Sentencing - Ancillary orders (e.g., compensation, disqualif...

Learning Outcomes

This article examines ancillary orders in criminal sentencing. Candidates will gain a systematic understanding of:

• The main types of ancillary orders available to courts: compensation orders, disqualification orders (driving, directorship, and others), deprivation orders, and confiscation orders
• Statutory sources and the specific statutory powers conferring authority for each order, with emphasis on the Sentencing Code 2020, the Company Directors Disqualification Act 1986, the Proceeds of Crime Act 2002, and other relevant statutes
• Procedural principles and statutory criteria governing the imposition of ancillary orders, distinguishing between mandatory and discretionary orders, and the requirement for courts to provide reasons if departing from statutory presumptions
• Prioritisation and order of financial penalties, such as compensation taking precedence over fines, and the allocation process when offender means are limited
• Interaction between ancillary orders and the principal sentence (custodial, community, or non-custodial): the effect on sentencing options, cumulative impact on the offender, and court duty to give clear rationale for decisions made
• Application of ancillary orders in realistic criminal case scenarios, including analysis of how courts select, consider, and justify orders tailored to the facts and offender profile
• Distinctions between deprivation and confiscation orders, clarifying their aims, scope, and consequences in the context of criminal sentencing
• Special considerations for children and young persons, including welfare priorities, the Sentencing Children and Young People Definitive Guidelines and the statutory approach to ancillary orders in youth cases, including compatibility with rehabilitation aims

SQE1 Syllabus

• statutory powers authorising ancillary orders, including but not limited to compensation, disqualification, deprivation, and confiscation
• distinction between mandatory and discretionary ancillary orders, and understanding when the court must give reasons for not imposing them
• prioritisation and interaction of ancillary orders with the principal sentence (and between themselves)
• principles, requirements, and statutory limitations of the most commonly tested orders: compensation orders, disqualification orders (driving and professional), deprivation, and confiscation orders
• application of these principles to adults and youths, including special youth court sentences and orders
• practical worked examples reflecting typical SQE1 scenarios

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In which circumstances must a court consider making a compensation order?
2. What is the difference between a deprivation order and a confiscation order?
3. Can a court impose a driving disqualification for offences not involving a vehicle?
4. What principle governs the amount of compensation ordered when the offender has limited means?

Introduction

Ancillary orders are statutory orders imposed by the criminal courts alongside the principal sentence. These orders do not serve the core punitive function of sentencing, such as imprisonment, community service, or fines. Instead, they target specific consequences—reparation to victims, protection of the public, reduction of risk, rehabilitation, or removal of criminal property and advantage. The grounds and mechanisms for these orders are governed by various statutes, with well-defined powers, limitations, and procedures that courts must apply and justify in each case.

Key Term: ancillary order
An order made by the court in addition to the main sentence, addressing compensation, disqualification, deprivation, or other prescribed statutory outcomes.

The imposition of ancillary orders may be mandatory or discretionary, and courts are generally obliged to consider, and in some cases give priority to, particular orders, especially those that aid reparation to victims or prevent further offending. Critically, ancillary orders often have substantial and sometimes long-lasting effects: they may reshape a defendant’s employment, financial circumstances, civil rights, or liberties, and in some cases, overlap or interact with civil remedies or regulatory sanctions.

Ancillary Orders: Overview and Statutory Basis

Ancillary orders derive authority primarily from the Sentencing Code 2020 (SC 2020), which consolidates the statutory framework for sentencing powers in England and Wales. Additional specialist statutes supplement powers for particular contexts, including, for example, the Company Directors Disqualification Act 1986 for directorship bans and the Proceeds of Crime Act 2002 for confiscation of criminal proceeds. Statutory powers clarify:

• Which types of ancillary orders a court may make in connection with particular offences or offender profiles
• Whether the order’s imposition is mandatory, discretionary, or subject to a rebuttable presumption
• The specific statutory criteria and procedural safeguards required (including considerations of proportionality and offender circumstances)
• Circumstances demanding judicial reasoning—courts must record reasons when not imposing an order that statute otherwise requires

Key Term: statutory power
The legal authority, generally found in statute, which enables a court to impose an ancillary order.

