Overarching Sentencing Guideline
Stages of Sentencing
2.6 Stage Eight: Ancillary Orders
Introduction
There are a wide range of ancillary orders available to the courts when sentencing in certain circumstances or for specific types of offending. Below is a summary of the most common types of ancillary orders but sentencers should be aware that other orders may be available.
Before making an ancillary order sentencers should remind themselves of the relevant statutory provisions to ensure that they have the power to make an order and that any statutory requirements are satisfied.
Sentencers should give the parties to the case the opportunity to make submissions in relation to ancillary orders. This is especially the case where the court is proposing to make an order of its own volition as opposed to a party having made an application.
Binding over orders
The court has the power to bind an individual over to keep the peace[1]. The order is designed to prevent future misconduct and requires the individual to promise to pay a specified sum if the terms of the order are breached. Exercise of the power does not depend upon conviction and the following guidance should be followed:
- before imposing the order, the court must be satisfied so that it is sure that a breach of the peace involving violence or an imminent threat of violence has occurred, or that there is a real risk of violence in the future. The court should hear evidence and the parties before making any order;
- the court should state its reasons for making the order;
- the order should identify the specific conduct or activity from which the individual must refrain, the length of the order and the amount of the recognisance;
- the length of the order should be proportionate to the harm sought to be avoided and should not generally exceed 12 months;
- when fixing the amount of the recognisance, the court should have regard to the individual’s financial resources.
Deprivation orders
The court has the power to deprive an offender of property used for the purpose of committing or facilitating the commission of an offence, whether or not it deals with the offender in any other way[2].
Before making the order, the court must have regard to the value of the property and the likely financial and other effects on the offender.
Without limiting the circumstances in which the court may exercise the power, a vehicle is deemed to have been used for the purpose of committing the offence where the offence is punishable by imprisonment and consists of:
- driving, attempting to drive, or being in charge of a vehicle; or
- failing to comply with a requirement to give specimen of breath in the course of an investigation into whether the offender had committed an offence while driving, attempting to drive or being in charge of a vehicle; or
- failing, as the driver of a vehicle, to comply with a requirement to give name and address
Disqualification from driving orders
For offences punishable with imprisonment for a term of 2 years or more, where the court is satisfied that a motor vehicle was used, whether by the person convicted or by anyone else, for the purpose of committing, or facilitating the commission, of the offence in question, the court may order the person convicted to be disqualified for driving, for such period as the court thinks fit[3].
In addition, under the Road Traffic Ordinance 1948, any court before which a person is convicted of an offence in connection with the driving of a motor vehicle may order that person to be disqualified from holding or obtaining a driver's licence for such a period as the court thinks fit[4].
Automatic disqualification from driving orders
The Road Traffic Ordinance 1948 contains provisions for automatic disqualification from driving for specified offences unless ‘special reasons’ apply[5].
Automatic disqualification applies to offences of driving, or being in charge of, a motor vehicle when above the prescribed alcohol concentration limit, or when unfit through drink or drugs, and failure to provide specimens for analysis.
Disqualification from working with youths or vulnerable adults
Automatic disqualification
Convictions for specified qualifying offences will result in automatic disqualification from working with youths and vulnerable adults[6].
Discretionary disqualification
The courts have a discretionary power of disqualification[7].
If a person is convicted of any offence in which the court finds that the person has engaged in relevant conduct with a youth aged under 16 or a vulnerable adult, the court may disqualify the person from working with youths or vulnerable adults for any period it thinks fit. Relevant conduct is:
- conduct which endangers or is likely to endanger a child or vulnerable adult;
- conduct which, if repeated against or in relation to a child or vulnerable adult, would endanger or be likely to endanger that person;
- conduct involving sexual material relating to children (including possession of such material);
- conduct involving sexually explicit images depicting violence against human beings (including possession of such images);
- conduct of a sexual nature involving a child.
Before making an order, the court must hear any representations that the prosecution or the defence wish to make, and must take all the circumstances of the case into account.
