R v Khan [2025] EWCA Crim 1477: Procedural Safeguards and Substantive Limits on Compensation Orders in the Crown Court

R v Khan [2025] EWCA Crim 1477: Procedural Safeguards and Substantive Limits on Compensation Orders in the Crown Court

1. Introduction

R v Khan [2025] EWCA Crim 1477 is a Court of Appeal decision of real significance for the law and practice of compensation orders in criminal proceedings. The case does not concern the length or nature of the custodial sentence, but rather focuses on:

  • the procedural requirements that must be followed before a compensation order is made;
  • the necessity of a proper means enquiry into the offender’s ability to pay;
  • the limits of the Crown Court’s power—in particular, that it cannot award “aggravated damages” or add sums for “delay” akin to civil interest; and
  • the relationship between compensation orders and other financial penalties such as costs.

The Court of Appeal, Criminal Division (the “Court”) allowed the applicant’s appeal against sentence in part, quashing both a substantial compensation order (£10,600) and an order for prosecution costs (£700) made by the Crown Court at Birmingham.

The judgment rests on statutory provisions in the Sentencing Act 2020 (ss. 133–135) and prior authority, in particular R v York [2018] EWCA Crim 2754. It sharpens and restates the law by:

  • reaffirming that compensation orders must be grounded in evidence, subject to submissions, and realistically payable within a reasonable time; and
  • emphatically rejecting any attempt by sentencing judges to replicate civil claims for damages, including aggravated damages and interest, within criminal sentencing.

2. Factual and Procedural Background

2.1 The underlying offence

On 5 July 2020, the applicant (Mr Khan) was driving his Audi along the A442 in Telford. The complainant, Mr Andrew Lisseman, overtook him while driving with his two young children (aged 7 and 2) in the back of his car. After Mr Lisseman later stopped due to a puncture, there was a verbal exchange between him and the applicant, apparently triggered by resentment at having been overtaken.

Mr Lisseman then drove home. The applicant followed him to his home address, got out of his car, and attacked him with a metal bar in the presence of Mr Lisseman’s wife. The assault resulted in:

  • injuries to the elbow; and
  • broken ribs constituting grievous bodily harm.

The applicant then left the scene and took steps to evade detection, including changing the number plates on his vehicle.

He was subsequently identified (with the help of a photograph taken by the complainant), arrested, and interviewed. In interview he gave “no comment” answers.

2.2 The applicant’s background and means

The applicant was of previous good character. A pre-sentence report (PSR) outlined his personal and financial circumstances:

  • He had several good GCSE passes and a level 1 qualification in auto-mechanics.
  • He had worked repairing, buying and selling cars and as an evening delivery driver.
  • He had recently set up and managed a restaurant, employing four others, financed by a £16,000 loan.
  • He paid towards a mortgage and supported a wife and child.
  • The PSR author noted that “monies are currently ‘tight’”, but the applicant hoped income would increase.
  • The report concluded that he “might reasonably be required to make regular payments towards a Compensation Order or other financial penalty.”

By the time of the appeal, counsel (Miss Hale) updated the Court that:

  • the restaurant was still generating no profit;
  • the applicant was in receipt of Universal Credit and child benefit for two children (one born after the PSR); and
  • his financial circumstances were, in substance, fragile.

2.3 The sentence in the Crown Court

On 3 March 2024, the applicant was sentenced by Mr Recorder Jack in the Crown Court at Birmingham after a plea of guilty to:

  • possession of an offensive weapon; and
  • inflicting grievous bodily harm.

The Recorder imposed:

  • 10 months’ imprisonment, suspended for 2 years, with an unpaid work requirement;
  • a victim surcharge of £156;
  • prosecution costs of £700; and
  • a compensation order in favour of the complainant of £10,600.

The compensation and costs were ordered to be paid at £500 per month.

2.4 No request for compensation at sentencing

A striking feature of the sentencing hearing is that the prosecution explicitly indicated that no ancillary orders were sought:

“Your Honour, I cannot find any victim impact statement. Therefore there does not appear to be the need for any ancillary orders or consideration of ancillary orders.”

The Recorder did not contradict that statement, nor did he put the possibility of a compensation order to defence counsel in mitigation. Only later, in his sentencing remarks, did he proceed to assess and order very substantial compensation.

2.5 The Recorder’s approach to compensation

When turning to compensation, the Recorder:

  • relied on the Judicial College Guidelines (civil personal injury guidelines) to assess “basic damages”;
  • accepted that there was no guideline directly applicable to rib fractures, and analogised with:
    • chapter 14 (“minor injuries”)—rejected as too low; and
    • guidelines for “less serious leg injuries”.