Ancillary orders most relevant for SQE1 include:

• Compensation orders (direct victim reparation)
• Disqualification orders (driving, professional, or public office bans)
• Deprivation orders (removal of property used for crime)
• Confiscation orders (forfeiture of criminal benefit)

Each operates to achieve distinct objectives, and it is essential to distinguish their statutory basis, scope of application, and procedural requirements. Courts must always ensure compliance with statutory priorities and consider the cumulative effect of ancillary and principal sentences.

Compensation Orders

A compensation order compels an offender to pay a specified sum to the victim for direct loss, damage, or injury arising from the offence (SC 2020, s.130). The power to make a compensation order is central to restorative sentencing, and courts must actively consider its imposition in every case where any identifiable loss or injury results from the crime.

Key Term: compensation order
An order requiring the offender to pay compensation to the victim for loss, damage, or injury resulting from the offence.

Statutory Duty to Consider and Prioritise

Courts are under a statutory duty to consider making a compensation order whenever loss, injury, or damage is reported—this applies irrespective of whether the principal sentence is custodial, community-based, or a fine. Reasons must be recorded if the court decides not to make a compensation order, for example, due to insufficient evidence of loss or the insignificance of injury.

SC 2020, s.130 expressly states that compensation orders should be considered and, where made, take priority over fines or other financial penalties. The rationale is to secure victim restitution above penal revenue for the state.

• If the offender lacks means, the court must still consider what can realistically be paid, favouring instalments or partial compensation rather than omitting the order.
• Decisions on quantum should be informed by the evidence, proportionality, and the offender’s financial circumstances.

Scope of Compensation Orders

Compensation orders can include:

• Physical injury, pain, and suffering (including psychological injury, loss of amenity)
• Economic loss (e.g., repair costs, replacement value, medical fees)
• Loss of earnings and treatment costs resulting from the offence, provided causation and amount are established with reasonable certainty

The award must be directly attributable to the conduct for which the offender is convicted, so courts must avoid compensating loss for unrelated or speculative damages.

It is important to note that the making of a compensation order in criminal proceedings does not bar the victim from pursuing further civil remedies for unrecompensed losses, although any sum paid under the compensation order will be deducted from any subsequent civil judgment.

• Multiple victims: Where more than one victim suffers loss, courts may apportion compensation—each award must be justified, and reasons given for allocation (especially if full compensation to all is impossible).

Compensation is not punitive; rather, it aims for practical restoration.

Assessment of Amount: Principles and Constraints

Assessment involves balancing restorative justice with the reality of the offender’s means. Courts must:

• Calculate an appropriate sum based on proven loss, ensuring the order is not excessive or impossible to comply with
• Avoid setting compensation at levels that compromise rehabilitation prospects or unduly penalise offenders who have no immediate ability to pay
• Clearly prioritize compensation over fines: when funds are limited, compensation is deducted first, and only residual sums are allocated toward fines or other financial penalties

Where appropriate, courts should set orders to be payable by instalment, or opt for a reduced lump sum reflecting the offender’s means. The welfare of the offender, especially for young persons or those with care responsibilities, is relevant.

Worked Example 1.1

A defendant is convicted of criminal damage after breaking a shop window. The repair cost is £600. The defendant has limited income. What must the court do?

Answer:
The court must consider making a compensation order for the £600 loss. Compensation has priority over any fine. The court should take account of the defendant’s limited means, perhaps ordering payment by instalments or reducing the amount if full payment is unrealistic at one time. Reasons must be given if a compensation order is not made.

Compensation Orders and Multiple Financial Penalties

Where courts contemplate both compensation and fines or costs, SC 2020, s.135 mandates that compensation be afforded priority. The court must determine the total amount the offender can pay, allocate compensation first, and consider whether there is capacity for a fine. This discipline ensures victim restitution is not undermined by parallel financial penalties.

