Ancillary Orders II

Compensation

The Criminal Justice Act 1993 provides generally, for orders of payment of compensation to victims.  Payment of compensation may be a condition of an order under the Probation of Offenders Act.

Certain other legislation provides specifically for orders for payment of compensation as a possibility on conviction.  For example, the Criminal Damage Act makes specific provisions in this regard.

The 1993 Act provides a general power for courts to order offenders to compensate their victims in relation to loss and injury resulting from the offence.  It is potentially applicable to many offences.  There is a procedure for making an order for variation and appeal of the order.

On conviction for an offence, the court may instead of, or in addition to dealing with them in any other way, may unless it sees reason to the contrary, make a compensation order.  This requires the convicted person to pay compensation in respect to any personal injury or loss resulting from that offence or other offence, taken into consideration.

The compensation is payable to an injured person how has suffered injury or loss as a result of the offence. Damage to property may be the subject of compensation.

The District Court compensation order may not exceed the court civil jurisdiction limit (€15,000).  Compensation is not allowed for injury arising out of the abuse of a motor vehicle in public unless the offender was uninsured, or he had taken the vehicle out of the owner’s possession and damaged it before recovery.

Means of Offender

The court is to have regard to the means of the offender, his parents and guardians in fixing compensation.  It may be paid in instalments.  It is paid to the District Court office for transmission to the injured party.

The court may impose a fine and a compensation order. It must have regard to the means of the offender.  It may give preference to the compensation order.

Drug Trafficking

Drug trafficking legislation provides for very wide-ranging confiscation orders on conviction.  This matter is dealt with in a separate chapter. Where a person has been sentenced or dealt with in respect to drug trafficking offences, the court is to determine if the person has benefited from drug trafficking.  If it decides that the person has benefited to a sufficient degree, it shall determine the amount to be recovered and make a confiscation order requiring payment of that amount.

There are certain presumptions that property is held by a person for payment or reward in connection with drug trafficking until the contrary is sown, or if there is a serious risk of injustice if the assumption is made.

The amount to be recovered is the amount assessed by the court as the value of the proceeds from drug trafficking.  If the amount cannot be realised at the time when the confiscation order is made, an order may be made for a realisable amount.

The DPP made within six years apply to the court to determine if that person has benefited from drug trafficking.  This may be undertaken even if a previous application has been refused.  He must furnish new evidence, in this case.

General Confiscation Powers

There is provision for confiscation orders for non-drug trafficking offences.  If an application is made or cause shown by the DPP, the court may subject to the conditions in the statute,  make a confiscation order requiring the person concerned to pay such sum as the court sees fit in respect to a non-drug trafficking offence.

The provision applies to convictions on indictment.  The applications are generally made at the end of proceedings, where the defendant has benefited from the offence.

A person may be presumed to have benefited from the offence if he obtains property as a result of or in connection with the commission of the offence and the benefit is the value of the property so obtained.  The amount to be recovered is not to exceed the benefit or advantage, which the court is satisfied has been obtained by the defendant or the amount appearing to the court, that might be realised when the order is made, whichever is smaller.  The civil standard of proof applies.

In making confiscation orders, other penal orders against the defendant are to be taken into account.  They include fines, forfeitures or similar orders under other legislations.

An application may be made to the High Court to vary a confiscation order.  It may vary the order if the value of the realisable property is inadequate for the payment.  If the inadequacy is due to action by the defendant to preserve the property from confiscation, then it may be disregarded.

Enforcement

A confiscation order may be enforced by the DPP as if it was a High Court order.  A person may be imprisoned in the same way for contempt for failure to pay.  The DPP and defendant are entitled to apply to the court to make representations before sentencing by the court.

Maximum periods of a sentence are laid down by law and can vary from relatively low amounts where a relatively small amount of money is concerned,  up to 10 years in the case of larger amounts of money. There is a provision for an appeal against a confiscation order to the Court of Appeal.  The court may uphold it in whole or in part.

Ancillary Disqualification

Upon a drunk driving conviction and certain other road traffic offences, the courts must or may impose a disqualification order.  A disqualification order may be labelled as consequential or ancillary. The order for disqualification may be mandatory,  depending on the level of blood alcohol concentration and the number of previous offences.  See generally the sections on road traffic.

Many road traffic offences carry the possibility of a discretionary qualification.  This is without prejudice to the infliction of any other punishment.  Disqualifications are generally for one or two years. Ancillary disqualifications which are discretionary may be for a longer period.

The courts have held that the imposition of consequential and ancillary disqualification order does not make a minor offence, a serious offence requiring a trial by jury as part of the core punishment.  This is so irrespective of fact that the consequence for a particular individual may be very serious.

Forfeiture of Objects

Legislation provides for forfeiture of objects which are involved in crime.  The courts have jurisdiction under various legislation appropriate to the particular type of offence, for example, under drug and drug trafficking legislation, forfeiture may be ordered of anything shown to relate to the offence including apparatus, et cetera.

The Criminal Justice Act 1994 provides general power of forfeiture.  Where a person is convicted of an offence and the court is satisfied that property which has been lawfully seized or which is in his possession or under his control at the time of apprehension or summons, has been used for the purpose of committing or facilitating the commission of the offence or was intended to be used for that purpose, it may make a forfeiture in relation to the property.

An order may be made if an offence or an offence is taken into consideration in sentencing consists of unlawful possession of property that has been lawfully seized from the offender or was in his possession at the time of apprehension or summons.  The court may make a forfeiture order even if it deals with the offender in any other way when dealing with the offence in question.

In considering whether to make a forfeiture order, the court should have regard to the value of the property, the likely financial and other effects on the offender together with other orders.

The effect of the order is to deprive the offender of his rights to the asset concerned.  A person claiming to be the owner of the property must be given the opportunity to be heard if he so applies.  A forfeiture order must not take effect until after the appeals period or process has concluded.

A claimant of the property must make an application within six months of the order and must satisfy the court either that he has not consented with the offender holding it or did not know or had no reason to suspect the property was likely to be used in connection with a crime.

Miscellaneous Powers

There are a number of other provisions, providing for forfeiture in legislation made within the last 25 years.  In certain cases, forfeiture is mandatory particularly in relation to serious drugs and terrorist type offences.

In the context of theft offences, the court may order that property which has been stolen is restored to the true owner.

Deportation is not available as a sanction to the Irish courts in respect of Irish citizens. The courts have on occasion suspended the sentence on conditions that  a non-Irish citizen is bound over on condition that he leaves the State for a period or indefinitely.