Procedural issues and ancillary orders

CHAPTER 11 Procedural issues and ancillary orders The main aim of this chapter is to draw together most of the significant proce- dural steps in sentencing, but the second part of the chapter focuses on a major development in sentencing that will be further highlighted in Chapter 13 below – the expanding availability and use of preventive and other ancillary orders at the sentencing stage. As a prelude to that discussion the first part of the chapter sum- marizes the framework of sentencing. Afterwards, the third part sets out various requirements to give reasons. Following that, brief consideration is given to several issues arising in procedural context. Thus, before a court passes sentence in any case other than a minor summary one, there will usually be either a trial or, if the plea was guilty, a prosecution statement of facts. In some cases these provide the court with an insufficient basis on which to pass sentence: what is to be done? Again, what role do the advocates for prosecution and defence play in relation to sentencing, and what role should they play? When should pre-sentence reports be relied upon by sentencers? What place do victims have in the sentencing process, and what role should they have? 11.1 The sentencing framework of the 2003 Act The framework of sentencing established by the Criminal Justice Act 2003 has been much discussed in Chapters 9 and 10 above, and the present summary eschews detailed statutory references in order to convey the essence of the decision-making scheme. The following sequence begins with the least onerous sentence and ends with the most onerous. Is an absolute or conditional discharge sufficient? Is the case suitable for a fine (which may be substantial enough to come close to the custody threshold)? Is the case serious enough to warrant a community sentence? Is the offence so serious that neither a fine alone nor a community sentence can be justified, and therefore a custodial sentence is unavoidable? If the case passes the custody threshold, are there factors indicating that the sentence may either (i) be suspended or (ii) take the form of intermittent custody? 332 11.2 Ancillary orders 333 If neither of those alternatives is possible and an immediate custodial sentence is unavoid- able, what is the shortest term commensurate with the seriousness of the offence (bear- ing in mind the effect of the early release provisions of the 2003 Act which indicate a reduction of some 15 per cent on previous levels)? Is the case one to which a minimum sentence applies? Or Is the case one to which the dangerousness provisions (life imprisonment, imprisonment for public protection or extended sentence) applies? This is a simplified framework. It is phrased in terms of sentencing for a single offence, and we saw in Chapter 8 that sentencing for more than one offence brings various other complications. The framework leaves out of account the court’s duty to consider making a compensation order (see Chapter 10.4 above), and also var- ious duties relating to the ancillary orders set out in part 11.2 below. It also takes no account of the statutory requirements on aggravating and mitigating factors, examined in Chapters 5 and 6 above. 11.2 Ancillary orders This part of the chapter sets out several of the many ancillary orders available to courts in criminal proceedings. In part 11.2.1 below there is discussion of three pri- vatory orders, the purpose of which is to take from an offender something that he or she should not retain. In part 11.2.2 below the focus switches to preventive orders, the purpose of which is to prevent the offender from engaging in certain sorts of activity thought to represent a risk to others. Behind these two categories of ancillary orders lies a further distinction, between punishment and prevention. In the context of the European Convention on Human Rights, it is often important to determine whether a particular order amounts to a penalty (i.e. a punishment) or is merely pre- ventive. If an order has a significant punitive element (even though it is also to some extent preventive), it must comply with certain standards. In particular, it must not operate retrospectively (Art. 7), its ambit must be clear (Art. 7), and it must only be imposed after all the safeguards appropriate to a criminal charge have been observed (Art. 6(3)). Thus in Welch v. UK (1995) 1 the European Court of Human Rights held that the confiscation procedures of the Drug Trafficking Act 1986 violated Article 7 of the Convention byimposing a retrospective penalty on the offender. Section 38(4) of the Act did expressly give retroactive effect to the powers of confiscation, provided the defendant had been charged after the Act came into force. The key question was therefore whether a confiscation order was a ‘penalty’. In deciding that it was, the court noted that the measure had punitive as well as preventive and reparative aims; that the order was calculated by reference to ‘proceeds’ rather than profits; that the amount of the order could take account of culpability; and that the order was enforceable by a term of imprisonment in default. In Ibbotson v. UK (1997), 2 by 1 (1995) 20 EHRR 247. 