Application to Youth Offenders

For children and young persons (aged 10–17), the application of compensation orders requires additional care. The Sentencing Children and Young People Definitive Guidelines stress that sentencing should support rehabilitation and prevent unnecessary criminalisation or hardship.

Compensation orders may be made against youths where loss or injury results, but the court must consider the offender’s age, maturity, likely ability to pay, and the impact on welfare. Orders should not jeopardise the young person’s reintegration into society. A parent or guardian may be ordered to pay on the youth’s behalf, subject to the court’s assessment of the family’s means and the circumstances.

Worked Example 1.2

A 14-year-old is convicted of causing damage to a neighbour’s car. The repair costs are £400. The youth is unemployed and lives with a single parent.

Answer:
The court must consider a compensation order for £400. Given the youth’s inability to pay, the court may order the parent to pay (if appropriate), or may structure payment in instalments. The order must not be excessive and must be designed to avoid compromising welfare or educational prospects.

Disqualification Orders

Disqualification orders prohibit an offender from engaging in specific activities (such as driving, acting as a director, or working in regulated roles), where the offence or the offender’s behavior merits exclusion for protection of the public or deterrence of further offending.

Key Term: disqualification order
An order prohibiting the offender from engaging in specified activities (e.g., driving, acting as a company director, holding public office) for a set period, to protect the public and prevent reoffending.

The imposition of disqualification orders will depend on the statutory context, the seriousness of the offence, and a clear need for public protection. Disqualification is generally preventive, rather than punitive.

Driving Disqualification

Part 7 of the Sentencing Code, together with specific road traffic legislation, governs driving disqualification orders. They are made under several scenarios:

• Mandatory disqualification: For certain serious offences, such as causing death by dangerous driving, driving under the influence of alcohol/drugs, or repeated dangerous driving offences, the court is required to impose a period of disqualification unless there are ‘special reasons’ directly linked to the offence justifying an exception.
• Discretionary disqualification: For other road traffic offences, the court may consider disqualification based on the circumstances of the offence and the defendant’s history, but is not compelled to do so.

The court will specify the period of disqualification, which must be reasonably commensurate with the severity of the offending. Certain statutory provisions allow deduction of time served under interim disqualification (imposed while awaiting trial), ensuring fairness.

Driving disqualification may, in exceptional cases, be imposed where the offence does not directly involve driving but the wider circumstances justify exclusion from driving as a protective or deterrent measure.

Where required by statute (for example, re-taking the driving test, extended retest, or restoration protocols), the disqualification order may include additional steps for regaining driving privileges.

Special Reasons and Reduction of Disqualification

‘Special reasons’ are narrowly construed as mitigating circumstances relating directly to the offence (not the offender), justifying departure from mandatory disqualification (e.g., medical emergency leading to offence). Courts must record clear and reasoned findings if departing from statutory norms.

Disqualification from Directorship and Professional Activities

Other forms of disqualification orders arise under statutory regimes designed to protect economic, social, or vulnerable interests.

• Under the Company Directors Disqualification Act 1986, those convicted of offences involving dishonesty may be disqualified from directorship or company management for a period (statutorily determined, typically 2–15 years). Factors considered include the nature of the dishonesty, role, public harm, and risk of repeat offending.
• Disqualification from working with children or vulnerable adults proceeds under frameworks such as the Safeguarding Vulnerable Groups Act 2006, barring offenders from employment or voluntary posts involving direct contact with vulnerable populations.
• Other professional and regulatory disqualifications are available for certain offences, e.g., firearms or security licenses, charitable trusteeships, or positions of public trust.

Disqualification orders must be proportionate, appropriate to the risk, and designed to prevent future harm or offending. Courts should consider rehabilitation, especially in younger or first-time offenders, and avoid unnecessary obstacles to reintegration where public protection allows.

