Ancillary Orders & PowersProsecutors’ Toolkit
Ancillary Orders ToolkitIntroduction from the Attorney GeneralI am very pleased to give my warmendorsement to the Ancillary Orders Toolkit forProsecutors. Although this has been producedjointly by the CPS, RCPO and the SFO, I amsure it will be of real help and assistance to allprosecutors.Through identifying and applying to the courtsfor the imposition of appropriate ancillaryorders, prosecutors have a very importantcontribution to make to protecting victims of crime from future offending andsafeguarding communities from the continuing impact of crime. It underlinesthe important role that prosecutors now have as gatekeepers to the criminaljustice system.The Toolkit sets out the wide range of orders that are available to address theharm caused by offenders, and to ensure that effective measures are put inplace to prevent repeat victimisation. It will help prosecutors to consider theimpact that offending has on victims and the wider community whendetermining which orders should be sought and put in place.The Government is committed to building society’s resilience to crime, tacklingrepeat offenders and providing greater safeguards to victims. The AncillaryOrders Toolkit provides an important source of assistance to prosecutors inachieving these goals.Baroness Scotland of Asthal QCAttorney GeneralOctober 2009
Ancillary Orders ToolkitIntroduction from the Director of Public ProsecutionsThe use of ancillary orders and other types of orders,by both prosecutors and investigators, is anincreasingly important means of tackling and reducingcrime. There is now a wide range of orders which canbe used at different stages of the investigation orprosecution process.This toolkit is designed to provide a guide toprosecutors on the wide range of ancillary orders andother types of orders available. The toolkit providesshort, informative profiles on a range of ordersincluding information on when and how to use theorders, as well as examples and information on whatto watch out for, in a user-friendly format including ‘frequently-askedquestions’. The profiles also contain advice about where to get furtherinformation and guidance on specific orders.This toolkit has been prepared by the Crown Prosecution Service withvaluable support from colleagues in the Revenue and Customs ProsecutionsOffice and the Serious Fraud Office. The toolkit will be subject to regularreview to ensure it remains up to date, and we would welcome any commentson its content to email@example.comI would encourage all prosecutors to make use of this toolkit as they carry outtheir various functions and contribute to the tackling and reduction of crimeand the ongoing protection of the public.Keir Starmer QCDirector of Public ProsecutionsOctober 2009
ContentsSection 1: Options available to the investigatorAnti-Social Behaviour Order (Civil)Closure Notices/Orders for PremisesFootball Banning OrderForfeiture of Indecent Photographs or Pseudo Photographs of ChildrenForfeiture of Obscene PublicationsImmunity AgreementsRestricted Use UndertakingsRevocation of a Pilot's LicenceSentence Discount AgreementsSection 2: Options available to the investigator/prosecutor during prechargeand/or pre-trial stagesBind OverCash Seizure and Forfeiture OrdersCivil Disclosure OrderCivil Recovery OrderCriminal Proceeds of Crime Act Disclosure OrdersDisclosure Notices for the Purpose of Terrorist InvestigationsDisruption of Legal Professionals Facilitating Serious Organised CrimeEuropean Arrest WarrantRestraint OrderSerious Crime Prevention Order – (Civil) High CourtViolent Offender Order (VOO)
Options availableto the investigatorSECTION 1
Order or Power:Anti-Social Behaviour Order (Civil)Found in: Section 1 Crime and Disorder Act 19981. What is this?An Anti-Social Behaviour Order or ASBO may be made pursuant tosection 1 of the Crime and Disorder Act 1998 (the Act) on application toa magistrates' court by a relevant authority as defined in the Act.Relevant authorities pursuant to section 1(1A) are:a) the council for a local government area;aa) in relation to England, a county council;b) the chief officer of police of any police force maintained for a policearea;c) the Chief Constable of the British Transport Police Force;d) any person registered under section 1 of the Housing Act 1996 as asocial landlord who provides or manages any houses or hostel in alocal government area; ore) a housing action trust established by order in pursuance of section62 of the Housing Act 1988.The CPS is not a relevant authority for the purposes of section 1 ofthe Act.An ASBO is not a punitive measure, but a preventative one.2. When is it useful?The purpose of the order is to protect relevant persons from behaviourthat causes or is likely to cause harassment, alarm or distress. The ordershould reduce the risk of further anti-social behaviour by preventing therespondent from doing certain things, such as going to a specifiedlocation, or drinking alcohol in a public place. The terms of the order willvary depending upon the anti-social behaviour that is complained of.A 'relevant person' is defined in the Crime and Disorder Act 1998 as aperson within the area of the relevant authority.
3. When is it available?An ASBO may be applied for where the relevant authority lays acomplaint before a magistrates' court and there is at least one incidentof anti-social behaviour in the six months preceding the laying of thecomplaint. Any other acts of anti-social behaviour relied on in supportof the application must have taken place after 1 April 1999.The court may make an order if it finds:a) that the person has acted, since the commencement date, in ananti-social manner, that is to say, in a manner that caused or waslikely to cause harassment, alarm or distress to one or morepersons not of the same household as himself; andb) that such an order is necessary to protect relevant persons fromfurther anti-social acts by him.Where it is considered just, an interim order may be made by the court(pursuant to section 1D of the Act) before it makes a final determinationon the ASBO application. An interim order must be for a fixed period oftime but may be varied, renewed or discharged.An application for an interim ASBO may be made either with notice tothe defendant or, with leave of the justices' clerk, without notice to thedefendant. The justices' clerk must only grant leave if he is satisfied thatit is necessary for the application to be made without notice. If an interimorder made without notice is not served on the defendant within sevendays of being made it ceases to have effect.4. What is the procedure?Before making an application for an ASBO, relevant authorities have aduty to consult pursuant to section 1E of the Act.The relevant authority then makes an application by complaint to amagistrates' court.If, on such an application, it is proved that the conditions set out insection 1(1) of the Act (see paragraph 3 above) are fulfilled, themagistrates' court may make an ASBO which prohibits the defendantfrom doing anything described in the order.
5. Where can I find further guidance?The Home Office website at http://www.respect.gov.ukCPS Legal Guidance: Anti-Social Behaviour Guidance.Each CPS Group has an ASBO Specialist Prosecutor who will be able tosupply advice and guidance.Part 1 Crime and Disorder Act 1998.6. Give me an example?A is an adult who is a persistent drug user. Along with B and C he sits inthe local park injecting heroin. Members of the public have reported thisto the police and also report having been threatened by the group butwill not make statements. On occasions used needles have been foundnear A. He has signed an acceptable behaviour contract in which heagreed not to take drugs in the park but the behaviour has continued.The local authority seeks an ASBO prohibiting him from being in the parkand associating with B and C.7. What do I need to watch out for?• The minimum length an ASBO can be made for is two years; themaximum is until further order.• Each prohibition within the ASBO does not have to last two years.• Each prohibition must be reasonable, proportionate, realistic,practical, clear and enforceable.• Prohibitions should not be imposed either to further punish anindividual or to replicate a criminal offence if the sentence whichcould be passed following conviction (or a guilty plea) for theoffence would be a sufficient deterrent – they are designed tobe preventative.• Breach of an ASBO is a criminal offence – section 1(10) of the Act.Back to Contents
Order or Power:Closure Notices/Orders for PremisesFound in: Sections 1- 11 of the Anti-social Behaviour Act 20031. What is this?This legislation grants the police the power to issue a closure notice toclose down premises being used for the supply, use or production ofClass A drugs where there is associated serious nuisance or disorder.Section 1(2) states that a closure notice may be authorised provided thatthe local authority for the area has been notified and that reasonablesteps have been taken to establish the identity of any person who liveson the premises, or who has control of, or responsibility for, or aninterest in the premises.If a closure notice has been issued under section 1, then a constablemust apply to a magistrates' court for a Closure Order. A Closure Orderis usually for a period not exceeding three months. A person commits anoffence if he remains on or enters premises in contravention of a closurenotice, or obstructs a constable or an authorised person acting underthis legislation. These offences are summary only and can carryimprisonment of up to six months, or a fine not exceeding level 5 on thestandard scale.2. When is it useful?It is useful to enable the swift closure of properties taken over by drugdealers and users of Class A drugs, who cause disorder or seriousnuisance to the local community.3. When is it available?Anytime: as long as a police officer (not below the rank ofSuperintendent) has reasonable grounds for believing that:1) the premises are being used in conjunction with the unlawful use,production or supply of a class A controlled drug; and2) the use of the premises is associated with the occurrence ofdisorder or serious nuisance to members of the public.
4. What is the procedure?• There must be reasonable grounds for believing that the premisesare being used for the supply, use or production of Class A drugsand that there is associated serious nuisance or disorder.• A notice of closure is issued either orally or in writing. If givenorally, this should be confirmed in writing as soon as is practicable.• Closure notice must be served by a constable.• Service is deemed to have taken place when notice given to personwho lives on the premises, or is responsible for or has control forpremises, or placed on at least one prominent place on thepremises or on the normal means of access to the premises.• If a closure notice is served, a constable should apply to amagistrates' court for the making of a closure order.• Application must be heard by the magistrate no later than 48 hoursafter the notice has been served.• The closure period is for a period to be specified by the court, notexceeding 3 months.5. Where can I find further guidance?Sections 1-11 Anti-Social Behaviour Act 20036. Give me an example?There are logged reports of disturbances and the use of drugs at aparticular premise.Following consultation with the local community prosecutor, policeliaised with the local authority and served a closure notice stating thedate, time and place where the application would be heard, on theoccupants of the house.The police lawyer asked the court to grant an 'Immediate Closure Order'to give respite to the community who had seen their community become'unliveable'. Unsavoury characters were seen to arrive at all hours of thenight and knock on other people's doors and there were continuous loudnoises coming from the house. During the raid drugs paraphernalia wasfound and the house closed for three months.
7. What do I need to watch out for?• That the police liaise with the local authority before issuing aclosure notice.• In the vast majority of 'crack-houses', the tenant/leaseholder isusually a simple householder with vulnerability issues in the form ofsubstance abuse, mental health or learning difficulties.• Occasionally children will be part of the household and SocialServices will have to be informed.Back to Contents
Order or Power:Football Banning OrderFound in: Section 14B of the Football Spectators Act 1989 as amended1. What is this?Section 14(B) – An application for a Football Banning Order may bemade by a Chief Officer of Police (including the Chief Constable of theBritish Transport Police) or the Director of Public Prosecutions if therespondent has at any time caused or contributed to any violence ordisorder in the United Kingdom or elsewhere. If this is proved and thecourt is satisfied that there are reasonable grounds to believe thatmaking a banning order would help to prevent violence or disorder at orin connection with any regulated football matches, the court must makea Football Banning Order; the maximum duration under section 14(B) isfive years and the minimum three years.2. When is it useful?To prevent violence at regulated football matches in the future. It is notsolely dependent on conviction and is useful in preventing disorder byknown persons both in the UK and abroad.Applications can be made under section 14(B) to prevent known troublemakers not currently subject to banning orders from travelling tointernational tournaments. This is of course subject to being able tosatisfy the court that the necessary conditions are satisfied.3. When is it available?Prosecutors can apply for a 'civil' banning order on complaint by a chiefofficer of police or on behalf of the DPP – section 14(B).It is available where a court is satisfied, on the civil standard of proof(i.e. on the balance of probabilities) that the respondent has at any timecaused or contributed to any violence or disorder in the UK or elsewhereand that there are reasonable grounds to believe that an order wouldhelp to prevent violence or disorder at or in connection with anyregulated football matches.
4. What is the procedure?This procedure is initiated by a complaint. The civil rules of evidenceapply in the magistrates' court though in practice, the criminal standardof proof has been required – as per ASBOs.A constable may also serve a notice (subject to certain conditions) toappear before a court for an application under section 14(B) usingpowers granted under section 21(B) of the Act if it is within a controlperiod relating to an regulated football match outside England and Walesand can use powers of arrest where necessary to ensure attendance.Despite being a civil procedure, the court has power to remand and mayremand on bail under section 128 Magistrates' Court Act 1980 withconditions that include not to leave the England and Wales andsurrender of passport in certain circumstances.5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders; and Guidance onFootball Related Offences.Police National Legal Database: Guidance on Football related Offences.Section 14 B of the Football Spectators Act 1989 (as amended by theFootball (Disorder) Act 2000) and the Violent Crime Reduction Act 2006.6. Give me an example?At a regulated football match during the European Champions League inX land, D is arrested and ejected for fighting on the pitch. The evidenceis captured by CCTV. D is put on a plane to the UK and the plane landsin Gatwick. After immigration checks, D is spoken to by the police whoare forced to arrest and detain him. They serve a notice on D which hasthe effect of acting as a complaint to initiate the proceedings. Theprosecutor will use the CCTV evidence to prove the offence.7. What do I need to watch out for?• All CPS Areas have at least one lead football prosecutor, who willbe available to advise on banning orders generally.• Courts must impose banning orders if satisfied that there arereasonable grounds and must give reasons if not so satisfied.There should be urgent consideration of an appeal in the event ofrefusal under the provisions of section 14(B) as amended.
• The Violent Crime Reduction Act (VCRA) 2006 has amendedsection 14(B) so that a court is now permitted to remand anoffender if proceedings are adjourned. The court can also imposebail conditions of not permitting the offender to leave England andWales prior to his appearance and requiring the offender tosurrender his passport.• The courts are given a wide discretion of what to take into accountin making a section 14(B) Football Banning Order. This includesdecisions of foreign courts, evidence of deportation back to the UK,removal from football matches wherever this occurred and conductrecorded visually – e.g. CCTV.• Section 35 of the Public Order Act 1986 entitles the court, onapplication by the prosecutor, to order a person on whom aFootball Banning Order has been made to attend a specified policestation within 7 days at a specified time to have a photographtaken. A power of arrest exists for disobedience.• Under section 14(E), a person who has been given a FootballBanning Order must report to a specified police station within fivedays and they will have to surrender their passport when requiredby the Enforcing Authority (the Football Banning Orders Authority -which is part of the UK Football Policing Unit (UKFPU)) under theAct and report to a police station during the 'control periods'associated with 'regulated football matches' outside the UK (seesection 14 for the relevant definitions of control period andregulated football matches).• When determining what is a period 'relevant to a football match' forthe purposes of Schedule 1 (offences), the period specified inSchedule 1 paragraph 4(2) is the relevant reference, and not that insection 1(8) Football (Spectators) Act 1989.Back to Contents
Order or Power:Forfeiture of Indecent Photographs orPseudo Photographs of ChildrenFound in: Section 39 and Schedule 11 of the Police and JusticeAct 20061. What is this?Section 39 and Schedule 11 of the Police and Justice Act 2006 amendthe Protection of Children Act 1978 to provide a mechanism to allow thepolice to forfeit indecent photographs of children held by the policefollowing any lawful seizure.2. When is it useful?Where, for example, police have seized indecent photographs or pseudophotographs of children, such photographs will not be returned in anyrecoverable form to someone who does not have a legitimate reason fortheir possession.The police are able to forfeit indecent photographs of children which areheld by the police following any lawful seizure.The police are able to exercise the power of forfeiture under theProtection of Children Act 1978 rather than be dependent on the courts.3. When is it available?The power is available once the indecent photographs or pseudophotographs have been lawfully seized. The police can forfeit thematerial regardless of the powers of seizure used to obtain it. The courtsonly become involved if there is a challenge against the decision of thepolice to forfeit.4. What is the procedure?The officer must issue a notice of intended forfeiture on:• Every person whom the officer believes to have been the owner ofthe property, or one of its owners, at the time of the seizure of theproperty;
• where the property was seized from premises, every person whomthe officer believes to have been an occupier of the premises atthat time; and• where the property was seized as a result of a search of anyperson, that person.A person can claim possession of the property by giving written notice ofthe claim to a constable at any police station in the police area in whichthe property was seized. On receipt of a notice the relevant officer mustdecide whether to take proceedings to ask the court to forfeit all or partof the property.If the officer decides not to take proceedings he must return the property(or part there of), to the person who has a legitimate reason for itspossession.If the property or part of it is unclaimed by the end of the period for thegiving of a notice of claim it is treated as forfeited.5. Where can I find further guidance?The Ministry of Justice Circular on Forfeiture of Indecent Images ofChildren: Implementation of Section 39 and Schedule 11 of the Policeand Justice Act 2006.6. Give me an example?A police officer obtains a warrant to search D's premises. The policeofficer seized a computer which contains indecent images of children.A decision is made not to proceed against D as he does not have soleaccess to the computer. The officer no longer has a legitimate reasonto retain the property, but is satisfied that there are reasonable groundsto believe it is forfeitable. Nor is he aware of any person who has alegitimate reason for possessing the property. The officer will issueD with a notice of intended forfeiture.7. What do I need to watch out for?• Seizure of the material must be lawful.• Forfeiture also applies to articles that are impossible to separatefrom illegal data: for example legal data held alongside illegal dataon a computer hard drive.
