Gibson, R (on the application of) v Secretary of State for Justice

The appellant Mr Gibson seeks permission to appeal the order of His Honour Judge Gosnell made in the Administrative Court on 4 September 2013 whereby he dismissed an application for judicial review. I would grant permission and a necessary extension of time and deal with the matter as a substantive appeal.

The issue in the case is whether the words “the said sum…as was due at the time the period of detention was imposed” in section 79(2) of the Magistrates’ Court Act (MCA) 1980 should be construed in the case of confiscation orders made under the Drug Trafficking Act 1994 (DTA) as meaning either:

The answer has a potential for impact on the number of days that an offender is entitled to have remitted against the default term as a result of payments made against the order. The differing contentions dispute whether interest accruing on an unpaid order under the DTA is to be added to the original sum ordered, thus affecting the amount of time in custody to be remitted since any repayment made will be credited in terms of time to be served by reference to a formula which will diminish the value of a repayment if interest is to be added to the original amount ordered.

The facts of the case show that following a conviction for importing Class A drugs the Crown Court sentenced the appellant to a term of 25 years imprisonment. Subsequently on 29 March 2000 the Crown Court determined that the appellant had benefited from drug trafficking so that the sum of £5,430,671 should be recovered from him. The court also ordered that in default of payment of that sum a term of 6 years (2190 days) should be served. The order was made pursuant to the DTA.

A receiver was appointed but the appellant failed to satisfy the order. By the time enforcement proceedings brought the appellant before the Magistrates’ Court in June 2007 the original sum ordered by the Crown Court had increased to a figure in excess of £8,000,000 as a result of the accrual of interest. A commitment warrant was issued. The warrant referred to a period of committal for 2183 days in respect of £8,105,744.72, such term to be consecutive to any term of imprisonment currently being served. That period of days was 7 days less than the period of the original order made by the Crown Court because in May 2007 a payment of £12,500 was made on the appellant’s behalf, and in making the order of committal the justices had given credit for that.

Following the making of that order, in October 2007 a further sum of £12,500 was paid into court which the respondent calculated reduced the sentence by a further 3 days. The appellant did not agree with this calculation and complained. His complaint was rejected by letter of 30 November 2010. This formed the original basis of the claim. In November 2011 the court received a further £65,000 or so from the receiver. The appellant was advised that the effect of this and the earlier payment would reduce his sentence by 21 days. This is in contrast to a reduction in sentence of about 32 days if accrued interest was not treated as part of the reduction formula. The appellant has amended his claim to reflect this later decision of 2 April 2012.

Resolution of the issue between the parties depends upon a consideration of a number of pieces of legislation. It is convenient to set out the relevant legislation at this point.

Section 2 of the Act requires the Crown Court to proceed towards making a confiscation order against a defendant who has been convicted of a drug trafficking offence. A confiscation order can only be made by the Crown Court. Section 5 provides that the court should determine the value of a defendant’s proceeds of drug trafficking and make a confiscation order for that amount unless it is satisfied that the amount that might be realised is less than this figure, in which case the order should be made in that lesser sum. That latter situation typically arises where the investigation reveals that the defendant’s available assets are less than the figure representing his benefit from drug trafficking. Section 9 of the Act provides:

“Application of procedure for enforcing fines

(1)

Where the Crown Court orders the defendant to pay any amount under section 2 of this Act, sections 31(1) to (3C) and 32(1) and (2) of the Powers of the Criminal Courts Act 1973 (powers of Crown Court in relation to fines and enforcement of Crown Court fines) shall have effect as if that amount were a fine imposed on him by the Crown Court.”

Thus, Magistrates’ Court procedures for enforcing fines were adopted for the enforcement of unpaid Crown Court confiscation orders.

Section 10 addresses the question of interest on unpaid sums and provides:

“(1)

If any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether forthwith on the making of the order or at a time specified under section 31(1) of the Powers of Criminal Courts Act 1973) that person shall be liable to pay interest on that sum for the period for which it remains unpaid; and the amount of interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order.