He reasoned that:

  • “simple fractures through the tibia or fibula or soft-tissue injuries” had an upper range of £14,450;
  • simple femur fractures (with no damage to articular surfaces) had a range of £11,120 to £17,180;
  • the injuries here were “somewhat less serious” than a simple femur fracture; and
  • he therefore fixed “basic damages” at £7,000.

He then added:

  • £3,000 for "aggravating features":
    • following the complainant home;
    • the presence of the complainant’s wife;
    • the intentional nature of the assault; and
    • changing number plates to escape detection;
  • £600 for “substantial delay” before the matter was dealt with, treating it effectively as a sum reflecting “interest”.

He thereby arrived at a total compensation figure of £10,600, coupled with £700 in costs, payable at £500 per month.

2.6 The appeal

The applicant sought leave to appeal only against the compensation order, but the Court also took the appeal to encompass the costs order. The Registrar referred the application to the full court, noting that:

“The grounds of appeal concern the Compensation Order only: the correct procedure was not followed in that no submissions as to calculation of amount or means to pay were invited. In addition, the court should consider the inclusion of amounts for ‘aggravating features’ and delay.”

The Court granted leave and proceeded to determine the substantive merits of the appeal.

3. Summary of the Court of Appeal’s Decision

The Court allowed the appeal and:

  • quashed the compensation order in its entirety;
  • quashed the order for prosecution costs; and
  • declined to substitute any alternative order, being insufficiently satisfied about the applicant’s means and ability to pay.

In headline terms, the Court held that:

  1. The Recorder failed to follow the mandatory procedural steps required by the Sentencing Act 2020 and the authority of R v York in making a compensation order:
    • no prior indication that a compensation order was being considered;
    • no invitation to prosecution or defence to make submissions on compensation or means;
    • no proper enquiry into, or findings on, the applicant’s means.
  2. It was wrong in principle for the Recorder to:
    • approach compensation as if assessing civil damages using the Judicial College Guidelines;
    • award an additional sum for “aggravating features” akin to aggravated damages; and
    • add a further amount for “delay” tantamount to interest.
  3. The Crown Court is not an appropriate forum to conduct a quasi-civil damages assessment, especially where the victim may have other routes (e.g. an application to the Criminal Injuries Compensation Authority) and may not wish the criminal court to intervene.

As a result, the financial orders (compensation and costs) were both set aside, leaving only the suspended custodial sentence and the victim surcharge in place.

4. Legal Framework: Compensation and Costs in Sentencing

4.1 Sentencing Act 2020, ss. 133–135

The Court’s reasoning is anchored in sections 133–135 of the Sentencing Act 2020 (“SA 2020”), which codify the powers and principles governing compensation orders in criminal proceedings. While the judgment does not quote these provisions in full, the defence’s summary (accepted by the Court) reflects their effect and prior case law.

From the judgment (para. 12), the key derived principles are:

  1. The offender must provide or be able to provide evidence of their means, and both prosecution and defence must have the opportunity to make representations.
  2. The judge must:
    • enquire into the offender’s means; and
    • make clear findings on those means.
  3. The court must take into account the offender’s means when deciding whether to make an order and in what amount.
  4. The level of any compensation must be realistically capable of being paid within a reasonable time.
  5. It is wrong to fix an amount without regard to:
    • the instalments that can realistically be paid; and
    • the period over which they would be paid.
  6. The court should not proceed on the basis that compensation will be met by someone other than the offender.

These principles implement the fundamental idea that a compensation order is:

  • a sentence on the offender, and
  • not a free-standing civil award detached from his or her resources.

4.2 Priority and interaction with other financial orders

Under the Sentencing Code, compensation has long been treated as a priority over other financial penalties, such as fines or costs, where there is limited ability to pay. Although not spelled out at length in the judgment, this background informs the Court’s decision to quash not only the compensation order but also the costs order once it was apparent that:

  • the applicant had limited means; and
  • it was doubtful that he could realistically meet substantial ongoing financial obligations.

If compensation cannot properly be imposed due to means, then imposing costs of £700 payable at £500 per month is likewise problematic: the same principle of realistic enforceability applies.

5. Precedents and Doctrinal Context

5.1 R v York [2018] EWCA Crim 2754

The central authority relied on by the defence, and endorsed by the Court, is R v York [2018] EWCA Crim 2754. In York, the Court of Appeal laid down a structured approach to compensation orders, stressing that:

  • the offender’s means are a critical limiting factor;
  • any order must be one the offender can realistically pay within a reasonable period; and
  • courts must not assume payments will be made by family or third parties.

