ANCILLIARY ORDERS

INTRODUCTION

In this unit, we will examine the problems associated with the proceeds of crime, is it proper to merely sentence the offender to a term of imprisonment without going further to deal with the proceeds of the crime? Where the object of crime had been to deprive the owner of his or her property, is it proper to allow the offender to go to a term of imprisonment only without further making orders as to the proper disposal of the proceeds of the crime? The innocent victim of the crime may quite truelly embark on a civil action to recover his property or money from the offender; but this is a long wounded procedure, and the criminal court ought to use its powers under the law to not only order compensation for the victim of crime but also restitution of property where it would still be traced or recovered. The court also has power to confiscate property especially those used by the offender in the perpetrated of the crime. to the rightful owner, and also order compensation or damages to the victim in order to restore the victim to his position before the crime was committed. (See S.267-270 CRP).

Compensation orders in effect direct an offender to pay money to the court for transmission to a victim who has suffered personal injury, loss or damage as a result of an offence. The offence must be one of which the offender has just been convicted, or which has been taken into consideration by the sentencing court. The order may be made as a result of an application by the victim, or without one, although victims cannot safely assume that the court will always remember to consider compensation. A compensation order can be made either in addition to or instead of any other sentence or disposal, so that it be the only sentence imposed. The court of Appeal in England in the case of R vs Miller (1976) crime L.R. 694 gave some condition for the award of compensation by the criminal court, these are

They are not alternative to a sentence, in other words, the order of compensation is generally made with and in addition to other sentences mainly custodial and fine.

They should be made when the legal position is clear. The court for instance in the case of Kneeslaw (1974) 58 cr. App. Rep. 439, the court ruled that compensation order through extremely beneficial so long as it is confined to simple, stra4ight forward cases and generally cases where no great amount is at stake.

Regard must be had to the offender’s means.

The order must be precise, relate to an offence, specify the amount, and the instalments if there is to be payment by instalments;

The order must not be oppressive,

The order may be made on good moral grounds to remind the offender that crime is not good.

An order must be realistic where instalmental payment is allowed, if ought not to be for a long period.

Where the offer for payment of compensation proceeded from the offender, the counsel must ascertain the capability of his client before he makes the offer.

Where the offender is to be sentenced to a term of imprisonment this should be done not withstanding that the offender is in a position to pay compensation.

A compensation order may be made against an offender even when the offender would not be heed liable for compensation in civil law.
The value to be set for the victim loss must be properly proved.

Restitution Order

A Court can order anyone having possession or control of stolen goods to restore them to any person entitled to recover them. Alternatively, it can or an application by a person entitled to recover goods from the convicted person, order goods to be delivered or transferred to the applicant.
Another alternative open to the court if money was taken from the convicted person when he was apprehended, is to order a sum to be paid out of it, not greater than the value of the stolen goods, to the person who is entitled to them. The goods must have been stolen, and the person who is made the subject of the order must either have been convicted of the theft or had it taken into consideration in the determination of his sentence.


The court must ensure that the proper party that is, the rightful owner gets the property to avoid unnecessary complications or further court actions. The criminal court, will not however begin to call evidence to ascertain the rightful owner of property, but may allow the owner present valid documents or evidence to prove ownership (See Ferguson) (1970) 54 Cr. App. Rep. 410. The court should ensure that the victim do not gain more than he has lost (See S.267-268 CRA).
Where, the property is in the possession of a third party who may have acquired it without any notice that it was stolen, the court is empowered under S.270 CRA to order restitution to the rightful owner with or without payment of compensation by the owner to such third party in whose possession the property is found. This does not apply to negotiable instrument which shall have been bona fide received by transfer or delivery by any person for a just and valuable consideration without notice or without any reasonable cause to suspect that it has been stolen. See S.270 (2)(b).

 Confiscation of Property

The court has the general power to order the confiscation of property used by or intended by the convicted person to be used for the purpose of committing or facilitating any offence. See S.264 CRA

The property must have been in the possession or under the control of the offender at the time of his apprehension. The property must have been used in the commission of the offence. In making the order for confiscation of the property, the court may order that the property be kept with the police, or sold and the proceeds be held as it directs until some person establishes to the court’s satisfaction a right thereto; and if no person establishes such a right within six months from the date of forfeiture or confiscation such property or the proceeds therefore shall be paid into the court. Where an appeal has been lodged against the order, the order for confiscation will stay until the determination of the appeal unless the property is a perishable one.

 CONCLUSION

The power of the criminal court to order compensation for the victim of a crime is a veritable power that enables the victim to go home satisfied without any further expense by him. It helps quite well to deprive the offender of the proceeds and profit if crime and also shows that crime do not pay. It is very good machinery for deterrence and helps to restore the parties to status quo.

SUMMARY

We have examined compensation order, and when it could be made by the court. The order is always generally useful with other custodial or non-custodial sentences. It may be combined with fine or prison terms, or community service. The court may also order confiscation of the property used in the commission of an offence. Restitution of property like compensation restores the owner to the status prior to the offence and is also additional to other sentences that may be imposed.