(2)

The Crown Court may, on the application of the prosecutor, increase the term of imprisonment or detention fixed in respect of the confiscation order under subsection (2) of section 31 of the 1973 Act (as it has effect by virtue of section 9 of the Act) if the effect of subsection (1) above is to increase the maximum period applicable in relation to the order under subsection (3A) of that section.

(3)

The rate of interest under subsection (1) above shall be that for the time being applying to a civil judgment debt under section 17 of the Judgments Act 1838.”

The references to the Powers of Criminal Courts Act 1973 are to legislation which was later repealed by the Powers of Criminal Courts (Sentencing) Act 2000. These particular provisions were re-enacted in a way which makes no material difference. The respondent draws attention to the concluding words of subsection (1) as supporting his case. The appellant draws attention to subsection (2) as relevant to contentions he makes.

Sections 31 and 32 were in force when the confiscation order was made. There provisions now appear in substance in sections 139 and 140 of the Powers of Criminal Courts (Sentencing) Act 2000 (PCC(S)A). These provisions, which are couched in language by reference to fines, require the Crown Court to fix the default term (section 31(2)), and the Magistrates’ Court, by section 32, to enforce and to make any deductions for part payment.

Section 31 provides:

“Powers, etc., of Crown Court in relation to fines and forfeited recognizances

(1)

Subject to the provisions of this section, if the Crown Court imposes a fine on any person…the court may make an order–

(a)

allowing time for the payment of the amount of the fine…;

(b)

directing payment of that amount by instalments of such amounts and on such dates respectively as may be specified in the order…

(2)

Subject to the provisions of this section, if the Crown Court imposes a fine on any person…, the court shall make an order fixing a term of imprisonment which that person is to undergo if any sum which he is liable to pay is not duly paid or recovered.”

Section 31(3A) contained a table of default terms. The table set out maximum terms of imprisonment in default relating to various bands of sums of money. In R v Szragber [1994] 15 Cr App R (S) 821 the court held that it was clear that the terms mentioned were intended to be maximum periods and that the court in imposing a period in default had a discretion to fix a period below the maximum for the particular band but above the maximum for the next lower band. In modern times this table appears at section 139(4) of the PCC(S)A.

Section 32 provides:

“Enforcement, etc., of fines imposed and recognizances forfeited by Crown Court

(1)

Subject to the provisions of subsection (4) below, a fine imposed…by the Crown Court after 31^st December 1967 shall be treated for the purposes of collection, enforcement and remission of the fine or other sum as having been imposed or forfeited–

(a)

by a magistrates’ court specified in an order made by the Crown Court; or

(b)

if no such order is made, by the magistrates’ court by which the offender was committed to the Crown Court to be tried or dealt with;

and in the case of a fine as having been so imposed on conviction by the magistrates’ court in question.

(2)

The term of imprisonment specified in any warrant of commitment issued by a magistrates’ court on a default in the payment of a fine imposed…by the Crown Court as the term which the offender is liable to serve shall be the term fixed by the latter court under section 31(2) of this Act or, if that term has been reduced under section 79(2) of the Magistrates’ Courts Act 1980 (part payment)…that term as so reduced, notwithstanding that that term exceeds the period applicable to the case under Schedule 4 to the Magistrates’ Courts Act 1980…(maximum periods of imprisonment if default of payment of fines, etc.)…”

By virtue of section 9 DTA those provisions which make Magistrates’ Courts responsible for the enforcement of fines imposed by the Crown Court are also to be used in the enforcement of confiscation orders.

The reference in section 32(2) to reduction of the term of custody in default of payment under section 79(2) is a successor to a similar provision in the Magistrates’ Courts Act 1952. Both the 1952 and the 1980 Acts were enacted before confiscation orders were introduced by the Drug Trafficking Offences Act 1986.

Section 79(2) is the provision at the heart of this case since it governs the situation where a defendant makes part payment in respect of a confiscation order. Section 79 provides:

“…

(2)

Where, after a period of imprisonment or detention has been imposed on any person in default of payment of any sum to be paid by the conviction or order of a magistrates’ court for want of sufficient distress to satisfy such a sum, payment is made in accordance with the rules of court of part of the sum, the period of detention shall be reduced by such number of days as bears to the total number of days in that period less one day the same proportion as the amount so paid bears to so much of the said sum, and the costs and charges of any distress levied to satisfy that sum, as was due at the time the period of detention was imposed.”