Worked Example 1.3

A defendant is convicted of fraud while acting as a company director. What ancillary order may the court consider?

Answer:
The court may impose a disqualification order under the Company Directors Disqualification Act 1986, barring the defendant from being a director or managing a company for a period determined by the seriousness and context of the offending. The order prevents further harm by restricting involvement in company affairs.

Additional Practical Features

Disqualification orders are generally imposed in addition to the main sentence and may overlap, supplement, or interact with other regulatory or civil prohibitions. Courts must specify the duration, ensure the subject is aware of any mechanisms for appeal or review, and explain the consequences of breach (often further criminal penalties or enhanced period of disqualification).

Deprivation Orders

Deprivation orders serve to confiscate property used or intended for use in the commission or facilitation of an offence, as authorized mainly by the Sentencing Code 2020 and complemented by separate statutes for particular categories (e.g., firearms or vehicles).

Key Term: deprivation order
An order depriving the offender of property used in or intended for use in committing the offence, with the objective of preventing further offending and removing the tools of crime.

Purpose and Operation

The central aim is to remove from the offender those means, tools, or assets that have facilitated criminal behaviour, thereby protecting the public and deterring future offending. The court may order forfeiture and lawful disposal of:

• Vehicles used in the commission of offences (e.g., poaching, uninsured driving, transporting illicit goods)
• Weapons or equipment (e.g., knives, firearms, burglary tools)
• Electronic devices (e.g., computers used in fraud, mobile phones in drug trafficking cases)

The property in question must be directly linked to the offence, either used or intended for use. Statute demands that deprivation be justified by the needs of justice and proportionate; unnecessary or excessively punitive forfeiture is not permitted.

Consideration of Third-Party Interests and Proportionality

Where property subject to deprivation is owned jointly with third parties, or where innocent interests intervene (e.g., leased items, co-owned vehicles), courts are required to consider the rights and interests of third parties before making a deprivation order.

Proportionality is key: courts must assess not only the value but also the offender’s circumstances, relevance to future offending, and avoidance of hardship unnecessary for the protection of the public.

Worked Example 1.4

A defendant is convicted of poaching using a vehicle and firearms. What may the court order?

Answer:
The court may make a deprivation order for both the vehicle and firearms used in committing the offence. The order deprives the defendant of ownership and permits lawful disposal—preventing future use in similar crimes and deterring future offending.

Deprivation orders are applied with care to ensure the property has a clear nexus to the proven wrongdoing and that no excessive punitive consequence arises outside the statutory scheme.

Confiscation Orders

Key Term: confiscation order
An order requiring the offender to pay an amount equivalent to the benefit obtained from criminal conduct, made under the Proceeds of Crime Act 2002 (POCA).

Confiscation orders seek to strip offenders of the proceeds and profits accrued by criminal conduct, operating as a financial remedy distinct from fines or deprivation.

Statutory Powers and Procedure

Under POCA, confiscation proceedings are generally mandatory if the prosecution requests them and the benefit threshold is met. The court must:

• Determine whether the offender has benefited from criminal conduct, applying asset-tracing and lifestyle presumptions where statute allows. In lifestyle cases, the statutory assumption extends to assets and expenditures not apparently connected to the immediate offence.
• Calculate the recoverable amount based on the extent of benefit, constrained by the value of the offender’s assets at the time of making the order.
• Make a confiscation order for the calculated sum, imposing a deadline for payment and identifying statutory consequences of default (including further imprisonment).
• Consider proportionality, allowing arguments where enforcement would violate fundamental rights or fall outside the statutory objectives.

Confiscation operates independently from deprivation: assets need not be directly traceable to the offence before the court if linked by statutory presumption.

Failure to pay a confiscation order within the set period may expose the defendant to additional custodial sanctions, and outstanding amounts remain enforceable.

Interaction with Compensation and Other Ancillary Orders

Where both compensation and confiscation orders may be available, SC 2020, s.135 requires prioritisation in favour of compensation to the victim. Courts must assess whether the defendant’s available assets and means permit both orders without causing undue hardship or undermining rehabilitation.

