R Gene Gibson v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Lady Justice Gloster,Lord Justice Lewison |
| Judgment Date | 11 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1148 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/0034 |
| Date | 11 November 2015 |
[2015] EWCA Civ 1148
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Gosnell
(Sitting as a Deputy High Court Judge)
CO/1864/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison Lord Justice Treacy and Lady Justice Gloster
Case No: C1/2014/0034
Mr Matthew Stanbury (instructed by Swain & Co Solicitors LLP) for the Appellant
Mr Matthew Barnes (instructed by Government Legal Department) for the Respondent
Hearing dates: 27 October 2015
Approved Judgment
Introduction
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:
i) the sum due when the default term was fixed by the Crown Court judge (the appellant's case); or
ii) the sum due when the default term was activated by the Magistrates' Court (the respondent's case).
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
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.
The relevant legislation
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.
The Drug Trafficking Act 1994 (DTA)
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 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.
Powers of Criminal Courts Act 1973 (PCCA 1973)
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...
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