• This power also allows police to forfeit articles they believe arelikely to be or contain indecent images of children. For example,this will allow police to assume forfeiture of a vast collection ofdiscs/videos without having to go through every single item, as longas they have reasonable grounds to believe they were or containedsuch images.• The Schedule gives the courts, on appeal, the power to orderforfeiture, return or separation of articles, including copying of legaldata.• The reforms do not affect the powers of forfeiture under section 143of the Powers of Criminal Courts (Sentencing) Act 2000.Back to Contents
Order or Power:Forfeiture of Obscene PublicationsFound in: Section 3 Obscene Publications Act 19591. What is this?Commercial dealings in obscene items, or possession of them for thesepurposes, are an offence. With or without a prosecution, the items canbe seized under a magistrate's warrant and, after a hearing to determinewhether they contravene the statute, can be forfeited.2. When is it useful?Where the police have seized obscene material pursuant to a warrantissued under section 3 Obscene Publications Act 1959, but the owner ofthe material is not prosecuted or cautioned.If there has been an acquittal, section 3 Obscene Publications Act 1959can be used to request the forfeiture of the material concerned. TheDistrict Judge should be informed of the acquittal especially where thesole defence run was that the article in question was not obscene.3. When is it available?For forfeiture proceedings there need not have been a prosecution, butthe material in question must have been seized pursuant to theexecution of a warrant issued by the magistrates' court under section 3of the Obscene Publications Act 1959.4. What is the procedure?The material in question must have been seized pursuant to theexecution of a warrant issued by the magistrates' court under section 3.The conduct of such proceedings becomes the responsibility of the CPSunder section 3(2)(d) Prosecution of Offences Act 1985. These casesare handled at Area level.Although forfeiture proceedings will normally be handled locally, wheresuch proceedings relate to a film of 16mm or more the information insupport of the warrant must have been laid or on behalf of the Directorof Public Prosecutions.
5. Where can I find further guidance?CPS Legal Guidance: Obscene Publications.Section 3 of the Obscene Publications Act 1959.6. Give me an example?A newsagent is selling obscene magazines and the police are informed.An officer attends court and gives evidence on oath that he hasreasonable grounds for suspecting that in the newsagent's premisesthere are obscene magazines for sale. The District Judge grants asection 3 Obscene Publications Act 1959 warrant for the officer to enterand search the premises and seize and remove the obscene magazines.The police do this and bring the seized magazines to the District Judgewho then issues a summons for the newsagent to attend court to showcause why the magazines should not be forfeited. If the court is satisfiedthat any of the items were, at the time when they were seized, obscenearticles kept for publication for gain, the court will order that the articlesbe forfeited.7. What do I need to watch out for?• The material in question must have been seized pursuant to theexecution of a warrant issued by the magistrates' court undersection 3 Obscene Publications Act 1959.• For forfeiture proceedings there need not have been a prosecution.• The Law Officers have undertaken that where a publisherintervenes in forfeiture proceedings and indicates an intention tocontinue publishing, whatever the result of the forfeitureproceedings may be, then in the absence of special circumstancesand there being sufficient evidence the Director will usually proceedagainst the publisher by way of prosecution rather than pursue theforfeiture proceedings.Back to Contents
Order or Power:Immunity AgreementsFound in: Section 71 Serious Organised Crime and Police Act 20051. What is this?A written agreement between a specified prosecutor and an offenderthat in return for certain specified assistance in the investigation orprosecution of others, he or she will not be prosecuted.2. When is it useful?This can be a useful tool where it is desirable to secure the assistance ofan accomplice who is implicated to a limited degree in very seriousoffending by others, and whose evidence is crucial to the prosecution ofthose others. It has the advantage on being subject to the performanceof conditions by the offender and can be revoked for non-compliance.3. When is it available?During the course of an investigation and anytime up to the arraignmentof the person with whom the Immunity Agreement is to be concluded.However, to gain maximum benefit, the possibility of entering into anagreement to grant immunity should be considered as early as possiblein the investigation. If assistance is offered only 'at the door of the court'it may be difficult to ensure that a proper agreement is in place to satisfythe requirements of section 71.4. What is the procedure?The investigators will usually identify a potential assisting offender to theprosecutor and seek advice on his or her suitability to be grantedimmunity, indicating the range of assistance that is anticipated, theextent of the offender's involvement in the offence(s) and why it isthought justifiable in the interests of justice for the offender to be sparedall prosecution.
Immunity Agreements can only be authorised by the Principal LegalAdvisor to the DPP, the Head of one of the CPS HeadquartersCasework Divisions, or a specifically nominated deputy of Senior CivilService grade. The offender should normally have been 'cleansed' inadvance of the agreement being signed, i.e. required to admit all theirprevious criminality.5. Where can I find further guidance?CPS Legal Guidance: Witness Immunities and Undertakings. This mustbe referred to if this course of action is being considered.Section 71 of the Serious Organised Crime and Police Act 2005.6. Give me an example?A was one of a group who returned to a house after a night out drinking.At the house, apparently without motive, D stabbed V in the neck andkilled him. A witnessed the killing.A number of the party, but not A, took part in a clean up of the murderscene and the disposal of the body. All, including A, when interviewed bypolice gave an agreed false story that V had been dropped off earlierthat night before they had returned to the house.A was unwilling to assist if prosecuted for perverting the course ofjustice. He was a vital eye witness to the killing by D and onlyperipherally involved in the cover up. He was granted an immunity fromprosecution for the offence of perverting the course of justice which hehad admitted in interview.7. What do I need to watch out for?• The Attorney General's Office should always be consulted beforeany decision is made on the granting of full immunity.• Complete immunity from prosecution is intended to be used in trulyexceptional circumstances only. It will be very rare for immunity tobe granted without a requirement to give evidence, if courtproceedings follow.• Reliance on the evidence of former accomplices and people ofadmitted criminality should be considered a high risk strategy andvery careful consideration will have to be given to the credibility ofthe witness in front of the jury. Agreements to grant immunityshould not exclude the possibility of recovery under the Proceedsof Crime Act 2002 without the prior agreement of the CentralConfiscation Unit in OCD.
• Immunity Agreements should be treated as sensitive documents forthe purposes of disclosure and a Public Interest Immunity (PII)application may be necessary to protect their contents.Back to Contents
Order or Power:Restricted Use UndertakingsFound in: Section 72 Serious Organised Crime and Police Act 20051. What is this?Where a Restricted Use Undertaking (RUU) is given by a specifiedprosecutor, it allows a person to waive the privilege againstself-incrimination without risk of prosecution on the basis of thatevidence alone. The information obtained following the grant of theundertaking must not be used against that person except incircumstances specified in the written notice of undertaking.An RUU ceases to have effect if the person to whom it relates fails tocomply with any conditions specified in the undertaking and in any eventdoes not bar prosecution on the basis of evidence from other sources.2. When is it useful?This can be a useful tool where it is desirable to secure the assistance ofan accomplice who is implicated to a limited degree in serious offendingby others, and whose evidence could improve substantially the prospectof prosecuting the others. It has the advantage on being subject to theperformance of conditions by the offender, and can be revoked fornon-compliance.3. When is it available?During the course of an investigation and anytime up to the arraignmentof the person with whom the RUU agreement is to be concluded.However, to gain maximum benefit, the possibility of granting an RUU toone or more potential defendants should be considered as early aspossible in the investigation. If assistance is offered only 'at the door ofthe court' it may be difficult to ensure that a proper agreement is in placeto satisfy the requirements of section 72.
4. What is the procedure?The investigators will usually identify a potential assisting offender to theprosecutor and seek advice on his or her suitability to receive a RUU,indicating the range of assistance that is anticipated and the extent ofthe offender's involvement in the offence(s). Applications for RUUs haveto be approved by the Principal Legal Advisor to the DPP or a Head of aCPS Headquarters Casework Division. The offender should normallyhave been 'cleansed' in advance of the RUU agreement being signed,i.e. required to admit all their previous criminality.5. Where can I find further guidance?CPS Legal Guidance: Witness Immunities and Undertakings.Section 72 of the Serious Organised Crime and Police Act 2005.6. Give me an example?Police are investigating a gangland murder allegedly carried out by D.They discover the murder weapon at the home of A, who is D's girlfriend.Several people occupy the premises but A admits she has been hidingthe weapon but says she did so only because of threats to her by D. Sheis willing to give evidence that D gave her the weapon immediately afterthe murder, but not if she risks prosecution for possession of the weaponor for assisting an offender based on her admissions. She has no otherknown involvement in the gang's activities, and is therefore consideredsuitable for an RUU.7. What do I need to watch out for?• The agreement to grant a RUU must be in writing and signed bythe assisting offender and a specified prosecutor of the appropriatelevel of authority.• The written agreement should set out the specific boundaries of theprotection from prosecution that it offers, the conditions to which itis subject, and the consequences (i.e. prosecution) of a failure tocomply with those conditions. It will be very rare for a RUU to begranted without a requirement to give evidence, if courtproceedings follow.• RUUs should be treated as sensitive documents for the purposesof disclosure and a Public Interest Immunity (PII) application maybe necessary to protect their contents in certain cases.Back to Contents
Order or Power:Revocation of a Pilot's LicenceFound in: Powers of the Civil Aviation Authority1. What is this?This is an order which ensures that all pilots convicted of drug traffickingoffences in SOCA operations are permanently unable to retain or regaintheir licence. The Civil Aviation Authority (CAA) is responsible for havingthe licence revoked.2. When is it useful?This can be an option, for example, where aircraft are used in theconsignment of illegal items.3. When is it available?Usually after conviction.4. What is the procedure?SOCA can advise on the options available, and will facilitate contact withthe CAA. Typically the CAA will require a certificate of conviction andsome brief details of the case.5. Where can I find further guidance?The Civil Aviation Authority website at: http://www.caa.co.uk6. Give me an example?A law enforcement operation targeted the substantial importation ofheroin, cocaine and ecstasy by light aircraft into a Shropshireaerodrome. The subsequent conviction of the pilot for drug traffickingoffences enabled the CAA to remove his licence for life.
7. What do I need to watch out for?The CAA is under an international convention obligation to deal withpilots convicted of drug trafficking in this way. Pilots convicted of otheroffences such as people smuggling or money laundering may not besubject to such stringent action.Back to Contents
Order or Power:Sentence Discount AgreementsFound in: Sections 73 and 74 Serious Organised Crime and PoliceAct 20051. What is this?A defendant who, pursuant to a prior written agreement with a specifiedprosecutor, has provided or offered to provide assistance to aninvestigator or prosecutor, is eligible to receive a reduction in sentenceat the discretion of the court, provided he has entered a guilty plea.Section 74 allows, among other things, for the court subsequently toremove that discount if the assisting offender does not comply with theconditions contained in the written agreement.2. When is it useful?This can be a useful tool where it is desirable to secure the assistance ofan accomplice who is implicated to a limited degree in serious offendingby others, and whose evidence could improve substantially the prospectof prosecuting the others.Assistance can take the form of evidence given in court against formeraccomplices, or intelligence information only which assists in theprosecution or disruption of offending by others. A section 73 agreementhas the advantage on being subject to the performance of conditions bythe offender and can be revoked for non-compliance.3. When is it available?During the course of an investigation and anytime up to the arraignmentof the person with whom the sentence discount agreement is to beconcluded. However, to gain maximum benefit, the possibility of enteringinto a Sentence Discount Agreement with one or more potentialdefendants should be considered as early as possible in theinvestigation.Sentence discounts only apply in cases sentenced at the Crown Court(but this may include committals for sentence). Discounts are alsoavailable for assistance or further assistance given or offered afterconviction. In that case the written agreement is pursuant to section74(2) subsections (b) or (c).
4. What is the procedure?The investigators will usually identify a potential assisting offender to theprosecutor and seek advice on his or her suitability to enter into asection 73 agreement, indicating the range of assistance that isanticipated and the extent of the offender's involvement in the offence(s).In CPS Areas, agreements have to be approved by the Chief CrownProsecutor or a Level E prosecutor specifically authorised for thatpurpose. Within CPS Headquarters Casework Divisions, Level Eprosecutors may sign section 73 agreements without specificauthorisation. The offender should normally have been 'cleansed' inadvance of the agreement being signed, i.e. required to admit all theirprevious criminality.5. Where can I find further guidance?CPS Legal Guidance: Witness Immunities and Undertakings.Section 73 Serious Organised Crime and Police Act 2005.6. Give me an example?Police are investigating the gangland murder of V allegedly carried outby D. They arrest E who admits to having driven D to the murder scenebut claims that he thought he was going there to supply V with the drugswhich were found in E's car. E is willing to give evidence that he saw Dshoot V but not if he is charged as a secondary party to the murder. Hewill, however, plead guilty to being concerned in the supply of class Adrugs. E has previous drugs related convictions but no record of violentoffences.7. What do I need to watch out for?• The decision to discount a sentence is entirely for the court(although there are clear guidelines that it should, followingsubstantive assistance). Therefore the prosecutor should avoidappearing to guarantee any specific reduction in sentence in returnfor co-operation.• The written agreement should set out the specific conditions towhich it is subject, and the consequences (i.e. possible loss of anydiscount) of a failure to comply with those conditions. It should notexclude the possibility of recovery under the Proceeds of Crime Act2002 without the prior agreement of the Central Confiscation Unit inOrganised Crime Division in CPS Headquarters.
• Section 73 agreements should be treated as sensitive documentsfor the purposes of disclosure and a Public Interest Immunity (PII)application may be necessary to protect their contents in certaincases, especially where the offender has given intelligenceinformation only and cannot be identified in any other way ashaving assisted.Back to Contents
Options available to theinvestigator/ prosecutorduring pre-charge and/or pre-trial stagesSECTION 2
Order or Power:Bind OverFound in: Justice of the Peace Act 1361, Justice of the Peace Act 1968section 1(7)1. What is this?This is a power that the Crown Court and the magistrates' courts can useto bind over a defendant to keep the peace or be of good behaviour. It isexercised as a measure of swift and effective preventative justice. Suchan order is not a criminal conviction. The defendant enters into arecognisance for a sum of money (set by the court) which can beestreated if the terms of the recognisance are breached.In Hashman and Harrup v UK (Application no. 25594/94) ECHR 25November 1999 the term 'be of good behaviour' was held to be tooimprecise and thus offended the ECHR. The prosecutor is often asked tospecify the 'good behaviour' which is expected.2. When is it useful?Binding Over is a precautionary measure. It is used where there arereasonable grounds to anticipate some present or future disorder. It isnot a conviction, or a punishment. Binding Over should not be applied forin respect of an act which is past and which is not likely to be repeated.3. When is it available?In the magistrates' court and Crown Court. Its use does not depend on aconviction, and it may be used against a person who has been acquitted.4. What is the procedure?The court must be satisfied on admissible evidence that there is a realrisk of a breach of the peace occurring unless an order is made. Anorder can be made by the courts at any stage in the proceedings, butthis must be notified to the person concerned so that representationscan be made. The court's powers to make a Binding Over Order are notreliant on consent to the order from the defendant: R v Lincoln CrownCourt ex p Jude Times LR, 30 April 1997.
