R v Emily Ellwood

A compensation order must be realistic. The court must be satisfied that the offender has, or will have, the means to pay it within a reasonable time. It must assess the affordable instalments and repayment period before fixing the amount. Excessively long repayment periods should generally be avoided.

Applying R v York [2018] EWCA Crim 2754, a period of two to three years is towards the upper end of a reasonable period, although the assessment remains fact-sensitive. A court should not order full compensation merely on the expectation that the offender’s means will improve.

The appellant pleaded guilty in the Magistrates’ Court to fraud contrary to section 1 of the Fraud Act 2006. She had used her step-grandmother’s bank-card details to make online purchases totalling £12,261.74 while the victim, who had advanced dementia, was in a care home.

At the Crown Court at Oxford, the Recorder imposed a two-year suspended sentence with unpaid work and rehabilitation requirements. He also ordered compensation of £12,261, payable initially at £25 per month and increasing when the appellant returned to work.

With leave of the single judge, the appellant challenged only the compensation order. The central issue was whether an order requiring repayment over a period of about 40 years was realistic and reasonable in light of her means and the absence of realisable assets.

1. The appeal was allowed to a limited extent. The court quashed the compensation order of £12,261 and substituted an order for £900, payable at £25 per month over three years.

2. A compensation order should not be made unless it is realistic that the offender has, or will have, the means to pay within a reasonable time. The court must not fix the amount without considering both the instalments the offender can afford and the period over which they will be paid. Excessively long repayment periods should generally be avoided.

3. The court applied the principles in R v York [2018] EWCA Crim 2754. It held that a period of two to three years, although towards the upper end of the reasonable range, was reasonable. The fact that a repayment period of 100 months had been upheld in another case did not justify the order in this case.

4. The appellant could afford no more than £25 monthly. A full order would therefore take about 40 years to repay and could not be discharged within a reasonable time. There was no realistic prospect of recovering further sums by selling goods bought with the proceeds of the fraud, and no evidence that the appellant’s financial position would improve.

5. The order was not quashed altogether. The appellant had narrowly avoided immediate custody and should make an affordable contribution towards the loss caused to her vulnerable relative. The substituted three-year order achieved that purpose while remaining realistic.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1114, the court allowed the sentencing appeal to a limited extent. It quashed the full compensation order and substituted £900 payable over three years.
• Crown Court at Oxford: On 13 March 2023, the Recorder imposed two years’ imprisonment suspended for two years, unpaid work and rehabilitation requirements, and compensation of £12,261.
• Magistrates’ Court: On 7 February 2023, the appellant pleaded guilty to fraud.