Worked Example 1.5

An offender is convicted of operating a fraudulent investment scheme and has gained £85,000. The prosecution requests confiscation proceedings under POCA.

Answer:
The court must assess the benefit obtained, calculate the recoverable amount (not exceeding realisable assets) and make a confiscation order for £85,000 unless satisfied such benefit cannot be recovered. If the offender cannot pay, enforcement measures and further imprisonment may follow.

Deprivation vs. Confiscation

A deprivation order targets specific property used in the commission of crime with the aim of prevention—e.g., seizing a getaway vehicle used in theft. A confiscation order, conversely, targets the financial benefit from criminal conduct regardless of any one item’s connection to the specific offence—e.g., ordering payment of illegal profits, which may require selling or surrendering unrelated assets.

Deprivation is immediate, property-focused, for public protection; confiscation is financial, benefit-focused, for deterrence and stripping criminal gains.

Principles Governing Ancillary Orders

Courts exercise their powers over ancillary orders in line with basic sentencing principles: proportionality, necessity, rehabilitation, public protection, and avoidance of undue hardship.

• Proportionality: The order must fit the seriousness of the offence and offender circumstances, neither unduly punitive nor so lenient as to undermine statutory intent.
• Necessity: Ancillary orders should be imposed only where they address a real risk, requirement, or loss arising from the offending.
• Victim Compensation: Compensation is prioritized before financial penalties; victim restitution is the primary objective where loss or injury occurs.
• Public Protection: Orders like disqualification, deprivation, and confiscation serve to prevent re-offending, and protect the community—always justified by evidence, not presumption.
• Court Reasoning: Where statute requires consideration of an order (e.g., compensation) or sets out a presumption (e.g., driving disqualification), explicit recorded reasons must be given if the court decides against making an order.
• Interaction of Orders: Courts must avoid duplication and ensure that the cumulative effect of all imposed sentences and orders does not exceed what is proportionate or justified.

In each case, the court balances harm caused, offender culpability, motivation, previous convictions, and any aggravating or mitigating circumstances (including age, health, capacity, and background).

Worked Example 1.6

An offender is convicted of dangerous driving causing injury to a pedestrian. The pedestrian suffered lost earnings and medical expenses. The offender’s only asset is a modest vehicle used in the offence.

Answer:
The court must consider a compensation order for lost earnings and medical costs. A deprivation order for the vehicle may also be justified, given its use in the crime. Compensation is prioritized; deprivation must be proportionate (taking account of the offender’s means and the impact on rehabilitation).

Interaction with the Main Sentence

Ancillary orders, while not punitive in themselves, can significantly impact the overall sentencing outcome:

• A compensation order may reduce funds available for fines or costs and is the first charge on the offender’s limited means.
• Disqualification orders restrict opportunities for employment and civil rights—especially marked in driving or professional bans.
• Deprivation of property can result in significant financial loss and affect livelihood, especially if the property is of considerable value or essential to employment.
• Confiscation orders may precipitate further custody if not satisfied, and may involve forced sale of assets.

In addition, multiple ancillary orders may expose an offender to overlapping sanctions. Courts must guard against excessive penalization—particularly where ancillary orders compound the hardship of a principal custodial or community sentence.

A careful assessment of total impact is required, with courts obliged to avoid “double punishment” or excessive cumulative severity, especially when the offender’s means are marginal and prospects for rehabilitation could be impaired.

Special Considerations for Children and Young Persons

When imposing ancillary orders on children and youths, courts must apply the welfare principle from the Children and Young Persons Act 1933 and the Sentencing Children and Young People Definitive Guidelines. Orders must be proportionate, avoid unnecessary criminalisation, and support rehabilitation and reintegration.