5. Where can I find further guidance?CPS Legal Guidance: Binding Over Orders.6. Give me an example?D, who is drunk and upset after an argument with his friend, beginsshouting and slurring at passers-by in the street. He is arrested forbreaching the peace. At court the following day, he is apologetic and isbound over to be of good behaviour for six months in the sum of £100.The requirement for future good behaviour is specified as including notbeing drunk in a public place.7. What do I need to watch out for?• Following Steel and Others v UK (67/1997/851/1058) ECHR 23September 1998 and Hashman and Harrup v UK (Applicationno. 25594/94) ECHR 25 November 1999 a 'Bind Over' should notbe applied for unless there is evidence of past conduct which ifrepeated is likely to cause a breach of the peace in the future.Back to Contents
Order or Power:Cash Seizure and Forfeiture OrdersFound in: Part 5 Proceeds of Crime Act 20021. What is this?A customs officer, a constable or an accredited financial investigatormay seize cash at the borders or inland if he has reasonable grounds forsuspecting that the cash is recoverable property or intended for use inunlawful conduct and if the sum seized is in excess of £1,000 (section294 POCA).Section 298 enables the magistrates' court to order the forfeiture of cashor any part of it if satisfied that it is recoverable property or is intendedfor use in unlawful conduct.The CPS may appear on behalf of the police in these proceedings.2. When is it useful?Whenever more than £1,000 cash is discovered by a customs officer,a constable, or an accredited financial investigator, and no credible andlegitimate explanation has been provided for possession of the money.3. When is it available?Cash seizure/forfeiture proceedings are civil in nature and do not requireancillary criminal investigations or proceedings, but should triggerconsideration of a criminal money laundering investigation.4. What is the procedure?These proceedings are civil in nature and are decided on the balance ofprobabilities. An application must be made to a magistrates' court within48 hours of the seizure for an order for further detention. Applicationsmay be made to extend the time for up to two years from the initialapplication. An application for forfeiture of the cash may be madepursuant to section 298 at which point the time limit no longer applies.The magistrates' court may subsequently make an order to forfeit thecash under section 300, POCA 2002.
5. Where can I find further guidance?CPS Legal Guidance: Proceeds of Crime - Investigative Powers & CashSeizure.Part 5 of the Proceeds of Crime Act 2002.6. Give me an example?Police officers stop a car and conduct a search of the boot and discover£1,001. The driver of the vehicle is unable to provide a credible andlegitimate reason for the cash being in the boot. The police officers mayseize the cash and conduct investigations in respect of it. If theinvestigations are likely to take longer than 48 hours the police will needto make an application for further detention of the money. If they aresatisfied that the money is recoverable, they may make an application tothe magistrates' court for the money to be forfeited. It is not necessarythat anyone is charged or convicted of a criminal offence in respect ofthe cash.7. What do I need to watch out for?Seized cash held pursuant to section 295 is not treated as recoverableproperty for restraint and confiscation purposes, but becomesrecoverable property once an application is made for forfeiture undersection 298 POCA, but has not yet been determined.If the cash has been dealt with as recoverable property in confiscationproceedings, it is no longer liable to be forfeited under section 298(2).Back to Contents
Order or Power:Civil Disclosure OrderFound in: Section 357 Part 8 of the Proceeds of Crime Act 20021. What is this?An order obtained in the course of a civil recovery investigationauthorising an appropriate officer to give to any person he considers hasrelevant information, notice in writing requiring him to do any or all of thefollowing:• answer questions, either at a time specified in the notice or at once,at a place so specified;• provide information specified in the notice, by a time and in amanner so specified; and• produce documents, or documents of a description, specified in thenotice, either at or by a time so specified or at once, and in amanner so specified.Relevant information is information (whether or not contained in adocument) which the appropriate officer concerned considers to berelevant to the investigation.2. When is it useful?When person or institution will not voluntarily provide documents, orreveal the source, the extent and the location of assets that are soughtto be made the subject of a Civil Recovery Order made pursuant tosection 266 of Part 5 of the Proceeds of Crime Act 2002.3. When is it available?Any time after a civil recovery investigation has commenced.4. What is the procedure?The relevant director of an enforcement authority or a member of SOCAstaff may make an application to a judge of the High Court under section357 at any time after a civil recovery investigation has commenced.
The application must state that the property specified in the application issubject to a civil recovery investigation.The judge may grant the order if there are reasonable grounds tosuspect that the property specified in the application is recoverable orassociated property and there are reasonable grounds for believing thatthe information that may be provided pursuant to the order is likely to beof substantial value to the investigation and that it is in the public interestthat the information is provided.It is a criminal offence to fail to provide the information or documentsrequested.5. Where can I find further guidance?Parts 5 and 8 of the Proceeds of Crime Act 2002.Explanatory Notes to the Proceeds of Crime Act 2002.The Code for Crown Prosecutors – part 8.6. Give me an example?A bank, a company official, or an accountant may be required by noticeto provide accounts and other documentation in relation to the affairs ofa company that may have been in possession of recoverable property.An order may be drafted widely so that notices may be served on aseries of persons as the recoverable property is traced through variouspersons and accounts.7. What do I need to watch out for?No information provided pursuant to these powers is admissible incriminal proceedings other than for perjury. This is expressly provided insection 360(1).Back to Contents
Order or Power:Civil Recovery OrderFound in: Section 266 Part 5 of the Proceeds of Crime Act 20021. What is this?A civil action in the High Court for the recovery of property obtainedthrough unlawful conduct.The SOCA, CPS, SFO and the RCPO are the designated enforcementauthorities entitled to commence civil recovery proceedings in theHigh Court.As civil recovery and criminal proceedings are mutually exclusive, this isnot an ancillary order or power in criminal proceedings.2. When is it useful?Prosecutors and/or SOCA may still recover criminal assets in the eventthat the suspect is resident overseas, or there is insufficient evidence tocommence a prosecution, or a prosecution fails for technical reasons orwhen a defendant absconds or dies.3. When is it available?At any time subject to a 12 year limitation period and to guidance issuedby the Attorney General and the Secretary for State.4. What is the procedure?Stages in civil recovery proceedings in the High Court:• Preservation of property:oooProperty Freezing Order;Civil Receivership Order;Interim Receivership Order.• Commencement of proceedings;• Report by interim receiver;• Making of Civil Recovery Order;• Vesting of property in the trustee for civil recovery.
5. Where can I find further guidance?Part 5 of the Proceeds of Crime Act 2002.CPS prosecutors should refer any potential civil recovery actions forconsideration to the Head of the Proceeds of Crime Delivery Unit.6. Give me an example?It is anticipated that due to unforeseen evidential problems a criminalprosecution will fail and the criminal Restraint Order will be discharged.A Property Freezing Order may be obtained to replace the criminalRestraint Order so that the criminal property is secured pending a civilrecovery investigation and the commencement of civil recoveryproceedings to recover the property.7. What do I need to watch out for?As civil recovery proceedings and criminal proceedings are mutuallyexclusive, the enforcement authority must ensure that there are noongoing criminal proceedings that might lead to a Confiscation Orderbeing made following conviction.CPS Area prosecutors should not be making this application.Back to Contents
Order or Power:Criminal Proceeds of Crime ActDisclosure OrdersFound in: Section 18 Part 2 of the Proceeds of Crime Act 2002Section 41(7) Part 2 of the Proceeds of Crime Act 2002Section 357 Part 8 of the Proceeds of Crime Act 20021. What is this?All three orders impose a duty upon a defendant to disclose informationin POCA confiscation proceedings, but each applies in differentcircumstances.2. When is it useful?When defendants are actively seeking to hide the extent and location oftheir assets that will be required to satisfy a Confiscation Order madefollowing a criminal conviction.A Disclosure Order made under section 41(7) may also be directedtowards persons other than the defendant.3. When is it available?Section 18 applies following conviction when the prosecutor has asked,or the court thinks that it is appropriate, to conduct a confiscationhearing.Section 41(7) enables a Crown Court to make such order as it believesis appropriate for the purposes of ensuring that a Restraint Order iseffective. Paragraph 89 of the Explanatory Notes to POCA confirms thatthis may include a Disclosure Order. A Restraint Order may be obtainedfrom any time after the commencement of a criminal investigation untilthe time when a Confiscation Order has been satisfied.A prosecutor may make an application under section 357 at any timeafter a confiscation investigation has commenced.
4. What is the procedure?Following conviction, a prosecutor may invite the court to make an orderunder section 18 that a defendant provide information in a specifiedmanner by a specified date for the purposes of the court carrying out itsfunctions under Part 2 of POCA 2002. If the defendant fails to provideinformation requested without reasonable excuse, the court may drawsuch inferences as it considers appropriate in the confiscation hearing.A failure to provide the information provided may also be dealt with bythe Crown Court as a contempt of court.Applications for POCA Restraint Orders under section 40 are made inwriting to a judge of the Crown Court in chambers and are generallymade ex parte and without notice. They are supported by a statementfrom a financial investigator and a draft order. A paragraph may beincluded in the draft order seeking disclosure of specified information bythe defendant or other named person in a specified manner and by aspecified date. The order must be served on the defendant and personsaffected by the order. Failure to provide the information may be dealtwith by the Crown Court as a contempt of court.A prosecutor may apply to a Crown Court judge for a disclosure orderunder section 357 in confiscation proceedings providing that there arereasonable grounds to suspect that the person specified in theapplication has benefited from his criminal conduct and there arereasonable grounds for believing that the information that may beprovided pursuant to the order is likely to be of substantial value to theinvestigation and that it is in the public interest that the information isprovided. The order authorises an appropriate officer to give to anyperson the appropriate officer considers has relevant information noticein writing requiring him to do any or all of the following:• answer questions, either at a time specified in the notice or at once,at a place so specified;• provide information specified in the notice, by a time and in amanner so specified; and• produce documents, or documents of a description, specified in thenotice, either at or by a time so specified or at once, and in amanner so specified.Relevant information is information (whether or not contained in adocument) which the appropriate officer concerned considers to berelevant to the investigation. It is a criminal offence to fail to provide theinformation or documents requested.
5. Where can I find further guidance?CPS Legal Guidance: Proceeds of Crime – Confiscation & Ancillaryorders – Post-POCA.Parts 2 and 8 of the Proceeds of Crime Act 2002, and Explanatory Notesto Parts 2 and 8 of the Proceeds of Crime Act 2002.The Code for Crown Prosecutors – part 8.6. Give me an example?A defendant is the subject of a confiscation investigation and hasmanaged to hide a substantial amount of his assets. A Disclosure Ordermay be used to ask the defendant to list his assets and to provide theirlocation. If some of the assets are located overseas, a prosecutor mayapply to the court for an order pursuant to section 41(7) for the assets tobe repatriated.7. What do I need to watch out for?POCA disclosure orders should not be routinely used prior to convictionand any requests for information should so far as possible be framed asclosed questions seeking specific information.No information provided pursuant to these powers is likely to beadmissible in criminal proceedings other than for perjury. This isexpressly provided in section 18(9) for section 18 and in section 360(1)in respect of an order made under section 357. There is no expressprovision in respect of section 41(7), but any attempt to rely upon suchmaterial as evidence is likely to be ruled inadmissible following adefence application under section 78 PACE.Back to Contents
Order or Power:Disclosure Notices for the purpose ofTerrorist InvestigationsFound in: Section 60 Serious Organised Crime and Police Act 2005(as amended by Section 33 Terrorism Act 2006)1. What is this?This is a power that allows the DPP (and the Director of RCPO) to givea Disclosure Notice in connection with a terrorist investigation.2. When is it useful?These provisions enable the DPP (or a Crown Prosecutor to whom hispowers may be delegated) to authorise a constable or a member ofSOCA to give a Disclosure Notice in writing to a person which requiresthat person to:• answer questions with respect to any matter relevant to theinvestigation;• provide information with respect to any such matter as is specifiedin the notice;• produce such documents, or documents of such descriptions,relevant to the investigation as are specified in the notice.3. When is it available?A disclosure notice can be given to a person when it appears to theinvestigating authority:• that there are reasonable grounds for suspecting that an offence towhich the Terrorism Act 2006 applies has been committed;• that any person has information (whether or not contained in adocument) which relates to a matter relevant to the investigation ofthat offence; and• that there are reasonable grounds for believing that informationwhich may be provided by that person in compliance with adisclosure notice is likely to be of substantial value (whether or notby itself) to that investigation.
4. What is the procedure?The Disclosure Notice should be issued by the DPP or authorisedprosecutor and should name the authorised person(s), i.e. the constableor a member of staff of SOCA authorised to give the notice to therecipient and ask questions, receive information and/or documentation.5. Where can I find further guidance?CPS Legal Guidance: DPP's Investigatory Powers under Sections 60-70of SOCPA 2005.Section 33 of the Terrorism Act 2006.Sections 60-70 of the Serious Organised Crime and Act 2000.6. Give me an example?A garage owner unknowingly rents out some lock-up garages to terroristsuspects. Although the owner was unaware of the terrorist links and isnot a suspect, he refuses to provide information as a witness fearingdamage to his business interests. A notice could be issued requiringdetails of the lease to be provided and for the owner to answer questionsas part of the Counter-Terrorism investigation.7. What do I need to watch out for?There are certain restrictions on requiring information and also how theinformation gained through a disclosure notice can be used. A personcannot be required to:• answer any privileged question;• provide any privileged information; or• produce any privileged document.However a lawyer may be required to provide the name and address ofa client.A person may not be required to disclose any information or produce anydocument in respect of which he owes an obligation of confidence byvirtue of carrying on any banking business, unless:
• the person to whom the obligation of confidence is owed consentsto the disclosure or production; or• the requirement is made by, or in accordance with a specificauthorisation given by, the Investigating Authority.There are restrictions as to the use of the statement once it has beenmade by a person. It cannot be used in evidence against the person whowas subject to a Disclosure Notice in any criminal proceedings unlesshe/she is being prosecuted for an offence in connection with theDisclosure Notice (section 67 SOCPA) or an offence under section 5 ofthe Perjury Act 1911.It can be used however if the person is being prosecuted for some otheroffence and the person, when giving evidence in the proceedings,makes a statement inconsistent with the relevant statement, and in theproceedings evidence relating to the relevant statement is adduced, or aquestion about it is asked, by or on behalf of the person.Back to Contents
Order or Power:Disruption of Legal ProfessionalsFacilitating Serious Organised CrimeFound in: Jurisdiction of Solicitors Regulation Authority1. What is this?Investigators (and others, including prosecutors) can liaise withprofessional bodies such as the Solicitors Regulation Authority (SRA) inorder to ensure that full use of their regulatory and membershipsanctions (for example getting a solicitor struck off throughdemonstrating breach of conduct guidelines at tribunal) is made in orderto complement criminal investigations.2. When is it useful?When the commission of serious and organised crime is being furtheredby the assistance of legal professionals.3. When is it available?These powers would preferably be used at an early stage of theinvestigation, but they can be employed at any point. The SRA willinvestigate to assess whether there has been a breach of its rules andregulations.4. What is the procedure?SOCA can advise you on the options available, and will facilitate contactwith bodies such as the SRA.5. Where can I find further guidance?The Solicitors Regulatory Authority website at:http://www.sra.org.uk/consumers/consumers.page
6. Give me an example?An investigatory enforcement team liaised with the SRA Head ofInvestigations to deal with a corrupt solicitor who was operating inbreach of SRA regulations. By involving the SRA at a very early stage,the lead investigator was able to ensure that an SRA investigation wouldnot interfere with the criminal investigation, but would assist by initiatingaction against the solicitor and the company in which he was practising.7. What do I need to watch out for?Regulatory powers should not be used to obtain evidence when thepowers of a law enforcement agency would be more appropriate.Back to Contents
Order or Power:European Arrest WarrantFound in: Section 142 Extradition Act 20031. What is this?A valid European Arrest Warrant (EAW) issued by the UK allows lawenforcement officers in other EU countries to arrest individuals who areaccused of, or have absconded whilst serving a custodial sentence for,offences committed within the UK's jurisdiction. Once the required legalprocess has been completed and any avenues of appeal have beenexhausted, the requested person can be extradited back to the UK.2. When is it useful?When it is known that an individual wanted for an offence has left theUK's jurisdiction and is thought to be present in another EU MemberState. EAWs may also be used to request the return of prisoners servinga custodial sentence, who have absconded and then travelled to anotherMember State.3. When is it available?An EAW is available in cases where an individual has left the UK'sjurisdiction and is believed to be in another EU Member State. The casemust meet the definition of an extradition offence set out in section 148of the Extradition Act 2003. In addition, for accusation cases, theoffences for which a person is being sought must pass the Full Code forCrown Prosecutors Test.4. What is the procedure?The prosecutor drafts the EAW using the standard EAW template andappends the required identification evidence and any other relevantdocuments. If required by local arrangements, the prosecutor liaises withthe CPS Area Champion prior to issue. Arrangements are then madewith the local court for signature of the EAW.