Forfeiture and destruction orders
The court has the power, after a trial, to order the disposal, whether by way of deprivation, forfeiture, confiscation or otherwise, of any property produced before it regarding which any offence appears to have been committed, or which has been used for the commission of, or to facilitate the commission of, any offence[8].
In a case where no evidence has been called, if the prosecutor wishes any property to be disposed of he or she must after the conviction of the defendant produce the property before the court and the court may make an order.
In cases involving misuse of drugs, the court has the power to order anything shown to the satisfaction of the court to relate to the offence to be forfeited, and either destroyed or dealt with in such other manner as the court may order[9].
Restitution orders
Where goods have been stolen, and an offender is convicted of any offence with reference to theft of those goods, the court may make a restitution order[10].
The court may:
- order anyone in possession or control of the stolen goods to restore them to the victim;
- on the application of the victim, order that goods directly or indirectly representing the stolen goods (as being the proceeds of any disposal or realisation of the stolen goods) be transferred to the victim; or
- order that a sum not exceeding the value of the stolen goods be paid to the victim out of any money taken out of the offender’s possession during the police investigation.
Compensation orders
The court must consider making a compensation order in any case where personal injury, loss or damage has resulted from the offence. The court must give reasons if it decides not to order compensation[11].
There is no statutory limit on the amount of compensation that may be imposed but compensation awarded by the Summary Court must not exceed £5,000[12].
Where the personal injury, loss or damage arises from a road accident, compensation is only payable for personal injury, loss or damage in respect of which the offender is uninsured in relation to the use of the vehicle. Compensation may include an amount representing the whole, or part of any loss of, or reduction in preferential rates, of insurance attributable to the accident.
Subject to consideration of the victim’s views, the court must order compensation wherever possible and should not have regard to the availability of other sources of compensation, such as civil litigation. Any amount paid by an offender under a compensation order will generally be deducted from a subsequent civil award to avoid double compensation.
Compensation may be ordered for such amount as the court considers appropriate having regard to any evidence and any representations made by the prosecutor or the offender. The court must also take into account the offender’s means.
Compensation should benefit, not inflict further harm on, the victim. Sentencers should bear in mind that any financial recompense from the offender may cause distress. If the victim has expressed the view that they do not want compensation, this should be made known to the court and respected.
In cases where it is difficult to ascertain the full amount of the loss suffered by the victim, consideration should be given to making a compensation order for an amount representing the agreed or likely loss. Where relevant information is not immediately available, it may be appropriate to grant an adjournment if it would enable the information to be obtained.
The court should consider two types of loss:
- financial loss sustained as a result of the offence such as the cost of repairing damage or, in case of injury, any loss of earnings or medical expenses;
- pain and suffering caused by the injury (including terror, shock or distress) and any loss of facility. This should be assessed in light of all factors that appear to the court to be relevant, including any medical evidence, the victim’s age and personal circumstances.
Once the court has formed a preliminary view of the appropriate level of compensation, it must have regard to the means of the offender, so far as they are known. Where the offender has little money, the order may have to be scaled down, or additional time allowed to pay.
The fact that a custodial sentence is imposed does not, in itself, make it inappropriate to order compensation but it may be relevant to whether the offender has the means to satisfy the order.
Priority should be given to compensation over financial penalties and costs.
In respect of physical and mental injury, Annex Three sets out some suggested starting points for compensation based on the nature and seriousness of the injury sustained.
Restraining orders
Where an offender is convicted of any offence, the court may make a restraining order[13].
The order may prohibit the offender from doing anything for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which amounts to harassment or will cause a fear of violence. The order may have effect for a specified period or until further order.
A court before which a person is acquitted of an offence may make a restraining order if the court considers that it is necessary to protect a person from harassment by the defendant[14].
The prohibitions included in a restraining order should be clear, unambiguous and capable of being enforced.
Sexual harm prevention orders
Sexual Harm Prevention Orders (SHPO) can be made in relation to a person who has been convicted, found not guilty by reason of insanity or found to be under a disability and to have done the act charged, or cautioned etc. for specified offences[15].
No application is necessary for the court to make a SHPO at the point of sentence although the prosecutor may wish to invite the court to consider making an order in appropriate cases. The court may ask pre-sentence report writers to consider the suitability of a SHPO on a non-prejudicial basis.
