Faithfull v Ipswich Crown Court [2007] EWHC 2763 (Admin)

Case No CO/2229/2007

[2007] EWHC 2763 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 26th October 2007

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE RICHARDS

MR JUSTICE GIBBS

Between

FAITHFULLClaimant

Between

IPSWICH CROWN COURTDefendant

CROWN PROSECUTION SERVICEInterested Party

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

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190 Fleet Street London EC4A 2AG

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(Official Shorthand Writers to the Court)

Mr M Fordham QC and Mr I Steele (instructed by Adams Harrison) appeared for Claimant

Mr R Sadd (instructed by the CPS) appeared for Interested Party

for The Defendant did not attend and was not represented

J U D G M E N T

[1]MR JUSTICE GIBBS: The claimant, Mr Faithfull, challenges an order of His Honour Judge Goodin made on 22nd May 2006 in the Ipswich Crown Court. He challenges it on the grounds that the judge failed to make a compensation order in his favour under the Powers of Criminal Courts (Sentencing) Act 2000. The challenge gives rise to the following principal issues:(1) Whether the order of His Honour Judge Goodin is amenable to judicial review on the grounds relied upon by the claimant or at all.

(2) If the order is amenable to judicial review, did the judge err in law in making the order and/or was it plainly wrong?

(3) Did the order infringe the claimant's right not to be deprived of his possessions under Article 1 of the First Protocol to European Convention on Human Rights or his rights under Article 13?

[2]The facts may be briefly stated. In February 2006 Genet Underwood was for a period employed by the claimant. In that month she was convicted by a jury of stealing the sum of £15,579.01 from him. She was sentenced by the judge to 12 months' imprisonment. On 22nd May 2006 the judge considered issues of confiscation and compensation arising out of this conviction. The prosecutor asked for a confiscation order. The judge decided that the conditions were satisfied for such an order to be made.

[3]As far as relevant to the instant application, he said as follows at page 16E of the transcript available to the court:

"From your particular criminal conduct, which is the way this legislation works, you have derived a benefit in the sum of £15,579.01. You have, and I will take it shortly, an amount available to you which essentially is your interest in the matrimonial property in excess of £40,604.50. That amount being available I shall order confiscation in the sum of £15,579.01. You must pay that in full within six months of today's date. If you do not, then you will go to prison for another nine months in default of payment. (Pause) Up to twelve, is it not? I am ordering nine, up to twelve; I am ordering nine. That means the money must be paid by 4 pm on Tuesday 21st November. If it is not, that is when your additional nine months' imprisonment bites."

The judge then went on to consider the issue of whether Miss Underwood should be ordered to pay compensation. On that topic he said as follows at page 17D of the transcript:

"So the law has operated to deprive you of an asset equal to the amount you stole from the employer who entrusted you with his confidence. It also empowers me to make an order compensating your employer, in other words, giving a sum of just over £15,000 directly to him. I was actually sorely tempted to do that even though it would be a double financial hit to you: I do not for two reasons. First, and perhaps most generally, there are undoubtedly circumstances in which an embarrassment of riches or of assets or available benefit might render it right to make an order for compensation as well as an order for confiscation. I do not believe this to be one of those cases because, and here I turn to the specifics, it is quite plain that it would be very hard for your family to remain in the matrimonial home which you, by your dishonesty, have put at risk, but the effect of making a compensation order as well as a confiscation order might be to place their residence at risk. That involves one, soon to be two, of your grandchildren and that would not seem to me to be something that Parliament can have intended or would be in the interests of the public, certainly not of your blameless, apart from Vicky's string of telephone calls to you, your blameless family. So for those reasons I do not make any order for compensation; the order is limited to one of confiscation."

[4]I now come to the statutory provisions which relate to the issues which arise. Confiscation orders are governed by the Proceeds of Crime Act 2002, sections 6 to 14. Section 6 makes a confiscation order mandatory when the prosecutor asks the court to proceed under the section (subsection (3)(c)) and when the court decides that a defendant has benefited from criminal conduct (subsection (4)(c)). Having so decided, the court must:

"(a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him [the defendant] to pay that amount [subsection (5)]."

