Osbourne v Kendrick

A compensation order made in criminal proceedings is enforceable in the civil courts only through the statutory machinery which treats the sum as payable to the clerk of the magistrates’ court. The beneficiary of the order has no independent right to enforce it or to obtain a charging order. This preserves the statutory requirement for a means inquiry before enforcement and the criminal court’s continuing power to review or reduce the order. A victim may bring separate civil proceedings for loss caused by the offence, but enforcement of any overlapping compensation element remains subject to the statutory controls.

A Crown Court ordered the appellant to pay compensation to the victim of her offence. The order was transferred to the magistrates’ court for enforcement, but no payment was made. The victim’s executor obtained a charging order over the appellant’s home in the county court.

The county court upheld the charging order. The issue before the Court of Appeal was whether the compensation order could be enforced by its beneficiary, independently of the magistrates’ court, under the Charging Orders Act 1979.

1. Appeal allowed. The compensation order was made in criminal proceedings and became enforceable in the High Court or county court only because the statutory provisions treated it, for collection and enforcement, as if the sum had been adjudged payable to the clerk of the magistrates’ court.
2. The statutory scheme did not make the order enforceable in the hands of the beneficiary. The beneficiary had no judgment to enforce and no statutory deeming provision operated in the beneficiary’s favour. The creditor entitled to enforce payment was the clerk of the designated magistrates’ court, not the ultimate recipient of the compensation.
3. This construction was reinforced by the requirement in section 87(3) of the Magistrates’ Courts Act 1980 for a means inquiry before enforcement proceedings were taken. Allowing the beneficiary to proceed directly would circumvent that protection.
4. The criminal court also retained power under section 37 of the Powers of Criminal Courts Act 1973 to discharge or reduce the compensation order where the offender’s means had substantially and unexpectedly deteriorated. Independent enforcement by the beneficiary would undermine that continuing control.
5. A victim remained entitled to bring separate civil proceedings for loss caused by the offence. However, under section 38(2) of the Powers of Criminal Courts Act 1973, recovery and enforcement of any overlapping compensation element remained subject to the court’s control.
6. Lady Justice Hale agreed, but added that the judgment did not decide whether leave required for enforcement of overlapping civil damages must be given by the criminal court rather than the civil court. That question was left for another case.

Order: appeal allowed with costs, subject to public funded costs assessment.

• Court of Appeal (Civil Division): allowed the appeal from the decision of His Honour Judge Dillon QC in the Birmingham County Court and discharged the beneficiary’s entitlement to enforce the compensation order by charging order.
• Birmingham County Court: dismissed the appeal from the charging order made absolute by the deputy district judge.