2 (1999) 27 EHRR CD 332. 334 Procedural issues and ancillary orders contrast, the European Commission on Human Rights held that the notification requirement under the Sex Offenders Act 1997 was not a ‘penalty’, since it was less severe than confiscation, there was no provision for imprisonment in default (a separate prosecution would have to be brought), and it was preventive ‘in the sense that the knowledge that a person has been registered with the police may dis- suade him from committing further offences’. This preventive/punitive distinction will be referred to as the various ancillary orders are discussed. 11.2.1 Privatory orders Three forms of order that deprive the offender of some asset are set out here – restitution orders, deprivation orders and confiscation orders. 1. Restitution orders.Section 148 of the Powers of Criminal Courts (Sentencing) Act 2000 empowers a court to make an order, on conviction for a theft offence (or where one is taken into consideration on another charge), requiring the offender to restore to the victim the property stolen, or goods representing that property, or a sum equivalent to the value of the stolen property that was taken from the offender’s possession on arrest. It will be seen that the conditions for making this order are precise, and it is relatively rare for courts to make restitution orders. 2. Forfeiture orders.Section 143 of the PCCS Act 2000 empowers a court to make an order depriving the offender of any property used (or intended for use) in committing or facilitating the commission of the offence, which was lawfully seized from the offender or under his control at the time of arrest or summons. Subsections (6) and (7) make it clear that a number of motoring offences fall within the rubric of ‘facilitating the commission of the offence’, and so a court may order that the offender be deprived of a car for the offence of driving whilst disqualified. However, as the Divisional Court held in Highbury Corner Stipendiary Magistrate, ex p. DiMatteo (1990), 3 the court must also request or receive information about the financial impact on the offender before making the order. The decision also emphasizes the importance of regarding the order as part of the total sentence on the offender, which ought not to be out of proportion with the seriousness of the offence(s). In Ball (2003) 4 the Court of Appeal quashed a deprivation order in respect of a Mercedes car with a personalized number plate, used in facilitating theft, on the grounds that the judge had failed to give counsel the opportunity to address the court in relation to a forfeiture order and its possible effects, and failed to follow the statutory requirement to make an estimate of the value of the property before deciding whether to make the order. 3. Confiscation orders.For several years there has been a mandatory procedure for the confiscation of the proceeds of drug trafficking, most recently under the Drug Trafficking Act 1994, and also a procedure for the confiscation of the proceeds of other forms of crime, under the Criminal Justice Act 1988. These two statutes remain in force in respect of events occurring before March 2003, whereas events 3 (1990) 12 Cr App R (S) 263. 4 [2003] 2 Cr App R (S) 92. 11.2 Ancillary orders 335 and offences occurring after that date are covered by the Proceeds of Crime Act 2002. This statute is an extensive and detailed piece of legislation, and it suffices here to mention the principal provisions of part 2 of the Act. Where an offender has been convicted in the Crown Court, the judge must initiate the confiscation procedure if there is an application from the prosecution or the judge believes that it is appropriate to do so (s. 6). The next step depends on whether the judge decides that the offender has a ‘criminal lifestyle’ or not. Section 75 sets out the elements of a‘criminal lifestyle’, in terms of being convicted of one of a listed group of offences, or of ‘conduct forming part of a course of criminal activity’. If the court decides that the offender has a ‘criminal lifestyle’, it must make certain assumptions about property possessed by the offender in the previous six years (s. 10). If the court decides that the offender does not have a ‘criminal lifestyle’, it must decide whether he has benefited from the particular criminal conduct in the case – not using the assumptions in s. 10, but possibly requiring the offender to furnish information on pain of adverse inferences (s. 18). Section 7 prescribes the way in which the court should arrive at the ‘recoverable amount’, and s. 9 prescribes what deductions and additions may be made. The court may then make an order, and must at the same time fix a term of imprisonment in default of payment. The desirability of depriving criminals of the proceeds of their crime was dis- cussed in Chapter 3.3.8 above and has received recognition from the Council of Europe, in its Convention of 1990 on Laundering, Search, Seizure and Confisca- tion of the Proceeds of Crime. One may take leave to doubt, however, whether the draconian powers and deprivation of normal rights now built into the Proceeds of Crime Act are justifiable or necessary. The courts are permitted to proceed on assumptions which sometimes have an extremely flimsy basis. 