In Khan, the defence (via Mr Henry in writing and Miss Hale orally) distilled York and the statutory framework into the six-point procedural scheme set out at paragraph 12 of the judgment. The Court expressly accepted that distillation and applied it to the facts.

Two core propositions from York, as restated in Khan, are particularly important:

  1. Mandatory means enquiry and findings:
    Before making a compensation order, the sentencing judge must:
    • enquire about the offender’s means (including hearing evidence and submissions); and
    • make clear findings as to those means.
    A mere passing reference to a PSR is insufficient where the court is contemplating a substantial financial order.
  2. Realistic and time-bound quantum:
    The court must ensure that:
    • the sum ordered can in fact be paid by the offender personally; and
    • within a reasonable time, having regard to his or her income, debts and obligations.
    A plainly unaffordable order is both wrong in principle and counterproductive, leading to enforcement problems and undermining confidence in the sentencing process.

Khan is therefore not fundamentally new law, but a strong reaffirmation and practical application of York and the Sentencing Code, emphasising adherence in day-to-day sentencing practice.

5.2 Use (and misuse) of civil personal injury guidelines

The Recorder’s reliance on the Judicial College Guidelines (JCG) for civil damages is notable. Those guidelines are widely used in the civil courts (and in settlement negotiations) to value pain, suffering and loss of amenity. However, they are not designed for the criminal jurisdiction, whose statutory remit is narrower.

While it is not inherently impermissible for a judge to have a general sense of likely civil valuations, Khan strongly discourages treating sentencing as a civil damages assessment by another name. The Recorder’s approach—selecting analogues for rib injuries, fixing a “basic damages” figure, adding sums for aggravation and delay—closely resembled a civil assessment, and was expressly criticised.

6. The Court’s Legal Reasoning

6.1 Procedural failure: no proper means enquiry or submissions

The core of the Court’s reasoning is that the Recorder did not follow the required procedure before imposing a substantial financial order.

Miss Hale summarised the applicable legal principles (para. 13) as:

  1. A sentencing judge must carry out a means enquiry (considering evidence and representations) and make findings as to the offender’s means; and
  2. As to quantum, the order must be capable of being paid by the offender personally, and within a reasonable time.

The Court “agreed with those submissions” (para. 16). It went on to explain that:

  • Although the Recorder had some limited information from the PSR about the applicant’s means, that did not absolve him of the duty to:
    • indicate his intention to consider compensation;
    • invite submissions from counsel (prosecution and defence); and
    • actively enquire into, and then assess, the applicant’s ability to pay.
  • The Recorder’s conduct was “particularly egregious” because:
    • prosecution counsel had expressly said there was no need for ancillary orders, including compensation; and
    • the issue was never raised with defence counsel in mitigation.

By proceeding without such a process, the Recorder:

  • denied the applicant a fair opportunity to address the proposed, and ultimately substantial, compensation order; and
  • failed to comply with the statutory and common-law requirements of reasoned, evidence-based sentencing.

This procedural irregularity was sufficient in itself to justify appellate intervention.

6.2 Unlawful inclusion of “aggravated damages” and amounts for delay

Beyond procedure, the Court addressed the substance of the Recorder’s approach. At paragraph 15, Miss Hale argued (and the Court agreed) that:

  • The Recorder was not entitled to add any sum to the compensation figure:
    • for “aggravating features” of the offending, or
    • for “delay” (by way of something akin to interest).
  • There was no power in the Crown Court to award compensation on those accounts.

The Court reinforced this in paragraph 17, holding that:

  • The Crown Court is not an appropriate venue to embark upon a process akin to awarding damages in a civil claim.
  • The Recorder “got [that process] wrong” in any event, by:
    • awarding the equivalent of aggravated damages (for the aggravating features of the offence); and
    • adding a sum for delay akin to civil interest.

This confirms a key doctrinal point: in the criminal jurisdiction, the compensation power is limited to actual loss, damage or personal injury arising from the offence. It does not extend to:

  • civil law heads of loss such as aggravated or exemplary damages; or
  • interest as such, or equivalents for delay, unless specifically authorised by statute (which it is not in this context).

The presence of aggravating features is properly reflected in:

  • the seriousness of the offence and thus the custodial term (or other primary sentence);
  • not in an inflated compensation figure.

6.3 Consideration of the victim’s position and CICA

The Court raised a further, often overlooked point: the victim may have made a conscious decision not to seek compensation through the criminal court. At paragraph 17, the Court noted:

“There may have been very good reasons for the victim not to seek a compensation order. For example, he may have made an application to the Criminal Injuries Compensation Authority and not wanted to have the process of obtaining compensation by that route interfered with.”