The court's duty under subsection (5) is, however, subject to the provisions of section 7 which restricts the amount recoverable from the defendant to "the available amount" as defined by section 9. Broadly, the available amount is defined as the defendant's total net assets less liabilities. In the present case there is no dispute that the available amount was equivalent to the defendant's benefit which was £15,579.01.

[5]By section 13 the court is required to leave the confiscation order out of account in deciding the appropriate sentence for the defendant. This includes a decision about the making of a compensation order (see section 13(3)(a) and subsection (4)). Subsections (5) and (6) of that section are also relevant and I shall return to them.

[6]Compensation orders are governed by the Powers of Criminal Courts (Sentencing) Act 2000. The provisions of that Act material to the present claim include the following. Section 130, headed "Compensation orders against convicted persons":

"(1) A court by or before which a person is convicted of an offence, instead of or in addition to dealing with him in any other way, may, on application or otherwise, make an order (in this Act referred to as a 'compensation order') requiring him -- (a) to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence . . . (3) The court shall give reasons, on passing sentence, if it does not make a compensation order in a case where this section empowers it to do so. (4) Compensation under subsection (1) above shall be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor . . . (11) In determining whether to make a compensation order against any person, and in determining the amount to be paid by any person under such an order, the court shall have regard to his means so far as they appear or are known to the court. (12) Where the court considers -- (a) that it will be appropriate both to impose a fine and to make a compensation order, but (b) that the offender has insufficient means to pay both an appropriate fine and appropriate compensation. the court shall give preference to compensation (though it may impose a fine as well)."

Section 132 is headed "Compensation orders: appeals etc":

"(3) The Court of Appeal may by order annul or vary any compensation order made by the court of trial, although the conviction is not quashed; and the order, if annulled, shall not take effect and, if varied, shall take effect as varied."

Section 133 deals with the review and discharge of compensation orders:

"(1) The Magistrates' Court for the time being having functions in relation to the enforcement of a compensation order (in this section referred to as 'the appropriate court' may, on the application of the person against whom the compensation order was made, discharge the order or reduce the amount which remains to be paid; but this is subject to subsections (2) to (4) below."

Subsections (2) and (3) set out the circumstances subject to which subsection (1) may take effect. Subsection (5) provides:

"(5) Where a compensation order has been made on appeal, for the purposes of subsection (4) above it shall be deemed -- (a) if it was made on an appeal brought from a Magistrates' Court, to have been made by that Magistrates' Court; (b) if it was made on an appeal brought from the Crown Court or from the Criminal Division of the Court of Appeal, to have been made by the Crown Court."

[7]I return now to the 2002 Act at section 13, subsections (5) and (6):

"(5) Subsection (6) applies if -- (a) the Crown Court makes both a confiscation order and an order for the payment of compensation under section 130 of the Sentencing Act against the same person in the same proceedings, and (b) the court believes he will not have sufficient means to satisfy both the orders in full. (6) In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person's means."

[8]These provisions are designed so that in some cases they would enable the court to direct all the compensation to be paid out of sums recoverable under the compensation order. Such a situation has been described for the purposes of this case as a back-to-back order, and it will be convenient to refer to such an order in those terms.

[9]I now turn to the statutory provision which is central to the issue of whether or not this court has jurisdiction to entertain the claim (Supreme Court Act 1981 section 29). This deals with mandatory prohibiting and quashing orders in the Administrative Court:

"29(1) The orders of mandamus, prohibition and certiorari shall be known instead as mandatory, prohibiting and quashing orders respectively. (1A) The High Court shall have jurisdiction to make mandatory, prohibiting and quashing orders in those classes of case in which, immediately before 1st May 2004, it had jurisdiction to make orders of mandamus, prohibition and certiorari respectively. (2) Every such order shall be final, subject to any right of appeal therefrom. (3) In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make [mandatory, prohibiting or quashing orders] as the High Court possesses in relation to the jurisdiction of an inferior court."

The outcome of the issue about jurisdiction depends on whether the issues in the present case are "matters relating to trial on indictment".

