Court of Appeal
| Published date | 01 May 1989 |
| DOI | 10.1177/002201838905300202 |
| Date | 01 May 1989 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
INSTALMENT
ORDERS
ARE
NOT LIMITED TO
ONE
YEAR
R. v. Oliver (Richard)
R. v. Oliver (Michael)
This case sees
the
Court
of Appeal indicatingachangeof sentencing
policy in connection with the imposition of fines, compensation
and
other
financial orders and their relationship with custodial
sentences.
The
facts of the case were
that
the
appellants were convicted at
Bournemouth Crown
Court
of wounding with intent
and
common
assault. Richard Oliver was sentenced to two years imprisonment
suspended for two years, fined £5,000
and
ordered
to pay £1,000
compensation to the wounded victim with six months imprisonment
in default; fined £300 for the assault with 30 days imprisonment in
default;
ordered
to pay £1,048 costs and
the
compensation
and
£2,000 of the fine within 6 weeks; the balance of £4,348 to be paid
by monthly instalments of £150 over 29 months. Michael Oliver
was sentenced to 18 months imprisonment suspended for 2 years,
fined £1,000 for the wounding with 6 days' imprisonment in default,
£300 for the assault with 30 days' imprisonment in default
and
was
ordered
to pay £500 costs.
The
fine and costs were
ordered
to be
paid by monthly instalments of £60 over 30 months.
The
defendants appealed and on their behalf it was suggested
the financial penalties were wrong in two respects; they were
too
high
and
the length of time to pay was long.
Lord
Chief Justice
Lane in his judgment made it quite clear from the start that he
did not think the fines
and
other
financial orders were
too
high
for the offence concerned. This was a case where
the
appellants
could not complain if an immediate prison sentence
had
been
imposed. However, the Judge in this case
had
given very careful
thought to sentencing and in particular
taken
into account
that,
if
an immediate custodial sentence
had
been imposed,
the
business
which the two defendants were in was likely to collapse and
the
firm's 23 employees would lose their jobs. He agreed with the
171
Journal
of
Criminal Law
Judge's desire to keep out of prison people who could be sentenced
otherwise and indicated prison places were extremely valuable.
If
people could be dealt with properly by non-custodial sentences
that should be done.
However, the main part of the judgment was dealing with the
contention that the period of time over which the payments should
be made was too long. The Lord Chief Justice referred to a
number of cases, the most recent one being R. v. Nunn (1983) 5
Cr.App.R.(S.) 203, which had been interpreted by most as laying
down a principle that instalments should not normally be made to
run for a period of much longer than 12 months. He felt this was
based on a misunderstanding, particularly after the misleading
head-note in the case of R. v. Hewitt (1971) 55 Cr.App.R. 433,
which said:
"It
is undesirable to impose a large fine payable by
small instalments over a long period."
On a proper interpretation of this and other authorities what
had been decided was that in those particular cases the amount of
the fine was too severe a punishment, having regard to the nature
of the offence and the background of the offender. He did not
agree that the cases laid down a principle that instalments over a
period longer than one year were undesirable. Indeed, he felt a
two year period would seldom be too long and in appropriate
cases three years would be unassailable, depending of course on
the nature of the offender and nature of the offence.
Although the Court of Appeal are basing their decision on what
they regard as a wrongful interpretation of previous authorities,
undoubtedly there was a clearly laid down rule that financial orders
should not normally be paid over a longer period than 12 months.
It
is submitted that the court is in reality changing sentencing
policy because of a desire to encourage courts to consider large
financial penalties as a direct alternative to custodial sentences.
Clearly it was felt the limitations of the so-called "12 month rule"
resulted in some courts passing custodial sentences because they
felt the financial orders they could make as an alternative were
too low.
This case may well, therefore, see the Crown Court in many cases
imposing large financial penalties in conjunction with suspended
prison sentences in cases where hitherto an immediate custodial
sentence would be passed.
It
will also have an effect on the new
172
Court
of
Appeal
compensation provisrons introduced by section 104(1) of the
Criminal Justice Act 1988. This provision requires acourt to give
reasons where it does not make acompensation
order.
Although
it is not free from
doubt,
many commentators feel it also requires
acourt to give reasons when a compensation
order
is made but
not for the full amount suffered by
the
victim. In the past courts
have frequently felt compelled
not
to award the full amount of
compensation claimed due to the "12
month
rule". In the future
there
will clearly be few cases where adefendant will not be able
to
payoff
the full amount of compensation owed within a three
year period. It is likely that much larger compensation orders
therefore will be made. C. E. Bazell
RECKLESS
DRIVING-DEFENCE
OF NECESSITY
OR
DURESS OF
CIRCUMSTANCES
R. v. Conway
This case, reported at (1988) 152
J.P.
649, is extremely helpful in
deciding that the defence of necessity or duress of circumstances
can be a defence to a charge of reckless driving but only if, from
an objective standpoint, the defendant could be said to be acting
in
order
to avoid a threat of death or serious injury.
The
facts briefly were that the appellant was convicted of reckless
driving contrary to section 2 of the
Road
Traffic
Act
1972. A few
weeks' before the incident the appellant's passenger
had
been in
a vehicle when
another
man
had
been shot by a 12-bore shot-gun
and
severely injured and the passenger
had
been chased and only
narrowly escaped. According to the defendant, immediately before
the alleged reckless driving two young men in civilian clothes had
come running towards the vehicle.
The
appellant believed this as
an assassination attempt on his passenger and drove off in a way
in which he accepted could have
amounted
to reckless driving.
The
two men were in fact Police Officers who
had
awarrant to
arrest the passenger.
In the course of his judgment, Lord Justice Wolf reviewed the
recent law on this subject, in particular, the cases of R. v. Willer
173
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