SECOND GROUP OF PARTSProvisions applying to sentencing courts generally
PART 3Procedure
CHAPTER 2Derogatory assertion orders
I139Order in respect of certain assertions
1
This section applies to an assertion that forms part of a speech in mitigation made by or on behalf of an offender before—
a
a court determining what sentence should be passed on the offender in respect of an offence, or
b
a magistrates' court determining whether the offender should be committed to the Crown Court for sentence.
2
This section also applies to an assertion that forms part of a submission relating to a sentence which is made by or on behalf of the offender before—
a
a court hearing an appeal against or reviewing the sentence, or
b
a court determining whether to grant leave to appeal against the sentence.
3
The court may make a derogatory assertion order in relation to an assertion to which this section applies where there are substantial grounds for believing—
a
that the assertion is derogatory to a person's character (for instance, because it suggests that the person's conduct is or has been criminal, immoral or improper), and
b
that the assertion is false or that the facts asserted are irrelevant to the sentence.
4
Where it appears to the court that there is a real possibility that a derogatory assertion order will be made in relation to an assertion, the court may make an interim derogatory assertion order in relation to it (see subsection (8)).
5
No derogatory assertion order or interim derogatory assertion order may be made in relation to an assertion which it appears to the court was previously made—
a
at the trial at which the offender was convicted of the offence, or
b
during any other proceedings relating to the offence.
6
Section 38(1) has effect where a court makes a derogatory assertion order or an interim derogatory assertion order.
7
A derogatory assertion order—
a
may be made after the court has made the relevant determination, but only if it is made as soon as is reasonably practicable after the determination has been made;
b
subject to subsection (10), ceases to have effect at the end of the period of 12 months beginning with the day on which it is made;
c
may be made whether or not an interim derogatory assertion order has been made with regard to the case concerned.
8
An interim derogatory assertion order—
a
may be made at any time before the court makes the relevant determination, and
b
subject to subsection (10), ceases to have effect when the court makes the relevant determination.
9
For the purposes of subsections (7) and (8) “relevant determination” means the determination of—
a
the sentence (where this section applies by virtue of subsection (1)(a));
b
whether the offender should be committed to the Crown Court for sentence (where this section applies by virtue of subsection (1)(b));
c
what the sentence should be (where this section applies by virtue of subsection (2)(a));
d
whether to grant leave to appeal (where this section applies by virtue of subsection (2)(b)).
10
A derogatory assertion order or interim derogatory assertion order may be revoked at any time by the court which made it.