The words in bold are those upon which the dispute centres.

The parties have thus far proceeded as if this were a civil matter but the Deputy Master, pending the appeal, raised the issue of whether it is in fact a criminal cause or matter. If that were the case, this court would lack jurisdiction.

Section 18(1)(a) of the Senior Courts Act 1981 provides:

“(1)

No appeal shall lie to the Court of Appeal–

(a)

except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter.”

The appellant contends that this court has jurisdiction and has referred to the case of R (Guardian News and Media Limited) v City of Westminster Magistrates’ Court [2011] EWCA Civ 1188, [2011] 1 WLR 3253. In that case an extensive review of the authorities as to what constitutes a criminal cause or matter was undertaken by Lord Neuberger MR. The appellant submits that there is a distinction between this case and those where the courts have found proceedings did concern a criminal cause or matter. This case is not a challenge to a decision of a court exercising criminal jurisdiction. The challenge is to the way in which the Ministry of Justice has calculated the appellant’s sentence, administratively, some time after the criminal proceedings concluded with the appellant’s committal to prison in default of the confiscation order. The Ministry’s calculation is based upon its interpretation of the provisions relating to reduction of sentence for payments subsequently made. Our attention has been drawn to a number of sentence calculation cases in which this court has exercised jurisdiction: R (Buddington) v Secretary of State for the Home Department [2006] EWCA Civ 280; R (Stellato) v Secretary of State for the Home Department [2007] 1 WLR 608; R (Noone) v Secretary of State for Justice [2009] 1 WLR 1321; R (Elam) v Secretary of State for Justice [2012] 1 WLR 2722. In none of the above cases was the issue of jurisdiction raised for decision.

No submissions to the contrary have been made on behalf of the respondent, who has adopted a neutral stance.

In the Guardian News case the court observed that the state of the law as to jurisdiction in this respect was less than satisfactory but held that pending any reconsideration of the issue by the Supreme Court, since the applicant’s application for disclosure had been wholly collateral to the extradition proceedings involved and since the District Judge’s order as to disclosure of material to the press did not involve him invoking his criminal jurisdiction or have any bearing on the extradition proceedings, the court would hold that it had jurisdiction.

It seems to me that following the lead of Guardian News we should hold that there is an insufficient nexus between the criminal proceedings and the Ministry of Justice’s subsequent decision for these proceedings to be regarded as a criminal cause or matter. The area of dispute in this case relates to the actions of officials in the Ministry of Justice concerned with sentence calculation and applying a formula derived from Prison Service Order 6650: Sentence Calculation. Thus section 18(1) is not engaged. Such a conclusion would be supported by a degree of similarity between these proceedings and those already cited concerning sentence calculation. I would therefore hold that we have jurisdiction to deal with this appeal. But for this issue, the single judge of this court would have granted permission to appeal. In the light of my conclusion on the issue, I would grant permission as stated above.

The appellant contends that section 79(2) MCA should be construed so that the words highlighted earlier relate to the original sum ordered to be paid by the Crown Court judge without the addition of interest. The appellant argues that the respondent’s interpretation, namely that the operative date is when the default term was activated by the Magistrates’ Court, produces unworkable or capricious results. The appellant asserts that the terms of section 79(2) if interpreted as the respondent contends, makes no provision for payments made prior to the imposition of a term of imprisonment in default of payment by a Magistrates’ Court. This can be seen from the wording:

“Where, after a period of imprisonment or other detention has been imposed on any person in default of payment…, payment is made…of part of the sum, the period of detention shall be reduced…”

It follows from this that there is no mechanism for reducing time to be spent in custody for payments made prior to committal for default by the Magistrates’ Court. (I note that in point of fact both the Magistrates’ Court and the Ministry of Justice gave credit for the pre-committal payment of £12,500). The appellant goes on to assert that if the draftsman of section 32(2) PCCA 1973 intended section 79(2) MCA to provide for payments made prior to enforcement to attract a discount to the sentence, then he must have understood the reference in section 79(2) to the date when imprisonment was imposed to be the time when the default term is fixed at the Crown Court. Without such a construction it is argued that the provisions do not work in a way in which the legislature must have intended, namely that payments made towards a confiscation order should be credited by a reduction in custody time whenever they were made.