[10]Finally, it may be germane to have in mind the powers of the Court of Appeal in relation to sentence. These derive from the Criminal Appeal Act 1968:

"11 . . . (3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may -- (a) quash any sentence or order which is the subject of the appeal; and (b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence but the court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with in the court below."

[11]The stances of the parties to these proceedings are as follows. The claimant, of course, contends not only that the judge fell into error but that this court has jurisdiction to correct the error, whether by quashing the judge's order and substituting another or by making a declaration.

[12]The Crown Court as defendant makes no express representations, but by a letter dated 9th January 2007 sent on behalf of the court the following was said:

"I refer to your letter dated 14th December 2006 and to our recent telephone call regarding the above defendant. I have to advise you that the judge cannot amend the sentence he imposed under the slip rule as that has to be done within 28 days of the date of sentence. However, as promised I have referred this matter back to HHJ Goodin and explained to him the problems you were having with the East Kent Administration Centre in Dover and that they were refusing to pay out the money received under the confiscation order as there was no compensation order made in favour of Mr Faithfull. Judge Goodin has looked at this matter again and he has responded as follows:- 'I made no compensation order (as I otherwise would have done) as the Crown were pursuing confiscation under POCA 2002. That was the order I duly made. I would otherwise have made a compensation order and I should regard it as unfortunate, to say the least, if Mr Faithfull receives no satisfaction.' I am not sure how much the above will assist you but you are free to refer the judge's comments to the East Kent Administration Centre so they are aware of his intention that the confiscated monies are intended to recompense Mr Faithfull. I hope the above will be of assistance to you."

The remarks in that letter were directed, as I understand it, to the claimant's solicitors and the reference to the East Kent Administration Centre was a reference to the authority which held the money which had been received under the confiscation order.

[13]The Crown Prosecution Service, as interested party, does not contest that the judge fell into error, but raises the question of jurisdiction. It invites the court to consider in particular the case of R (on the application of B) v Stafford Combined Court

[2006] EWHC 1645

Admin, a case relied on by the claimant as providing a sound basis for this court assuming jurisdiction. The stance of the Crown Prosecution Service is that if the court does accept jurisdiction on this basis it should accede to the claimant's submissions.

[14]Under those circumstances, I need deal only briefly with the claimant's submissions about the judge's erroneous approach. It is submitted by Mr Fordham on behalf of the claimant that the judge fell into error because he did not think that he could or should make a compensation order. This arose for three reasons. First, the judge's understanding of the statute was that it required him to take account of confiscation order that he had already made. In the transcript the judge said:

"It . . . makes clear I must take account of this order [the confiscation order] before I go on to make such an order [the compensation order]."

[15]Secondly, the judge erred in his understanding that a compensation order would necessarily involve paying the same sum twice. There were references in the transcript, both in the course of argument and in the course of judgment, to the inevitability, if an order were made under both sections, of the defendant suffering a double penalty.

[16]Thirdly, and following from the second error, the judge considered that the making of both orders in a case such as that of the defendant Ms Underwood would be something oppressive which Parliament could not have intended. The submission of Mr Fordham is that, in the result, a gross injustice to the claimant has occurred. First of all, the money paid to the authorities by way of confiscation cannot be released to the claimant as the judge intended, and secondly, resort to the County Court, which would be open to the claimant, would have a number of disadvantages; in particular, the County Court would take into consideration the defendant's means, which have already been adversely affected by the confiscation order, and it is highly uncertain in those circumstances whether the claimant would achieve satisfaction. Mr Fordham therefore submits that there has plainly been an error of law.

[17]He then addresses the crucial issue of jurisdiction. He submits that section 29(3) of the Supreme Court Act does not provide an absolute or rigid bar to claims arising from errors in criminal proceedings. It is a section which should be viewed in the light of its purpose. Its purpose, he submits, is to prevent trials on indictment being delayed or interfered with by interlocutory challenges, and not to supplant the legitimate rights of people affected by erroneous decisions in criminal proceedings. He relies on the case of R v Maidstone Crown Court ex parte Harrow London Borough Council

[2000] QB 719

. In that case, the court held that it had jurisdiction on the application of the local authority to quash a supervision order under section 5 of the Criminal Procedure (Insanity) Act, in relation to which the claimant was named as the supervising authority. This was a case where the judge had lacked the jurisdiction to make the supervision order because of a fundamental flaw in the trial process relating to the defendant's fitness to plead. Mr Fordham also relies on R (on the application of B) v Stafford Combined Court. I shall return to this authority later in the judgment.