11.2.2 Preventive orders The discussion now moves to several preventive orders, beginning with three forms of disqualification and then moving to various prohibitions and restrictions. 1. Disqualification from driving.Although sometimes regarded as an ancillary penalty, the court’s power to disqualify road traffic offenders from driving may properly be treated – as it is by most recipients – as the primary penalty. The detailed rules may be found in the Road Traffic Act 1988. Disqualification from driving for at least 12 months is mandatory following the offences of driving with excess alcohol, failure to provide a sample for testing and causing death by reckless driving. Only in cases where ‘special reasons’ are found can the mandatory period of disqualification be avoided. Disqualification also ensues when an offender accu- mulates 12 penalty points as a result of two or more offences, and it is a discretionary penalty for various offences connected with motoring, such as taking a car with- out the owner’s consent. There are also provisions in ss. 146–147 of the Powers of Criminal Courts (Sentencing) Act 2000 empowering courts to disqualify from driving any person who uses a vehicle for the purposes of crime, or any person convicted of an offence. It appears that, in general, the length of disqualification 336 Procedural issues and ancillary orders is influenced less by proportionality to the current offence than by the prevention of probable danger, to which the offender’s driving record as a whole is relevant; but it is established that account should be taken, when setting a lengthy period of disqualification, of the effect on the offender’s future prospects of employment and therefore of law-abidance. 5 2. Disqualification from acting as a company director.The power to disqualify aperson from acting as a director of a company was granted by the Company Directors Disqualification Act 1986. It is most frequently exercised in cases involving fraudulent trading or similar offences: 6 orders of over 10 years up to the maximum of 15 years should be reserved for very serious cases, with orders in the 6–10 year range more appropriate for offences committed over a shorter period of time and yielding less money. 7 It is unlikely that such emphasis should be placed on the offender’s future prospects of employment, since the order – although fairly wide ranging – does not disqualify the person from being an employee. 3. Disqualification from working with children.Section 28 of the Criminal Justice and Court Services Act 2000 empowers a court to disqualify from working with children, indefinitely, an offender convicted of a sexual offence against a child. 8 A court has a duty to make an order where the offender is aged 18 or over and the court has imposed a custodial sentence of 12 months or more; it has the power to make an order where the offender is under 18 or the court has not imposed a 12-month sentence on conviction. The duty to make the order applies unless the court is satisfied that it is unlikely that the offender will commit any further offences against a child. Such an order is for an indefinite period, although there may be an application to discharge it. It appeared possible to construe the Act as requiring an order to be made when a trigger offence had been committed before the Act came into force, and so it was crucial to determine whether it was a ‘penalty’ (no retroactive effect permitted) or merely a preventive order (which could operate retrospectively). In determining this question in Field and Young (2003), 9 the Court of Appeal laid considerable weight on the fact that the order applies both where a person is convicted and where a person is found to be either unfit to plead or not guilty by reason of insanity, and concluded: It seems to us of considerable importance that a conviction is not a necessary condition for the making of such an order. When one considers the nature and purpose of such an order it points overwhelmingly to this being for preventative rather than punitive effect. Precisely the same order is made whether a person is convicted or not and the making of the order has no regard to the extent or seriousness of the offending but rather to whether a repetition of the conduct is likely. 10 5 E.g. Doick [2004] 2 Cr App R (S) 203. 6 E.g. Edwards [1998] 2 Cr App R (S) 213. 7 Millard (1994) 15 Cr App R (S) 445 (eight years appropriate for fraudulent conduct lasting four years and yielding some £700,000). 8For 2003 amendments, see Taylor, Wasik and Leng (2004), pp. 231–2. 9 [2003] 2 Cr App R (S) 175. 