Flinton, R v [2007] EWCA Crim 2322

Case No 2007/02336/A8[2007] EWCA Crim 2322
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 5 September 2007
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE MITTING
and
MRS JUSTICE COX DBE
Between
R E G I N ACrown- v -
Between
DARREN MARTIN FLINTON
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Miss Ruth Cranidge appeared for Appellant
J U D G M E N TWednesday 5 September 2007
[1]This appellant is aged 22. On 12 March 2007, in the Crown Court at York, he pleaded guilty to one offence of assault occasioning actual bodily harm and one offence of common assault. On 13 April 2007, he was sentenced to nine months' imprisonment suspended for two years with a 200 hour unpaid work requirement. There is no appeal against that element of the sentence. He was ordered to pay £1500 compensation to the victim of the assault occasioning actual bodily harm, Ian Grant, and £500 compensation to the victim of the common assault, Anita Cooper, at the rate of £50 a week. He appeals against the first only of those orders. There is no question of his ability to pay. The only question is whether the judge was right to assess compensation in that sum.[2]The appellant pleaded guilty on a defined basis. There was no Newton hearing. He was therefore entitled to be sentenced on the basis of his plea. The compensation order formed part of the sentence and it, too, should therefore have been based on the basis of his plea.[3]The circumstances were as follows. On 15 October 2006, the appellant was the victim of an unprovoked punch to his lower back by Ian Grant while standing in the bar of a public house in Malton. This prompted the appellant to punch Grant and to throw him to the floor twice. On the second occasion he kicked him. He also pushed Miss Cooper, who fell over Grant on to the floor.[4]The court is empowered to order compensation of "such amount as [it] considers appropriate" (section 130(4) of the Powers of Criminal Courts (Sentencing) Act 2000). Plainly it should not exceed the sum which would be awarded by a court in civil proceedings.[5]Miss Cranidge submits that the award of £1500 compensation to Ian Grant did so. He lost consciousness and vomited twice. He had a headache, sore elbows, a sore and bruised back, and pain in his jaw and face which restricted movement. Both elbows were grazed and there was tenderness and limited movement in his left shoulder. He was prescribed analgesics. He said that he was off work for nine days pursuant to his doctor's certificate, but he produced no evidence of wage loss. It does not appear to us that the judge made any assessment in the award of compensation in respect of wage loss. If he did do so, he would not have been right to do so because it required evidence of loss to justify the making of an award on that account. The photographs of the injuries which we have seen demonstrate that Grant was injured in at least three places on his face, suggestive of kicks to his face. The assertion that he suffered at least momentary concussion and vomiting is accordingly plausible.[6]Although he had clearly been on the receiving end of quite a severe kicking, it seems to us that an award of £1500 was greater than any award which would have been made in civil proceedings. The largest award which we can conceive being made on a full liability basis -- and indeed the proper award for the injuries which we have described -- is in our view £1,000.[7]Miss Cranidge makes a further point: because Grant started the incident, his compensation should be reduced. She does not cite, and we are unaware of, any authority of this court in which the point has been considered. The answer of the civil courts to such a proposition is uncertain. In Lane v Holloway [1968] 1 QB 379, the Court of Appeal was emphatic and unanimous in holding that compensatory damages for assault could not be reduced on account of provocation by the victim. But in Murphy v Culhane [1977] QB 94, damages were reduced on that account. The editors of the well-known textbooks, McGregor and Clerk & Lindsell, take opposite views about the appropriateness of a reduction.[8]The Criminal Injuries Compensations Scheme provides in paragraph 13:
"A claims officer may withhold or reduce an award where he considers that: .... (d) the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all should be made; ...."
Limited guidance can be derived from the words of that scheme because it is the taxpayer and not the assailant who is being required to provide compensation to the victim.[9]The guidance given to magistrates when making compensation orders contains the following:
"The amount of compensation should be determined in the light of medical evidence, the victim's sex and age, and any other factors which appear to the court to be relevant in the particular case."
That guidance seems to us to be well-founded. The words of the enabling statute "such amount as it considers appropriate" is plainly wide enough to encompass that guidance. It is also in our view plainly wide enough to encompass the reduction of an award on account of the unlawful conduct of the victim of an assault, at least where that conduct contributes to the occurrence of the assault.[10]The judge did not consider this question. We accordingly may do so afresh. In our view, on the basis upon which the appellant was sentenced, Grant's conduct should have led to a reduction in the amount of compensation ordered to be paid in respect of his injuries. But for his unprovoked assault, the incident would not have occurred. However, it did not begin to justify the kicking which he received. A balance must be struck between the two factors. In our view justice would be achieved if the sum of £1,000, which would otherwise have been appropriate, is reduced by one-quarter to £750.[11]There remains one final matter. When passing sentence, the judge stated that he would not accede to the prosecution application for costs in the sum of £380 because he was making compensation orders in sums totalling £2,000. Now that we have reduced the award in respect of Grant, Miss Cranidge concedes that there is no reason why this court should not do that which the judge decided not to do, namely to order the appellant to pay the costs of the proceedings, £380.[12]We accordingly allow this appeal by reducing the compensation payable to Grant to £750, but order the appellant to pay the prosecution costs below in the sum of £380. The total impact of the sentence upon him is not more severe and we are not prohibited from adjusting the order in that way.