Ancillary Orders Consultation

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

1. The court must consider making a compensation order in any case where personal injury, loss or damage has resulted from the offence. It can either be an ancillary order, or, a sentence in its own right (which does not attract a surcharge).  The court must give reasons if it decides not to order compensation (Sentencing Code, s.55).

2. There is no statutory limit on the amount of compensation that may be imposed in respect of offences for an offender aged 18 or over. Compensation may also be ordered in respect of offences taken into consideration (Sentencing Code, s.139).

3. If there are multiple victims who are to receive compensation, a separate compensation order must be made in relation to each one.

4. Where the personal injury, loss or damage arises from a road accident, a compensation order may be made only if there is a conviction for an offence under the Theft Act 1968, or the offender is uninsured and the Motor Insurers’ Bureau will not cover the loss (Sentencing Code s. 136).

5. Subject to consideration of the victim’s views (see paragraph 7 below), the court must order compensation wherever possible and should not have regard to the availability of other sources such as civil litigation or the Criminal Injuries Compensation Scheme. Any amount paid by an offender under a compensation order will generally be deducted from a subsequent civil award or payment under the Scheme to avoid double compensation. Victims who suffer minor injuries will usually not be eligible to claim under the Criminal Injuries Compensation Scheme. It is therefore of greater importance that appropriate applications for compensation are made during criminal sentencing exercises. A guide to suggested amounts for specific injuries commonly seen in magistrates’ courts is provided below.

6. Compensation may be ordered for such amount as the court considers appropriate having regard to any evidence and any representations made by the offender or prosecutor. The court must also take into account the offender’s means (see also paragraphs 10 -12 below).

7. Compensation should benefit, not inflict further harm on, the victim. Any financial recompense from the offender may cause distress. A victim may or may not want compensation from the offender and assumptions should not be made either way. The victim’s views are properly obtained through sensitive discussion by the police or witness care unit, when it can be explained that the offender’s ability to pay will ultimately determine whether, and how much, compensation is ordered and whether the compensation will be paid in one lump sum or by instalments. If the victim does not want compensation, this should be made known to the court and respected.

8. In cases where it is difficult to ascertain the full amount of the loss suffered by the victim, consideration should be given to making a compensation order for an amount representing the agreed or likely loss. Where relevant information is not immediately available, it may be appropriate to grant an adjournment if it would enable it to be obtained. However, compensation orders are for straightforward cases and a court should not embark on a detailed inquiry as to the extent of any injury, loss or damage – that is better left to civil proceedings, but the making of a compensation order does not preclude a victim from making a civil claim at a later date, subject to the Limitation Act 1980.

9. The court should consider two types of loss:

• financial loss sustained as a result of the offence such as the cost of repairing damage or, in case of injury, any loss of earnings or medical expenses;
• pain and suffering caused by the injury (including terror, shock or distress) and any interference with day to day activities. This should be assessed in light of all factors that appear to the court to be relevant, including any medical evidence, the victim’s age and personal circumstances.

10. Once the court has formed a preliminary view of the appropriate level of compensation, it must have regard to the means of the offender so far as they are known. Where the offender has little money, the order may have to be scaled down or additional time allowed to pay; the court may allow compensation to be paid over a period of up to three years in appropriate cases.

11. The fact that a custodial sentence is imposed does not, in itself, make it inappropriate to order compensation; however, it may be relevant to whether the offender has the means to satisfy the order. Magistrates should consult their legal adviser in any case where they are considering combining compensation with a custodial sentence.

12. Where the court considers that it would be appropriate to impose a fine and a compensation order but the offender has insufficient means to pay both, priority should be given to compensation. Compensation also takes priority over the surcharge where the offender’s means are an issue.

13. The court must make an order (“a collection order”) relating to the payment of the sum due, unless it appears to the court that it is impracticable or inappropriate to make the order.

The collection order must state:

(a)  the amount of the sum due, including the amount of any fine, compensation order or other sum

(b)  whether the court considers the offender to be an existing defaulter and if so whether the existing default (or defaults) can be disregarded

(c)  whether the court has made an attachment of earnings order or an application for benefit deductions

(d)  if the court has not made an attachment of earnings order or application for benefit deductions, the payment terms

(e)  if an attachment of earnings order or application for benefit deductions has been made, the reserve terms (in other words, the payment terms that will apply if the AEO or ABD fails). It will often be appropriate to set a reserve term of payment in full within 14 days.

Schedule 5 to the Courts Act 2003

14. Failure to pay a compensation order is a criminal matter and carries a penal sanction.

15. No sentence in default can be imposed unless the compensation order is for £20,000 or more, in which case it is enforceable as a fine of such an amount.