10 Ibid., at para. 58 per Kay LJ. 11.2 Ancillary orders 337 The Court therefore held that the order could operate retrospectively, since it is not a penalty and therefore not caught by Article 7. However, the reasoning is flawed. If the main arguments had been the preventive purpose and the fact that the effect of the prohibition was not unduly severe, that would arguably have been in line with earlier decisions. But the Court appeared to think that it would be difficult to regard the order as preventive if it could only be made after a conviction, and thus rested its conclusion on the provision for the making of an order after a finding of insanity or disability in relation to the trial. This is manifestly unsatisfactory: the whole point of that provision is to treat the severely mentally disordered (for these purposes) as if they had been convicted, rather than to suggest that these orders can be made generally on persons who have not been convicted. The Court of Appeal placed form above substance, and it seems highly unlikely that the Strasbourg Court would yield to a device which, if approved, could be deployed widely by draftsmen to transform truly punitive orders into preventive orders. The decision in Welch 11 demonstrates that such devices would be caught by the anti-subversion doctrine. Is it really suggested that, if the Drug Trafficking Act 1986 had provided for the making of confiscation orders not only on conviction but also after a finding of insanity or unfitness to plead, the Court in Welch would have reached a different conclusion and found the orders to be non-punitive? 4. Sexual offences prevention orders.Section 104 of the Sexual Offences Act 2003 empowers a court which has convicted an offender of a listed offence to make asexual offences prevention order, if it is satisfied that this is necessary for the purpose of protecting one or more others from serious sexual harm. The terms of the order may prohibit an offender from doing ‘anything described in the order’ for aperiod of at least five years (s. 107). It is also possible for the court to make such an order outside criminal proceedings, on application by the police. 12 The contents of a SOPO are entirely negative or preventive, and may include a prohibition on making any contact or communication with a person under 16 and not residing in aprivate dwelling where there is a child under 16. 13 5. Risk of sexual harm orders.Section 123 of the Sexual Offences Act 2003 empow- ers a magistrates’ court to make a risk of sexual harm order on application from the police, in respect of a person who has on two or more occasions engaged in sexually explicit conduct or communication with children. The police may apply for this order in respect of someone who has a conviction or a person without any conviction: it appears that the police may apply to a court at the sentencing stage and invite it to make this order. The court must only make an order if satisfied that 11 Above, n. 1. 12 For commentary on this and the other preventive orders in sexual cases, see Shute (2004). That article also deals with the foreign travel order (s. 114 of the SOA 2003), which can only be made on application from the police and on evidence of conduct since a relevant conviction. 13 Cf. B v. Chief Constable of Avon and Somerset [2001] 1 WLR 340, where an unsuccessful challenge to the compatibility of SOPO’s predecessor, the sex offender order, with the Convention was mounted. 338 Procedural issues and ancillary orders it is necessary to protect one or more children from physical or psychological harm. Again, the essence of the order is a prohibition on ‘doing anything described in the order’ for at least two years. This is a particularly controversial power because it applies equally in respect of persons whohavenever been convicted, so long as the court receives evidence satisfying it as to the past conduct and future danger to children. 14 6. Travel restriction orders.Section 33 of the Criminal Justice and Police Act 2001 requires courts to consider making a travel restriction order whenever they sentence an offender to four years or more for a drug trafficking offence. Guidance on the proper use of the power was given in Mee (2004), 15 where the Court of Appeal recognized that if the offence appeared to be opportunistic rather than part of a pattern, it might not be necessary to make an order. If a court apprehends a risk of further offences, it should make an order of a length appropriate to the degree of risk it finds, having invited submissions from counsel. 7. Football spectator banning orders.Section14A of the Football Spectators Act 1989 (as amended by the Football (Disorder) Act 2000) provides that, on con- viction of a relevant football-related offence, a court must make a banning order in respect of designated football matches if it is satisfied that this would help to prevent violence and disorder in connection with regulated football matches. If the court is not so satisfied, it must state this in open court and give its reasons. Banning orders may also be imposed by magistrates on application from the police. The duration of the order depends on the sentence imposed for the conviction: if immediate imprisonment is imposed, the order must be between 6 and 10 years, but in other cases it must be between three and five years. 