidance.

Public Spaces Protection Orders

Part 4 Chapter 2 of the Anti-social Behaviour, Crime and Policing Act 2014 provides Councils with the power to make Public Spaces Protection Orders (PSPOs) which are designed to stop individuals or groups committing anti-social behaviour in a public space. 

It is a criminal offence to breach a PSPO without a reasonable excuse. A breach can be dealt with by a fixed penalty notice (FPN) issued by a police officer, PCSO, council officers or other person designated by the council. Alternatively they can be prosecuted and on summary conviction liable to a fine not exceeding level 3 on the standard scale.

Sexual Risk Orders

Section 122A Sexual Offences Act (SOA) 2003 Sexual Risk Orders ('SROs') can be applied for by a Chief Officer of Police or the Director General of the National Crime Agency by way of complaint to a Magistrates' Court. These orders are generally made against an individual who has not been convicted or cautioned for the offence but who nevertheless is thought to pose a risk of harm to the public in the UK and or children or vulnerable adults abroad.

The defendant must have done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made. A SRO is a Civil Order.

Such an order has effect for a fixed period (not less than two years) or until further order.

Breach of a SRO is a criminal offence that is triable either way and prosecuted by the CPS under section 122H Sexual Offences Act 2003. The maximum penalty for conviction on indictment is imprisonment for a term not exceeding five years.

Slavery and Trafficking Risk Orders

Slavery and Trafficking Risk Orders (STROs) were introduced under section 23 of the Modern Slavery Act 2015. An Order can be made if a defendant has not been convicted of a trafficking or slavery offence but who is nevertheless thought to pose a risk of harm and it is necessary to protect others. The court must be satisfied that the defendant has acted in a way which means that there is a risk that a trafficking or slavery offence will be committed. An Order can be made by a magistrates' court on application by the police, NCA or IO and can prohibit the defendant from doing anything described in the order necessary to protect others from harm likely to occur. Breach of a STRO is punishable with up to 5 years' imprisonment.

Violent Offender Orders

Magistrates' courts have power to make Violent Offender Orders (VOOs) under Part 7 of the Criminal Justice and Immigration Act 2008. A 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
  • section 18 OAPA 1861
  • section 20 OAPA 1861
  • attempt or conspiracy to murder
  • strangulation or suffocation (section 75A Serious Crime Act 2015)
  • equivalent service offences 

A VOO is a standalone 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 failures 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.

Serious Violence Reduction Orders – Pilot Ongoing

Section 342A Sentencing Act 2020 makes provisions for SVROs. SVROs are civil orders made in respect of an offender convicted of an offence involving a bladed article or offensive weapon.

The purpose of the SVRO is to protect the public from the risk of harm involving a bladed article or offensive weapon, protect any particular members of the public (including the offender) from such risk, or prevent the offender from committing another offence involving a bladed article or offensive weapon.

SVROs are being piloted over a two-year period and can only be applied for in pilot Areas – Merseyside, Sussex, Thames Valley and West Midlands – however, an officer from any police force, including British Transport Police, may exercise the power granted by the SVRO, and breach of a SVRO can be committed and prosecuted anywhere in England and Wales. Breach of a SVRO is an either-way offence with a maximum of 2 years’ imprisonment.

Annex A: Director's Disqualification Notification Form

Download a Word version here Email completed form to: [email protected]

DDR Team

Secure Room

Companies House

Crown Way

Cardiff

CF14 3UZ

Tel: 02920381372 From: RE: R v I refer to the prosecution of the above named person who was recently disqualified under section 2 of the Company Directors Disqualification Act 1986. Please note the following details so that you can contact the Court involved. Name of Individual: Date of Birth: Name of Company Investigated: Name of Court: Case Number: Date of Hearing/Conviction: Period of Disqualification: …… Years, With Effect From …………………………. Any Other Relevant Information: 

Annex B: Sentencing - Ancillary Orders

List 1

Offences resulting in automatic inclusion to children’s’ list with no right of representation

If committed against, or in respect of a child

 
SECTIONACT
1SEXUAL OFFENCES ACT 1956
128MENTAL HEALTH ACT 1959
1,2, 30-41SEXUAL OFFENCES ACT 2003

 

Any offence contrary to 
SECTIONACT
5SEXUAL OFFENCES ACT 1956
5-8SEXUAL OFFENCES ACT 2003

List 2

Offences resulting in inclusion in the children’s list with the right to make representations

If committed against or in respect of a child 
SECTIONACT
1-3FEMALE GENITAL MUTILATION ACT 2003
4(3)MISUSE OF DRUGS ACT 1971
5PSYCHOACTIVE SUBSTANCES ACT 2016
10 -13 (also includes adult who did not consent)SEXUAL OFFENCES ACT 1956
66, 67SEXUAL OFFENCES ACT 2003

 

