OB v The Director of the Serious Fraud Office (Rev 1)

By our judgment dated 1^st February, 2012 (“the judgment”), this Court dismissed the Appellant’s appeal and upheld his committal to prison for contempt of court.

The Appellant sought permission to appeal to the Supreme Court and asked this Court to certify that the decision involved a point or points of law of general public importance.

As indicated to the parties, we were minded to refuse permission to appeal but to certify that two points of law of general public importance were involved in our decision.

At this stage, the Registrar raised a concern that s.13 of the Administration of Justice Act 1960, as amended (“the AJA 1960”) does not provide a right of appeal to the Supreme Court from a decision of the Court of Appeal Criminal Division (“CACD”) in cases of contempt of court. We pay tribute to the diligence of the Registrar and his office for bringing this concern to our attention.

Both the Appellant and the Respondent (“the SFO”) contended that there was a right of appeal to the Supreme Court. If and insofar as Parliament had inadvertently removed the right of appeal hitherto provided, then this Court could and should rectify the error, whether as a matter of common law principles of statutory construction or by way of s.3 of the Human Rights Act 1998 (“the HRA 1998”).

Against this background and in order to ensure that a full range of views was before the Court, the Attorney General, at the Court’s request, instructed counsel to act as amicus. We are most grateful to the Attorney General for his assistance and to counsel, Mr. O’Connor, for his extremely clear and helpful submissions.

Putting the matter as shortly as possible, the problem may be traced through the legislative history as set out in the paragraphs which follow.

S.13 of the AJA 1960 provides for appeals in cases of contempt of court.

In its original form, s.13(2)(c) of the AJA 1960 plainly provided a right of appeal from the Court of Criminal Appeal and, thereafter, the CACD, to the House of Lords (more recently, the Supreme Court). Prior to its amendment, s.13(2)(c) provided that an appeal would lie:

“ from an order or decision of a Divisional Court or the Court of Appeal (including a decision of either of those courts on an appeal under this section), and from an order or decision of the Court of Criminal Appeal or the Courts-Martial Appeal Court, to the House of Lords. ”

The Criminal Appeal Act 1966 (“the CAA 1966”) abolished the Court of Criminal Appeal and created a single Court of Appeal with two divisions – the civil division and the criminal division (i.e., the CACD). The CAA 1966 did not amend previous legislation in which the Court of Criminal Appeal featured; instead, it broadly provided that any reference in prior enactments or instruments to the Court of Criminal Appeal were to be construed as a reference to the CACD.

The Senior Courts Act 1981 (“the SCA 1981”, originally the Supreme Court Act 1981) repeated the approach of the CAA 1966 as to the Court of Criminal Appeal and the subsequent division of the Court of Appeal into two divisions. S.53 dealt with the distribution of business between the civil and criminal divisions of the Court of Appeal. Para. 3 of Schedule 4 to the SCA 1981, provides as follows:

“ In any enactment or document passed or made before 1^st October 1966 –

(a)

any reference to the Court of Criminal Appeal….shall, subject to rules of court made in pursuance of section 53(1), be read as a reference to the criminal division of the Court of Appeal;

….

(c)

any reference to the Court of Appeal shall, subject to rules of court made in pursuance of section 53(1), be read as a reference to the civil division of the Court of Appeal. ”

Undoubtedly, therefore, the legislation thus far provided for an appeal from the CACD to the House of Lords in cases of contempt of court. There matters stood until, if we may say so, intervention through the unlikely vehicle of s.378 and para. 45(2) of Schedule 16 to the Armed Forces Act 2006 (“the AFA 2006”), which came into force on the 31^st October, 2009. S.378 said this:

“ Minor and consequential amendments and repeals

(1)

Schedule 16 (minor and consequential amendments) has effect.

……”

In turn, para. 45 of Sched. 16, was in these terms:

“ Administration of Justice Act 1960 (c.65)

(1)

Section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court) is amended as follows.

