Clause 3 (Hansard, 15 June 1972)

§ Mr. Carlisle
I beg to move Amendment No. 7, in page 3, line 27, leave out 'the appropriate court" and insert: 'the magistrates court for the time being having functions in relation to the enforcement of the order'. I hope it might be appropriate to take with this Government Amendment No. 8. These are drafting Amendments:

§ Mr. Dell
I beg to move Amendment No. 42, in page 3, line 37, at end insert: 'or (c) that there has been a substantial change in the circumstances of the offender'. I raised this question in Committee, when, in the debate on Clause 3, I asked the hon. and learned Gentleman to consider what the situation would be in respect of a compensation order if there were any considerable change in the circumstances of the offender against whom the order had been made. The hon. and learned Gentleman appeared to receive the point sympathetically, although he pointed out that there is a difference between a compensation order, in respect of which there is a beneficiary, and a fine, because, in that case, the State is the beneficiary. In his letter to my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) of 25th April, the hon. and learned Gentleman said he had considered the matter and 1934 had decided, on the ground that there was this difference between a compensation order and a fine, to reject my suggestion that the Clause should be amended in the way Amendment No. 42 now proposes.
I simply put the question to the hon. and learned Gentleman: what happens if there is a substantial change in the circumstances of the offender? Suppose, for example, that he is incapacitated. Suppose he suffers a serious reduction in income. Suppose, in other words, he is genuinely not able to pay the compensation ordered against him. What happens then? It is clear that in these circumstances the victim does not get his money, but what is to happen to the offender? Is he under permanent liability to pay, even although he may have been inflicted, for example, by permanent ill health? Or does he eventually go to prison?
Why is it unreasonable to have in extreme circumstances some means of review. The Bill holds it to be a relevant consideration in determining the amount of the compensation order what the means of the offender are. I do not see why, if the means and circumstances of the offender change in some drastic way, there should not be some ultimate power of review vested in the courts in the way I suggest.

§ Mr. Carlisle
The purpose of the Amendment is in effect to seek a power to remit a compensation order analogous to the power which exists over a fine. I concede that the arguments are finely balanced. It can be said that since there is the power to remit a fine, there should be a power to remit a compensation order. But against that is the argument that this would involve compromising the interests of a third party and doing so in his absence, because the compensation order is made in favour of a third party.
It is an argument difficult entirely to ignore. Certainly, the Widgery Committee, which recommended specifically that the means of the individual should be taken into account in assessing the compensation order, never suggested that there should be a power to remit, and both Governments over the last few years have drawn this distinction. The Labour Government themselves brought in an Amendment to their Criminal Justice Act, 1967, deliberately aimed to confine the 1935 power of remission to fines. Equally, the present Government made it clear in the context of the Courts Act that the term "fine" was not to include a compensation order.
I accept that no purpose will be achieved for the third party if a person who is palpably incapable of paying the compensation order is sent to prison. Against that one has to judge the fact that in general it would be wrong to allow the courts to choose to remit orders made in the interests of third parties without those third parties being represented. I have considered this finely balanced argument and have decided on reflection that it would not be right to accede to the right hon. Gentleman's recommendations.

§ Sir Elwyn Jones
Will the hon. and learned Gentleman look at this again and perhaps have it considered in another place? The argument of my right hon. Friend suggested that an extraordinary lacuna would be left if a person against whom an order was made suffered a change of circumstances which rendered him completely incapable of meeting the obligation. As things stand, the courts are left in the position of not knowing what they are expected to do, and so .is the enforcing authority. All I ask now is for the Home Office and the hon. and learned Gentleman to look at this again.

§ Mr. Carlisle
I am quite prepared to accede to what the right hon. and learned Gentleman asks. I am prepared to consider this should it be raised again in another place. It is contrary to the view that the Labour Government and the present Government have taken in other legislation. Indeed, the Labour Government specifically moved an Amendment in the other place to achieve this result during the passage of the Criminal Justice Act, 1967. But I find the arguments so finely balanced that, if pressed, I will look at it again.