Once signed by the judicial authority, the CPS sends the signed warrantto SOCA's Fugitives' Unit who arrange for a translation if it is required.The warrant is then transmitted to the relevant designated CentralAuthority in the other Member State. An EAW may be circulated toseveral states if the requested person's whereabouts are not definite.The issuing judicial authority may be asked to provide additionaldocumentation by the Requested State in relation to the EAW, whichcould include assurances if the request was for a person who is anational of the Requested State or who is serving a custodial sentencefor another offence in that State. These assurances are provided by theHome Office's Judicial Cooperation Unit5. Where can I find further guidance?CPS Legal Guidance: Extradition (including the European Arrest WarrantTemplate).Part 3 of the Extradition Act 2003.6. Give me an example?Accusation Case:X is wanted for the murder of a woman in London. Police have obtainedintelligence that X fled to France by sea but may have moved on toGermany. The prosecutor is satisfied that it is appropriate to apply for anEAW. Once drafted, the EAW is sent to the local court for signature.SOCA transmits the signed EAW and accompanying documentation toCentral Authorities in France and Germany. X is located and arrested inGermany on the basis of the EAW. Once the court process is completehe is extradited back to the UK (usually within 60 days) where he standstrial and is convicted of murder.Prosecution Case:Y is serving a lengthy sentence for fraud in the UK. He failed to return toprison after a weekend release to spend time with his family and isbelieved to have left the UK. His details were circulated via Interpol andSOCA has been informed by Spanish colleagues that Y is currently livingin Madrid. A CPS prosecutor drafts an EAW which is signed by the localcourt and transmitted to the Spanish Central Authority by SOCA. Y isarrested on the basis of the EAW and once the required procedureshave been carried out in Spain he is extradited back to the UK wherehe is placed back in custody to serve the remainder of his sentence.
7. What do I need to watch out for?• The case is appropriate – it meets the definition of an extraditionoffence and passes the Full Code Test in the Code for CrownProsecutors.• Any additional documentation must be included with the signedEAW before it is sent to SOCA's Fugitives' Unit.• In a small number of cases additional information may need to beprovided, which will then be passed on to the requested state bySOCA.Back to Contents
Order or Power:Restraint OrderFound in: Section 41 Proceeds of Crime Act 20021. What is this?A Restraint Order has the effect of freezing property anywhere in theworld that may be liable to be sold to satisfy a Confiscation Order madeunder the Proceeds of Crime Act 2002 following conviction for anacquisitive offence.2. When is it useful?To prevent a defendant or the recipient of a tainted gift from dissipatingassets that may be required to satisfy a Confiscation Order madefollowing conviction under the Proceeds of Crime Act 2002.It may be made both against the defendant or person underinvestigation, and any other person holding realisable property.The object in each case is to strike a balance at the interlocutory stagebetween keeping the defendant’s assets available to satisfy anyConfiscation Order which may be made in the event of conviction,and meeting the defendant's reasonable requirements in the meantime(Re Peters  3 All ER 46, CA).3. When is it available?When there is a risk that realisable property will be dissipated and anyof the five conditions set out in section 40 of the Proceeds of Crime Act2002 are satisfied, namely that:• a criminal investigation has been started in England and Wales withregard to an offence and there is reasonable cause to believe thatthe alleged offender has benefited from his criminal conduct;• proceedings for an offence have been started in England andWales and not concluded and there is reasonable cause to believethat the defendant has benefited from his/her criminal conduct;
• the prosecutor has applied or will apply for the court to eitherreconsider making a Confiscation Order, to reconsider the benefitfigure, to make a confiscation order where a defendant abscondsafter conviction or committal, or to make a Confiscation Orderwhere a defendant absconded more than two years previously butwas neither acquitted nor convicted in commenced criminalproceedings and there is reasonable cause to believe that thealleged offender has benefited from his criminal conduct;• the prosecutor has commenced or will commence an application forthe court to reconsider the benefit figure in an earlier confiscationorder, and if there is reasonable cause to believe that the court willdecide that the amount found under the new benefit calculation ofthe defendant's benefit exceeds the relevant amount; or• the prosecutor has applied or will apply for the court to reconsiderthe amount available to satisfy a confiscation order, and if there isreasonable cause to believe that the court will decide that theamount found under the new calculation of the available amountexceeds the relevant amount.4. What is the procedure?The prosecutor will generally make the application ex parte and withoutnotice to a judge of the Crown Court supported by a statement made bythe financial investigator and a draft order (see Rule 59 of the CriminalProcedure Rules 2005).Breach of a Restraint Order should be dealt with by way of contemptproceedings in the Crown Court.5. Where can I find further guidance?CPS Legal Guidance: Proceeds of Crime - Restraint and ManagementReceivers.Part 2 of the Proceeds of Crime Act 2002.Rule 59 of the Criminal Procedure Rules 20056. Give me an example?An investigation has commenced in respect of an acquisitive crime fromwhich the defendant has benefited. The prosecutor intends to apply for aconfiscation order following conviction. The defendant owns a car, anumber of properties and has a number of bank accounts. There is a riskthat the defendant will hide, sell, mortgage or give away property thatwould be liable to be sold to satisfy a confiscation order made in the
event that he is convicted. The financial investigator obtains early advicefrom the prosecutor and the decision is made to apply for a RestraintOrder. The financial investigator prepares a statement which is thenused in support of the prosecutor's ex parte application without notice inthe Crown Court.The order and statement is served upon the defendant and any personwho is prohibited from dealing with realisable property by the RestraintOrder. A copy of the order is served on any other persons affected bythe order. A copy of the order along with the relevant form is sent to theLand Registry so that any potential purchaser or mortgagee has noticeof the Restraint Order. The defendant may continue to make use of thecar and the properties, but will only be allowed access to a fixed amountfrom the bank accounts in respect of his living expenses and any livingexpenses arising from the criminal proceedings in which the RestraintOrder was obtained. Following the making of the Confiscation Order, theRestraint Order remains in place until the defendant's property has beenrealised and the Confiscation Order has been paid.7. What do I need to watch out for?• A Restraint Order under the Proceeds of Crime Act 2002 may onlybe made if the eventual Confiscation Order is likely to be madeunder the Proceeds of Crime Act 2002.• If the Confiscation Order is likely to be made under the DrugTrafficking Act or the Criminal Justice Act 1988, then theapplication for a Restraint Order must be made to the High Courtand can only be obtained at or about the time of charge.• The prosecutor should ensure that the statement in support setsout all relevant information consistent with the prosecutor's duty offull and frank disclosure. A failure to comply with this duty may leadto an order being subsequently discharged and costs beingawarded against the prosecutor.• The third, fourth and fifth conditions of section 40 of the Proceedsof Crime Act 2002 will not be satisfied if the court believes thateither there has been undue delay in continuing the application, orthe prosecutor does not intend to proceed (see section 40(7)(8)).• If the defendant is unlikely to comply with the terms of the RestraintOrder, the prosecutor may apply to the court for the appointment ofa management receiver.Back to Contents
Order or Power:Serious Crime Prevention Order –(Civil) High CourtFound in: Part 1 Serious Crime Act 20071. What is this?A civil order preventing, restricting or disrupting involvement of a personin serious crime in England and Wales, available if satisfied that theperson has been involved in serious crime and there are reasonablegrounds to believe that the order would protect the public.2. When is it useful?This power is useful in cases where there is insufficient evidence toprosecute for a relevant criminal offence but sufficient evidence to provebeyond reasonable doubt that the person has been involved in seriouscrime in England and Wales. This is defined in section 2(3) as:• the commission of a serious offence in England and Wales,• conduct which facilitates the commission by another of a seriouscrime in England and Wales, or• conduct likely to facilitate the commission of such an offence by theperson or another, whether or not such an offence is committed.3. When is it available?At any time upon proof of involvement in serious crime without the needfor a conviction.Likely to be inappropriate while a criminal investigation is in progress.It is in effect an interim injunction to prevent the person's activities.4. What is the procedure?An application to the High Court is subject to the Civil Procedure Rules.All applications will be handled by the Central Confiscation Unit in theOrganised Crime Division.
5. Where can I find further guidance?CPS Legal Guidance: Serious Crime Prevention Orders Guidance.Also see Part 1, Serious Crime Act 2007.6. Give me an example?A person or company is trading in legal chemicals frequently used to cutor bulk up illegal drugs. There is insufficient evidence to proveknowledge of the use to which the chemicals are being put but the waythe business is run, for example, frequent sales of large amounts tocustomers who have no known legitimate use for the chemicals withpayments in cash, could be used to prove that serious crime was likelyto be facilitated by those transactions. An order could require the personto do proper 'know your customer' checks and require bank details, etc.7. What do I need to watch out for?• These orders are not a soft alternative to prosecution and must notbe used as such. Prosecution should be fully considered first.• Sufficient evidence to prove involvement in serious crime beyondreasonable doubt is required so adequate investigation is requiredbefore an application can be considered.• As these are civil proceedings, costs follow the event, so a failedapplication could prove very costly.Back to Contents
Order or Power:Violent Offender Order (VOO)Found in: Sections 98 – 117 Criminal Justice and Immigration Act 20081. What is this?A Civil Order, applied for by the police, to protect the public, or anyparticular member of the public, from a current risk of serious physicalor psychological harm caused by a 'qualifying offender' committing a'specified offence'.Police can also apply for an interim VOO.Breach of the terms of a VOO (or Interim VOO, or notificationrequirements imposed by a VOO) is a criminal offence.2. When is it useful?When a person (a qualifying offender) who has previously beenconvicted of a 'specified offence' (manslaughter, soliciting murder,section 18 GBH, section 20 malicious wounding, attempted murder,conspiracy to commit murder, or a relevant service offence) whichresulted in a sentence as defined in section 99 (2) or (4) presents acurrent risk of causing serious physical or psychological harm bycommitting a (further) specified offence.3. When is it available?It is available at any time (once the power has been commenced) that achief officer of police considers it necessary to make an application toprotect the public at large, or a particular person, or section of the public.It is not an order to be made on conviction on application by aprosecutor.It can be applied for and made when the person is in custody, onlicence, or the subject of a Hospital Order, or Supervision Order, butcannot come in to force whilst the person is still subject to any of thesesentences or orders.
There are a number of requirements:• P must be a qualifying offender i.e. previously convicted of a'specified offence' (manslaughter, soliciting murder, section 18GBH, section 20 malicious wounding, attempted murder,conspiracy to commit murder, or a relevant service offence) whichresulted in a sentence as defined in sections 99(2) or 99(4) – 12months' imprisonment or hospital order with or without restriction;• P presents a current risk of harm by committing a specified offenceagainst the public or any particular member of the public;• P must have acted in such a way as to give reasonable cause tobelieve that it is necessary for a VOO to be made;• An order cannot come into effect whilst D is presently serving acustodial sentence, or is on licence, or is subject to a HospitalOrder, or is subject to a Supervision Order but can be applied forand made at such a time;The VOO can contain prohibitions, restrictions or conditions to preventP from:• going to specified premises, or any specified place, at all or at orbetween specified times;• attending any specified event; or• having any, or any specified description of, contact with anyspecified individual.4. What is the procedure?A chief officer of police applies on complaint to a magistrates' court for aVOO (or interim VOO) in respect of a person who either resides in hispolice area, or who is in that area or who the chief officer of policebelieves is intending to come into his area.NB. The prosecutor plays no role in making applications to the court andthis power is not available as an ancillary order to be applied for postconviction. If the necessary conditions apply, a chief officer of policeshould make the necessary complaint to a magistrates' court.5. Where can I find further guidance?CPS Legal Guidance: Supplementary Functions Undertaken by theCPS.Section 98-117 Criminal Justice and Immigration Act 2008, andexplanatory notes issued under that Act.
6. Give me an example?It may assist where there have been clear threats made against aprevious victim by a qualifying offender, or where risk assessments atthe end of a period of post release licence reveal a continuing risk to thewider public, or to a particular individual.7. What do I need to watch out for?• It is a civil, stand alone order and not an order on conviction, to beapplied for by a prosecutor; prosecutors should be prepared toremind the court of the requirements if it seeks erroneously to makea VOO on conviction;• Its use is confined to a tightly defined set of circumstances;• Breach of the terms of a VOO is an either-way offence, carryingfive years' imprisonment on indictment – therefore CPS prosecutessuch offences;• Breach of notification requirements of a VOO is an either-wayoffence, carrying five years' imprisonment on indictment – thereforeCPS prosecutes such offences.• A VOO can last for not less than two years, and not more than fiveyears (unless renewed or discharged).Back to Contents
Options availablepost-convictionSECTION 3
Order or Power:Anti-Social Behaviour OrdersFound in: Section 1C Crime and Disorder Act 19981. What is this?An Anti-Social Behaviour Order or ASBO, is a civil preventative order,which may be made on conviction either following a request by theprosecutor or by the courts of its own motion. An order on conviction isnot itself a punitive measure, but a preventative one.2. When is it useful?The purpose of the order is to protect the public from behaviour thatcauses or is likely to cause harassment, alarm or distress, and shouldreduce the risk of further anti-social behaviour by prohibiting the offenderfrom doing certain things, such as going to a specified location, ordrinking alcohol in a public place. The terms of the order will varydepending upon the anti-social behaviour that is complained of.3. When is it available?An ASBO is available following a conviction for a relevant offence (onecommitted after 2 December 2002). The prosecutor may request that thecourt make an order or the court may make an order of its own motion.The anti-social behaviour must have taken place after 1 April 1999.An Interim Order may be made if the offender has been convicted of andsentenced for an offence to which the application for the order onconviction relates, and where the application for the ASBO has beenadjourned to a date after the point of sentence. An Interim Order must befor a fixed period of time but may be varied, renewed or discharged.4. What is the procedure?Part 50 of the Criminal Procedure Rules 2005 sets out the procedurethat should be followed if the prosecutor is to request an order pursuantto section 1C of the Crime and Disorder Act 1998 and stipulates the formof the notice of intention to apply to be used when an ASBO following aconviction is requested. Rules 50.6, 50.7 and 50.8 set out proceduralrequirements in relation to the use of hearsay evidence in such cases.
