9.7 Ancillary Orders, Costs & Dangerous Offenders

9.7 Ancillary Orders, Costs & Dangerous Offenders

Beyond standard determinate custodial and community penalties, criminal courts in England and Wales possess specialized sentencing powers to manage high-risk offenders, protect victims, strip criminal proceeds, and award costs. Under the Sentencing Code (Sentencing Act 2020), specific provisions apply to dangerous offenders through Extended Determinate Sentences (EDS) and life sentences. Furthermore, courts routinely issue statutory ancillary orders—such as Restraining Orders, Compensation Orders, and POCA Confiscation Orders—alongside Prosecution Costs Orders. Advocates must master the statutory tests governing public protection and ancillary relief.

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1. The Dangerous Offenders Framework (Sentencing Code Part 10, Chapter 6)

The Sentencing Code establishes a dedicated statutory regime for offenders who pose a severe ongoing risk to society.

The Statutory Assessment of Dangerousness (Section 308)

Where an offender is convicted of a specified violent or sexual offence listed in Schedule 14 or Schedule 18 to the Sentencing Code, the court must assess whether the offender is "dangerous".

Section 308 Test for Dangerousness:

The court must assess whether there is a significant risk to the public of serious harm caused by the commission by the offender of further specified offences.

• Meaning of "Serious Harm": Defined by statute as death or serious personal injury (whether physical or psychological).
• Evidentiary Sources: To evaluate dangerousness, the court examines the nature and circumstances of the index offence, any pattern of repetitive offending, pre-sentence probation reports, psychiatric evaluations, and the offender's antecedents.

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2. Extended Determinate Sentences (EDS) & Life Sentences

Where an offender meets the dangerousness test, standard determinate sentencing is inadequate to protect the public.

Extended Determinate Sentences (EDS) (Sections 266–279 Sentencing Code)

An Extended Determinate Sentence (EDS) is available where the offender is convicted of a specified offence, satisfies the section 308 dangerousness test, and either the appropriate custodial term is at least 4 years OR the offender has a prior qualifying conviction.

Dual Structure of an EDS:

1. The Appropriate Custodial Term: The term of imprisonment reflecting the seriousness of the offence (culpability and harm).
2. The Extension Period: An additional period spent on licence in the community under probation supervision following release.
   • Maximum Extension Period: Up to 5 years for a specified violent offence; up to 8 years for a specified sexual offence.
   • Statutory Ceiling: The combined total (custodial term + extension period) cannot exceed the statutory maximum penalty for the offence.

Parole Board Release Mechanism for EDS:

Offenders serving an EDS do not receive automatic halfway release. Under section 246A of the Criminal Justice Act 2003, the offender must serve at least two-thirds (66.7%) of the custodial term in prison before becoming eligible to apply for release to the Parole Board. Release is granted only if the Parole Board is satisfied that custody is no longer necessary for public protection.

Discretionary & Mandatory Life Sentences

• Mandatory Life Sentence: Imposed for murder (with minimum term/tariff fixed under Schedule 21 to the Sentencing Code).
• Discretionary Life Sentence (Section 285): Imposed where an offence carries a statutory maximum of life imprisonment, the offender meets the dangerousness test, and the gravity of the offence justifies a life sentence. The judge sets a minimum term (tariff), after which release is determined strictly by the Parole Board.

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3. Ancillary Orders: Protection, Compensation & Confiscation

Ancillary orders are preventative, compensatory, or restorative orders made in addition to (or exceptionally instead of) the main sentence.

Compensation Orders (Sections 133–135, and the s.55 reasons duty)

• Power: a compensation order requires the offender to pay compensation for personal injury, loss or damage resulting from the offence (s.133); availability is governed by s.134.
• Reasons duty: the Code does not phrase this as a bare "duty to consider". The pressure comes from section 55, which requires the court to give reasons where a compensation order could have been made but was not. In practice that obliges the court to address compensation in every case involving injury, loss or damage.
• Means: under s.135(3) the court must have regard to the offender's means, so far as they appear or are known to the court, both in deciding whether to make an order and in fixing the amount.
• Priority Over Fines: under s.135(4), where it would be appropriate to impose both a fine and compensation but the offender has insufficient means to pay both, the court must give preference to compensation (though it may impose a fine as well).