This observation underscores that:

  • the criminal court’s power to award compensation is discretionary and must be exercised with sensitivity to the victim’s circumstances and preferences; and
  • automatic or heavy-handed use of that power may, paradoxically, complicate or prejudice the victim’s position, for example in relation to:
    • a Criminal Injuries Compensation Authority (CICA) award; or
    • any contemplated civil claim.

The Crown Court should therefore not assume that a large compensation order is always the best or desired route for the victim, particularly in the absence of a victim impact statement or explicit request.

6.4 Remedy: quashing the orders and declining to substitute

Having identified both procedural and substantive defects, the Court decided to:

  1. Quash the compensation order:
    Given the scale of the defects, the proper course was to “quash the compensation order in its entirety” (para. 18).
  2. Quash the costs order:
    The Court also quashed the order for £700 costs, recognising that:
    • if the applicant’s means were insufficient for compensation, significant costs were equally inappropriate; and
    • costs, too, are subject to considerations of means and fairness.
  3. Decline to substitute any fresh order:
    The Court considered whether it should make a lesser compensation or costs order in place of the quashed orders. However, after hearing evidence from Miss Hale on the applicant’s updated means, it concluded (para. 19) that:
    “we are not satisfied that his means and his ability to pay are such that it is appropriate for us to make any alternative order.”
    Accordingly, no replacement order was made (para. 20).

This final step illustrates the Court’s insistence that:

  • where means are limited and uncertain, no financial order is better than an unrealistic one that is bound to fail in enforcement;
  • the overriding goal is just and proportionate sentencing, not paper awards that cannot be honoured.

7. Impact and Future Significance

7.1 Practical guidance for sentencing judges

R v Khan delivers a clear message to Crown Court judges and Recorders:

  • Do not make compensation orders without prior notice.
    If compensation is under consideration—especially in a significant amount—the judge should:
    • indicate that fact clearly in open court;
    • invite the prosecution to address:
      • the victim’s position; and
      • any evidence of loss or injury;
    • invite the defence to address:
      • the offender’s means; and
      • what, if anything, is realistically affordable.
  • Conduct a proper means enquiry.
    A PSR reference to “tight” finances and a tentative line that the offender “might reasonably be required to make regular payments” is not enough to support a five-figure order payable at £500 per month. Judges must:
    • probe income, outgoings, debts and dependants; and
    • make clear findings putting those matters on the record.
  • Avoid importing civil heads of damage.
    Compensation should be confined to:
    • personal injury;
    • loss; or
    • damage
    caused by the offence. It should not include:
    • aggravated or exemplary damages; or
    • interest-like sums for delay.

7.2 Advocacy: duties of prosecution and defence

The case also has clear implications for counsel:

  • Prosecution:
    • should take active steps to ascertain whether the victim seeks compensation, including obtaining a victim impact statement where practicable;
    • should be ready to assist the court with:
      • the nature and extent of injury; and
      • the appropriate parameters of a compensation order;
    • should not assume that silence about compensation means the judge will not consider it.
  • Defence:
    • must be alert to any indication that compensation is in play;
    • should be ready to put forward a clear, evidenced picture of the defendant’s means (including updated information beyond the PSR); and
    • if the judge appears to be engaging in a civil-style valuation (e.g. citing JCG and adding sums for aggravation), defence counsel should object and cite Khan/York.

7.3 Victims and alternative routes (CICA and civil claims)

Khan reminds practitioners that:

  • Victims may have applied—or plan to apply—to the Criminal Injuries Compensation Authority, where awards are based on a statutory tariff system and broader policy considerations.
  • A large court compensation order can:
    • affect the assessment of a CICA award; or
    • complicate the position in any civil litigation.
  • The victim’s wishes (including a preference not to pursue compensation through the criminal court) should therefore be:
    • identified; and
    • respected, so far as consistent with justice.

This may lead to a greater emphasis on:

  • obtaining and using victim personal statements for clarity on compensation preference; and
  • carefully explaining to victims the different routes and their consequences.

7.4 Institutional impact

From a broader perspective, Khan is likely to:

  • feature prominently in judicial training on sentencing, particularly about:
    • the limits of the Crown Court’s compensatory jurisdiction; and
    • the need for a structured means enquiry.
  • be cited in future appeals where:
    • compensation orders appear inflated;
    • aggravated/interest-like elements have been added; or
    • the record shows no meaningful means enquiry.