(2)

In subsection (2)(c) for ‘and from an order or decision of the Court of Criminal Appeal or the Courts-Martial Appeal Court’ substitute ‘and from an order or decision (except one made in Scotland or Northern Ireland) of the Court Martial Appeal Court. ”

The upshot of the amendments introduced by the AFA 2006, together with other amendments immaterial to the present debate, is that s.13(2)(c) of the AJA 1960 now reads as follows:

“ from a decision of a single judge of the High Court on an appeal under this section, from an order or decision of a Divisional Court or the Court of Appeal (including a decision of either of those courts on an appeal under this section) , and from an order or decision (except one made in Scotland or Northern Ireland) of the Court Martial Appeal Court, to the Supreme Court.”

It can at once be seen that the reference to the “Court of Criminal Appeal” has been deleted and no reference to the CACD has been inserted. If an appeal from the CACD to the Supreme Court in cases of contempt of court does not lie under s.13(2)(c) as amended, there is no suggestion that an appeal may be brought pursuant to any other statutory provision.

Mr. O’Connor has helpfully crystallised the three principal issues which arise:

Mr. Jenkins QC, for the SFO, which has taken the lead for the parties in respect of the present debate, contends that the reference to “Court of Appeal”, in s.13(2)(c) of the AJA as amended, is a reference to the one Court of Appeal which now exists and not simply to the Court of Appeal, Civil Division. The effect of para. 45 of Schedule 16 to the AFA 2006 was to delete the reference to the Court of Criminal Appeal, a court which had not existed for some 40 years. Express words were required to abolish an existing right of appeal, when that was clearly not Parliament’s intention. Moreover, if the reference to “Court of Appeal” in s.13(2)(c), as now amended, is only a reference to the Civil Division, then “Court of Appeal” in s.13(2) has two different meanings. This is so, because s.13(2)(bb), introduced by para. 40(1) of Schedule 8 to the Courts Act 1971 (“the 1971 Act”), provides as follows:

“ (2) An appeal under this section shall lie….

(bb) From an order or decision of the Crown Court to the Court of Appeal; ”

Plainly, “Court of Appeal” in s.13(2)(bb) must, at the least, include the CACD; it would therefore be inconsistent if “Court of Appeal” in s.13(2)(c) meant only the Civil Division.

Mr. O’ Connor submits that the parties’ preferred construction of s.13(2)(c) cannot be right, by reason of the clear terms of para. 3 of Schedule 4 to the SCA 1981 (set out above). S.13 of the AJA 1960 was an enactment passed before the 1^st October 1966; the reference to “Court of Appeal” was therefore to be read as meaning the Civil Division. Mr. O’Connor accepts that this reading of s.13(2)(c) does involve an inconsistency with s.13(2)(bb). That inconsistency is, however, explicable in this way: s.13(2)(bb) was inserted into the AJA 1960 by the 1971 Act – which was not an “enactment …passed…before 1^st October 1966”. Accordingly, para. 3 of Schedule 4 to the SCA 1981 did not “bite”, so that s.13(2)(bb) could be given its natural meaning: namely, it refers to both divisions of the Court of Appeal.

Mr. Jenkins’ response was succinct. No distinction was to be drawn between s.13(2)(bb) and s.13(2)(c). The AFA 2006 post-dated the 1^st October, 2006; s.13(2)(c) in its current form was the result of the AFA 2006; it was not therefore caught by para. 3 of Schedule 4 to the SCA 1981. The position was indistinguishable from that which Mr. O’Connor accepted applied in respect of s.13(2)(bb). It could not matter that instead of deleting s.13(2)(c) as a whole and replacing it with its present wording, the legislature had opted for partial deletion and the insertion of new wording.

