Standard 9: Sentencing and confiscation

9.1   Sentencing is the responsibility of the court. The role of the prosecution in sentencing is to assist the court in the sentencing process by making it aware of all relevant information.

9.2   Before the sentencing hearing:

a)  we supply the Probation Service or Youth Offending Service with a summary of the case so that they can prepare a realistic pre-sentence report for the court;

b)  a Witness Care Officer asks or arranges for a police officer or other investigator to ask the victim if they wish to make a Victim Personal Statement or update an earlier one;

c)  in cases in which the sentencing issues are likely to be complex or unfamiliar, or where the court asks us to do so, we prepare written submissions to the court outlining the relevant sentencing provisions and guidelines, any available ancillary orders and any other relevant information not yet known to the court; and

d)  where necessary, we prepare written applications for any appropriate ancillary orders such as Anti-Social Behaviour Orders or Restraining Orders.

9.3   At the hearing the advocate:

a)  outlines the facts of the case to the court, drawing attention to any aggravating features of the offence and any mitigating factors that are apparent from the prosecution case;

b)  provides the court, where appropriate, with a list of other offences that the defendant wishes to have taken into consideration, so that the court can reflect them in the sentence;
[Note: Where the defendant declines to admit an offence at court that he had previously indicated that he would ask the court to take into consideration, prosecutors consider whether he should be charged with it, explaining to the defendant's advocate that the offence may be subject to further review.]

c)  informs the court of any previous convictions, simple cautions or conditional cautions recorded against the offender, drawing particular attention to those that are for similar offences;
[Note: Youth offenders cannot be given a simple caution. They may, however, be given a Reprimand or Final Warning. For convenience, we use the word caution in these standards to refer to these sanctions as well. Youth offenders may be given a conditional caution.]

d)  informs the court of the results of any drugs test carried out at the police station; and

e)  checks whether the pre-sentence report is based on an accurate assessment of the evidence and, if not, draws this to the attention of the court.

9.4   The advocate also draws attention to the impact of the offender's behaviour by:

a)  presenting a Victim Personal Statement to the court, where available;

b)  asking the court to order the offender to pay compensation to the victim, where appropriate; and

c)  providing evidence of the impact of the offending on a community, where appropriate.

9.5   The advocate makes sure that the court considers the full range of sentencing options available to it by:

a)  asking the court to consider ancillary orders that can be made against the offender to reduce the chances of future offending or to protect a victim from future offending. These include Anti-Social Behaviour Orders, Restraining Orders, driving disqualifications and Sexual Offences Prevention Orders;

b)  challenging any defence mitigation that is derogatory to a victim's character, false or irrelevant to proper sentencing considerations;

c)  asking the court to consider ordering the destruction of any items such as drugs or weapons which have been under the control of the offender or which were used in the offence;

d)  assisting the court generally with the sentencing process, drawing the court's attention to any relevant legal provisions, sentencing guidelines and guideline cases, including pointing out the circumstances, such as where the offence is a Hate Crime, where the law requires the court to announce any increase in sentence it has imposed as a result; and

e)  the advocate may also help the court by outlining, in light of the factors mentioned in paragraphs 9.3 and 9.5, the sentencing range in which the current offence falls.

9.6   In addition the advocate asks the court to order the offender to pay all or part of the cost of bringing the case to court, unless there is a good reason not to do so.

9.7   The prosecution does not have power to appeal against sentences. But in a limited range of Crown Court cases, the Attorney General can refer the sentence to the Court of Appeal as unduly lenient - in other words, that the sentence is outside the range that a judge could reasonably consider appropriate. As soon as possible after a sentence, we decide whether to ask the Attorney General to do so. The Attorney General can also consider a referral on his or her own initiative or on a request by the victim or a member of the public. Where the Attorney General decides to refer the sentence, he or she must do so within 28 days of the sentence.

9.8   A Witness Care Officer notifies any victims and lay witnesses of the sentence imposed by the court within a short period of time, including an explanation in plain language of what the sentence means.

Confiscating the proceeds of crime

9.9   Where a suspect or defendant in certain cases appears to have benefited from his or her crime, and there is a fear that he or she will use or dispose of assets, we ask a judge to make a Restraint Order within a short timeframe of a request from the police or other investigators, in order to prevent the suspect or defendant dealing with or disposing of them. We also advise the police or other investigators when we consider that a Restraint Order may be appropriate. As soon as possible after the Order is made, we send a copy of it to the suspect or defendant and relevant organisations, such as banks and building societies, which are in a position to stop the suspect or defendant using his assets. Sometimes, we ask the police or other investigator to do this for us.

9.10  We consider whether other cases received from the police or other investigators may be suitable for confiscation of the proceeds of a defendant's offending. If a case appears to be suitable, we immediately ask the police or other investigator to find out whether he or she has sufficient assets to justify asking the court to confiscate them.

9.11  When a defendant is convicted, and it appears appropriate to seek confiscation of the proceeds of his or her offending, we ask the court to set a timetable for the confiscation proceedings, unless the case is straightforward and confiscation can take place at the same time as the offender is sentenced.

9.12  As soon as possible after a timetable is set, we ask the police or other investigator to finalise their enquiries into the offender's financial and property position.

9.13  Before the confiscation hearing, we send to the court and the offender a summary of the discovered assets so that any disputes about their ownership or value can be decided by the court. We ask the court to decide how much the offender should pay.

9.14  Whilst court staff are responsible for collecting the confiscated sum in some cases, we carry out this work in more difficult cases; for example, where property has to be sold to raise cash. This may involve the appointment of a Receiver.

9.15  We use our powers to take cases back to court where the offender tries to delay or avoid payment.