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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Faithfull v Ipswich Crown Court [2007] EWHC 2763 (Admin) (26 October 2007) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2007/2763.html Cite as: [2008] ACD 8, [2008] WLR 1636, [2008] 3 All ER 749, [2007] EWHC 2763 (Admin), [2008] 1 WLR 1636 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE GIBBS
____________________
FAITHFULL | Claimant | |
v | ||
IPSWICH CROWN COURT | Defendant | |
CROWN PROSECUTION SERVICE | Interested Party |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr R Sadd (instructed by the CPS) appeared on behalf of the Interested Party
The Defendant did not attend and was not represented
____________________
Crown Copyright ©
(1) Whether the order of His Honour Judge Goodin is amenable to judicial review on the grounds relied upon by the claimant or at all.
(2) If the order is amenable to judicial review, did the judge err in law in making the order and/or was it plainly wrong?
(3) Did the order infringe the claimant's right not to be deprived of his possessions under Article 1 of the First Protocol to European Convention on Human Rights or his rights under Article 13?
"From your particular criminal conduct, which is the way this legislation works, you have derived a benefit in the sum of £15,579.01. You have, and I will take it shortly, an amount available to you which essentially is your interest in the matrimonial property in excess of £40,604.50. That amount being available I shall order confiscation in the sum of £15,579.01. You must pay that in full within six months of today's date. If you do not, then you will go to prison for another nine months in default of payment. (Pause) Up to twelve, is it not? I am ordering nine, up to twelve; I am ordering nine. That means the money must be paid by 4 pm on Tuesday 21st November. If it is not, that is when your additional nine months' imprisonment bites."
The judge then went on to consider the issue of whether Miss Underwood should be ordered to pay compensation. On that topic he said as follows at page 17D of the transcript:
"So the law has operated to deprive you of an asset equal to the amount you stole from the employer who entrusted you with his confidence. It also empowers me to make an order compensating your employer, in other words, giving a sum of just over £15,000 directly to him. I was actually sorely tempted to do that even though it would be a double financial hit to you: I do not for two reasons. First, and perhaps most generally, there are undoubtedly circumstances in which an embarrassment of riches or of assets or available benefit might render it right to make an order for compensation as well as an order for confiscation. I do not believe this to be one of those cases because, and here I turn to the specifics, it is quite plain that it would be very hard for your family to remain in the matrimonial home which you, by your dishonesty, have put at risk, but the effect of making a compensation order as well as a confiscation order might be to place their residence at risk. That involves one, soon to be two, of your grandchildren and that would not seem to me to be something that Parliament can have intended or would be in the interests of the public, certainly not of your blameless, apart from Vicky's string of telephone calls to you, your blameless family.
So for those reasons I do not make any order for compensation; the order is limited to one of confiscation."
"(a) decide the recoverable amount, and
(b) make an order (a confiscation order) requiring him [the defendant] to pay that amount [subsection (5)]."
The court's duty under subsection (5) is, however, subject to the provisions of section 7 which restricts the amount recoverable from the defendant to "the available amount" as defined by section 9. Broadly, the available amount is defined as the defendant's total net assets less liabilities. In the present case there is no dispute that the available amount was equivalent to the defendant's benefit which was £15,579.01.
"(1) A court by or before which a person is convicted of an offence, instead of or in addition to dealing with him in any other way, may, on application or otherwise, make an order (in this Act referred to as a 'compensation order') requiring him --
(a) to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence . . .
(3) The court shall give reasons, on passing sentence, if it does not make a compensation order in a case where this section empowers it to do so.
(4) Compensation under subsection (1) above shall be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor . . .
(11) In determining whether to make a compensation order against any person, and in determining the amount to be paid by any person under such an order, the court shall have regard to his means so far as they appear or are known to the court.
(12) Where the court considers --
(a) that it will be appropriate both to impose a fine and to make a compensation order, but
(b) that the offender has insufficient means to pay both an appropriate fine and appropriate compensation.
the court shall give preference to compensation (though it may impose a fine as well)."