16 A banning order is not a penalty but is merely a preventive order, although it has been held that the standard of proof should be equivalent to that in criminal proceedings. 17 8. Exclusion fromlicensed premises orders.Under the Licensed Premises (Exclusion of Certain Persons) Act 1980 a court which is dealing with an offence committed on licensedpremiseswhich involved the use or threatof violence may makean exclusion order, excluding the offender from certain premises for a period of between three months and twoyears.The powershouldgenerally notbeusedfor isolated incidents, but reserved for persistent nuisances. 18 However, in Arrowsmith (2003), 19 where an offender with previous convictions for violence was imprisoned for 12 months for assault occasioning actual bodily harm on another customer in a public house, the judge had made an order excluding the offender from all 165 licensed premises in the area of his residence for 18 months. The Court of Appeal held that this was not manifestly excessive, in view of the offender’s history and the risk it suggested, but that procedurally all the premises had to be individually named. 14 See Shute (2004), p. 431. 15 [2004] 2 Cr App R (S) 434. 16 For an example of a three-year order, see O’Keefe [2004] 1 Cr App R (S) 404. 17 Gough v. Chief Constable of Derbyshire [2002] QB 459. 18 Grady (1990) 12 Cr App R (S) 152. 19 [2003] 2 Cr App R (S) 301. 11.2 Ancillary orders 339 9. Anti-social behaviour orders.Most of the prohibitions imposed under the orders listed above can also be brought about by the anti-social behaviour order, the broadest of the courts’ powers to impose preventive restrictions. As outlined in Chapter 6.6 above, a court may make an ASBO either on application from the police, local council or others, or as an order following conviction. Most orders are now made on conviction. The court has to be satisfied that the offender has caused harassment, alarm or distress amounting to anti-social behaviour. It may then make an order, for a minimum period of two years, that prohibits the offender from doing anything described in the order. The number and breadth of the conditions may be considerable, 20 and the breach rate is around 42 per cent. On breach an offender commits an offence punishable with up to five years’ imprisonment. This is a much higher penalty than is available for many criminal offences, and yet in Hall (2005) 21 the Court of Appeal accepted that the ASBO may be used to circumvent the (lower) maximum penalty for an offence. Parliament has provided a maximum of six months’ imprisonment for driving whilst disqualified. The court in this case had made an ASBO prohibiting the offender indefinitely from driving a motor vehicle on any road in the United Kingdom without holding a valid driving licence and certificate of insurance. Breach of that condition would open up a maximum penalty of five years. This is yet another unsatisfactory feature of the ASBO. 10. Preventive orders and sentencing for breach.Itismanifest from the foregoing paragraphs that the range of preventive orders is wide, and that they are capable of being very restrictive. They are entirely negative in content,and include no provision for support or for constructive activities. Yet the penalties for breach are high, many of them having a maximum sentence of five years for breach. As already stated, this maximum is often higher than would be available if a substantive offence were charged. The use of custody for breach is frequent: for ASBOs, the breach rate is 42 per cent, and of those some 55 per cent overall (and 45 per cent of juveniles) are sent into custody. 22 In sentencing for breach of any preventive order, the court should takeaccount ofthenature of the conductamounting to a breach,and whether it was a single incident or persistent. Persistent serious breaches have been held to justify a sentence as high as three-and-a-half years, 23 whereas lesser breaches of a restraining order (now a sexual offences prevention order) have been sentenced in the 12–18 months range. 24 In Clark (2003) 25 it was held that the court should have regard to the maximum, so that a three-year sentence on a plea of guilty for anon-serious breach of a restraining order was too high (since it was equivalent 20 Cf. C v. Sunderland Youth Court [2004] 1 Cr App R (S) 443, where the Divisional Court granted judicial review of an order that prohibited the offender from ‘exhibiting any behaviour towards any individual or group which would cause them harassment, alarm or distress’, on the ground that this was too vague and uncertain. The magistrates had also failed to consider whether an area of application so wide as the whole of Sunderland was necessary. 21 [2005] Crim LR 152. 22 Home Office press release 042/2005. 23 Braxton [2005] 1 Cr App R (S) 167, discussed in ch. 6.6 above. 24 Clark [2003] 1 Cr App R (S) 6, Wilcox [2003] 1 Cr App R (S) 199. 