We are attracted to Mr. Jenkins’ proposed construction but are reluctantly unable to accede to it; as a matter of construction, we think it goes too far. That said, the submission as to construction serves to expose the unhappy consequences which flow from the AFA 2006 in this regard – matters to which we revert under Issue (II) below. Our reasons for declining to accept Mr. Jenkins’ argument as to construction can be briefly stated as follows:

It follows that we feel driven to answer Issue (I), “no”. It follows further that, if matters were left there, s.13(2), in its present form, would be deeply unsatisfactory. A long-standing right of appeal would have been removed, as it were, by a sidewind. Moreover, “Court of Appeal” would have a different meaning in sub-sections 13(2)(bb) and (c). We turn to Issue (II).

Inco Europe v First Choice Distribution [2000] 1 WLR 586 (HL) concerned a dispute as to whether a right of appeal had been unintentionally excluded in the very different context of s.9 of the Arbitration Act 1996. The House of Lords held that an appeal continued to lie from a decision made at first instance to the Court of Appeal. It did so by reading words into the relevant statutory provision to give effect to the intention of the legislature; the language used by the draftsman had not been apt to do so. In the now well-known passage, Lord Nicholls dealt with the question of principle as follows (at p.592):

“ I freely acknowledge that this interpretation of section 18(1)(g) [of the SCA 1981] involves reading words into the paragraph. 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. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation…..

Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. …… Or the subject matter may call fro a strict interpretation of the statutory language, as in penal legislation… ”

Further citation of authority is unnecessary in this regard. The principles set out by Lord Nicholls have been considered in a number of subsequent decisions; unsurprisingly, rectification was possible in some cases but not in others, depending on the individual facts. It may be noted that the question of the standard of proof (i.e., that the court should be “abundantly sure” that the threshold conditions were met) was real, important and, in some cases, decisive.

Mr. Jenkins submitted that there was no rational explanation for the removal of the right of appeal from the CACD alone in contempt cases – when such a right of appeal remained in respect of decisions of the civil division of the Court of Appeal, the Divisional Court and the Court Martial Appeal Court. Such a result was not intended by the legislature when enacting the AFA 2006. If, as a matter of construction, “Court of Appeal” in s.13(2)(c) meant “Court of Appeal (Civil Division)”, then the sub-section should be rectified so as to preserve the right of appeal from the CACD to the Supreme Court. In the present case, rectification would come within the principles enunciated by Lord Nicholls in Inco.

Mr. O’Connor’s carefully nuanced submissions proceeded as follows. The matter fell to be considered in accordance with the Inco criteria. The “keystone” to those criteria was the issue of Parliamentary intention and the threshold for judicial rectification was set very high. The removal of the right of appeal from the CACD to the Supreme Court was “entirely unheralded” in the AFA 2006. While the Court might well be satisfied, on the balance of probabilities, that the removal of this right of appeal had occurred mistakenly, it was a more difficult question as to whether the Court could be “abundantly sure” of it. Accordingly, the crucial issue for this Court was whether it could be satisfied:

“ …to the required degree of certainty, that the removal of the words ‘and from an order or decision of the Court of Criminal Appeal’ from subsection 13(2)(c) of the 1960 Act (and, with them, the right of appeal in section 13 cases from the CACD to the Supreme Court) did not reflect Parliamentary intention.”

Even if the Court was satisfied that the “threshold conditions” in Inco were surmounted, there remained the further question as to whether judicial intervention would be “too far-reaching”. It was, Mr. O’Connor submitted, certainly arguable that a rectification of the type required here did fall foul of this further pre-condition.

We proceed with caution, mindful of the need to avoid impermissible judicial legislation. Furthermore, we start from the assumption that the statutory language did reflect Parliamentary intention. Nonetheless, after careful reflection, we are “abundantly sure” that the Inco threshold conditions are met in this case and that the required rectification would not be too far-reaching. Our reasons follow.

