R v Cain

JurisdictionEngland & Wales
JudgeLord Fraser of Tullybelton,Lord Elwyn-Jones,Lord Keith of Kinkel,Lord Scarman,Lord Brandon of Oakbrook
Judgment Date19 July 1984
Judgment citation (vLex)[1984] UKHL J0719-1
Date19 July 1984
CourtHouse of Lords
(on Appeal from the Court of Appeal (Criminal Division))

[1984] UKHL J0719-1

Lord Fraser of Tullybelton

Lord Elwyn-Jones

Lord Keith of Kinkel

Lord Scarman

Lord Brandon of Oakbrook

House of Lords

Lord Fraser of Tullybelton

My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scarman. I agree with it, and for the reasons stated in it, I would dismiss the appeal.

Lord Elwyn-Jones

My Lords,


I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Scarman. I agree with it, and for the reasons which he gives I would dismiss the appeal.

Lord Keith of Kinkel

My Lords,


For the reasons given in the speech of my noble and learned friend, Lord Scarman, with which I agree, I too would dismiss the appeal.

Lord Scarman

My Lords,


Douglas Roy Cain appeals, with the leave of the House, from the dismissal by the Court of Appeal (Criminal Division) of his appeal from the criminal bankruptcy order made against him by the Crown Court sitting at Snaresbrook. The appellant had been convicted on indictment of two offences, conspiracy to steal and conspiracy to rob. It was a multiple indictment containing 15 counts and charging six defendants. The appellant, however, was charged only on the two counts upon which he was convicted. Although the evidence at trial, if believed, implicated the appellant as a participant in 25 burglaries, two robberies, and one attempted robbery, all of which were in pursuance of the two conspiracies of which he was convicted, he was not charged with any of them; nor did he ask for any of them to be taken into consideration upon sentence.


After conviction and before imposing the criminal bankruptcy order the trial judge expressed himself as being satisfied of the following facts:

(1) that the conspiracy to steal involved a total of 29 burglaries; (2) that the conspiracy to rob involved a total of four robberies and one attempted robbery; (3) that the appellant took part in 25 of the burglaries, in two of the robberies, and in the attempted robbery; (4) that the burglaries in which the appellant participated caused losses to the victims of money and chattels to a total value of over £150,000; (5) that the robberies in which he participated caused losses to the victim of £630.


The trial judge also identified a number of the victims whose loss he was able to ascertain and state: "The total of their losses was a sum of £98,837." A "Schedule of offences on which convictions were returned and persons suffering loss or damage thereby" was annexed to the order. Although the schedule is at first sight a little difficult to follow, it is in truth perfectly clear. It states that the persons named therein had suffered the loss or damage specified as a result of one or other of the two conspiracies of which the appellant had been convicted.


The appellant appealed against his convictions and sentence. The appeal against the convictions was dismissed: the sentence (which included an eight year term of imprisonment) was, subject to one modification, affirmed. The only appeal which survives into your Lordships' House is against the criminal bankruptcy order, in respect of which the Court of Appeal has certified a point of law of general public importance, namely:

"Whether or not a criminal bankruptcy order can be made on a conviction for conspiracy to steal, in relation to individual burglaries alleged to have been committed in furtherance of the conspiracy when the defendant has never admitted any particular burglary either by plea or other admission nor even admitted the loss or damage alleged to have resulted therefrom."


The certified point faithfully reflects the course of argument in the Court of Appeal. No question was then raised as to the jurisdiction of the Court of Appeal to hear the appeal. The court answered in the affirmative the question now raised by its certificate, following Reg. v. Reilly [1982] Q.B. 1208, and upheld the order.


Only two issues have been raised in your Lordships' House. The first is the question: does an appeal lie at all? This is the "appellate jurisdiction point," and the answer has to be found in the true construction of section 40(1) of the Powers of Criminal Courts Act 1973. Secondly, if an appeal does lie, did the learned trial judge exceed his powers in making the criminal bankruptcy order? This is the "excess of power point" and the answer is to be found in the true construction of section 39(1) of the Act of 1973.


The statutory provisions regulating the making of a criminal bankruptcy order are sections 39 to 41 and Schedule 2 of the Act of 1973. Section 39(1) and (2) are as follows:

"39(1) Where a person is convicted of an offence before the Crown Court and it appears to the court that — ( a) as a result of the offence, or of that offence taken together with any other relevant offence or offences, loss or damage (not attributable to personal injury) has been suffered by one or more persons whose identity is known to the court; and ( b) the amount, or aggregate amount, of the loss or damage exceeds £15,000; the court may, in addition to dealing with the offender in any other way (but not if it makes a compensation order against him), make a criminal bankruptcy order against him in respect of the offence or, as the case may be, that offence and the other relevant offence or offences. (2) In subsection (1) above 'other relevant offence or offences' means an offence or offences of which the person in question is convicted in the same proceedings or which the court takes into consideration in determining his sentence."


The essential pre-condition to the making of an order is that a person has been convicted of an offence before the Crown Court. Where this has happened, the court (represented at this stage by the sentencing judge) may proceed to make an order provided it is satisfied of the matters specified in the section of which those relevant to this appeal are:

(1) that as a result of the offence (or offences) of which the person has been convicted loss or damage has been suffered by other persons known to the court; and (2) that the amount or aggregate of their loss resulting from the offence exceeds £15,000.


By section 40(1) "no appeal shall lie against the making of a criminal bankruptcy order." Section 41 provides for an Official Petitioner who is to exercise the functions assigned to him by Schedule 2: the Director of Public Prosecutions is to be the Official Petitioner.


Schedule 2 is the bridge between the powers of the Crown Court and the bankruptcy law. Paragraph 1 applies the bankruptcy law by providing that a criminal bankruptcy order is to be treated as an act of bankruptcy committed on the date on which the order was made. The offender against whom it is made is not thereby made bankrupt. Indeed he may never be made bankrupt. Whether he is or is not depends first on whether a bankruptcy petition is presented against him. If it is, bankruptcy proceedings will begin, in which event, subject to Schedule 2, he will have all the rights afforded by the law to a debtor against whom a petition is presented. These rights include the rights of appeal under section 108 of the Bankruptcy Act 1914. Specifically he can resist the proof of debt: and Schedule 2 itself, by paragraph 9, provides him with the opportunity to challenge the amount of...

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