LAW REPORT: 4 April 1995 Councils not obliged to compensate

D v Director of Public Prosecutions and other appeals Queen's Bench Divisional Court (Lord Justice Leggatt and Mr Justice Buxton) 31 March 1995
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A local authority with parental responsibility for a young person should not be ordered to pay compensation to victims of crimes committed by the young person if it had done all that it reasonably and properly could to protect the public from the young offender.

The Divisional Court allowed four appeals by Shropshire and Lancashire County Councils from compensations orders made under section 55 of the Children and Young Persons Act 1933, as amended.

In each case, the council applied for judicial review of magistrates' or Crown Court orders to pay compensation following findings of guilt recorded against young persons in its care.

James Townend QC and N Alban-Lloyd (County Solicitors) for the councils; John Maxwell (DPP) for the DPP.

LORD JUSTICE LEGGATT, giving the court's judgment, said that the approach to compensation in section 55 was in two stages. First, the court must consider whether "the case would best be met by the imposition of a fine or costs or the making of" a compensation order "whether with or without any other punishment". It was at that stage that the court must decide whether the victim had suffered a loss that deserved to be compensated.

If so, the court was obliged, where the offender was under 16, or empowered, where the offender was 16 or 17, to make an order for payment against the parent or guardian, or where section 55(5) applied, the local authority.

The court's exercise of that duty or power was only prevented in cases where it would be unreasonable to make an order for payment, having regard to the circumstances of the case. That very broad test applied equally to a parent or guardian and to a local authority, but its application must necessarily differ according to the circumstances. Where a parent had been responsible for the bringing up of a young person, it might be difficult to show that it would be unreasonable to make an order for payment against a parent, though such cases might arise.

A local authority's position with regard to young persons in its care, or for whom it had provided accommodation, was different from that of a natural parent or a guardian. A local authority might be entrusted with the care of a young person who was already an offender, or of criminal propensity. The steps the local authority could take to restrain such a young person might be limited.

The structure of the Act indicated that the local authority had the same right to assert unreasonableness as did a natural parent. It was entirely appropriate that the local authority should be able to try to demonstrate, just as might a parent, that it had done all that it reasonably could, within the limits of its powers over the young person, to keep the young person from criminal ways.

Where, therefore, the local authority was found to have done everything that it reasonably and properly could to protect the public from the young offender, it would be wholly unreasonable and unjust that it should bear a financial penalty. The parental responsibility that a local authority had for young persons in its care did not carry with it an obligation to answer for the young person's defaults, so long as the authority had properly exercised such powers over the young person as were conferred on it by its parental responsibility.

The approach that it would be troublesome for the victims to pursue civil claims was erroneous. It was irrelevant that the council had the means to pay if it was unreasonable that it should do so.

In the first appeal, the case would be remitted for the magistrates to make a finding as to whether the council had done all that it reasonably could to prevent the offences. In the other appeals, no criticism was made of the way in which the councils carried out their duties, and the compensation orders would be quashed.

Ying Hui Tan, Barrister