Anyone who works in the criminal justice system will have come across the multitude of ancillary orders that now exist. From the police officer who takes a witness statement from a stalking complainant who wants a restraining order against the accused (regardless of the outcome of a trial) to the CPS lawyer who instructs counsel to make that application. Solicitors who are defending lay clients will find applications for orders against their clients, often at late notice and not well particularised and justified, and counsel for both sides will find themselves being instructed in a panic at the door of court to seek or oppose such orders. Once in court, Legal Advisors will need to advise lay benches on whether to make, and if so, the terms and duration of an order. Circuit Judges will similarly find themselves confronted with applications for various different orders, possibly multiple different orders in one case, or certainly over the course of a list.
Even with the best will in the world, the range of orders available is now so large that it is impossible for even the most diligent practitioners in any role to keep all of the provisions in their heads. And yet the orders usually require compliance on pain of imprisonment, even where they have been imposed on application instead of conviction. It is therefore crucial for orders to only be applied for where the criteria for them are made out (not simply out of force of habit, or ‘it looks a bit like a case where one of these might be useful’), and for their terms to be properly scrutinised to ensure that the subject of the order does not find themselves unnecessarily or improperly criminalised through breach of an order that was not made in appropriate terms in the first place.
Perhaps one of the most commonly-used orders covered in the book is compensation. This is practically a given in most cases where there has been loss caused to someone by the defendant. This is an order only available on conviction, but because there is no restriction on the type of offence that can cause loss and thus lead to an order, there is huge scope for these orders to be made.
That does not mean, however, that they should be paid any less attention. Many practitioners might find that they have been unintentionally blasé about compensation because it is such a common order. There is, however, a significant body of case law about the making of compensation orders. At their heart they are to compensate V for the loss caused by D. But this simple phrase hides a number of trickier questions that need to be grappled with before a compensation order can be made.
Firstly, was there causation between the act of D and the loss caused to V. A good example of where there is not such causation, but a gut instinct might suggest a compensation order, is the case of Graves from 1993 (14 Cr App R 790). The appellant pleaded guilty to false accounting. He was the manager of a pub and was responsible for banking the takings each week. He had left the pub without permission to visit a sick relative and when he came back, discovered a discrepancy of £3,000 in the takings banked for that week. Worried about the repercussions of that, he falsified a bank slip to conceal the deficit. It was accepted that the appellant had not personally benefited from the missing money, but he was ordered to pay £1,500 compensation. The Court of Appeal held that his offending did not cause the loss – rather his offence was a response to a loss caused by another. Therefore, no compensation order was appropriate against him. Similarly, where a defendant has handled stolen goods (contrary to Theft Act 1968, s 22) but is not linked to their theft and has not sold them on (or has done so, but bought them back for the purposes of returning them), it is unlikely that he will have benefitted in a way that will make a compensation order appropriate (Halliwell (1990–91) 12 Cr App R (S) 692).
Where there are co-defendants charged with different offences, and there has been injury which is the actus reus of an offence of which only one defendant is convicted then it will be inappropriate to order compensation to be paid by both. In Derby (Derby (1990–91) 12 Cr App R (S) 502), the appellant pleaded guilty to affray. His co-defendant pleaded guilty to unlawful wounding contrary to s 20 of the Offences Against the Person Act 1861. The Court of Appeal quashed the compensation order against Derby – his conduct had not been the cause of the injuries suffered by the victim. It was noted that courts are not to apply strict principles of tort and contract when deciding whether a compensation order should be made. In Woolmer ( EWCA Crim 2690), the Court of Appeal acknowledged that deciding whether causation is made out in relation to a compensation order will sometimes be difficult.
An illustration of how fine the line, and therefore why there might be difficulties, is the case of Taylor (1993) 14 Cr App R (S) 276). In that case the Court highlighted that often events take place so close to each other in time and are linked to such an extent that it would be both artificial and unjust to look narrowly at the physical acts of each defendant relied upon by the prosecution.
Dr Elaine Freer is a criminal barrister at 5 Paper Buildings where she prosecutes and defends in criminal and regulatory matters in the Youth, Magistrates' and Crown Courts. She is the author of A Practitioner’s Guide to Ancillary Orders in Criminal Courts.