Prosecutors must ensure that they have identified in the Plea andSentence document (PSD) (in cases where a PSD is required) that anASBO will be applied for.Under section 1C(2) CDA an order on conviction may be made by acourt following conviction for a relevant offence if the court considers:1) that the offender has acted, at any time (since 1 April 1999), in ananti-social manner, that is to say in a manner that caused or waslikely to cause harassment, alarm or distress to one or morepersons not of the same household as himself, and2) that an Order under this section is necessary to protect personsin any place in England and Wales from further anti-social actsby him.The behaviour must cause or be likely to cause harassment, alarm ordistress to any person not of the same household. This restricts theavailability of an order in domestic situations although it may be properto seek an ASBO where a volatile private relationship causes or is likelyto cause harassment, alarm or distress to a third party even if thatbehaviour is not aimed at that third party. (See Rabess v TheCommissioner of Police for the Metropolis  EWHC 208 (Admin).)There should be evidence before the court that the behaviour in questionhas caused or is likely to cause harassment, alarm or distress.There is no requirement to show that all other remedies have beenexhausted, nor that an order is the only suitable way of dealing with theproblem. The court must, however, be satisfied that the order isnecessary to prevent future anti-social behaviour, and this will involveconsideration of the sentence and other remedies available.The prosecutor needs to show that protection is necessary for personsanywhere in England and Wales. Evidence in addition to that used in thecriminal proceedings may be considered in the civil hearing for theASBO whether it would have been admissible in the criminalproceedings or not. (Section 1C(3A) and (3B) Crime and Disorder Act1998.)5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.CPS Legal Guidance: Anti-Social Behaviour Guidance.Each CPS Group has an ASBO Specialist Prosecutor who will be able tosupply advice and guidance.Section 1C Crime and Disorder Act 1998.
6. Give me an example?D is an adult and arrested and prosecuted for a series of offences undersections 4 and 5 of the Public Order Act 1986. All of the offences and thebehaviour have happened in the local shopping centre, and have causedharassment, alarm and distress to both shop staff and their customers.When D is sentenced, the prosecutor applies for an ASBO which willexclude D from the shopping centre for a period of two years.7. What do I need to watch out for?• The minimum length an ASBO can be made for is two years. Themaximum is until further order.• Each prohibition within the ASBO does not have to last two years.• Each prohibition must be reasonable, proportionate, realistic,practical, clear and enforceable. (R v Boness  EWCA Crim2395).• Prohibitions should not be imposed either to further punish anindividual or to replicate a criminal office if the sentence whichcould be passed following conviction for the offence would be asufficient deterrent - they are designed to be preventative.• It is likely that other statutory agencies will be aware of thedefendant that an ASBO is being considered for, because theoffending behaviour will have impacted on a wide range of people.It is important that prosecutors check that the police have liaisedwith other statutory agencies when they are considering an ASBO.• Breach of an ASBO is a criminal offence - section 1(10) Crime andDisorder Act 1998.Back to Contents
Order or Power:Application of Costs against ConvictedDefendantsFound in: Section 18 Prosecution of Offences Act 19851. What is this?Under section 18 of the Prosecution of Offences Act 1985, themagistrates' court or the Crown Court can order the payment of costsby a convicted defendant.2. When is it useful?As well as recovering costs incurred to the public purse through thebringing of prosecutions, the requirement to pay costs can also havea deterrent effect on offenders.3. When is it available?The court can order a defendant to pay such costs as it considers 'justand reasonable' when a defendant is convicted, or where the CrownCourt dismisses an appeal against conviction or sentence.4. What is the procedure?The prosecution application for costs should be made before mitigationand sentence. An application for costs need not be made if, in thecircumstances of an individual case, it would be unmeritorious orimpractical. Prosecutors should be in a position to assist the court inexplaining how the amount of costs being requested has been arrived at.5. Where can I find further guidance?CPS Guidance on Costs.Section 17, Prosecution of Offences Act 1985.
6. Give me an example?Costs can be requested in any case. This can be a particularly importanttool either where defendants have significant funds, or where theprosecution are put to the expense of securing witnesses' attendanceat court.7. What do I need to watch out for?• Where a defendant has no means, or is sentenced toimprisonment, the court may be less likely to award costs.• Prosecutors should be able to broadly quantify the costs incurred inthe case, and take account of factors such as whether thedefendant pleaded guilty or not guilty.Back to Contents
Order or Power:Compensation OrderFound in: Sections 130-133 Powers of Criminal Courts (Sentencing)Act 20001. What is this?This is an order requiring a defendant to pay compensation for anypersonal injury, loss or damage resulting from offences committed byhim. It can also include payments for funeral expenses or bereavementin respect of a death resulting from any such offence (other than a deatharising from a road traffic accident).2. When is it useful?This can improve public confidence in the criminal justice system.Victims may have suffered considerable distress, personal injury orfinancial loss and they are entitled to have these facts and requests forcompensation put to the court.Compensation Orders can be for specific items of loss (such as the costof a replacement piece of furniture) or it can be for harm caused througha criminal assault in which the victim is injured – in these cases thecourts decide how much to award.3. When is it available?They are available in the magistrates' courts and the Crown Court. Themaximum amount a magistrates' court can order is currently £5,000 percharge. The Crown Court has unlimited powers, but should have regardto the means of the offender. While the court's powers are very widelydrawn, the High Court has stated that Compensation Orders should onlybe made in simple straightforward cases.4. What is the procedure?The prosecutor should be ready to assist the court to reach theappropriate decision about sentence, which includes drawing the court'sattention to its powers to award compensation and inviting it to makesuch an order where appropriate. It may be appropriate to ask the courtto adjourn the proceedings so that evidence can be called in support ofa claim.
5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.Sections 130-133 of the Powers of Criminal Courts (Sentencing)Act 2000.6. Give me an example?A had an argument over the telephone with his ex-wife B. After theargument, A went to B's mother’s address where B was staying andthrew a brick through the living room window. B's mother supplied aninvoice to the Police showing the costs of the window repair as £100.Following A's guilty plea to criminal damage, the prosecutor requesteda Compensation Order in the sum of £100 and handed up the invoicein support of this. The court made the order.7. What do I need to watch out for?• There must be sufficient evidence of causation beforea compensation order can be made.• The amount of loss must be agreed by the defendant,or established by evidence.• A Compensation Order should not be made where the amountcannot be ascertained readily and easily.Back to Contents
Order or Power:Confiscation OrderFound in: Section 6 Proceeds of Crime Act 20021. What is this?An order that a defendant pay a sum of money equal to his or her benefitfrom crime.2. When is it useful?The legitimate aims of confiscation are to punish convicted offenders,to deter the commission of further offences and to reduce the profitsavailable to fund further criminal enterprises (per Lord Steyn inR v Rezvi, R v Benjafield  1AC 1099).3. When is it available?When the two conditions set out in section 6 of the Proceeds of CrimeAct 2002 are satisfied, namely that:• the defendant is either convicted in the Crown Court, or has beencommitted to the Crown Court for sentence and/or confiscation;and• the prosecutor asks the court to proceed under section 6, or thecourt believes that it is appropriate for it to do so.4. What is the procedure?The court must proceed as follows:• It must decide whether the defendant has a criminal Lifestyle;• If it decides that he has a criminal Lifestyle it must decide whetherhe has benefited from his general criminal conduct;• If it decides that he does not have a criminal Lifestyle it must decidewhether he has benefited from his particular criminal conduct.If the court decides that the defendant has benefited from his particularor general criminal conduct, it must decide the recoverable amount andmake a Confiscation Order requiring him or her to pay that amount(section 6 POCA 2002).
But if the defendant shows that the available amount is less than thebenefit, the recoverable amount is either the available amount, or anominal amount, if the available amount is nil (section 7(2) POCA 2002).5. Where can I find further guidance?CPS Legal Guidance: National Best Practice Guide to ConfiscationOrder Enforcement.Part 2 of the Proceeds of Crime Act 2002.6. Give me an example?Defendant is convicted of four offences before the court for sentencing toa value of £5,001. Criminal Lifestyle test is satisfied. Assumptions usedto calculate benefit over six years in the sum of £100,000. The court willmake an order in the amount of the benefit £100,000 (the recoverableamount). Unless the defendant proves that less is available, e.g.£50,000, in which case the court will make the order in that lesser sum(the available amount).7. What do I need to watch out for?• For POCA 2002 to apply, all of the offences must have occurredprior to 24 March 2003.• Generally, if the prosecutor asks for a confiscation hearing, thenthe court must proceed under section 6 of POCA 2002, unless todo so would be so oppressive as to be an abuse.• If a victim has at any time started or intends to start civilproceedings in relation to the conduct, the court has discretionwhether or not to proceed with the confiscation hearing. Theprosecutor retains discretion whether to apply for a ConfiscationOrder, however, providing that the statutory scheme does notoperate oppressively, the prosecutor should generally apply for aConfiscation Order so as to deprive a defendant of his or herproceeds of crime.• If the section 10 Lifestyle assumptions are triggered by any of theconditions set out in section 75 POCA 2002, then a ConfiscationOrder may be made in a sum that is substantially more than thebenefit obtained from the offences before the court for sentence.• When charging or accepting pleas, it is important to consider thepotential affect on the statutory scheme that will apply and whetherthe pleas offered will still trigger the Lifestyle assumptions.Back to Contents
Order or Power:Deportation of Foreign NationalPrisonersFound in: Section 3(6) and (6) of the Immigration Act 19711. What is this?The Secretary of State has the power to deport a foreign national who issubject to immigration control if he or she has been convicted of anoffence, which is punishable by a term of imprisonment.NB. A foreign national who is settled in the United Kingdom within themeaning of the Immigration Act 1971 (i.e. has indefinite leave to enter orremain) is not exempt from deportation.2. When is it useful?This power is useful in cases where a defendant has committed anoffence that does not come under the automatic deportation provisions.Normally, the automatic deportation provisions will apply in cases wherea non-EEA national is sentenced to 12 months' imprisonment or more.3. When is it available?When a person who is 17 or over and not a British citizen is convicted ofan imprisonable offence. By virtue of section 6(2) of the 1971 Act, themagistrates' court or the Crown Court can only make a recommendationfor deportation when the defendant has been served with a noticewarning him or her of their liability to deportation. This notice must beserved at least seven clear days before sentence is imposed. Anumber of recommendations have been rendered invalid by failure toobserve this requirement. The court must consider the accused'scontinued presence in this country to be to its detriment.4. What is the procedure?The service of a notice of liability to deportation will usually be the duty ofthe police. It is suggested that a notice should normally be served whenthe person who appears to be eligible to be recommended fordeportation is charged with an offence punishable with imprisonment.
The prosecutor should draw the notice to the sentencing judge'sattention, and if appropriate invite the making of a recommendation fordeportation. The court has the power to grant an adjournment afterconvicting an offender for the purpose of enabling a notice to be servedon him or her.5. Where can I find further guidance?CPS Legal Guidance: Immigration; and Immigration Offences andProtocol.UK Border Agency website at http://www.ukba.homeoffice.gov.uk6. Give me an example?If for example, a foreign national is convicted of supplying drugs andhe/she receives a custodial sentence that is less than 12 months, this isnot covered under the automatic deportation criteria. However, he/shecan be recommended for deportation under section 3(6) of the 1971 Act.7. What do I need to watch out for?• If a defendant qualifies for automatic deportation under the BordersAct 2007, then there is no need for the sentencing judge to make arecommendation. However, you should alert the court to the factthat the defendant qualifies for automatic deportation.• The court must give reasons for making a recommendation fordeportation.• There is no need for a sentencing court to consider the ECHRrights of an offender when considering whether to make arecommendation, as these are a matter for the Secretary of Statewhen considering deportation.Back to Contents
Order or Power:Deprivation of PropertyFound in: Section 143 Powers of Criminal Courts (Sentencing) Act 20001. What is this?It is the power for the court to deprive an offender of property, used,or intended to be used to commit or facilitate the commission of anyoffence (not necessarily the offence of which the offender has beenconvicted); facilitation includes taking steps to dispose of the propertyor avoid conviction. The court must have regard to the value of theproperty and the likely financial and other effects of the making of theorder on the offender.There is further power for the court to order deprivation of property thatwas seized from D, or which was under his control, at the time he wasapprehended for an offence which consists of unlawful possession ofproperty.2. When is it useful?When the investigator has seized property during the course of aninvestigation, which it is believed was used to commit or facilitatecommission of any offence, or was intended to be used for that purpose.When property has been seized when D is charged with an offencewhich consists of unlawful possession of property.3. When is it available?On conviction, in the magistrates' court or Crown Court.4. What is the procedure?The court should not make an order unless there is adequate supportingevidence. The prosecution should demonstrate to the court that a fulland proper investigation has been carried out for the order to be grantedand so any application should be fully prepared: R v Pemberton (1982)4 Cr App R (S) 328.
5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000.6. Give me an example?D is convicted of handling stolen property and it is proved that D used amotor vehicle to transport the property from the thief to his own address.In addition to sentencing for the offence, the court can make an orderdepriving D of the motor vehicle as it was property used to commit orfacilitate the commission of an offence.7. What do I need to watch out for?• A Deprivation Order can only be made where the property hasbeen used to commit or facilitate the commission of an offence orwas intended for that purpose;• The court does not have any power in relation to real property;• Where property is in multiple ownership or subject toencumbrances, it might be appropriate for the court to consider anincreased financial penalty instead;• A Deprivation Order should not be made where it will cause theoffender undue hardship;• A Deprivation Order should not be imposed if part of othersentences for the offence creates an excessive overall penalty;• The imposition of a deprivation order is to be considered as part ofthe overall sentence and any disparity between a defendant andhis co-defendant is a relevant issue for the court;• A Deprivation Order cannot be ordered in conjunction with aconditional discharge unless the court considered it 'inexpedient toinflict punishment';• The court may order the proceeds of forfeited property to be paid toanyone who has suffered personal injury, loss or damage as theresult of an offence where it might have awarded compensation butfor the inadequacy of the offender's means;• In addition to the PCC(S)A there are other specific statutoryprovisions for forfeiture, for example, in relation to drugs, firearms,offensive weapons and obscene articles – care must be taken tomake applications under the correct legislation;• Vehicles used in the commission of certain offences involvingdriving or being in charge of a vehicle are to be regarded asproperty used in the commission of or to facilitate crime and can bethe subject of a Deprivation Order – see section 143(6) and (7)PCC(S)A.Back to Contents
Order or Power:Discretionary Driving DisqualificationFound in: Section 34(2) Road Traffic Offenders Act 1988;Sections 146 & 147 Powers of Criminal Courts (Sentencing)Act 2000; andSection 301 Criminal Justice Act 20031. What is this?There are four relevant provisions upon which the court may rely todisqualify an offender from driving (where there is no obligatory power todisqualify). These are:1) Section 34(2) Road Traffic Offenders Act 1988 (RTOA88);2) Section 146 Powers of Criminal Courts (Sentencing) Act 2000(PCC(S)A);3) Section 147 PCC(S)A;where the period of disqualification may be for as long as the courtthinks fit; and4) Section 301 Criminal Justice Act 2003,where the period of disqualification may be for up to 12 months.2. When is it useful?As a punishment (which may be in addition to any other penalty imposedby the court), to reduce the risk of re-offending and as a deterrent toothers, or as an incentive to pay an outstanding fine.3. When is it available?Section 34(2) Road Traffic Offenders Act 1988Offences that carry discretionary disqualification are listed in Schedule2 RTOA88. (A more user friendly list can be found in Wilkinson's RoadTraffic Offences, at 19.02.)
Section 146 Powers of Criminal Courts (Sentencing) Act 2000(PCC(S)A)This very wide power allows disqualification on conviction of any offencebefore any court. There does not need to be any connection between theoffence and the use of a motor vehicle.Section 147 (PCC(S)A)Under section 147, the Crown Court may disqualify following convictionfor any offence where the maximum sentence is two years or more, orwhere the magistrates have committed the offender for sentence, whena motor vehicle was used to commit or facilitate the commission of theoffence. 'Facilitate' has been given a wide interpretation.Under section 147(2), any court may disqualify an offender convicted ofany assault, provided that the assault was committed by the driving of amotor vehicle.Section 301 Criminal Justice Act 2003This section allows a court to disqualify a fine defaulter for up to twelvemonths instead of issuing a warrant of commitment. Once the fine hasbeen paid, the disqualification is lifted.4. What is the procedure?For disqualification under the RTOA 1988, it is unlikely that theprosecutor will have to make an application to the court, although thecourt may wish to be reminded of its powers to disqualify.For the other sections, the prosecutor will need to make an application tothe court and to justify why disqualification is necessary.For section 146, as the power is wide-ranging and, technically, no linkwith a motor vehicle is required, it is submitted that there must be somefruitful purpose to imposing a disqualification, relevant to the offence. Forexample, in a drug or people trafficking case, disqualification might serveas a preventative measure, if it could be suggested that there is a realrisk of re-offending and that the disqualification would serve to prevent ordisrupt such offending.If more than one period of disqualification is imposed (for separateoffences) they must run concurrently, not consecutively.An offender may be disqualified in his absence but only if the case hasbeen adjourned to give him the opportunity to be present to makerepresentations.A disqualification period commences from the moment it is announcedby the court.