25 [2003] 1 Cr App R (S) 6. 340 Procedural issues and ancillary orders to about four years on a conviction). Nevertheless, there are many ASBO cases in which the courts use custody for breach and where the conduct was relatively minor. The effect is not only disproportionality of sentencing but also the taking of many non-serious offenders up the tariff at an early stage – an observation particularly relevant to young offenders. But the fault lies earlier in the process too, since the imposition of multiple conditions on young offenders 26 is inappropriate, and particularly inappropriate without an element of supervision. It is, in truth, setting a person up to fail. 11.3 The obligation to give reasons for sentence It is a fundamental tenet of natural justice that decision-makers should give reasons for their decisions, and the argument is surely at its strongest where the decisions affect the liberty of the subject. The case for reasoned decisions in sentencing is therefore unanswerable in principle, 27 and is now reinforced by Article 6 of the Convention as a result of the Human Rights Act 1998. Offenders should be able to know the reasons for sentences imposed upon them. The public also has an interest in knowing. The duty to give reasons may conduce to decisions which are more considered and more consonant with legal principle. And the giving of reasons enables appellate courts better to assess the appropriateness of a sentence which has been challenged on appeal. What counts as a reason for sentence? Clearly, a kind of moral expostulation about the offence, ‘one of the worst of its kind’, ‘a dreadful and brutal attack’, is hardly enough on its own. To amount to a ‘reason’, the sentencer’s remarks must surely link the sentence to general levels of sentence for that kind of offence, and to other general principles. It has long been established that a court should make some effort to explain the length of custodial sentences. In the case of Newman, Newman and Myers (1979) 28 the judge had simply meted out sentences of three, four and five years’ imprisonment without any comment or embellishment. Lord Widgery CJ held in the Court of Appeal that it is wrong, when sentences of that severity are passed, for a judge to give no clue as to how the sentences were arrived at. Similarly, in Attorney General’s Reference (No. 23 of 1992) (1993) 29 Lord Taylor CJ chided a recorder for failing to give reasons: The learned recorder did not specify any reasons or explain the process by which she arrived at that sentence. It may be that if those who have to pass sentence do give some reasons for the sentence they pass, that brings them to consider the effect which the sentence they are minded to impose might have and the public perception of it. This passage emphasizes the importance of explaining the process by which the court arrived at its sentence, and this means that the idea of giving reasons needs 26 The use of ASBOs for mentally disturbed people is also a matter of concern, not least because of the absence of support as part of the order. 27 Thomas (1963). 28 (1979) 1 Cr App R (S) 252. 29 (1993) 14 Cr App R (S) 759. 11.3 The obligation to give reasons for sentence 341 to be developed carefully. As the Council of Europe’s 1992 recommendation on ‘Consistency in Sentencing’ proposed, E.1 Courts should, in general, state concrete reasons for imposing sentences. In par- ticular, specific reasons should be given when a custodial sentence is imposed. Where sentencing orientations or starting points exist, it is recommended that courts give reasons when the sentence is outside the indicated range of sentence. E.2 What counts as a ‘reason’ is a motivation which relates the particular sentence to the normal range of sentences for the type of crime and to the declared rationales of sentencing. Along these lines is the latest statutory provision on the duty to give reasons for, and explain the effect of, sentences. Section 174(1) of the Criminal Justice Act 2003 provides: Subject to subsections (3) and (4), any court passing sentence on an offender – (a) must state in open court, in ordinary language and in general terms, its reasons for deciding on the sentence passed, and (b) must explain to the offender in ordinary language – (i) the effect of the sentence, (ii) where the offender is required to comply with any order of the court forming part of the sentence, the effects of non-compliance with the order, (iii) any power of the court, on the application of the offender or any other person, to vary or review any order of the court forming part of the sentence, (iv) where the sentence consists of or includes a fine, the effects of failure to pay the fine. Subsection (2) emphasizes that compliance with subsection 1(a) requires the court to explain why the appropriate threshold is passed, that is why the offence is serious enough to warrant a community sentence, or why the offence is considered tooserious for a fine alone or community sentence. Subsection (2) also adds the requirement to give an explanation where the court reduces the sentence for a guilty plea, and where any aggravating or mitigating factors are of particular importance. Subsection 2(a) states that a court must where guidelines indicate that a sentence of a particular kind, or within a particular range, would normally be appropriate for the offence and the sentence is of a different kind, or is outside that range, state the court’s reasons for deciding on a sentence of a different kind or outside that range. This reinforces the effect of the court’s duty to have regard to definitive sen- tencing guidelines, 30 but this subsection applies to guidelines generally – presum- ably applying equally to those laid down by the Court of Appeal. 