Court of Appeal
| Published date | 01 February 1989 |
| Date | 01 February 1989 |
| DOI | http://doi.org/10.1177/002201838905300102 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
DAMAGES AGAINST JUSTICES
Davies v. Manchester City Justices
This civil case has considerably extended the extent to which a
defendant wrongly imprisoned will be able to sue justices directly
for damages and therefore should carefully be taken note of by
practitioners in the magistrates and criminal courts.
The facts of this case, reported in [1988] The Times October
5th, were that the Manchester City Justices on July 16, 1986
committed Barry Davies to prison for 90 days for non-payment of
rates. Section 103 of the General Rate Act 1967 states imprison-
ment should only be proposed when non-payment of the rates
was due to wilful refusal or culpable neglect. The justices had
apparently failed to consider this requirement. Davies had applied
for the warrant of commitment to be quashed and for damages to
be awarded against the justices. The High Court decided the
justices had exceeded their jurisdiction and had ordered he was
entitled to damages to be assessed. The Manchester City Justices
appealed to the Court of Appeal. That court made it clear that in
their view, in section 103 of the General Rate Act 1967 there was
the statutory condition precedent to the imposition of a sentence
of imprisonment; its fulfilment was essential to support the justices'
jurisdiction to impose it.
Sections 44 and 45 of the Justice of the Peace Act 1979 give
statutory protection to justices against claims for damages in
respect of any act done by the justice within his jurisdiction unless
it is proved the act was done maliciously and without reasonable
probable cause. However, no such protection is given by virtue of
section 45 of the Justice of the Peace Act 1979 in respect of acts
outside or in excess of jurisdiction. Therefore, the Court of
Appeal's judgment that section 103 of the General
Rate
Act is a
statutory pe-condition to the power to impose imprisonment,
effectively means that the justices' decision was in excess of their
jurisdiction.
44
Court
of
Appeal
This judgment clearly will
not
help
the
Lord
Chancellor in
recruiting persons to come forward to be candidates for
the
lay
magistracy.
In the criminal field its effect may well be most dramatically
seen with
the
introduction on 1
October,
1988 of section 123 of
the Criminal Justice
Act
1988. Sub-section 3 of this section
introduces a new section 1, sub-section 4 of
the
Criminal Justice
Act
1982, considerably strengthening the restrictions on imposing
custody in respect of an offender
under
the
age of 21. In particular,
one
of
the
requirements is
that
a
court
can only pass a custodial
sentence if the offender qualifies for it
and
the new section 1, sub-
section
4A,
of the Criminal Justice
Act
1982, lays down
three
qualifications for custodial sentence.
Recent research by
N.A.C.R.O.
has shown that
under
the
old
statutory restrictions
under
section 1 of
the
Criminal Justice
Act
1982, a considerable percentage of courts did
not
give reasons for
imposing custodial sentences in respect of offenders
under
21 even
though required by law to do so.
The
decision of Davies v. Manchester City Justices, will
mean
that
if in the future courts do
not
clearly indicate why they feel a
defendant qualifies for a custodial sentence, they will be acting
without jurisdiction
and
any such custodial sentence will be illegal
and would also subject
the
justices to a claim for damages.
C. E. Bazell
COMPENSATION
ORDERS
R. v. Diggles
The
Court
of
Appeal
have yet again emphasised
that
courts must
be realistic in the amount of compensation they award against
defendants convicted of criminal offences.
In this case,
reported
in [1988] The Times July 6th, the Crown
Court
had
made acompensation
order
in the sum of £3,347 upon
the defendant, being convicted of an offence of obtaining
property
by deception.
The
defendant
had
claimed supplementary benefit
from
the
D.H.S.S.
to which he was
not
entitled.
The
compensation
45
Journal
of
Criminal Law
order
was
made
for
the
total
sum
of over-payment.
When
making
the
order
the
recorder
at
the
Crown
Court
had
said
no-one
expected
the
defendant
to be able to pay
the
compensation
within
a
year
but
the
D.H.S.S.
needed
the
order
"in
case
of
some
future
event"
(which obviously
meant
in case of future
employment).
The
defendant
appealed
against
the
compensation
order
and
the
Court
of
Appeal,
in allowing
the
appeal,
indicated they were of
the
view
the
approach
of
the
recorder
was wrong
and
reduced
the
compensation
order
to £500.
This case follows a
number
of
recent
decisions of
the
Court
of
Appeal
particularly, R. v. Holden (1985)
Crim.L.R.
397, indicating
any compensation
order
which would
take
a
defendant
longer
than
one
year
to pay is generally wrong in principle.
It
indicates
however
that
in assessing what a
defendant
can pay within a
year
the
court
cannot
consider
the
possible
employment
opportunities
unless they
are
quite definitely going to be available.
The
effect of section 104 of
the
Criminal Justice
Act
1988, on
this and
other
similar decisions needs to be considered. This sec-
tion, which came into force on 12th October, 1988, has amended
section 35
of
the
Powers
of
Criminal
Courts
Act
1973.
It
now
requires a
court,
whenever
it
has
power
to
make
acompensation
order,
to give reasons in
open
court
where
it does
not
make
an
order.
Although
not
entirely clear, it seemingly also applies
where
acourt makes acompensation
order
but
not
for
the
full loss
suffered by
the
victim. In
the
future it is likely
that
the
most
frequent reason which will be given by courts for
not
awarding all
or
part
of compensation
due
to a victim will be
the
defendant's
inability to pay
the
full
amount
within a
period
of twelve
months.
C. E. Bazell
BLACKMAIL-THE
MENTAL
ELEMENT
R. v. Bevans
In
the
present
case, (1988) 87
Cr.App.R.
64,
the
Court
of
Appeal
considered
the
nature
of
the
mental
element
required
to be
proved
to establish liability for
the
offence of blackmail
created
by section
46
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