[18]It is submitted that the fundamental purpose of section 29(3) would in no way be infringed by the present claim succeeding. The claimant is not a party to the criminal process but has been directly and adversely affected by it. Reliance is placed, in support of that argument, not only on the case of B but also on the decision in R (on the application of Customs and Excise Commissioners) v Canterbury Crown Court

[2002] EWHC 2584

. This was again a case in which the judge of the Crown Court was declared by this court not to have had jurisdiction to make the challenged order at all.

[19]It is submitted that for this court to entertain the present claim would not involve the subversion of the criminal appeal process. Indeed, there is no attack on the confiscation order which the judge made. There is nothing, it is submitted, in dispute between the Crown and the offender. Reference is made to the decision in R v Manchester Crown Court ex parte Director of Public Prosecutions

[1993] 1 WLR 1524

. It is submitted that if this claim succeeds there will be no detriment either to the offender or the Crown Prosecution Service.

[20]Mr Fordham argues that the present case, like cases which he has cited and to which I have referred, involves a fundamental error of law on the part of the judge in failing to have regard to the statutory provisions. He submits that the error of law amounts to an error of jurisdiction in that the judge failed to appreciate that he had jurisdiction properly to make a back-to-back order. It is submitted that a failure to appreciate the extent of the judge's jurisdiction, and thereby to exercise it properly, amounts to a jurisdictional error. There is no question, as Mr Fordham emphasises, of the claim being advanced to supplant appeal rights. Reference is also made to R (on the application of the Crown Prosecution Service) v Guildford Crown Court

[2007] EWHC 1798

Admin, and also to R (on the application of Kenneally) v Crown Court at Snaresbrook

[2002] QB 1169

[21]It is further submitted that if there were to be any objection to a quashing order, a declaration would suffice in this case. The judge's order should be declared to include a compensation order and a direction under section 13(6) of the 2002 Act in favour of the claimant in the equivalent amount (namely £15,579.01), or, put shortly, that it should be declared to have been a back-to-back order. It is submitted that the mechanism of making a declaration would ensure that there was no interference with the sentencing process. The effect of the declaration would be to do no more than to declare the claimant's rights. Again, he relies on the case of R (on the application of B) v Stafford Combined Court.

[22]Mr Fordham submits that there is also a human rights dimension to the claim. In the light of the Human Rights Act section 9(2), he submits that the Supreme Court Act section 29(3) is not to be interpreted as excluding judicial review to establish a human rights breach such as that which would otherwise eventuate in the present case. He submits that to hold to the contrary would mean that the procedures of law available to the claimant would not secure human rights compatibility overall. He refers to the case of R (on the application of Shields) v Liverpool Crown Court

[2001] EWHC Admin 90

. There is, he submits, a lacuna in the law which requires to be filled by an interpretation which would give the claimant a remedy by way of judicial review.

[23]My conclusions are these. The first issue which falls to be decided is whether this court has jurisdiction to entertain the claim at all, in the light of the Supreme Court Act section 29(3). It is also the crucial issue, since the basis, undisputed by the Crown Prosecution Service, upon which the claim is put, assuming that this court has jurisdiction, is that the judge fell into error in his approach to the related issues of confiscation and compensation. He believed that he had to take account of the confiscation order when deciding whether or not to make a compensation order. As already mentioned, section 13(4) of the 2002 Act expressly required him to leave the confiscation order out of account. In the result, as is apparent from the transcript of the exchanges between the judge and the prosecution advocate, Mr Vass, the judge was encouraged to think that he had an unfettered discretion whether or not to make an order for compensation (transcript page 8F). His attention was then drawn by Mr Magee, defence counsel, to authorities in support of the principle that compensation orders were not usually made when the result would be the sale of the matrimonial home. It was therefore not surprising that, on this erroneous basis, he decided not to make a compensation order, giving the reasons I have already cited (17D-18D).