31 In addition to these statutory requirements, there is a Practice Direction requiring a court to give 30 S. 172 of the 2003 Act. 31 See the discussion in ch. 1.5.3 above. [...]... only the 87 89 91 93 Hoyle et al (1998); also Sanders (2002), pp 218–20 88 Erez (1999), pp 550–4 Hoyle et al (1998), p 34 90 Hoyle et al (1998) Sanders (2002); cf Edwards (2004) 92 See Ashworth (1993) for some details See ch 3.3.7 above 355 356 Procedural issues and ancillary orders offender and family and the victim and family, but also a police officer and (in some cases) a social worker.94 In the... Victoria, introduced after three official reports recommending against it, see Fox and Freiberg (1999), pp 165–75 81 Practice Direction (Victim Personal Statements) [2002] 1 Cr App R (S) 482 353 354 Procedural issues and ancillary orders (a) The Victim Personal Statement and any evidence in support should be considered and taken into account by the court prior to passing sentence (b) Evidence of the... – The conclusion should evaluate the offender’s motivation and ability to change The shape of further conclusions depends on the proposal made, which should be ‘a clear and realistic proposal for sentence designed to protect the public and reduce reoffending, 66 E.g Waterton [2003] 1 Cr App R (S) 606 349 350 Procedural issues and ancillary orders including for custody where this is necessary’ If the... death on the offender and the victim’s family (who were close) was so exceptional that a merciful course was justified 101 (1993) 15 EHRR CD 110 357 358 Procedural issues and ancillary orders the date of his release and to express her views to those who decided on release The European Commission on Human Rights noted that the Home Office does accept submissions from victims’ families and places them before... (above n 45) (1982) 4 Cr App R (S) 388 50 Costley (1989) 11 Cr App R (S) 357 Broderick (1993) 15 Cr App R (S) 476 52 McGrath and Casey (1983) 5 Cr App R (S) 460 Kerrigan (1993) 14 Cr App R (S) 179, Guppy and Marsh (1995) 16 Cr App R (S) 25 345 346 Procedural issues and ancillary orders by jury on such matters, rather than simply a bench trial or (in English terms) a Newton hearing In Apprendi v New Jersey... became known to him.90 Many of the criticisms of the VPS and similar schemes assume that the remaining aspects of the criminal justice system and social system will remain unchanged, however, and Andrew Sanders has made a powerful argument for a more inclusive approach to criminal justice that allows victims to inspect case files and reports and to engage in dialogue with decision-makers.91 11.9.2 Victim’s... application of the right to have adequate time and facilities for the preparation of a defence (Art 6.3(b)) in relation to statutory aggravating factors 36 [1996] 2 Cr App R (S) 445, at p 450 37 (1990) 12 Cr App R (S) 105 38 (1993) 14 Cr App R (S) 226 343 344 Procedural issues and ancillary orders hearings); but where the verdict is equivocal, as in Cawthorne and in McGlade, it seems that no Newton hearing... Court of Appeal held that it was manifestly excessive, and that the judge could have been saved from this error if counsel had cited two recent Court of Appeal decisions on the 70 Shapland (1981), p 82 71 Oxford Pilot Study (1984), pp 43–4 72 Oxford Pilot Study (1984), p 44 73 (1994) 15 Cr App R (S) 286 351 352 Procedural issues and ancillary orders point The Court added that ‘we would urge members... involvement be encased within a clear ethical framework: prosecutors should 57 Baldwin and McConville (1978), pp 545–6 58 (1990) 12 Cr App R (S) 63 59 Crown Prosecution Service (2004), para 11.1 60 Attorney General’s Reference No 7 of 1997 (Fearon) [1998] 1 Cr App R (S) 268 at pp 272–3 347 348 Procedural issues and ancillary orders act in the spirit of a Minister of Justice, not striving for severity but...342 Procedural issues and ancillary orders a full explanation, when imposing a custodial sentence, of the applicable release provisions.32 Beyond all these duties of explanation, there is now the emergence of an obligation . aggravating and mitigating factors, examined in Chapters 5 and 6 above. 11.2 Ancillary orders This part of the chapter sets out several of the many ancillary orders. 14 Cr App R (S) 226. 344 Procedural issues and ancillary orders hearings); but where the verdict is equivocal, as in Cawthorne and in McGlade, it seems