Key statutory and judicial guidelines require that:

• Orders (including compensation and deprivation) reflect the youth’s age, maturity, and individual circumstances; payment levels and methods must be manageable, and may involve parental responsibility where justified.
• Disqualification or prohibition orders (e.g., driving bans, exclusion from certain activities) must be justified by demonstrable public interest and should avoid long-term exclusion disproportionate to the offence or to the youth’s prospects.
• Welfare takes precedence over strict punishment; the aim is to prevent offending, encourage responsibility, and support future rehabilitation.

Worked Example 1.7

A 15-year-old is convicted of theft and criminal damage causing £250 in loss. The youth has limited means and lives with parents.

Answer:
The court must consider a compensation order of £250, with the youth’s age, lack of income, and family circumstances making payment difficult. Instalments or parental payment may be ordered, ensuring the amount is not excessive and does not hinder the youth’s welfare or rehabilitation.

Youth Sentences: Referral Orders, YROs, and DTOs

While not strictly ancillary, understanding youth-specific sentencing orders is essential for context. Referral orders, youth rehabilitation orders (YROs), and detention and training orders (DTOs) are principal sentences for offenders aged 10–17, but may also involve restorative conditions—such as reparative activity, engagement with Youth Offender Panels, and compliance with victim restitution or community service.

The Sentencing Children and Young People Definitive Guideline places emphasis on the offender’s personal development, welfare, likelihood of reoffending, and future prospects. Orders are tailored and must not be so onerous as to induce breach or cause unnecessary hardship.

Enforcement and Reconsideration

Non-compliance with ancillary orders may trigger enforcement action—ranging from financial sanctions for unpaid compensation, enhanced periods or conditions for disqualification, to further imprisonment for default in payment under confiscation orders. Statutory mechanisms exist for reconsideration or appeal in specific circumstances (e.g., for reduction of disqualification duration, or on change of means).

Summary

Ancillary orders are a key part of the sentencing regime in criminal law, supplementing principal sentences by prioritising restitution to victims, safeguarding the public, and ensuring criminals do not profit from offending. The Sentencing Code 2020 and related statutes specify the circumstances, procedures, and priorities for imposing such orders. Courts must exercise judgement to ensure each order is justified and proportionate, giving effect to statutory priorities (with compensation favoured) and supporting rehabilitation—especially for children and young persons.

Case-specific reasoning, transparency, and attention to cumulative burden are essential, particularly when imposing disqualification, deprivation, and confiscation orders, and when offenders have limited means. Youth offenders require tailored orders that protect welfare and support reintegration.

Key Point Checklist

This article has covered the following key knowledge points:

• Ancillary orders are supplementary orders made alongside the principal sentence in criminal cases.
• Statutory powers—often in the Sentencing Code 2020—govern when and how ancillary orders can be made.
• The most relevant ancillary orders for SQE1 are compensation, disqualification, deprivation, and confiscation orders.
• The court must consider a compensation order in every case where loss or injury is caused and provide reasons if not making such an order.
• Compensation takes priority over fines or other financial penalties; the court must assess total offender means.
• Disqualification orders may prohibit driving, holding positions of trust, or particular forms of employment as a means of protecting the public.
• Disqualification may be mandatory or discretionary, and courts must justify departures from the statutory presumption.
• Deprivation orders remove items used in or for committing offences from the offender’s control, but must account for third-party interests and avoid undue harshness.
• Confiscation orders ensure that offenders do not retain the benefit of their crimes, with orders calculated under POCA and enforced by financial and custodial sanctions.
• Ancillary orders must be proportionate, necessary, and based on clearly identified statutory powers.
• Courts must give explicit, case-specific reasons if not imposing an order where required by law.
• For children and young persons, the welfare principle shapes the imposition and nature of ancillary orders.
• Sentencing practice requires detailed consideration of the interaction and prioritisation of orders (e.g., compensation over fines), and the overall impact on rehabilitation and future offending.

Key Terms and Concepts

• ancillary order
• compensation order
• disqualification order
• deprivation order
• confiscation order
• statutory power