5. Where can I find further guidance?Wilkinson's Road Traffic Offences, chapter 20.6. Give me an example?S34 RTOA 88D is convicted of being in charge of a motor vehicle with alcohol levelsthat exceeded the prescribed limit. He is sentenced at 3pm on 1 April2009. He is fined £400 and disqualified for twelve months. His drivinglicence is endorsed. His disqualification commences at 3pm that dayand expires at midnight on 31 March 2010.S146 PCC(S)AD is convicted of wholesale selling of contraband goods to smallretailers. He delivers the goods using his van. In addition to theCommunity Order it imposes, the court disqualifies him from drivingfor two years.S147 PCC(S)AD is convicted of robbery of a bank along with two co-defendants. Hisrole was to act as lookout and to drive the getaway vehicle. He issentenced to six years in prison and is disqualified from driving for fiveyears. (He is likely to be released on licence after three years and willthen have two years disqualification to serve.)7. What do I need to watch out for?• Upon conviction but before sentence an offender may receive aninterim disqualification (section 26 RTOA 1988), although thispower is more often exercised in cases where disqualification isobligatory rather than optional. This period is deducted from thefinal period of disqualification; so it is not an additional penalty,but a means of ensuring that a convicted offender does not drivebefore he can be sentenced.• It is an offence to drive whilst disqualified (section 103 Road TrafficAct 1988).• Once the disqualification has expired, the offender must apply fora new driving licence. Failure to do so does not mean he is drivingwhilst disqualified but rather driving otherwise than in accordancewith a licence.• Certain periods of disqualification imposed under RTOA 1988 maybe reduced upon attending a training course (section 34A-G).• An offender can apply to get his licence back before the end of thedisqualification period in certain circumstances.Back to Contents
Order or Power:Disqualification from Directing aCompanyFound in: Section 2 Company Directors Disqualification Act 19861. What is this?A wide ranging power to stop convicted company directors from beinginvolved in promoting, setting up, running, managing, or liquidating acompany for a specified period of up to 15 years.2. When is it useful?On conviction for an indictable offence that is in connection with'promotion, formation, management or liquidation of a company, with thereceivership of a company's property, or with his being an administrativereceiver of a company'.'Management' of a company is not limited to its internal affairs –Disqualification Orders have been upheld in cases of obtaining bydeception and similar offences committed in the course of the tradingactivities of the company.3. When is it available?The court may make a Disqualification Order if the offender has beenconvicted of any indictable offence committed in connection with thepromotion, formation, management or liquidation of a company, or withthe receivership of the company’s property, or with being anadministrative receiver.4. What is the procedure?On conviction for a relevant offence in either the magistrates' court or theCrown Court, the court should be reminded of the power to orderdisqualification.The maximum period in the Crown Court is 15 years.The maximum on summary conviction is five years.
The Plea and Sentence document (PSD) should be completed to sucheffect when an offence may qualify so that the advocate can remind thecourt of the power if necessary.5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.6. Give me an example?D is convicted at the Crown Court of offences of deception which arerelated to his conduct as a director of a company and which werecommitted in the course of the trading activities of that company. D hadbeen disqualified on a previous occasion from being a company director,for similar offences of dishonesty. As well as being sentenced for theoffences, the court should be asked to consider disqualifying D undersection 2. The previous disqualification is relevant to the length ofdisqualification in the present case, as it is likely to result in a period atthe higher end of the range (maximum available is 15 years onconviction at the Crown Court).7. What do I need to watch out for?• That the offence is an indictable offence;• That disqualification is an available option on conviction in both themagistrates' court and the Crown Court;• That the conduct alleged is capable of falling within the definition insection 2 of the Act;• That any indictable offence which may in some way be linked withD's activities as a company director may make him/her liable todisqualification;• That full details of any previous disqualification are made availableto the court. This is likely to have an impact on the length ofdisqualification imposed;• It may be inappropriate to combine disqualification with acompensation order, if the effect of disqualification would be todeprive the offender of a means to pay the compensation – R vHolmes 13 Cr App R (S) 445, CA;• The court may not specify the functions from which the offender isdisqualified – section 1 envisages a single disqualification with anumber of different consequences – R v Coles, Lees and Birch BCC 87 CA. – therefore an order should not be drawn interms which offend against this principle.Back to Contents
Order or Power:Disqualification from Working withChildrenFound in: Section 29 Criminal Justice and Court Services Act 2000 asamended by the Criminal Justice Act 20031. What is this?This order allows, (and in some cases, requires) a court to disqualifyindefinitely a person convicted of an 'offence against a child' fromworking with children.2. When is it useful?Disqualification from Working with Children Orders are useful inpreventing unsuitable people from working with children. The court musthave regard to the degree of harm to the victim, level of culpability of theoffender, level of risk posed by the offender to society and the need todeter others from acting in a similar fashion.3. When is it available?Offence against a child is defined in section 26 and Schedule 4 of theCJCSA 2000.A child is a person under the age of 18.The conditions for making an order are set out in sections 28 and 29.A Disqualification Order to disqualify a person convicted of an offenceagainst a child, from working with children, can only be made by aCrown Court or High Court.4. What is the procedure?Prosecutors must ensure that they have identified in the Plea andSentence document (PSD) (in cases where a PSD is required) that anoffence may attract a Disqualification Order in the event of conviction.This requires the prosecutor to identify that the offence is one to whichsections 26-29 apply.
In all cases, the prosecutor must be ready to assist the court by drawingthe court’s attention to the power to make a Disqualification Order.Thereafter, it will be important for prosecutors to be in a position to assistthe court, if required, in determining whether the offender presents a riskthat requires the public to be protected and that an order is required.This may be by way of information about previous convictions orcautions, or by drawing attention to certain features of the case underconsideration.5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary OrdersSections 26-29 and Schedule 4 Criminal Justice and Court ServicesAct 2000 as amended by the Criminal Justice Act 2003.6. Give me an example?D, a teacher, is convicted of two counts of sexual assault on a12-year-old girl. At his sentencing hearing, the prosecutor submits that Dpresents a risk that requires the public to be protected. As well as beingsentenced to 12 months' imprisonment, D is made the subject of aDisqualification from Working with Children Order.7. What do I need to watch out for?• Disqualification Orders will be repealed in October 2009, when theIndependent Safeguarding Authority (ISA) takes over responsibilityfor the current POCA, POVA and List 99 lists and replaces themwith a single barring scheme. From this date, there will be a limitedrole for the criminal court as inclusion in the scheme will beautomatic in some circumstances and in no circumstances will it bedependant on a court order.• Some disqualified offenders will be automatically transferred on tothe new barred lists; others will be able to apply not to betransferred.• In the meantime, it is important that, where appropriate,Disqualification Orders are applied for.Back to Contents
Order or Power:Drinking Banning OrderFound in: Chapter 1 Section 1-14 Violent Crime Reduction Act 2006[Only Drinking Banning Orders on application in force,as from 31 August 2009]1. What is this?A Drinking Banning Order (DBO) imposes on the subject (aged 16 andover) any prohibition which is necessary to protect other persons fromcriminal or disorderly conduct by the offender when he is under theinfluence of alcohol. The length of the order must not be less than twomonths and not more than two years.2. When is it useful?The purpose of the order is to help tackle and reduce the harm fromalcohol-related crime and disorder.3. When is it available?When the individual has engaged in criminal or disorderly conduct whileunder the influence of alcohol and the order is necessary to protect otherpersons from such further conduct.4. What is the procedure?The court may make a DBO either on an application to the magistrates'court or county court by a relevant authority or on conviction in criminalproceedings where the court is satisfied that the conditions of the orderhave been met.The prosecutor's role should be to assist the court in making its decision;prosecutors must bring to the court's attention that if appropriate theoffence was committed whilst under the influence and whether the orderis needed to protect other persons.The court will consider evidence led by the prosecution and by thedefence. It is immaterial whether the evidence would have beenadmissible in the proceedings in which the offender was convicted.
5. Where can I find further guidance?CPS Legal Guidance: Drinking Banning Orders.See sections 1-11 of the Violent Crime Reduction Act 2006.6. Give me an example?D would repeatedly argue with the staff at his local off-license whilstbuying alcohol. On one occasion, after a prolonged exchange, D, whowas intoxicated, threw a brick through the window of the shop,endangering other customers. Following his conviction for criminaldamage, the court imposed a Drinking Banning Order, preventing D fromentering the shop again for a period of one year.7. What do I need to watch out for?• A DBO takes effect on the day on which the order is made or, if theoffender is in custody, the day of release.• A DBO on conviction must not be made except in addition to asentence imposed in respect of the offence, or in addition to theimposition of a conditional discharge.• Breach of a DBO is a summary offence punishable with a fine notexceeding level 4 on the standard scale.• A conditional discharge is not available as a means of disposal forbreach of a DBO.Back to Contents
Order or Power:Enforcement Receivership OrderFound in: Section 50 Part 2 of the Proceeds of Crime Act 20021. What is this?An enforcement receiver is an officer of the court appointed on theapplication of the prosecutor to realise the defendant's assets followingthe making of a criminal confiscation order.2. When is it useful?The prosecutor should consider making an application to the CrownCourt for the appointment of an enforcement receiver wherever therealisable assets include assets out of the jurisdiction, real property orassets held by and/or in the names of third parties (including limitedcompanies).3. When is it available?There are three conditions that must exist before the court appoints anenforcement receiver:• The court has made a confiscation order;• The confiscation order has not been satisfied; and• The confiscation order is not subject to appeal.There is no requirement for a restraint order to be in place.4. What is the procedure?The application is made by the prosecutor to the Crown Court supportedby a witness statement. The statement must be lodged with the CrownCourt and served on the defendant, the recipients of any tainted gifts,and any other person whom the applicant knows to have an interest inany property to which the application relates. It must be lodged at leastseven days before the date fixed by the court for hearing the application,unless the Crown Court specifies a shorter period.
The witness statement should give the grounds for the applicationincluding:• an overview of the case and the circumstances giving rise to theneed for the appointment of an enforcement receiver;• copy correspondence with the defendant inviting payment of theconfiscation order;• full details of the proposed receiver and exhibit the letter ofagreement setting out the basis for the receivers remuneration andoperation and a consent letter from the receiver that he or she iswilling to act in the case and abide by the terms of both the orderand letter of agreement; and• to the best of the witness’s ability, full details of the realisableproperty in respect of which the applicant is seeking the order andspecify the person holding that realisable property.A draft receivership order must accompany the witness statement.5. Where can I find further guidance?CPS Legal Guidance: Proceeds of Crime – Restraint and ManagementReceivers.Part 2 of the Proceeds of Crime Act 2002.Criminal Procedure Rules.6. Give me an example?The receiver is an officer of the court and once appointed will deal withany complex third party interests in any property that has to be realisedto satisfy a confiscation order.7. What do I need to watch out for?Prosecutors give the receiver an indemnity to make good any shortfall ofthe receiver's costs after the defendant's assets have been realised.Clearly, if the costs of hiring the receiver are likely to be in excess of theamount that is likely to be realised, a receiver should not be appointed.This may be a particularly pertinent issue in cases where there has beenno restraint order, as some assets may have been dissipated prior to theappointment of the receiver.Back to Contents
Order or Power:Exclusion Order – Licensed PremisesFound in: Section 1 of the Licensed Premises (Exclusion of CertainPersons) Act 19801. What is this?Section 1 of the Act provides for the exclusion of a person, for a periodof between three months and two years, who is convicted of an offencecommitted on licensed premises, provided that the court is satisfied thatin committing the offence he resorted to violence, or offered orthreatened to resort to violence.2. When is it useful?Following conviction for any offence of violence, or an offence whichinvolves a threat of violence on licensed premises. Examples includeassault, or engagement in public disorder. Orders excluding personsfrom entering licensed premises were designed for those who make anuisance of themselves in public houses and therefore qualify to bebarred from going in to such premises to the annoyance of othercustomers and the possible danger of the licensee.Licensed premises means those in respect of which a premised licenceunder the Licensing Act 2003 has been granted by the relevant localauthority authorising the supply of alcohol (within the meaning of section14 of that Act) for consumption on the premises.3. When is it available?An exclusion order may be made either:1) in addition to any sentence which is imposed in respect of theoffence of which the person is convicted; or2) in addition to an order discharging him absolutely or conditionally.4. What is the procedure?Although the police will, on most occasions, indicate if an exclusion orderis being sought, prosecutors should nevertheless, where appropriate,remind the court of its powers under the Act.
An exclusion order may be made by the court of its own motion. It isundesirable for a third party who is not a victim or party to theproceedings to make application for an exclusion order; the normalprocedure should be for such an interested party to make suchrepresentation to the prosecuting authority.5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.6. Give me an example?D is convicted of an offence of common assault, committed in a publichouse. The police are informed by the local Licensed VictuallersAssociation that D has been a source of trouble in various licensedpremises in the town for some time, and that they would like anexclusion order imposed to prevent future trouble.The prosecutor invites the magistrates' court to make such an order andthe court accedes to this invitation.7. What do I need to watch out for?• There is no requirement for evidence that D presents a future risk,but evidence of previous violent behaviour in licensed premises ismore likely to lead to a successful application.• The terms of the order must be clear and unambiguous. The Actrequires that a copy of the order must be sent to the licensee of allpremises to which it relates. Therefore, rather than specifying 'allpublic houses in X Town Centre', the order must specify the nameand address of each of the premises the subject of exclusion.• It is undesirable for a third party who is not a victim or party to theproceedings to make application for an exclusion order; the normalprocedure should be for such an interested party to make suchrepresentation to the prosecuting authority.• The violence threatened or used, must take place on the premisesin respect of which the licence is in force. An assault on door staffmay not in fact take place on premises therefore it would not bepossible to obtain an exclusion order based on the evidence ofsuch an incident.• This type of order cannot be used in respect of typical 'off-licence'shops because they are not licensed premises within the meaningof the relevant Act.Back to Contents
Order or Power:Financial Reporting Order – CrownCourtFound in: Sections 76, 79-81 Serious Organised Crime and PoliceAct 20051. What is this?An order requiring a person convicted of a listed offence to make reportsto law enforcement agencies regarding their finances for the purpose ofpreventing the commission of further offences of the type listed in theAct.2. When is it useful?The order is intended to reduce the risk of re-offending both before andafter release and can be used in cases in which it is believed thatknowledge of the defendant's finances will prevent the commission offurther offences.3. When is it available?The court may make an order when sentencing or otherwise dealing witha defendant convicted of an offence listed in section 76(3). List asamended now includes Lifestyle offences POCA Schedule 2, Fraudoffences both under Theft Acts and Fraud Act 2006 and moneylaundering. The court may make an order if satisfied that the risk of thedefendant committing another listed offence is 'sufficiently high' to justifymaking an order. Can be exercised in respect of offences committedbefore commencement of SOCPA.4. What is the procedure?Upon application to the Crown Court, it will be for the prosecutingadvocate to suggest to the sentencing judge that he should considermaking such an order in an appropriate case. Not strictly a prosecutionapplication but a reminder to the judge of his powers. Application ismade using the form set out in the annex to the Legal Guidance.