Section 132 is headed "Compensation orders: appeals etc":
"(3) The Court of Appeal may by order annul or vary any compensation order made by the court of trial, although the conviction is not quashed; and the order, if annulled, shall not take effect and, if varied, shall take effect as varied."
Section 133 deals with the review and discharge of compensation orders:
"(1) The Magistrates' Court for the time being having functions in relation to the enforcement of a compensation order (in this section referred to as 'the appropriate court' may, on the application of the person against whom the compensation order was made, discharge the order or reduce the amount which remains to be paid; but this is subject to subsections (2) to (4) below."
Subsections (2) and (3) set out the circumstances subject to which subsection (1) may take effect. Subsection (5) provides:
"(5) Where a compensation order has been made on appeal, for the purposes of subsection (4) above it shall be deemed --
(a) if it was made on an appeal brought from a Magistrates' Court, to have been made by that Magistrates' Court;
(b) if it was made on an appeal brought from the Crown Court or from the Criminal Division of the Court of Appeal, to have been made by the Crown Court."
"(5) Subsection (6) applies if --
(a) the Crown Court makes both a confiscation order and an order for the payment of compensation under section 130 of the Sentencing Act against the same person in the same proceedings, and
(b) the court believes he will not have sufficient means to satisfy both the orders in full.
(6) In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person's means."
"29(1) The orders of mandamus, prohibition and certiorari shall be known instead as mandatory, prohibiting and quashing orders respectively.
(1A) The High Court shall have jurisdiction to make mandatory, prohibiting and quashing orders in those classes of case in which, immediately before 1st May 2004, it had jurisdiction to make orders of mandamus, prohibition and certiorari respectively.
(2) Every such order shall be final, subject to any right of appeal therefrom.
(3) In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make [mandatory, prohibiting or quashing orders] as the High Court possesses in relation to the jurisdiction of an inferior court."
The outcome of the issue about jurisdiction depends on whether the issues in the present case are "matters relating to trial on indictment".
"11 . . . (3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may --
(a) quash any sentence or order which is the subject of the appeal; and
(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence
but the court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with in the court below."
"I refer to your letter dated 14th December 2006 and to our recent telephone call regarding the above defendant.
I have to advise you that the judge cannot amend the sentence he imposed under the slip rule as that has to be done within 28 days of the date of sentence. However, as promised I have referred this matter back to HHJ Goodin and explained to him the problems you were having with the East Kent Administration Centre in Dover and that they were refusing to pay out the money received under the confiscation order as there was no compensation order made in favour of Mr Faithfull.
Judge Goodin has looked at this matter again and he has responded as follows:-
'I made no compensation order (as I otherwise would have done) as the Crown were pursuing confiscation under POCA 2002. That was the order I duly made. I would otherwise have made a compensation order and I should regard it as unfortunate, to say the least, if Mr Faithfull receives no satisfaction.'
I am not sure how much the above will assist you but you are free to refer the judge's comments to the East Kent Administration Centre so they are aware of his intention that the confiscated monies are intended to recompense Mr Faithfull.
I hope the above will be of assistance to you."
The remarks in that letter were directed, as I understand it, to the claimant's solicitors and the reference to the East Kent Administration Centre was a reference to the authority which held the money which had been received under the confiscation order.
"It . . . makes clear I must take account of this order [the confiscation order] before I go on to make such an order [the compensation order]."
"Where there has been a trial on indictment and the defendant has been convicted, and the judge makes an error in the extent of his jurisdiction when passing sentence, that, in my judgment . . . plainly falls within the statutory definition under section 29(3) of the Supreme Court Act 1981 of being a matter relating to trial on indictment."
In my judgment, for the same reasons, the present claim falls within the same category. It can be distinguished from the Maidstone Crown Court case in which in the particular circumstances it was held that a supervision order complained of could not be characterised as a sentence.
"Where after trial on indictment the Crown Court makes a confiscation order but fails by reason of an error of law to make a compensation order for the benefit of the victim, does section 29(3) of the Supreme Court Act 1981 preclude any claim for judicial review."