It is submitted that the difficulties arise because section 79(2) MCA came into being in the context of fines enforcement and was not drafted in contemplation of confiscation proceedings. In the case of enforcement of fines imposed by a Magistrates’ Court the default term would not have been fixed in advance of enforcement by a Magistrates’ Fines Court, and interest would not apply. Any payments made towards the order prior to the fixing of the default term would be factored in by the enforcement court thus leading to a reduction in the default term. The same result can be achieved, it is contended in this case, by reading the date of imposition of a default term as being done when imposed by the Crown Court.

Although not included in his written submissions to the court, Mr Stanbury suggested that in relation to Crown Court fines and their enforcement, a similar issue to that involving confiscation orders arises. Section 31(3A) PCCA 1973, succeeded by section 139(4) PCC(S)A, as we have already seen, provides tables relating default terms to be served to the amount of a fine due. It was the primary purpose of such provisions to relate to fines. Thus when the Crown Court passes a fine it is fixing a term in default if that fine is not paid when due. However the fining powers of the Crown Court are not coupled with any provision as to the payment of interest in default so that some of the difficulties said to arise under section 79(2) simply do not arise in the case of a fine. Moreover, it is surprising that the point raised under section 79(2) concerning the timing of payment has not previously been taken in relation to fines. That tends to suggest a lack of support for the appellant’s position.

This leads into submissions relating to interest. The appellant contends that while section 10 DTA appears to impose interest on the unpaid sum, its purpose is to confirm that interest will run only for the purposes of civil enforcement which continues to apply after the default sentence has been served. The default term should not automatically be increased because of accrued interest and there is considerable potential for unfairness if the authorities are slow to take enforcement proceedings. The purpose of section 10(2) DTA is to provide a mechanism by which the prosecutor can apply to the Crown Court to increase the default term where accrued interest has the effect of increasing the maximum available default term. To permit interest to be taken into account for the purposes of calculating adjustments for repayments against the order would have the effect of increasing the default term by a backdoor route. The likelihood is that Parliament in applying section 79(2) to confiscation orders by means of section 9 DTA never intended interest to be taken into account in calculating the appropriate deduction for payments against the order.

For the respondent it was argued that the statutory framework supports the analysis that section 79(2) MCA relates to the time when the default term is activated by the Magistrates’ Court. Section 9 DTA provides that, for the purposes of enforcement, the amount to be recovered under a confiscation order is to be treated as a fine imposed by the Crown Court. Then, by its reference to section 31(2) PCCA 1973 it uses language consistent with the Crown Court making a conditional order by reference to fixing a term of imprisonment “if any sum which he is liable to pay is not duly paid or recovered.” It is hard to relate the appellant’s case as to the meaning of those words to the phrase in section 79(2) “the said sum…was due at the time the period of detention was imposed.” This is a clear reference to the act of the enforcing Magistrates’ Court in issuing a warrant of commitment when the sum due is unpaid. That such a sum will include interest is made clear by the express terms of section 10(1) DTA stating that outstanding interest “shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order.”

The wording of section 32(1) and (2) is again entirely consistent with the proposition that it is the Magistrates’ Court which imposes the period of detention. Subsection (1) provides that the amount due is to be treated for the purposes of enforcement as a fine imposed by the Magistrates’ Court. Section 32(2) refers to the term of imprisonment being specified in a warrant of commitment issued by the Magistrates’ Court. Since the Magistrates’ Court is issuing the warrant of commitment the said sum would also include interest accrued at that point. Accordingly, the judge below was right to hold that the answer to the question when the sentence imposed under this legislation was straightforward. The original sentencing court fixes the term of imprisonment to apply in default but the sentence is only imposed when the Magistrates’ Court issues the commitment warrant.

As to interest, reliance is placed on the terms of section 10(1) DTA. Parliament would not have made that provision simply intending that interest should be dealt with as a civil matter separately from the enforcement provisions of the confiscation order. Had that been the intention of Parliament it would so have provided in circumstances where otherwise the clear inference is that interest was to fall within the enforcement scheme for the original confiscation order. Accordingly, section 79(2) MCA should be construed as including interest as otherwise the statutory scheme would not make any provision for enforcement in relation to an element about which Parliament had made specific provision.