It is suggested that it will be good practice to prepare a draft ordersetting out suggestions as to whom the report should be made, theperiods and requirements. This should be drafted in consultation withthe senior investigating officer and/or the financial investigator, if thereis one.5. Where can I find further guidance?CPS Legal Guidance: Financial Reporting Orders.Sections 76, 79-81 Serious Organised Crime and Police Act 2005.6. Give me an example?A defendant is convicted of a serious drugs offence and it is believedthat he may have significant hidden assets which he will take steps toconceal by means of further specified offences of the money launderingvariety. An order to take effect upon conviction and while he is in custodyrequiring full regular reports upon his assets, bank accounts and anymovement or disposal or acquisition of assets may serve to preventfurther offending.7. What do I need to watch out for?• These orders require monitoring if they are to be effective so haveresource implications for police and law enforcement agencies.They should not be applied for as a matter of routine without properconsideration.• A Financial Reporting Order must be for the purpose of preventingfurther offending and cannot be just to assist with tracing assets forconfiscation proceedings though that might be an indirect effect ofthe order.Back to Contents
Order or Power:Football Banning Order (Criminal)Found in: Sections 14A-J Football Spectators Act 1989 as amended1. What is this?A Football Banning Order is an order that prohibits an offender fromattending a regulated football match in England and Wales, or anexternal tournament which includes a regulated football match.The court may also make an order that the defendant attends a policestation to have a photograph taken to enable enforcement of the order.2. When is it useful?The purpose of the order is to reduce the risk of re-offending by stoppingthe offender from attending regulated football matches, whether home orabroad.3. When is it available?When the defendant is convicted of a relevant offence, details of whichare listed in Schedule 1 of the Football Spectators Act 1989 the courtmust make a banning order if it is satisfied that there are reasonablegrounds to believe making an order would help to prevent violence ordisorder at or in connection with any regulated football matches.4. What is the procedure?Prosecutors must ensure that they have identified in the Plea andSentence document (PSD) (in cases where a PSD is required) thatan offence is a relevant offence under Schedule 1 of the FootballSpectators Act 1989.When the prosecutor closes their submission in respect of sentence,they should remind the court the offence is a relevant offence and askfor a Football Banning Order. The prosecutor may also ask for an orderthat the defendant attends a police station to have his photograph takenfor identification purposes.
5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.Sections 14A-G Football Spectators Act 1989.6. Give me an example?A is on his way to watch his team play away. En route he is stopped andsearched by the police. He is found in possession of a flick knife, whichis an offensive weapon.A is arrested and subsequently pleads guilty to possession of anoffensive weapon. The defendant is sentenced to a short custodialsentence and also given a Football Banning Order which bans him fromattending any regulated matches in England and Wales or an externaltournament which includes a regulated match outside England andWales. The order is made for the minimum six years.The prosecutor also applies for an order requiring the defendant toattend a police station for his photograph to be taken to assist inidentification.7. What do I need to watch out for?• The court must make an order if the defendant is convicted of arelevant offence as listed in Schedule 1 of the Act. It is thereforeimportant to check that the offence you are dealing with is withinthe definition of a relevant offence.• The court can only make an order if the behaviour relates to a‘regulated football match’ as defined in section 14(1).• The minimum and maximum length of order depending on whethera custodial sentence was imposed:ooImmediate custodial sentence – minimum six years andmaximum 10 years; andNon custodial sentence – minimum three years and maximumfive years.• The court should give reasons if it does not make a FootballBanning Order.• An order may be needed for the defendant to attend a policestation for his photograph to be taken to enable the FootballBanning Order to be enforced. However this may not be necessaryif the custody photograph is good enough.Back to Contents
Order or Power:Forfeiture of DrugsFound in: Section 27 Misuse of Drugs Act 1971. See also paragraph 1 ofSchedule 2 Proceeds of Crime Act 20021. What is this?A Forfeiture Order is an order whereby the court may order anythingshown to the satisfaction of the court to relate to the offence to beforfeited and either destroyed or dealt with in such other manner as thecourt may order.This is where an offender is convicted under the Misuse of Drugs Act1971 or the Drug Trafficking Act 1994, subject to the courts allowingrepresentations from the defendant or a third party as to why an ordershould not be made.2. When is it useful?These types of orders are useful for forfeiture and destruction of thedrugs and related items, and forfeiture of any money seized at the timeof arrest.3. When is it available?Upon conviction in the magistrates' court and Crown Court for anoffence under either the Misuse of Drugs Act 1971 or the DrugTrafficking Act 1994.4. What is the procedure?The prosecutor should identify at the sentencing hearing any items forwhich forfeiture in sought. The offender should have the opportunity tomake representations in response.
5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders; Proceeds ofCrime Guidance - Confiscation and Ancillary Orders – Pre-POCA; andProceeds of Crime Guidance – Confiscation and Ancillary Orders –Post-POCA.Section 27 Misuse of Drugs Act 1971.Drug Trafficking Act 1991.Proceeds of Crime Act 2002.6. Give me an example?D is convicted of supplying drugs.Upon sentence, the prosecutor invites the judge to make a ForfeitureOrder in relation to the drugs and money found in his flat at the time ofhis arrest.7. What do I need to watch out for?• The 'anything' referred to in section 27 of the Misuse of Drugs Act1971 has to be related to the offence;• The power of forfeiture applies only to tangible things capable ofbeing physically destroyed;• The defendant must be given an opportunity by the court to showcause why the order should not be made; and• Forfeiture orders may be made against third parties.Back to Contents
Order or Power:Forfeiture of FirearmsFound in: Section 52 Firearms Act 19681. What is this?This order allows for firearms to be confiscated by the court anddisposed of. It also allows for the cancellation of firearms and shotguncertificates. The power extends to any firearms found in the offender'spossession and any certificate he or she might hold.Section 52(3) allows a constable to seize and retain any firearm orammunition which might be subject to an order.2. When is it useful?The purpose of the order is to reduce the risk of re-offending byremoving firearms and ammunition from the public domain. It also allowsfor the cancellation of firearms or shotgun certificates. Therefore if anoffender has been found to be holding an illegal firearm, but otherslegally, the offender's firearms or shotgun certificate may be cancelled,preventing him from legally holding a firearm or shotgun.3. When is it available?When the defendant is convicted of one or more offences, to which thisprovision applies under the Firearms Act 1968, or is convicted of a crimeand given a custodial sentence, or sentenced to a community order,which has a requirement that he should not possess or carry a firearm.4. What is the procedure?Prosecutors must ensure that they have identified in the Plea andSentence document (PSD) (in cases where a PSD is required) that anoffence is one in the Firearms Act 1968 to which this section applies.When the prosecutor closes their submission in respect of sentence, ifthe criteria in section 52 Firearms Act 1968 are met, the prosecutorshould apply to the court for forfeiture of the firearms and/or cancellationof any firearms or shotgun certificates.
5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders; Firearms; and theCPS Sentencing Manual.Section 52 Firearms Act 1968.6. Give me an example?D was arrested on suspicion of assault. On searching his home addressthe police found a loaded sawn-off shotgun and cartridges. D said hebought the gun for protection. It was established that the gun had neverbeen fired. D was sentenced to four years’ imprisonment. An order wasmade forfeiting the gun and cartridges.7. What do I need to watch out for?• The offence the defendant is convicted of falls within section 52 ofthe Firearms Act 1968.Back to Contents
Order or Power:Interim Receiving OrderFound in: Section 246 Part 5 of the Proceeds of Crime Act 20021. What is this?An Interim Receiving Order is an order for the detention, custody orpreservation of property and for the appointment of an interim receiverin Part 5 civil recovery proceedings.As civil recovery and criminal proceedings are mutually exclusive, this isnot an ancillary order or power in criminal proceedings.2. When is it useful?In civil recovery proceedings:• if a Property Freezing Order will be insufficient to preserverecoverable property; and• to establish whether or not the property to which the order appliesis recoverable property.3. When is it available?Before or after the commencement of civil recovery proceedings in theHigh Court.4. What is the procedure?Application may be made to the High Court by an enforcement authoritywithout notice, if the circumstances are such that service of notice wouldprejudice any right of the enforcement authority to obtain a civil recoveryorder in respect of the property.The High Court must be satisfied that there is a good arguable case thatthe property relates, or is, or includes recoverable property, oralternatively, that if any of it is not recoverable, that it is associatedproperty; and secondly, that if any of the property is associated propertythat the applicant has taken all reasonable steps to establish the identityof the person who holds it.
The applicant must nominate a suitably qualified person to act as interimreceiver. The interim receiver may not be a member of staff of theenforcement authority.The High Court may authorise or require the interim receiver to exerciseany of the powers set out in Schedule 6 to POCA 2002, or to take anyappropriate steps to secure the detention, custody, or preservation of theproperty and to establish whether the property, or other property relatedto the same unlawful conduct, is recoverable or associated property andwho holds it.5. Where can I find further guidance?Part 5 of the Proceeds of Crime Act 2002.CPS prosecutors should refer any potential civil recovery actions forconsideration to the Head of the Proceeds of Crime Delivery Unit.6. Give me an example?There is insufficient evidence to commence a criminal prosecution, or acriminal prosecution has failed, or the defendant has died and theenforcement authority wishes to commence a civil recovery action in theHigh Court to recover a number of houses that has been derived fromunlawful conduct. The interim freezing order will act to secure the state'sinterest in the houses.7. What do I need to watch out for?An alternative is for a civil receiver to be appointed under section 245(E)when a Property Freezing Order is made and there is no need for areport to be prepared by an interim receiver. A civil receiver may be anemployee of the enforcement authority.As civil recovery proceedings and criminal proceedings are mutuallyexclusive, the enforcement authority must ensure that there are noongoing criminal proceedings that might lead to a confiscation orderbeing made following conviction.CPS Area prosecutors should not be making this application.Back to Contents
Order or Power:Notification Requirements (SexualOffenders Register)Found in: Sections 80 - 86, Schedule 3 Sexual Offences Act 20031. What is this?Defendants subject to a conviction, finding or caution for a relevantsexual offence must, within three days of the relevant date, notify to thepolice the information set out in subsection 83(5) of the Sexual OffencesAct 2003. This includes information such as the names he uses, hishome address, and the address of any other premises he regularlyresides or stays.The duration of the notification period depends on the sentenceimposed, or whether the defendant was subject to a caution or otherfinding.2. When is it useful?The purpose of the requirement is to reduce the risk of re-offending,(and his change of address and travel plans) ensuring the police areable to keep track of the defendant for a specified period of time.3. When is it available?When a defendant is:1) convicted of an offence listed in Schedule 3 of the Sexual OffencesAct 2003;2) found not guilty by reason of insanity;3) found to be under a disability and to have done the act chargedagainst him in respect of the offence; or4) is cautioned in respect of such an offence.4. What is the procedure?When the prosecutor opens the case for sentencing they should remindthe court that the offence will mean the defendant will be subject to thenotification requirements of the Sexual Offences Act 2003.
5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.6. Give me an example?D is convicted of an offence of rape under section 1 Sexual OffencesAct 2003. He is given a custodial sentence of five years. D is subjectto an indefinite notification period.7. What do I need to watch out for?• These requirements are mandatory.• Prosecutors should be ready to assist the court in the length ofthe notification period, once the court has announced the sentence.• Prosecutors should be ready to remind the court to indicate thenotification requirements in open court.Back to Contents
Order or Power:Obligatory Driving DisqualificationFound in: Sections 34 and 35 Road Traffic Offenders Act 1988 (RTOA1988)1. What is this?Certain offences attract a mandatory disqualification from driving.The court must also impose disqualification, or increase the length of thedisqualification, for drivers with a particular driving record.Following conviction of a qualifying offence, the court must disqualify theoffender for at least twelve months.Certain offences carry a mandatory two year disqualification or requirethat an offender re-takes a driving test.2. When is it useful?It is mandatory.3. When is it available?Offences qualifying for a disqualification of at least 12 months are:• Road Traffic Act 1988 (RTA1988), sections 2, 2B, 3ZB, 4, 5, 7, 7A,and section 12 (racing), and• Section 12A Theft Act 1968 (aggravated vehicle taking).Offences qualifying for a disqualification of at least two years are:• Road Traffic Act sections 1 and 3A, and• Manslaughter (section 34(4) RTOA88).A previous period of disqualification for at least 56 days in the last threeyears increases a 12 month disqualification to at least two years (section34 (4)).Accumulating 12 penalty points (or ‘totting up’) results in adisqualification of six months (section 35).
The court must disqualify for three years an offender who is convicted ofa second drink or drug driving offence within ten years (section 34(3)).Upon conviction for manslaughter, section 1 RTA1988 or section 2RTA1988, the court must order that the offender to be disqualified untilhe takes an extended driving test (section 36).4. What is the procedure?It is not necessary for the prosecutor to apply to the court for adisqualification to be imposed because it is obligatory upon sentence.If more than one period of disqualification is imposed (for separateoffences) they must run concurrently, not consecutively.The court has a discretion to disqualify for longer than the prescribedperiods.An offender may be disqualified in his absence but only if the case hasbeen adjourned to give him the opportunity to be present.A disqualification period commences from the moment it is announcedby the court.5. Where can I find further guidance?Wilkinson's Road Traffic Offences, chapters 20 and 21.6. Give me an example?D is convicted of driving with alcohol levels that exceeded the prescribedlimit. He is sentenced at 3pm on 1 April 2009. He is fined £400 anddisqualified for twelve months. His driving licence is endorsed. Hisdisqualification commences at 3pm that day and expires at midnighton 31 March 2010.It transpires that the same offender has a previous conviction for failingto provide a specimen of breath for analysis in 2001. His disqualificationis therefore automatically increased to three years, expiring at midnighton 31 March 2012.
7. What do I need to watch out for?• Upon conviction but before sentence an offender may receive aninterim disqualification (section 26 RTOA1988). This period isdeducted from the final period of disqualification; so it is not anadditional penalty, but a means of ensuring that a convictedoffender does not drive before he can be sentenced.• It is an offence to drive whilst disqualified (section 103 RTA).• Once the disqualification has expired (unless a re-test is required)the offender must apply for a new driving licence. Failure to do sodoes not mean he is driving whilst disqualified but rather drivingotherwise than in accordance with a licence.• An obligatory disqualification, or a disqualification for the full period,need not be imposed if the court is satisfied that there are 'specialreasons' not to disqualify.• Certain periods of disqualification may be reduced in return forattending a training course (section 34A-G).• An offender can apply to get his licence back before the end of thedisqualification period in certain circumstances.Back to Contents
Order or Power:Parenting OrderFound in: Sections 8 - 10 Crime and Disorder Act 19981. What is this?An order made in respect of the parent or legal guardian of a youthunder the age of 16 that has been found guilty of a criminal offence.A Parent Order compels the parent or legal guardian to comply withspecific requirements for a maximum period of 12 months. The ordermust include a requirement of attendance at a counselling or guidanceprogramme as may be specified in directions given for a period ofthree months.2. When is it useful?If a youth is found guilty of an offence, the order is useful to gainengagement from parents or legal guardians with support services.3. When is it available?When a youth defendant is convicted of a criminal offence or is made thesubject of an Anti-Social Behaviour Order.4. What is the procedure?The issue of a Parenting Order will be addressed in any report providedby the Youth Offending Team to the court.The prosecutor should remind the courts of its ability to make aParenting Order and be able to assist the court in ensuring the ordermeets the legal requirements.5. Where can I find further guidance?Sections 8-10 Crime and Disorder Act 1998
6. Give me an example?A youth aged 14 is arrested for theft from a shop of £3 worth of goods.He has already received a reprimand and a final warning for theft. Theyouth is prosecuted and admits the offence. He is sentenced to a threemonth Referral Order. The court having considered the report from theYouth Offending Team decides a Parenting Order is appropriatebecause there are issues with the youth's attendance at school andthe parents are not engaging with the Educational Welfare Officer.A Parenting Order is made for six months with a requirement that theparents attend a parenting group run by Social Services once a weekfor three months.7. What do I need to watch out for?• That the court makes both the Parenting Order and therelevant directions.• If the parents are engaging then it is unlikely the court will seethe need for an order.• If the youth is in the care of the local authority or already knownto Social Service an order may not be appropriate.Back to Contents
Order or Power:Property Freezing OrderFound in: Section 245A Part 5 of the Proceeds of Crime Act 20021. What is this?A Property Freezing Order in Part 5 civil recovery proceedings is anorder that prohibits any person to whose property the order applies fromin any way dealing with the property.As civil recovery and criminal proceedings are mutually exclusive, this isnot an ancillary order or power in criminal proceedings.2. When is it useful?The order enables recoverable and associated property to be securedwhilst a civil recovery investigation is undertaken without the lawenforcement agency incurring the costs of an interim receiver.3. When is it available?Before or after the commencement of civil recovery proceedings in theHigh Court.4. What is the procedure?Application may be made to the High Court by an enforcement authoritywithout notice, if the circumstances are such that service of notice wouldprejudice any right of the enforcement authority to obtain a civil recoveryorder in respect of the property.The court must be satisfied that there is a good arguable case that theproperty relates, or is, or includes recoverable property, or alternatively,that if any of it is not recoverable, that it is associated property; andsecondly, that if any of the property is associated property that theapplicant has taken all reasonable steps to establish the identity ofthe person who holds it.