In order to make a SHPO, the court must be satisfied that the offender presents a risk of sexual harm to the public (or particular members of the public) and that an order is necessary to protect against this risk. The details of the offence are likely to be a key factor in the court’s decision, together with the offender’s previous convictions and the assessment of risk presented by the probation service in any pre-sentence report. The court may take into consideration the range of other options available to it in respect of protecting the public.
- The court may want to consider:
- Would an order minimise the risk of harm to the public or to any particular members of the public?
- Is it proportionate?
- Can it be policed effectively?
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 such as acting as a home tutor to children. It may also prohibit the offender from engaging in particular activities on the internet. The terms of a SHPO must be tailored to the exact requirements of the case.
SHPOs may be used to limit and manage internet use by an offender, where it is considered proportionate and necessary to do so. The behaviour prohibited by the order might well be considered unproblematic if exhibited by another member of the public – it is the offender’s previous offending behaviour, and subsequent demonstration that he or she may pose a risk of further such behaviour, which will make them eligible for an order.
The order may include only negative prohibitions; there is no power to impose positive obligations. The order may have effect for a fixed period (not less than five years) or until further order.
Automatic Notification
A relevant offender automatically becomes subject to notification requirements, obliging him or her to notify the police of specified information for a specified period. The court should inform the offender accordingly[16].
The operation of the notification requirement is not a relevant consideration in determining the sentence for the offence.
Licensing Ordinance 1994 - exclusion orders and prohibition orders
Where a person is convicted of an offence involving violence, or the offer or threat of violence, on licensed premises, the court may make an order prohibiting the offender from entering specified licensed premises[17].
Whether a person has been convicted of an offence or not, the court may make a prohibition order where it considers that a person’s consumption of intoxicating liquor means that the person is severely prejudicing his or health, or neglecting his or her person, is failing to make adequate provision for any spouse or dependent child, or is frequently violent or abusive[18].
The effect of a prohibition order is to render it unlawful for the person to consume, procure or attempt to procure, intoxicating liquor, or to enter or remain in licensed premises. The effect of the order is to also make it a criminal offence to sell or supply alcohol to the person subject to the prohibition order, and to allow them to enter or remain on licensed premises.
Exclusion orders and prohibition orders place significant restrictions on a person’s liberty. Sentencers should ensure that the use of these orders is commensurate to the seriousness of the offending.
In the majority of cases exclusion orders and prohibition orders will only be appropriate where a community order is justified.
[1] Justices of the Peace Act 1361
[2] Section 617 Criminal Procedure and Evidence Ordinance 2014
[3] Section 618 Criminal Procedure and Evidence Ordinance 2014
[4] Section 6(10) Road Traffic Ordinance 1948
[5] Section 26 Road Traffic Ordinance 1948
[6] Section 619(1) and 620 Criminal Procedure and Evidence Ordinance 2014
[7] Section 619(2) and 620 Criminal Procedure and Evidence Ordinance 2014
[8] Section 622 Criminal Procedure and Evidence Ordinance 2014
[9] Section 24 Misuse of Drugs Ordinance 1987
[10] Section 615 Criminal Procedure and Evidence Ordinance 2014
[11] Section 608 Criminal Procedure and Evidence Ordinance 2014
[12] Section 610 Criminal Procedure and Evidence Ordinance 2014
[13] Section 151 Crimes Ordinance 2014
[14] Section 152 Crimes Ordinance 2014
[15] Part 11 – Sexual Offence Orders, Crimes Ordinance 2014
[16] Sections 296 to 306 Crimes Ordinance 2014
[17] Section 74 Licensing Ordinance 1994
[18] Section 76 Licensing Ordinance 1994
Annex Three: Compensation Starting Points
The starting points are suggestions based on the tariffs set by the Criminal Injuries Compensation Authority (England and Wales).
Physical Injury
Mental Injury
* mental injury is disabling if it has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities for the time specified (e.g. impaired work or school performance or effects on social relationships or sexual dysfunction).
Physical and Sexual Injury
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