The respondent also placed some reliance on Hansford v Southampton Magistrates’ Court [2008] EWHC 67 (Admin) where, in relation to section 75A of the Criminal Justice Act 1988 (a provision relating to interest on sums unpaid under confiscation orders in very similar terms to section 10 DTA), the court states at paragraph 27:

“The defendant is liable to pay interest to the extent that sums are unpaid under a confiscation order. For reasons that I explain later in this judgment, the court has no discretion to vary a defendant’s obligation to pay interest or vary the interest rate. Unpaid interest is treated as part of the amount to be recovered under the confiscation order (section 75A(1)(b)). The liability to serve a custodial term in default of payment will increase by the amount of any unpaid interest. That is a further reason why the receiver should not be allowed to delay payment of the proceeds towards the satisfaction of the confiscation order.”

Although it appears that the point was not fully argued in that case, that conclusion is relied on as supportive of the respondent’s case.

The respondent takes issue with any contention that accrued interest allows for the default term to be automatically increased. This does not occur as a result of the respondent’s construction. What in fact happens is that, as interest grows the power of money paid against the debt to reduce time spent in custody decreases. This is in the circumstances reasonable when Parliament has provided that interest should run and that it should be treated as part of the original confiscation order.

Moreover, section 10(2) DTA is a provision to increase the term of imprisonment if the accrued interest takes the case into a higher bracket allowing for a longer default term. What it does not do is to exclude interest from “the said sum” in section 79(2) MCA. Nor does it provide an alternative means of enforcement in respect of outstanding interest. If anything that provision supports the conclusion that interest is material to the sentence to be served, as opposed to a separate civil debt. As to the appellant’s argument that section 79(2) produces a result whereby the Magistrates’ Court could not reduce time to be served to reflect sums paid between the Crown Court fixing the sentence and its imposition by the Magistrates’ Court, this argument is in error. The provisions of section 32(2) taken together with section 79(2) would permit the Magistrates’ Court to reduce the sentence to reflect sums so paid.

This legislation replaced the confiscation provisions of CJA 1988 and DTA 1994. For the purposes of this case, however, the relevant legislation is DTA 1994. The 2002 Act largely replicated the previous legislation in this area. In relation to enforcement, however, it created two different regimes. Section 35 essentially applied the existing law where the Director of Asset Recovery was not appointed by the court as the enforcement authority. Section 37 applied where the Director was appointed to enforce a confiscation order. Both parties made submissions to the judge below on this legislation as providing insight into the interpretation of the legislation applicable to this case. In so doing they relied on the authority of Isle of Anglesey County Council v Welsh Ministers and Others [2009] EWCA Civ 94, [2009] 3 WLR 813. At paragraphs 40 to 43 of that decision Carnwath LJ (as he then was), observed that there was no consistent or settled view as to the circumstances in which it is permissible to have regard to subsequent legislative history as an aid to interpretation. On the facts of that case dealing with the interpretation of provisions of the Sea Fisheries Act 1868 the court held that it was permissible in interpreting a statute to take account of the subsequent history of the legislation, particularly in a relatively esoteric area of law where cases rarely came before the courts and established practice was the only guide for those relying on it.

The judge below entertained arguments based on POCA but was unconvinced that an analysis of that legislation made much difference to the analysis of the previous legislation. He noted in particular that there was no equivalent in POCA to section 10(2) DTA, and that under section 37 POCA (where the Director is appointed) the procedure incorporating section 79(2) MCA does not apply. It seems to me that the judge was incorrect in relation to his observation as to section 10(2) DTA as reference to section 39(5) of POCA shows. As to section 37 POCA, that provision did not remain long on our statute books. Sections 36 and 37 POCA were repealed by the Serious Crime Act 2007. This means that as POCA now stands, it simply retains the procedure incorporating sections 79(2) MCA.