5. Where can I find further guidance?Part 5 of the Proceeds of Crime Act 2002.CPS prosecutors should refer any potential civil recovery actions forconsideration to the Head of the Proceeds of Crime Delivery Unit.6. Give me an example?There is insufficient evidence to commence a criminal prosecution, ora criminal prosecution has failed, or the defendant has died and theenforcement authority wishes to commence a civil recovery action inthe High Court to recover property that has been derived from unlawfulconduct. The property consists of assets that require activemanagement, e.g. an hotel and it is believed that an interim freezingwould be insufficient to preserve the asset as the income generatedby the hotel would be dissipated.7. What do I need to watch out for?As civil recovery proceedings and criminal proceedings are mutuallyexclusive, the enforcement authority must ensure that there are noongoing criminal proceedings that might lead to a confiscation orderbeing made following conviction.CPS Area prosecutors should not be making this application.Back to Contents
Order or Power:Refusal and Revocation of CitizenshipFound in: Nationality, Immigration and Asylum Act 20021. What is this?The revocation and refusal of citizenship can take place when ittranspires that an applicant has given false information when he or sheapplied for British Citizenship.2. When is it useful?It is used by the authorities when there is evidence that confirms that afraudulent application for citizenship has been made.3. When is it available?The Home Office may take away British Citizenship if it is discoveredthat an applicant has obtained naturalisation by fraud, giving falseinformation, or by concealing facts that would have affected the decision.This is known as 'deprivation of citizenship'.4. What is the procedure?This is usually a UK Border Agency procedure. However, if aprosecution brings up the issue of false naturalisation, and a defendanthas acquired British Citizenship illegally, prosecutors should remind thesentencing judge to refer the case to the Border Agency who will thenexamine all the information and make an appropriate recommendationto the Home Secretary.5. Where can I find further guidance?CPS Legal Guidance: Immigration.UK Border Agency website at http://www.ukba.homeoffice.gov.ukNationality, Immigration and Asylum Act 2002.
6. Give me an example?If during any criminal proceedings, it is discovered that a defendant hasacquired British Citizenship illegally; prosecutors should consider invitingthe sentencing judge to refer the case to the UK Border Agency toconsider revocation or deprivation of citizenship.7. What do I need to watch out for?• Although, ordinarily, during a criminal investigation the police orSOCA will liaise with the UK Border Agency concerning issues ofcitizenship, this at times does not happen. Prosecutors shouldtherefore be alert to such issues.Back to Contents
Order or Power:Restitution OrderFound in: Sections 148 - 149 Power of Criminal Court (Sentencing)Act 20001. What is this?Anyone having control or possession of stolen goods can be orderedby a court to restore them to the person(s) entitled to recover them fromhim or her.The court may order the transfer of goods which either directly orindirectly represents the stolen goods to the person(s) entitled to them.The court may order the offender to pay a sum up to the value of thestolen goods from any money lawfully taken out of his or her possession.If an offender has sold stolen goods to, or has borrowed money on thesecurity of stolen goods from a person acting in good faith, the court mayorder repayment to the purchaser or lender. The maximum that can beordered is the amount paid to the purchaser or owed to the lender.2. When is it useful?It provides a simple means of restoring stolen property to the rightfulowner, whether or not it is in the possession of the offender.Where the offender is arrested with money in his possession (but not thestolen property) that money can be used to pay the rightful owner thevalue of the property stolen. The money does not need to be the directproceeds of the stolen goods.3. When is it available?The order is available in the magistrates' court and Crown Court.It applies where goods have been stolen and the offender has beenconvicted of an offence of theft or of any other offence taken intoconsideration on sentencing.
4. What is the procedure?The court can make a Restitution Order of its own motion.Prosecutors should, however, consider making an application fora Restitution Order prior to sentence.Failure to comply with a Restitution Order is a contempt of court.5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.Section 148-149 of the Powers of Criminal Courts (Sentencing) Act2000.Current Sentencing Practice J3 – 1.6. Give me an example?D is convicted of handling stolen goods. When he was arrested he hada large amount of cash in his possession. A large amount of propertybelonging to B was stolen in a burglary. The court can order D to payB an amount up to the value of the goods stolen in the burglary from themoney in his possession.7. What do I need to watch out for?• Evidence on which a Restitution Order is based upon must begiven to the court before sentence is passed. R v Church (1970) 55Cr App R 65.• A Restitution Order should not be made if there is a doubt that themoney in the defendant’s possession belongs to a third party.Restitution Orders should only be made 'in the plainest cases'. R vFerguson (1970) 54 Cr App R 410.• A Restitution Order should not be made where it compensates thevictim of the offence to a greater extent than his/her losses.R v Parsons and Haley, unreported 14 October 1976.• A Restitution Order can be made for a greater sum than theoffender actually received from the share of the proceeds of crimeprovided it is less than the total amount stolen. A Restitution Ordercan be made from monies in the possession of an offender even ifhis/her co-offenders are not in possession of any whenapprehended. R v Lewis, unreported 31 January 1975.Back to Contents
Order or Power:Restraining OrderFound in: Section 5 of the Protection from Harassment Act 19971. What is this?This is an order prohibiting a defendant, convicted of an offence undersection 2 or section 4 of the Protection from Harassment Act 1997, fromdoing any conduct described in the order which amounts to harassmentor will cause a fear of violence to the victim of the offence, or any otherperson mentioned in the order.2. When is it useful?A Restraining Order provides protection to the victim from futureconduct. This is important for public confidence given that the nature ofharassment involves a defendant with a strong motivation to continuecausing distress to that victim. A breach of a Restraining Order is itselfa criminal offence which can carry a maximum penalty (on indictment)of five years' imprisonment and/or an unlimited fine. There is a power tomake indefinite orders in appropriate cases, with discharge or variationbeing considered in due course.3. When is it available?It is available in the magistrates' courts and the Crown Court. A courtsentencing or otherwise dealing with a person convicted of an offenceunder section 2 or section 4 of the Protection from Harassment Act 1997may make a Restraining Order as well as passing any other sentence.4. What is the procedure?A court may make a Restraining Order of its own volition, butprosecutors should be proactive in making an application for anorder. The contents of the order should also be discussed in anypre-sentence report. It would be helpful if courts and prosecutorsarranged local procedures to ensure that there are prompts to bringthe court's attention to their power to make a Restraining Order, andthat if the court decides not to make an order, the reasons for thatdecision are given in open court.
5. Where can I find further guidance?CPS Legal Guidance: Harassment.Section 5 of the Protection from Harassment Act 1997.6. Give me an example?D pleaded guilty to putting V, his ex-wife, in fear of violence contrary tosection 4 of the Protection from Harassment Act 1997. D hadtelephoned V on a number of occasions and threatened that he wasgoing to hurt her. D had also stood outside V's address on numerousoccasions and repeated this threat when V was entering or leaving theaddress. The prosecutor applied for a restraining order prohibiting Dfrom telephoning V and prohibiting D from going to V's address, eachuntil further order. The court made the order.7. What do I need to watch out for?• The contents of the order are at the court's discretion, butprosecutors must satisfy the court that the conditions are necessaryto protect the victim or other person named in the order.• The duration of the order should reflect the need for futureprotection and not the seriousness of the previous conduct.• CJS agencies must work together to exchange information aboutrestraining orders. Orders must be copied to the police, to victims,and to the Prison Service where appropriate. Release datesshould be notified to the prosecution and the victim.Back to Contents
Order or Power:Serious Crime Prevention Order(Crown Court)Found in: Part 1 Serious Crime Act 20071. What is this?An order preventing, restricting or disrupting involvement of a person inserious crime in England and Wales, available following conviction of a'serious offence' if the court is satisfied there are reasonable grounds tobelieve that the order would protect the public.2. When is it useful?Defendant must have been convicted of a 'serious crime' as defined insection 2(2) and Schedule 1. The court can make an order if satisfiedthere are 'reasonable grounds to believe that the order would protectthe public by preventing, restricting or disrupting involvement by thedefendant in serious crime in England and Wales'. The order must bein addition to and not a substitute for sentence for the offence.3. When is it available?There must be reasonable grounds to believe that there is a real risk thatthe person will be involved in further conduct falling within the Act fromwhich the public require protection.The order must be for the purpose of protecting the public by preventing,restricting or disrupting the person's 'involvement in serious crime' inEngland and Wales. This is defined in section 2(3) as:• the commission of a serious offence in England and Wales,• conduct which facilitates the commission by another of a seriouscrime in England and Wales, or• conduct likely to facilitate the commission of such an offence by theperson or another, whether or not such an offence is committed.
4. What is the procedure?Upon application to the Crown Court , application to be lodged as soonas practicable without waiting for verdict, but heard following convictionat a separate hearing if necessary.Application is made using form: Notice of intention to apply for a SeriousCrime Prevention Order if the defendant is convicted of a SeriousOffence and Proposed Application (Criminal Procedure Rules 2005,Rule 50.3).Authority of the Chief Crown Prosecutor or Head of HeadquartersCasework Division is required.5. Where can I find further guidance?CPS Legal Guidance: Serious Crime Prevention Orders Guidance.6. Give me an example?A defendant is convicted of a second money laundering offence.Evidence suggests that he is a persistent offender in this type of crime.An order could be sought to prevent him:1) being involved or employed in any cash transfer business;2) holding cash in any currency in excess of £1000 in value withoutnotice to a law enforcement body with details of the source,destination and purpose;3) applying for a mortgage or loan without notice of amount andpurpose;4) possessing of only one more than mobile communication device.7. What do I need to watch out for?• These orders require monitoring if they are to be effective so haveresource implications for police and law enforcement agencies.They should not be applied for as a matter of course without properconsideration.• As with ASBOs, conditions need to be carefully drafted to ensurethey will be enforceable and that they can be justified as directedtowards preventing or disrupting the defendants anticipated futureinvolvement in serious crime.Back to Contents
Order or Power:Sexual Offences Prevention OrderFound in: Sections 104 to 113 of the Sexual Offences Act 20031. What is this?A Sexual Offences Prevention Order (SOPO) is an order which prohibitsa defendant from doing anything described in it. The order has effect fora fixed period (not less than five years) specified in the order or untilfurther order.2. When is it useful?SOPOs are useful in providing ongoing protection to the public followingthe completion of a sentence from those convicted of various sexualoffences.They are particularly useful when addressing offenders who havecommitted crimes against children (for example, by restricting accessto places or situations where children gather) or who have usedtechnology, such as the internet, to facilitate their crimes (for examplethrough prohibiting the ownership or use of computer equipment).3. When is it available?A court dealing with an offender for one of the offences listed inSchedule 3 or Schedule 5 of the Sexual Offences Act 2003 may makea SOPO if it is satisfied that it is necessary to make such an order forthe purposes of protecting the public (or any particular members of thepublic) from serious sexual harm from the defendant: section 104(2)Sexual Offences Act 2003A court which finds that the offender is not guilty of an offence in eitherSchedule 3 or Schedule 5 by reason of insanity, or that he is under adisability and has done the act charged against him in respect of anoffence may make a SOPO. It has to be satisfied that it is necessaryto make such an order for the purposes of protecting the public (or anyparticular members of the public) from serious sexual harm from thedefendant: section 104(3) Sexual Offences Act 2003.SOPOs are available in both the magistrates' courts and theCrown Court.
4. What is the procedure?Prosecutors must ensure that they have identified in the Plea andSentence document (PSD) (in cases where a PSD is required) that anoffence may attract a SOPO in the event of conviction. This requires theprosecutor to identify that the offence is one to which either Schedule 3or Schedule 5 applies.In all cases, the prosecutor must be ready to assist the court by drawingthe court’s attention to the power to make a SOPO on conviction for anoffence to which Schedule 3 or Schedule 5 applies.Thereafter, it will be important for prosecutors to be in a position to assistthe court if required in determining whether the offender presents a riskthat requires the public to be protected and that an order is required.This may be by way of information about previous convictions orcautions, or by drawing attention to certain features of the case underconsideration.The prosecutor should also assist the court with suggested prohibitionsfor the SOPO, and ideally have prepared (in conjunction with the police)a draft SOPO to hand to the court.5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.Sections 104-113 of the Sexual Offences Act 2003.6. Give me an example?D pleads guilty to various offences relating to numerous indecent imagesof children that are found on his computer hard drive. The pre-sentencereport states that the defendant has admitted to having a sexual interestin young children.Upon sentence, the prosecutor invites the judge to make the defendantthe subject of a SOPO to run until further order. Within the prohibitions inthe draft order that the prosecutor has prepared are prohibitions (i)preventing the defendant from undertaking any paid or voluntary work oractivities that afford him unsupervised access to children; and (ii)preventing him from owning or using computer equipment except underthe supervision of his probation officer.
7. What do I need to watch out for?• SOPOs must be necessary and proportionate, and relate to futurerisk as well as past offending.• Prohibitions must be clearly drafted in order for breaches of SOPOsto be effectively prosecuted.• Certain blanket prohibitions, for example relating to the use andownership of mobile phones and computers, have in somecircumstances been found to be disproportionate.Back to Contents
Order or Power:Travel Restriction OrderFound in: Sections 33 to 37 Criminal Justice and Police Act 20011. What is this?A Travel Restriction Order is an order that prohibits the offender fromleaving the United Kingdom for at least two years from the date of hisrelease from custody. It may be exercised following a conviction for a'drug trafficking offence' where the term of imprisonment is 4 years ormore.2. When is it useful?The purpose of the order is to reduce the risk of re-offending afterrelease. This order should be considered when the defendant hascommitted a drug trafficking offence which has an international element,for example with the defendant travelling abroad to meet criminalassociates.3. When is it available?The order is only used in the Crown Court and the court is bound toconsider it. The order is available for a drug trafficking offence when asentence of more than four years' imprisonment has been passed.4. What is the procedure?Prosecutors must ensure that they have identified in the Plea andSentence document (PSD) (in cases where a PSD is required) that anoffence may attract a Travel Restriction Order in the event of conviction.This requires the prosecutor to identify that the offence is one to whichsection 33 Criminal Justice and Police Act 2001 applies.In all cases, the prosecutor must be ready to assist the court by drawingthe court's attention to the power to make a Travel Restriction Order inappropriate cases.
5. Where can I find further guidance?CPS Legal Guidance: Sentencing - Ancillary Orders.Sections 33-37 of the Criminal Justice and Police Act 2001.6. Give me an example?D is arrested following a police operation during which he took controlof a large consignment of class A drugs and arranged for their securestorage. D is found guilty of a drug trafficking offence and is sentencedto a term of imprisonment of more than four years.During the course of the police investigation, D was observed to makeseveral short trips to mainland Europe. The prosecutor applies for aTravel Restriction Order on the basis that D is at risk of re-offending.The order is granted.7. What do I need to watch out for?• Although the power to make such an order is not confined toimportation cases, it is most likely to be appropriate in such cases.• The court is bound to consider making such an order, and is underan obligation to give reasons for not making such an order whereotherwise it would be appropriate.• The court may need to have regard to the effect of a travelrestriction order on the defendant's children.• Proportionality is required in determining the length of time forwhich a person's freedom is to be restricted.Back to Contents