[24]This court was told that the situation was compounded by a separate error, in that £500 recently stolen from the complainant and actually found in the defendant's possession was included in the confiscation order rather than returned directly to its rightful owner, the claimant. This error was not drawn to the judge's attention, although he does seem to have been aware of the distinct considerations applying to that sum (Transcript 6D). What would the judge's order have been if he had directed himself correctly? I do not accept Mr Fordham's submission that he would necessarily have made a so-called back-to-back order. In order to make such an order the judge would have to be satisfied that the circumstances were such that none of the compensation order would have been recoverable "because of the insufficiency of the defendant's means". The judge's reasoning in not making a compensation order, whilst referring to the defendant's means, did not address or purport to apply the test under section 13(5) and (6).

[25]The outcome, on the basis of that test, might have been(i) that he would have believed that the defendant did have sufficient means; or

(ii) that she did not, and that part of the amount should be paid from the amount recovered under the confiscation order; or

(iii) that the whole of the amount should be so paid.

[26]The significance of this uncertainty of outcome, in my view, is that if this court has jurisdiction to entertain the claim, there is no satisfactory basis upon which it could decide the issue itself. Further, the consequence of substituting an order based on (i) or (ii) would be to increase the amount ordered to be paid by the defendant. Substituting such an order would, on any view, have been beyond the powers of the Court of Appeal by virtue of the Criminal Appeal Act 1968 section 11(3). Mr Fordham faced up to the potential consequences of his arguments, but submitted that they should not deter the court from assuming jurisdiction so as to put right the wrong suffered by the claimant. This court, unlike the Court of Appeal Criminal Division, is not subject to the relevant statutory restrictions. If necessary, the court could safeguard the defendant's rights by making an order based on (iii); alternatively could remit the matter to the Crown Court for re-determination.

[27]These considerations are not determinative of the vital question of jurisdiction, but they demonstrate an intimate connection between the issues arising in the case and the sentencing process. In my judgment, there can be no doubt that the compensation order forms part of the sentence of the court. By section 50(1) of the Criminal Appeal Act, "sentence" in relation to an offence includes any order made by a court in dealing with an offender. It is true that a compensation order is not included in the specific examples set out in that subsection, but if there were any doubt it is resolved by the Court of Appeal's power in section 132 of the 2000 Act to annul or vary compensation orders. Indeed, the Act contemplates compensation orders being made on appeal by the Court of Appeal (see section 133(5) already cited), no doubt having in mind the situation in which that court is persuaded to quash an order of the court below and substitute a different compensation order.

[28]On reflection, Mr Fordham conceded that a compensation order does form part of the sentence. He further submitted that if the sentence in the present case had been the subject of an appeal to the Court of Appeal Criminal Division, then that court could have put right the flaws in the orders of the court below by substituting appropriate orders. These need not have offended the principles in section 11(3) of the 1968 Act, since the court could and should have made back-to-back orders, thus providing the claimant with compensation without the defendant, taking the case as a whole, being more severely dealt with.

[29]It emerges, therefore, that the real reason why it is said that this court should assume jurisdiction is that the claimant, as a victim of the offence, not being a party to the criminal proceedings, cannot bring the case before the Court of Appeal Criminal Division. Thus he cannot himself, otherwise than by application to this court, prompt a review of that aspect of the sentence which affects him adversely, in the sense that the judge failed to make an order to the claimant's benefit, which he could and should have made.

[30]It is clear that the interests of the victim are rightly afforded great (and growing) importance in the criminal process. See, for example, section 130(12) of the 2000 Act, making it clear that compensation should take preference over a fine and R v Mitchell

[2001] 2 Cr.App.R(S) 29

, paragraphs 18 and 23. The growing importance of victims' interests has been recognised by Parliament in, for example, increasing the scope of cases which may be referred to the Court of Appeal by the Attorney General, and by measures to draw the courts' attention to the impact of crime on victims. However, the general position is that it is still the prosecution's responsibility to ensure that the interests of victims are properly catered for in the criminal process. We do not have a system in which the victims are parties to it. There is no prosecution right of appeal against a failure to make a compensation order.