In the circumstances I share the view of the judge below that no real assistance is to be gained from looking at the later legalisation which introduced a short-lived new route to enforcement in addition to the existing one. I therefore do not propose to lengthen this judgment with a recitation of the submissions made in relation to POCA and an analysis of that legislation which is not applicable to the present case. Transitional provisions have preserved the pre-POCA legislation as applicable to the present case.

The judge dismissed the appellant’s claim for judicial review essentially for the reasons advanced in the respondent’s arguments summarised above.

It is convenient to recall that the power to make a confiscation order arises from provisions which have frequently been described as draconian, it being the intention of Parliament to strip criminals, including drug traffickers, of the benefit of their offending. The process normally involves a discrete stage of the criminal proceedings and, unless there is agreement between the parties, involves a searching inquiry. Once the court has ascertained the offender’s benefit from his offending it must make an order in the sum so identified unless it appears that the offender’s available assets fall short of that sum. In that case the order will be made in the lesser amount. That process means that the court will have heard evidence as to the offender’s financial position and will have formed a judgment as to the assets which he has available and which are thus capable of satisfying the confiscation order. The court will normally fix a period during which those assets are to be realised and paid. Once that period expires, by virtue of section 10(1) DTA interest accruing at judgment rates will be attracted. At present that rate bears no relationship to bank base rates, but the rate for calculating such interest has been determined by Parliament as section 10(3) demonstrates.

The structure of the confiscation regime therefore works on the basis that the offender does have assets sufficient to satisfy the confiscation order and requires him to pay forthwith, or more usually, within a time specified by the court. Since these assets have been found to be available to him, it is unsurprising therefore that, after expiry of the time granted for payment, interest should run on the sum due since the offender continues to retain assets which the court has held are available to him instead of paying them in satisfaction of the court’s order. No doubt the fact that interest accrues at judgment rate is intended to be a spur to prompt payment.

Given that background it is unsurprising that section 10(1) DTA treats interest for the purposes of enforcement as part of the amount to be recovered under the confiscation order. The wording of that subsection, in my judgment, clearly points to the inclusion of interest in the amount to be considered if and when enforcement by the Magistrates’ Court has to take place. I see no basis for regarding the provision as to interest in section 10(1) as creating some separate free-standing liability to pay interest outside the ambit of enforcement proceedings when section 10(1) clearly states that it is dealing with interest “for the purposes of enforcement.”

I do not consider that the provisions of section 10(2) assist the appellant. That provision enables the prosecutor to return to the Crown Court where interest has accrued to such an extent that a threshold governing the length of the default term of imprisonments has been crossed, thereby exposing the offender to the possibility of a higher level of default term. That that procedure is available to the prosecutor for those purposes is clear. It does not, however, mean, as initially contended by the appellant, that when interest accrues on the sum originally ordered by way of confiscation order the default term is automatically increased. That can only happen if an application is made under section 10(2) and the court sees fit to apply a longer term in default. The effect of the accrual of interest by reason of section 10(1) is to increase the sum due under the confiscation order but not, without more, to increase the default term. The increase in the sum due by reason of the accrual of interest does have an effect on time to be spent in custody in that any payment made in reduction of the sum due is to be taken as a proportion of the whole sum due, comprehending both the original order and the accrued interest. The effect is that a payment made against that sum will result in a smaller reduction of the default term than would have been the case had interest not accrued. There is no unfairness or illogicality in this result. It represents the effect of Parliament’s decision that interest should accrue and be treated as part of the sum ordered to be paid. This provision does not of itself increase the default term: it merely means that where interest is added, the rate of reduction for payment of part of the default term is reduced.

The language of section 31(2) PCCA 1973 does not describe the Crown Court as imposing a period of detention which has any immediate effect upon the offender. The Crown Court merely fixes a term which is to apply if the sum ordered is not paid or recovered. There is no imposing of a term of imprisonment at that stage in the sense of requiring the offender to serve it.

It seems to me that section 32 PCCA 1973 Act is consistent with this approach. Section 32(1) treats fines or other sums ordered to be paid by the Crown Court for the purposes of enforcement as having been imposed by a Magistrates’ Court. Section 32(2) refers to the Magistrates’ Court issuing a warrant of commitment on a default in payment ordered by the Crown Court. The language used clearly recognises that it is the Magistrates’ Court in the enforcement proceedings which imposes the terms set by the Crown Court subject to any reduction by reason of section 79(2) MCA. The language used is, to my mind, clear that it is the Magistrates’ Court which in ordinary language is imposing the default term.