8. Complex Concepts Explained

8.1 Compensation order

A compensation order is a financial order made by a criminal court requiring an offender to pay money to a victim for:

  • personal injury;
  • loss; or
  • damage

resulting from the offence. Key points:

  • It is part of the sentence, not a separate civil judgment.
  • The amount is limited by:
    • the actual harm; and
    • the offender’s ability to pay.
  • It is usually enforced through the magistrates’ court enforcement system.

8.2 Prosecution costs

A costs order requires a convicted defendant to pay some or all of the costs of the prosecution. However:

  • these too are subject to considerations of means and proportionality;
  • the court should not impose costs that are clearly beyond the defendant’s realistic ability to pay.

8.3 Victim surcharge

The victim surcharge is a statutory charge payable by most offenders on conviction, intended to fund victim services more generally. It is:

  • mandatory in most cases (subject to limited judicial discretion);
  • not directly related to the individual victim’s loss;
  • distinct from both compensation and costs.

8.4 Means enquiry

A means enquiry is the court’s process of investigating a defendant’s:

  • income (e.g. wages, benefits, business profits);
  • capital (e.g. savings, property equity);
  • liabilities (e.g. loans, mortgages, debts); and
  • financial responsibilities (e.g. dependants).

This can involve:

  • PSR information;
  • oral evidence from the defendant;
  • documents such as bank statements or wage slips; and
  • submissions from counsel.

The purpose is to ensure that any financial order is:

  • proportionate to the offender’s situation; and
  • realistically enforceable.

8.5 Aggravated damages (civil concept)

In civil law, aggravated damages are extra compensatory damages awarded where the defendant’s conduct has:

  • injured the claimant’s dignity or pride; or
  • caused particularly distressing or humiliating effects.

They are not punitive (as exemplary damages may be), but they go beyond mere compensation for physical injury. The Crown Court:

  • has no general power to award aggravated damages in criminal sentencing; and
  • must instead reflect aggravating features in the seriousness of the offence and primary sentence (e.g. a longer custodial term).

8.6 Criminal Injuries Compensation Authority (CICA)

The Criminal Injuries Compensation Authority administers a government-funded scheme under which victims of certain violent crimes can receive compensation. Important features include:

  • Compensation is awarded according to a statutory tariff.
  • It is funded by the state, not the offender.
  • Award levels and eligibility criteria differ from what a civil court might grant.

Where a victim seeks or has obtained CICA compensation, a large criminal compensation order may:

  • need to be taken into account by CICA; or
  • be unwanted by the victim if it complicates their claim.

8.7 Recorder and Registrar

A Recorder is a part-time judge (often a practising barrister or solicitor) who sits in the Crown Court. They have full judicial authority within the cases to which they are assigned.

The Registrar of the Court of Appeal (Criminal Division) has important administrative and quasi-judicial functions, including reviewing applications for leave to appeal and, as in this case, referring cases to the full court where they raise issues of wider importance or where there appears to be a clear arguable appeal.

9. Conclusion: The Significance of R v Khan

R v Khan is a significant sentencing decision, clarifying and reinforcing the law on compensation orders in the Crown Court. The key takeaways are:

  • Procedural safeguards are mandatory.
    Judges must:
    • give notice of any intention to consider compensation;
    • invite submissions from prosecution and defence; and
    • conduct a proper means enquiry with explicit findings.
  • Compensation must be realistic and enforceable.
    Orders must be within the offender’s ability to pay, within a reasonable timeframe. Paper awards that far exceed means are wrong in principle.
  • Criminal courts are not civil damages tribunals.
    The Crown Court cannot properly:
    • award aggravated or exemplary damages;
    • add sums for delay equivalent to interest; or
    • conduct a detailed JCG-style personal injury valuation exercise.
    Aggravating features of the offence are to be reflected in the primary criminal sentence, not through inflated compensation.
  • Victims’ broader interests must be respected.
    The court should be aware that victims may pursue alternative routes (e.g. CICA) and may not welcome or benefit from a criminal compensation order, especially one that is unlikely to be honoured.
  • Costs orders are also constrained by means.
    Just as with compensation, costs must be realistic given the offender’s financial position; they are not a routine add-on irrespective of ability to pay.

In setting aside both the compensation and costs orders without substitution, the Court of Appeal underlined that fairness, realism and statutory principle must govern the imposition of financial penalties in the criminal courts. R v Khan will serve as a key authority to ensure that compensation orders remain properly confined to their intended function: proportionate, enforceable redress for victims, grounded in the offender’s actual means, and not a surrogate civil damages regime.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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