[31]In the present case, the prosecution in the Crown Court elected to ask the court to proceed under section 6 of the 2002 Act, ie, to ask for a confiscation order. It need not have done so. Had it chosen not to do so, the judge might not have believed it appropriate to make such an order, especially if he had thought that compensation alone would have been more appropriate, as providing for the claimant and demonstrating to the defendant that the court intended direct reparation to the victim. The judge seems to have had in mind the compensating the victim, provided that the effect of compensation did not disproportionately affect the defendant's family. When the application for a compensation order was raised, the judge's attention was not drawn to the correct principles of law concerning the inter-relationship of compensation and confiscation orders.

[32]I make these observations not for the purpose of criticising the prosecution, although there is little doubt that they could have been more helpful to the judge and thereby to the claimant. The reason for making these observations is to illustrate the general observation that it is the role of the prosecution as well as the court to have regard to victims' interests. The prosecution undoubtedly contributed to what went amiss at the Crown Court.

[33]As it seems to me, the substance of the complaint giving rise to this claim falls squarely within the exception in section 29(3) of the 1981 Act. It concerns the Crown Court's jurisdiction in matters relating to trial on indictment. It is settled law that matters relating to trial on indictment include the sentence passed at the end of the trial (Smalley v Warwick Crown Court

[1985] 80 Cr.App.R 205

; Sampson v Crown Court at Croydon

[1987] 84 Cr.App.R 203

at 376). There have been a number of decisions about the scope of the exclusion in section 29(3) which can be regarded as 'helpful pointers' (to adopt the phrase used by Lord Browne-Wilkinson in R v Manchester Crown Court ex parte Director of Public Prosecutions

[1994] Cr.App.R 461

) but none, in my view, alters the fundamental principle.

[34]In R (on the application of the Crown Prosecution Service) v Crown Court at Guildford the court held that a sentence which was wrong in principle due to an error of law was not amenable to judicial review. In the judgment of the Lord Chief

Justice at paragraph 16 he said:

"Where there has been a trial on indictment and the defendant has been convicted, and the judge makes an error in the extent of his jurisdiction when passing sentence, that, in my judgment . . . plainly falls within the statutory definition under section 29(3) of the Supreme Court Act 1981 of being a matter relating to trial on indictment."

In my judgment, for the same reasons, the present claim falls within the same category. It can be distinguished from the Maidstone Crown Court case in which in the particular circumstances it was held that a supervision order complained of could not be characterised as a sentence.

[35]It cannot reasonably be argued that the judge in the present case acted without jurisdiction. He had a discretion whether or not to make the compensation order. The issue is whether he acted or failed to act in error in the exercise of his discretion. It is common ground that he fell into error. In reality, the issue is not one of jurisdiction at all.

[36]In my view, no assistance is to be derived from R (on the application of B) v Stafford Combined Court. In that case this court granted a declaration to the effect that the way in which a young complainant in a rape case had been treated infringed her rights under

Article 8 of the European Convention on Human Rights

. May LJ in his judgment in that case found it unnecessary to deal with the submissions advanced by Mr Fordham that the court had jurisdiction under section 29(3) to quash the Crown Court's order in relation to the witness. No party before the court in that case suggested that the claim was incompetent by virtue of that subsection. The declaration granted could have no effect on the trial or sentence. In contrast, in the present case, if the declaration sought were to be granted, it would be to the effect that the money now held by the Justices was unlawfully paid to them and should instead have been made the subject of a compensation order in favour of the claimant. Doubtless, were such a declaration to be made, the Justices would consider themselves obliged to pay the money to the claimant, but the difference between such a course, and an order quashing the judge's order and substituting another, would be one of form and not of substance. The effect would be the same. It would alter the sentence.