Thus, when one considers section 79(2) MCA, the reference at the start of subsection (2) to “after a period of imprisonment or other detention has been imposed on any person on default of payment of any sum” and the reference of the end of the subsection (2) to “the said sum…as was due at the time the period of detention was imposed” should be construed as references to the imposition of the default term by the Magistrates’ Court rather than by the Crown Court.

The effect of this will be that the default term will remain that specified by the Crown Court but that the amount which has accrued by way of interest will, by reason of section 10(1) DTA 1994, have increased the amount due under the order. As already stated, the increase in that sum cannot and does not increase the default term unless separate application is successfully made by the prosecutor to the Crown Court under section 10(2) DTA 1994.

I accept that there is a potential difficulty in that if the enforcing Magistrates’ Court is to be seen as imposing the default term, a literal reading of subsection 79(2) would seem only to provide for a reduction through payments of the default term if such payments are made after the imposition of that term. In other words, payments made prior to the imposing of detention by the Magistrates’ Court would not be able to reduce the term. It seems to me that that point is insufficient to displace the clear legislative regime which is in place indicating that the proper construction of section 79(2) is that it is the Magistrates’ Court which imposes the default term rather than the Crown Court. It may be that the difficulty referred to is the product of applying the fines enforcement regime to the confiscation regime without sufficient consideration of differences between them.

It appears to be the case that the Ministry of Justice has applied the legislation in a way which takes account of payments in reduction of the sum ordered made prior to the imposition of the default term by the Magistrates’ Court as well as those made subsequently. In so doing it may be that it regards section 32(2) as indicating the application of a formula for reduction and treating the concluding words of section 79(2) “the said sum…as was due at the time the period of detention was imposed” as paralleling the Magistrates’ Court fines regime in crediting sums already paid as having reduced the period of detention to be imposed by the court. It is that sum reflecting a reduction for payments made between the Crown Court and the Magistrates’ Court issuing the warrant of committal which is then capable of further reduction by reason of section 79(2).

It seems to me that the circumstances of this case require a purposive construction of section 32(2) and section 79(2). Apart from the potential difficulty identified, the overall structure of the legislation clearly points to an intention that interest should be added to the original confiscation order and that it should be treated as part of the order. Further, it is clear that Parliament intended that the relevant point in time as to the imposition of the default sentence should be at the Magistrates’ Court where the warrant of commitment is issued. Common justice and fairness would demand that any sum paid towards the confiscation order should be credited by reference to time to be served, irrespective of whether that payment is made before or after committal by the enforcing Magistrates’ Court. It cannot have been the intention of Parliament to ignore payments made after the Crown Court order but before the Magistrates’ Court order.

It appears as though the Ministry of Justice has applied its own purposive construction to the legislation in the way described above. That is one possible solution to the matter. An alternative, suggested by Lewison LJ in the course of argument, would be to have regard to the decision in Inco Europe Limited v First Choice Distribution [2000] 1 WLR 586 where at page 592C Lord Nicholls said:

“It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words…This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.”

I am satisfied that, approaching the matter with due caution, the three identified conditions are met in this case. In the circumstances, as Mr Stanbury conceded in argument was possible whilst urging us not to do so, I would interpret the opening words of section 79(2) MCA as if they read “where, before or after a period of imprisonment or other detention has been imposed…” This has the result of giving effect to the clear intention of Parliament. The draftsman’s failure to recognise the difficulty now identified clearly arises from the technique of drafting by reference without a consideration of all potential ramifications, as opposed to drafting from a blank sheet of paper. I consider the court justified in taking this course in circumstances where the appellant’s construction is the one which in practice would be unworkable, not least because one consequence would be that notwithstanding the clearest indications by Parliament to the contrary, an offender could secure his release no matter how much interest had accrued prior to the default term being imposed simply by paying the original sum ordered in full.

In the circumstances I share the view of the judge below and accept the case advanced on behalf the respondent. For these reasons I would reject this appeal.

I agree.

I also agree.