(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.
Commencement Information
I1S. 39 in force at 1.12.2020 by S.I. 2020/1236, reg. 2