[37]Finally, I am not persuaded that the application of section 29(3) to this claim, so as to exclude the jurisdiction of this court, is incompatible with the human rights of the claimant under the European Convention on Human Rights. English law provides a civil remedy which is open to any person such as the claimant, whose property has been misappropriated by another. No doubt the claimant is disappointed that he has been deprived of the benefit of a compensation order in the criminal proceedings for the full amount charged and proved against the defendant, which he probably would have received if the law had been correctly applied. He is justified in feeling aggrieved. There would have been obvious practical advantages to him if such an order had been made. But he still has a remedy which will enable him to obtain judgment for at least the full amount of the relevant sum, and take the enforcement proceedings available in the civil courts. Despite the relative disadvantages to him having to pursue such proceedings, it cannot, in my judgment, be said that his Convention rights are infringed.

[38]For all those reasons, I would dismiss the claim.

LORD JUSTICE RICHARDS: I agree. Inventive though Mr Fordham's arguments are, they cannot get round the jurisdictional bar created by section 29(3) of the Supreme Court Act 1981 in respect of the Crown Court's jurisdiction in relation to matters relating to trial on indictment. Decisions as to confiscation and compensation are decisions about sentence and, as such, are an integral part of the trial process.

[40]Decisions about sentence can be challenged on appeal to the Court of Appeal Criminal Division to the extent that statute confers a right of appeal, but they are not open to challenge by way of judicial review. In particular, where statute has not conferred a right of appeal, it is not permissible to fill the gap by recourse to judicial review. That applies to the prosecution, notwithstanding that it is a party to the Crown Court proceedings. It applies all the more obviously to victims who are not party to those proceedings, though their interests are taken into account and intended to be protected by the proceedings. The principle is the same whether the victim has sustained personal injury or, as in this case, financial loss. The victim is no more able to challenge a decision not to make a compensation order than, for example, a decision not to impose a custodial sentence.

[41]The suggestion that section 29(3) does not refer to declarations and that its effect can therefore be avoided by the grant of declaratory relief in this case is untenable. The result that the claimant seeks cannot be achieved by declaration. If he is to receive the monies currently held by the court, a compensation order must be made, together with a direction that the compensation be paid out of the sums recovered under the confiscation order. This court would therefore have to quash the judge's decision not to make a compensation order and would have to substitute an order and direction to the requisite effect. That would plainly be to alter part of the sentence. A declaration could not achieve it. Even if it could, this court should, in my view, decline to entertain an application for it on the basis that it would amount to an impermissible attempt to outflank the effect of section 29(3).

[42]I, too, am satisfied that the availability of a normal civil claim in the County Court disposes of the claimant's arguments under the Human Rights Act 1998, even though it is less convenient than receipt of monies under a compensation order and, having regard to the factual circumstances mentioned in the judge's remarks in this case, it seems clear that the claimant will have to wait longer before he can recover the full sum to which he is entitled.

[43]I should also mention that a distinct question was raised before us as to whether the claimant, as a victim of crime, can be said to have a sufficient interest for the purposes of a judicial review claim. We were referred to R (on the application of Bulger)v Secretary of State for the Home Department

[2001] EWHC Admin 119

; [2001] 3 AER 449 at paragraphs 20 to 21. In view of the conclusion that this court has reached on section 29(3), it is unnecessary for us to consider that question. The court's conclusions lead necessarily to the dismissal of the present claim.

[44]MR FORDHAM: My Lord, may I address you briefly for the purposes of protecting my client's position in relation to a possible appeal. The position, I think, must be this. In a criminal cause or matter you would need to certify a point of law of general public importance and you would then need to dispose of my application to this court to give leave to appeal. In circumstances where there is no hand down, I would also ask for you to extend time to 28 days from the date of receipt of the transcript. That is where we are going.

[45]May I hand up -- and obviously I sought to prepare this before hearing what you said, but I think nevertheless it may assist -- a possible form of words. (Handed). Can I invite your attention to it.

LORD JUSTICE RICHARDS: Thank you very much.

[47]MR FORDHAM: Perhaps my Lord will look at that. Can I address you briefly as to why I say it would be appropriate to certify that important point. We have four House of Lords cases, the latest in 1993. We can see that since then the lower courts have strained in some cases to seek to eliminate the injustice which 29(3) causes, particularly for third parties. No lower court can take head-on the difficulty which 29(3) imposes. I would wish to raise with the House of Lords the particular position of the third party given the purpose of 29(3), notwithstanding what my Lords have said about it being an aspect of sentencing.