Restraining Orders (Protection from Harassment Act 1997 / s.360 Sentencing Code)

• Can be made on conviction OR on acquittal if the court considers it necessary to protect a person from harassment or fear of violence.
• Imposes prohibitions (e.g., non-contact, stay-away zones). Breach of a restraining order is an indictable offence carrying up to 5 years' imprisonment.

Deprivation Orders (Sections 152–155 Sentencing Code)

A deprivation order strips the offender of their rights in property connected with the offending. Section 152 defines the order; section 153 governs availability. Under s.153 the court may make the order where an offender is convicted of an offence and the court is satisfied that property which has been lawfully seized from the offender, or was in their possession or control when they were apprehended or when a summons was issued, either:

• (a) was used for the purpose of committing, or facilitating the commission of, any offence, or was intended by the offender to be used for that purpose; or
• (b) relates to an offence (or an offence taken into consideration) consisting of unlawful possession of that property.

Key features:

• The order operates in addition to any other sentence, and the property passes into the possession of the police, to be dealt with under the Police (Property) Act 1897;
• Section 154 requires the court, in considering whether to make the order, to have regard to the value of the property and to the likely financial and other effects on the offender of making the order, taken together with any other order the court contemplates making. A deprivation order that ruins an offender who also faces a substantial fine and compensation order may be disproportionate;
• There is a specific vehicle provision: a vehicle may be treated as used for the purpose of committing an offence where the offender committed certain driving offences, or was driving or using the vehicle in the course of the offence;
• A deprivation order is a sentence and is therefore appealable as such.

Forfeiture Orders under the Misuse of Drugs Act 1971

Section 27 of the Misuse of Drugs Act 1971 provides a distinct power. Where a person is convicted of an offence under the 1971 Act, the court may order anything shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such manner as the court may order.

The important safeguard is s.27(2): the court shall not order anything to be forfeited where a person claiming to be the owner of it, or otherwise interested in it, applies to be heard, unless that person has been given an opportunity to show cause why the order should not be made. So an SBA in which a third-party owner of a vehicle or premises is ignored is testing s.27(2).

Confiscation Orders (Proceeds of Crime Act 2002 [POCA 2002])

• Made under Part 2 of POCA 2002 where the prosecution applies to confiscate financial gains derived from crime.
• Criminal Lifestyle Test: Evaluates whether the offender has a criminal lifestyle (e.g., drug trafficking, money laundering, or offences over 6 months). If established, statutory assumptions apply that all assets acquired over the preceding 6 years represent proceeds of crime unless proven otherwise.
• Particular Criminal Conduct: Strips gains directly resulting from the specific index offence.

Disqualification Orders

• Driving Disqualification: Section 162 Sentencing Code (mandatory or discretionary driving bans, including extension periods to account for custodial terms).
• Director Disqualification: Under the Company Directors Disqualification Act 1986 for fraud or commercial offences.

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4. Prosecution Costs Orders & Victim Surcharge

Prosecution Costs Orders (Section 18 Prosecution of Offences Act 1985)

The court may make such order as to costs against a convicted defendant as it considers just and reasonable.

Governing Principles for Costs Orders:

1. Financial Means: The court must take into account the offender's financial means. A costs order must not be exorbitant or crush the offender financially.
2. Not a Disguised Penalty: Costs must reflect actual, legitimate prosecution expenditure and cannot be used as an extra fine.
3. Priority Alignment: Costs orders sit behind Compensation Orders in financial priority.

Statutory Victim Surcharge (Section 42 Sentencing Code)

A statutory surcharge is imposed automatically on all sentenced offenders. The amount is determined by statutory tables based on the sentence type (fine, community order, SSO, immediate custody) and flows into the national Victims' Fund.

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Summary of Dangerous Offender & Ancillary Frameworks