If committed against an adult 
SECTIONACT
30-41SEXUAL OFFENCES ACT 2003

 

Any offence contrary to 
SECTIONACT
4ASYLUM 7 IMMIGRATION (TREATMENT OF CLAIMANTS) ACT 2004
170 (where the prohibition on importation breached was that established by s.42 Customs Consolidation Act 1876)CUSTOMS & EXCISE MANAGEMENT ACT 1979
1,2,6CHILD ABDUCTION ACT 1984
MURDER, KIDNAPPINGCOMMON LAW
62CORONERS & JUSTICE ACT 2009
63CRIMINAL JUSTICE & IMMIGRATION ACT 2008
160CRIMINAL JUSTICE ACT 1988
54CRIMINAL LAW ACT 1977
1CHILDREN & YOUNG PERSONS ACT 1933
5DOMESTIC VIOLENCE , CRIME & VICTIMS ACT 2004
1INDECENCY WITH CHILDREN ACT 1960
1INFANTICIDE ACT 1938
44MENTAL CAPACITY ACT 2005
128MENTAL HEALTH ACT 1959
127MENTAL HEALTH ACT 1983
2MODERN SLAVERY ACT 2015
145NATIONALITY, IMMIGRATION & ASYLUM ACT 2002
21OFFENCES AGAINST THE PERSON ACT 1861
1PROTECTION OF CHILDREN ACT 1978
1,2,4,6,7,9, 14-17,19-31SEXUAL OFFENCES ACT 1956
4, 5SEXUAL OFFENCES ACT 1967
3SEXUAL OFFENCES (AMENDMENT) ACT 2003
1-4,9-12,14-20,25,26,47-50,52,53,57-59A, 62 & 63 (where the relevant sexual offence was one specified in this schedule and was intended to be committed in relevant circumstances, if any, specified in the schedule in relation to that offence), 72 (if the offence committed corresponds to an offence which would lead to automatic inclusion in the children’s barred list with the right to make representations)SEXUAL OFFENCES ACT 2003
9(1)(a) (if the relevant intent was to commit rape)THEFT ACT 1968

List 3

Offences resulting in automatic inclusion to adults’ list with no right of representation

Any offence contrary to 
SECTIONACT
30-41SEXUAL OFFENCES ACT 2003

List 4

Offences resulting in inclusion in the adults’ list with the right to make representations

If committed against or in respect of a child 
SECTIONACT
1-3FEMALE GENITAL MUTILATION ACT 2003
4(3)MISUSE OF DRUGS ACT 1971
5PSYCHOACTIVE SUBSTANCES ACT 2016
10 -13 (also includes adult who did not consent)SEXUAL OFFENCES ACT 1956
66, 67SEXUAL OFFENCES ACT 2003

 

If committed against an adult 
SECTIONACT
1SEXUAL OFFENCES ACT 1956
30-41SEXUAL OFFENCES ACT 2003

 

Any offence contrary to 
SECTIONACT
4ASYLUM & IMMIGRATION (TREATMENT OF CLAIMANTS) ACT 2004
170 (where the prohibition on importation breached was that established by s.42 Customs Consolidation Act 1876)CUSTOMS & EXCISE MANAGEMENT ACT 1979
1,2,6CHILD ABDUCTION ACT 1984
MURDER, KIDNAPPINGCOMMON LAW
62CORONERS & JUSTICE ACT 2009
63CRIMINAL JUSTICE & IMMIGRATION ACT 2008
160CRIMINAL JUSTICE ACT 1988
54CRIMINAL LAW ACT 1977
1CHILDREN & YOUNG PERSONS ACT 1933
5DOMESTIC VIOLENCE , CRIME & VICTIMS ACT 2004
1INDECENCY WITH CHILDREN ACT 1960
1INFANTICIDE ACT 1938
44MENTAL CAPACITY ACT 2005
128MENTAL HEALTH ACT 1959
127MENTAL HEALTH ACT 1983
2MODERN SLAVERY ACT 2015
145NATIONALITY, IMMIGRATION & ASYLUM ACT 2002
21OFFENCES AGAINST THE PERSON ACT 1861
1PROTECTION OF CHILDREN ACT 1978
1,2,4,6,7,9, 14-17,19-31SEXUAL OFFENCES ACT 1956
4, 5SEXUAL OFFENCES ACT 1967
3SEXUAL OFFENCES (AMENDMENT) ACT 2003
1-4,9-12,14-20,25,26,47-50,52,53,57-59A, 62 & 63 (where the relevant sexual offence was one specified in this schedule and was intended to be committed in relevant circumstances, if any, specified in the schedule in relation to that offence), 72 (if the offence committed corresponds to an offence which would lead to automatic inclusion in the children’s barred list with the right to make representations)SEXUAL OFFENCES ACT 2003
9(1)(a) (if the relevant intent was to commit rape)THEFT ACT 1968

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

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Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

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