[48]Can I also make clear that I would wish to argue, as I could not here, that the Anisminic progression should apply to 29(3); that is to say what started with jurisdictional error (see the Maidstone case) in fact leads to the conclusion, which only the House of Lords could entertain, that actually an error of law is synonymous in public law with a jurisdictional error. I say that not because that is the main point but because I would want to reserve that for argument in a place where it could be dealt with.

[49]In those circumstances, whatever you think of the application for leave to appeal, I do invite you to certify as being a point of law of public importance, and of general public importance, the question which I have sought to set out for you on the piece of paper. That is the first step.

LORD JUSTICE RICHARDS: Looking at the first step of certification, in the second line the words "or an error as to jurisdiction" appear. I understand from what you have said why you wish to leave it open to argue about jurisdictional error but, as I understand it, what you say is an error of law here is sufficient to get you home.

[51]MR FORDHAM: I would also want to invite the House to take a different view on whether an error as to the extent of jurisdiction is an error as to jurisdiction. That is why I have included it. I would put it in the alternative way. I am not trying to persuade you that this is a case of an error as to jurisdiction. If it were --

LORD JUSTICE RICHARDS: Well, one would be certifying the point that arises out of this case rather than a more general moot point. As is apparent from the judgments that have been given this morning, this court accepts that there was an error of law in the judge's decision-making process, but it rejects any suggestion that it was an error of jurisdiction. If we certified in terms of "fails by reason of an error of law" it would be open to you to advance the argument that you have referred to. So one could, reflecting the way we have dealt with the matter, delete "or an error as to jurisdiction" without prejudicing the claimant.

[53]MR FORDHAM: That is right. It depends how you characterise it.

LORD JUSTICE RICHARDS: Exactly. The other matter that immediately strikes me about the formulation here is the word "rigidly". The question is whether section 29(3) precludes, and one does not need "rigidly". For my part, I would prefer to delete that word, so it would read:

"Where after trial on indictment the Crown Court makes a confiscation order but fails by reason of an error of law to make a compensation order for the benefit of the victim, does section 29(3) of the Supreme Court Act 1981 preclude any claim for judicial review."

[55]MR FORDHAM: My Lords, yes.

LORD JUSTICE RICHARDS: Mr Sadd, do you have any comments on that?

[57]MR SADD: My Lords, no. I bear in mind that it is the first of a two stage test.

LORD JUSTICE RICHARDS: We are concerned with certification, not the question of permission.

[59]MR SADD: My Lords, I bear that in mind. I also think it is a point of law of general public importance involving, as it does, the inter-relationship in confiscation and compensation, and indeed the jurisdiction of this court.

LORD JUSTICE RICHARDS: Yes, well we will certify a question of general public importance in those terms; that is to say subject to the two amendments we have made.

[61]MR FORDHAM: My Lords, I am very grateful. Stage two is a very short stage because I have nothing to add to what I have already indicated about the importance of this. That would be the reason we would invite this court to grant permission. There would be no further reason unless you have any questions.

LORD JUSTICE RICHARDS: This court does not propose to grant permission. You will have to take it to their Lordships.

[63]MR FORDHAM: Given that we will not have a transcript for a while, I wonder if my Lords would extend my time to 28 days from receipt of the transcript.

LORD JUSTICE RICHARDS: That is right, is it, that we can extend the time for petition to their Lordships?

[65]MR FORDHAM: That certainly is my understanding, my Lord.

LORD JUSTICE RICHARDS: If it is wrong, we will be told so. We will order an expedited transcript, but we will extend time to the date of receipt of the approved transcript.

[67]MR FORDHAM: My Lords, I am very grateful.

LORD JUSTICE RICHARDS: There are no other applications?

[69]MR FORDHAM: I have no more.

LORD JUSTICE RICHARDS: You have none, Mr Sadd?

[71]MR SADD: No, my Lord.