Compensation Orders and Civil Liability
| Date | 01 November 1985 |
| Author | Martin Wasik |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00872.x |
| Published date | 01 November 1985 |
Nov.
19851
NOTES
OF
CASES
707
Lord Fraser’s 0pini0n.l~ The implication in this is that judges
should be more ready than they sometimes appear to be14 to make
explicit the assumptions upon which their decisions in custody
issues are based. Otherwise the appellate court will be urged to
make unsatisfactory speculations whether the judge “must have”
applied a wrong principle. Apart from that, these assumptions are
matters of genuine public concern, which require open consideration
and debate, and upon which the appellate courts must take a
position in order to give adequate guidance to the decision makers
in the front line. They should not be shielded beneath a “discretion”
about whose exercise reasonable people might differ.
JOHN
EEKELAAR*
COMPENSATION ORDERS
AND
CIVIL LIABILITY
IN
R.
v. Chuppell’ the Court of Appeal has established that a
criminal court may make a compensation order against a defendant
even though there is no right in the recipient of the order to sue
the defendant in the civil courts. This is a striking decision. As well
as being of considerable theoretical interest, it may well have
significant practical implications.
The defendant pleaded guilty to three counts alleging offences
against section
167(1)
of the Customs and Excise Management Act
1979,
the particulars being that he recklessly caused to be delivered
to the Commissioners
of
Customs and Excise a return of Value
Added Tax which understated the value of supplies made by
Pumphall Ltd., a firm trading in carpets and floor coverings, of
which the defendant was a director. Underpayment of VAT
totalled over
f9,OOO.
The defendant was fined
f4,500
and a
compensation order was made under section
35
of the Powers of
the Criminal Courts Act
1973
to the value of the sum
of
VAT
outstanding. The system of record-keeping used
by
the firm was
said by the Court of Appeal to be “chaotic,” the defendant having
signed inaccurate returns without troubling to look at them.
Applying the wording of section
35,
the Commissioners of Customs
and Excise had clearly suffered
“. . .
loss or damage resulting from
that offence” to the value of
f9,000.
On appeal, it was argued on
behalf of the appellant, who contested the compensation order,
that such an order was simply a means of enforcing a civil liability
’’
The same conclusion might be drawn from a dictum
of
Lord Scarman, also approved
by Lord Fraser, that “the court may not intervene unless
it
is satisfied either that the
judge exercised his discretion on a wrong principle
or
that, the judge’s decision being
so
plainly wrong, he must have exercised his discretion wrongly”:
B.
v.
W.
(wardship:
appeal)
[1979]
1
W.L.R.
1041, 1055.
In the context
of
Lord Fraser’s opinion, however, it
is
possible
to
conclude that “wrong” as applied to “principle” means
to
have “exceeded
the generous ambit within which reasonable disagreement is possible.” This,
it
is
submitted, would be a mistake.
*
Fellow
of
Pembroke College, Oxford.
I
(1985) 80
Cr.App.R.
31.
See
re
W.
(a minor)
(1983) 13
Family Law
47;
Hoey
v.
Hoey
[1984]
1
All
E.R.
177.
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