First, we are wholly unable to accept that the legislature had any intention, when enacting the AFA 2006, of removing the right of appeal from the CACD to the Supreme Court in cases of contempt of court; as Mr. O’Connor put it, any such intention was “entirely unheralded” in the AFA 2006. It would indeed have been a most unlikely means of seeking to do so, had that been Parliament’s intention. It is noteworthy that the long title of the AFA 2006 said only this:

“ An Act to make provision with respect to the armed forces; and for connected purposes. ”

If regard is had (de bene esse) to the Explanatory Notes, it can be seen that they too make no mention at all of the removal of the right of appeal in question.

Secondly, we conclude instead that the intention of para. 45 of Schedule 16 to the AFA 2006 was, primarily, to deal with the name change of the “Courts-Martial Appeal Court” and various devolution issues. That would be in keeping with the purpose and scheme of the AFA 2006.

Thirdly, we must confront the fact that para. 45 of Schedule 16 did provide for the deletion of the words “and from an order or decision of the Court of Criminal Appeal”. We are satisfied that in deleting those words the legislature intended no more than a tidying up exercise, removing a reference to the Court of Criminal Appeal – a court which had not existed for forty years. We are unable to accept that by this obscure sidewind the legislature intended to remove a long-standing right of appeal.

Fourthly, on the construction of s.13(2)(c) to which we feel driven (see above), it follows that Parliament and the draftsman have, by inadvertence, failed to give effect to the legislative intention in question. Doubtless, because of a mistaken – but wholly understandable - assumption that the words “Court of Appeal” in s.13(2)(c) encompassed the CACD as well as the civil division of the Court of Appeal, the effect of the amendment was altogether more far –reaching than intended: removing the right of appeal from the CACD to the Supreme Court rather than simply removing an obsolete reference to the Court of Criminal Appeal. The draftsman can be forgiven, we think, for not having para. 3(c) of Schedule 4 to the SCA 1981 uppermost in his mind when producing para. 45 of Schedule 16 to the AFA 2006.

Fifthly and turning to the third of the Inco threshold conditions, the substance of the provision Parliament would have made, had the drafting error been noticed, occasions no difficulty. All that would have been required is the insertion of express wording following “Court of Appeal” in s.13(2)(c), making it plain that, here, “Court of Appeal” encompassed both divisions of the Court of Appeal. For example and if necessary to go that far, the insertion (as proposed by Mr. Jenkins) of the wording “( both divisions)” would have sufficed.

Sixthly, in the circumstances, we cannot think that the proposed rectification is too far-reaching or contravenes any constitutional proprieties. To the contrary, it preserves an important right of appeal and avoids an outcome which has no rational justification – crucially, an outcome which was not intended by the legislature.

Accordingly, we would answer Issue (II), “yes”. That conclusion is sufficient to decide the present matter before the Court.

In the light of our conclusion on Issue (II), this Issue is academic. We therefore address it summarily. The SFO submission was that s. 13(2)(c) of the AJA 1960 was to be “read down” to comply with the European Convention on Human Rights (“the ECHR”), pursuant to s.3 of the HRA 1998 because, otherwise, the sub-section would give rise to “unlawful discrimination” contrary to Art. 14, ECHR. It is unnecessary to express a concluded view and we are not minded to do so. A necessary condition for the SFO to succeed under this heading was that the difference in treatment in respect of rights to appeal to the Supreme Court constituted a “personal characteristic” of the contemnor in question and hence came within the only relevant candidate amongst the Art. 14 grounds, namely, “other status”. If that argument failed, the remaining contentions under this heading fell away. Suffice to say that, provisionally, we would not have been minded to accede to the SFO’s argument as to “personal characteristics” and “other status” and we would therefore have inclined to answer Issue (III), “no”.

We conclude that, by the route of rectification and for the reasons given earlier, there is a right of appeal to the Supreme Court from the CACD in cases of contempt of court.

We accordingly reconfirm our prior indication to the parties following our (earlier) judgment. First, we refuse the Appellant permission to appeal to the Supreme Court. Secondly, we certify that the following points of law of general public importance are involved in the decision: