Jersey Unreported Judgments

Criminal Hearing - representation seeking an extension of time in which to pay a compensation order.

[2013]JRC179

Royal Court

(Samedi)

10 September 2013

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Le Cornu and Crill.

Natalie Jayne Such

-v-

HM Attorney General

Advocate D. M. Cadin for the Representor.

D. J. Hopwood, Crown Advocate for the Attorney General.

JUDGMENT

THE BAILIFF:

1.        On 24th August, 2012, the representor was sentenced to 15 months' imprisonment suspended for 2 years following a plea of guilty to two counts of failing to notify a change of circumstances to the Social Security Department contrary to Article 6(C) of the Income Support (Jersey) Law 2007. 

2.        On the same occasion, she was made the subject of a compensation order in favour of the Social Security Department in respect of the sum of which she had defrauded the Department, namely £27,254.47 ("the compensation order").  The Court ordered that this sum had to be paid within nine months and imposed a sentence of 12 months' imprisonment in default of payment.  It should therefore have been paid by 24th May, 2013. 

3.        The representor has paid some £3,600 which leaves £23,654.47 outstanding.  She now applies for an extension of time in which to pay the amount due under the compensation order. 

4.        Crown Advocate Hopwood has raised the issue as to whether the Court has jurisdiction to vary the time for payment of the compensation order.  It follows that, before considering whether, in our discretion, we should grant an extension, we must decide whether we have power to do so. 

5.        The Court gave its decision at the conclusion of the hearing to the effect that it did have such power and would exercise its discretion in favour of the representor.  We now give our reasons. 

Is there jurisdiction?

6.        The power to make a compensation order is conferred by Article 2(1) of the Criminal Justice (Compensation Orders)(Jersey) Law 1994 ("the Law") in the following terms:-

"(1) Subject to the provisions of this Law, a court by or before which a person is convicted of an offence, instead of or in addition to dealing with the person in any other way, may, on application or otherwise, make an order (in this Law referred to as a "compensation order") requiring the person to pay compensation for any personal injury, loss or damage resulting from that offence or to make payments for funeral expenses in respect of a death resulting from any such offence, other than a death due to an accident arising out of the presence of a vehicle on a road."

7.        Article 3(1) of the Law is in the following terms:-

"(1) Where a court makes a compensation order it may -

(a) allow time for payment of the amount due under the order; ..."

8.        Article 5 provides that, where any default is made in the payment of compensation order, the Viscount may take the same proceedings for the enforcement of the order as he could take in default of a payment of a fine and goes on to provide that he may not enforce payment until there is a default in complying with the order where the Court has allowed time for payment. 

9.        Article 6 confers a right of appeal to the Court of Appeal against the making of a compensation order in the same way that a person may appeal against conviction or sentence. 

10.      Finally, and importantly for this case, Article 7 provides for a review of compensation orders and is in the following terms:-

"Review of compensation orders

(1) At any time before the person against whom a compensation order has been made has paid to the Viscount the whole of the compensation which the order requires the person to pay, but at a time (disregarding any power of a court to grant leave to appeal out of time) when there is no further possibility of an appeal on which the order could be varied or set aside, the court which made the order may, on the application of the person against whom it was made, discharge or reduce the amount which remains to be paid if it appears to the court -

(a) that the injury, loss or damage in respect of which the order was made has been held in civil proceedings to be less than it was taken to be for the purposes of the order;

(b) in the case of an order in respect of the loss of any property, that the property has been recovered by the person in whose favour the order was made;

(c) that the person against whom the order was made has suffered a substantial reduction in the person's means which was unexpected at the time when the compensation order was made, and that the person's means seem unlikely to increase for a substantial period. 

(2) Where a court varies or discharges a compensation order under this Article it shall discharge or vary to a like extent any default sentence fixed by that order."

11.      Advocate Hopwood's argument is simple.  He points out that Article 7 contains the only power to review a compensation order and it is in limited terms.  It allows an order to be discharged or reduced if any of the three circumstances mentioned in Article 7(1) is found to exist.  However, it does not confer a power to leave the compensation order as it is (in terms of amount) but merely extend the time for payment.  It follows, he submits, that the legislature did not intend that the Court should have or exercise such a power and the Court therefore has no jurisdiction to do so.  The remedy for any person in the representor's position is to seek leave to appeal out of time to the Court of Appeal. 

12.      Advocate Cadin accepts that Article 7 does not confer the necessary jurisdiction upon the Court.  However, he submits that there are a number of alternative grounds upon which the Court can properly find jurisdiction to extend the time of payment of a compensation order.  We agree with him in respect of two of these and we shall therefore concentrate on them. 

(i) Rule 1/5 Royal Court Rules

13.      Rule 1/5 of the Royal Court Rules 2004 is in the following terms:-

"1/5 Power to extend and abridge time

(1) The Court or the Viscount may, on such terms as either thinks just, by order extend or abridge the period within which a person is required or authorized by rules of court or by any judgment, order or direction to do any act in any proceedings. 

(2) The Court or the Viscount may extend any period referred to in paragraph (1) although the application for extension is not made until after the expiration of that period. 

(3) ..."

14.      Advocate Cadin submitted that this was in general terms and was wide enough therefore to include extending the period within which a compensation order (as an order of the Court) had to be complied with. Advocate Hopwood, on the other hand, submitted that the Rule was not intended to apply to a matter such as a compensation order, which was regarded as part of a sentence which brings the criminal proceedings in question to an end.  The Court becomes "functus" after that and it was wrong in principle to seek to reopen any aspect of the sentencing.  The right course was to seek leave to appeal out of time to the Court of Appeal.  

15.      We see no reason to confine Rule 1/5 in the way that Advocate Hopwood suggests.  Although the Royal Court Rules are mostly concerned with civil litigation, the expression "proceedings" is defined in Rule 1/1(1) in extremely wide terms which are sufficient to cover criminal proceedings, and certain of the Rules clearly apply to criminal proceedings e.g. Rules 3/5, 5/4(d), 6/20(6), to name but three.  Rule 1/5 is in general terms and, in our judgment is not confined to civil proceedings.  A compensation order is an "order of the Court" made in the course of proceedings before it and Rule 1/5(1) allows the Court to extend the period within which a person is required to comply with an order of the Court.  Accordingly we hold that Rule 1/5 confers the necessary power upon the Court to extend the period for payment under a compensation order. 

(ii) Inherent jurisdiction

16.      Advocate Cadin's second argument was that the Court had inherent jurisdiction to extend the period.  He very properly referred us to the leading case of Mayo Associates SA-v-Cantrade Private Bank Switzerland (CI) Limited [1998] JLR 173 which held that the vital clue to the nature of inherent jurisdiction is necessity; the Court has a particular procedural power because it has to have it in order to maintain its character as a court of justice.  (see page 188). 

17.      Mayo was considered in the criminal law context in the case of Jones-v-AG [2000] JLR 103 when Nutting JA said this at 109:-

"The concept of necessity predicates a situation where the court has power to do something but can only achieve it by doing something else: an inherent power can be invoked in such circumstances to enable the court to act effectively.  The rationale for the existence of the power is the court's invocation of an implied power to do something which is ancillary to that which the court has an explicit power to do. 

Plainly it is possible for an inherent jurisdiction to exist in respect of matters about which a statute is silent.  Equally an inherent jurisdiction may supplement a permissive jurisdiction granted by statute.  What it cannot do is to confer a power inconsistent with a statutory provision which is itself mandatory."

18.      In our judgment, if we are wrong in finding that RCR 5/1 confers the necessary power, the Court has inherent jurisdiction to vary the time for payment of a compensation order.  The Law provides in Article 3(1) that the Court may allow time for payment of the amount due under a compensation order.  Clearly the Court must reach such a decision judicially and accordingly it will need to assess the time which the defendant would appear to need in order to pay the compensation ordered.  What if the situation changes thereafter so that more time is required?  For example, suppose that the defendant has an asset to realise and that the Court, at the time of making the compensation order, considers that three months would be sufficient, but it turns out that, for reasons outside the defendant's control, six months is required.  Is it really the case that, having had the power to fix the period of three months in the first place, the Court has no power to vary that period in the light of changed circumstances? 

19.      We think not.  In our judgment, this is an example of a case where the Court has an express power to do something (in this case fix the time for payment of the compensation order) and it must have an implied power to do something else (vary that order) so as to perform its role as a court of justice.  This is a situation which falls within the second sentence of the second paragraph of the passage from Jones quoted above rather than the third sentence.  There is a permissive jurisdiction to grant time for payment of a compensation order and the inherent jurisdiction of the Court may be used to supplement that permissive jurisdiction.  With reference to the third sentence, there is nothing in our decision which is inconsistent with any statutory provision which is mandatory.  

20.      For these reasons, were it necessary to do so, we would hold that the Court has inherent jurisdiction to extend the time for payment of a compensation order.  

Application to the facts

21.      We propose to deal with these very briefly. 

22.      At the time of the making of the compensation order, the representor owned, in common with her sister, a property comprising of a two bedroomed home and an attached flat.  Indeed, it was the non-disclosure of her ownership of this property that gave rise to the prosecution in the first place.  

23.      At the time of the sentencing, the representor lived in the property with her five year old daughter. The flat was let and provided an income for her sister. 

24.      It appears that, following the making of the compensation order, various attempts were made by the representor to try and borrow against the security of the property so as to produce the necessary sum for payment of the compensation order, but this was complicated by the existence of ownership in common and the limited income of the representor.  It was further complicated by the fact that the representor became pregnant and gave birth to a son on 11th April, 2013. 

25.      She had at one stage hoped to borrow from her father but he then became seriously ill.  Sadly, he died on 24th May, 2013.  

26.      The representor has inherited a 1/8th share of his immoveable estate which comprises a flat in Jersey.  He purchased it in 2011 for £430,000.  Although there is no recent valuation, it is clear that a 1/8th share will comfortably exceed the amount due under the compensation order.  

27.      It has been agreed amongst all those who have inherited the immoveable estate that it should be sold, although there will be a need for a tutelle and for powers of attorney to be obtained from one of the heirs who lives in Thailand. 

28.      We are in no doubt that the interests of justice would best be served by granting the representor an extension of time, so that the compensation order can be paid out of the proceeds of the sale of the property inherited from her father.  If no extension is granted, the representor will have to immediately start serving the default sentence and her children will be without their mother for the period of her imprisonment.  Conversely, if an extension of time is granted, there is every likelihood that the Social Security Department will be repaid the money of which she has defrauded them, thereby reimbursing the taxpayer, and she will be able to remain in her present property with her children so as to give them stability. 

29.      In our judgment, the balance comes down firmly in favour of granting an extension.  Advocate Cadin originally asked for a twelve month extension but we think that, in view of the time which has already occurred, it is incumbent upon the representor to exert every pressure for the property to be sold promptly.  We therefore granted an extension of nine months. 

Authorities

AG-v-Such [2012] JRC 155.

Income Support (Jersey) Law 2007.

Criminal Justice (Compensation Orders) (Jersey) Law 1994.

Royal Court Rules 2004.

Mayo Associates SA-v-Cantrade Private Bank Switzerland (CI) Limited [1998] JLR 173.

Jones-v-AG [2000] JLR 103.