Appeal against committal order - Defendant failing to comply with restraint order and being committed to prison for contempt of court

R v OB: CA (Crim Div) (Lord Justice Gross, Mr Justice Openshaw, Judge Milford QC): 2 May 2012

Section 13(2) of the Administration of Justice Act 1960 provides, so far as material: 'An appeal under this section shall lie… (c) 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.'

Paragraph 3 of schedule 4 to the Senior Courts Act 1981 provides, so far as material: 'In any enactment or document passed or made before 1 October 1966… (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.'

The defendant failed to comply with the obligations imposed by a restraint order granted pursuant to section 41 of the Proceeds of Crime Act 2002 and was subsequently committed to prison for 15 months for contempt of court. By a judgment dated 1 February 2012, the Court of Appeal dismissed the defendant's appeal and upheld his committal to prison for contempt of court (see [2012] All ER (D) 67 (May)). The defendant sought permission to appeal to the Supreme Court and asked the court to certify that the decision involved a point or points of law of general public importance. The registrar raised a concern that section 13 of the Administration of Justice Act 1960, as amended and following the enactment of the Senior Courts Act 1981 and the Armed Forces Act 2006, did 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.

It fell to be determined: (i) whether there was a right to appeal to the Supreme Court from a decision of CACD in cases of contempt of court; and (ii) whether the decision of the court involved a point or points of law of general importance. As to (i), the principal issues for determination were: (a) whether it was possible to read the amended wording of section 13(2)(c) of the 1960 act as providing a right of appeal from the CACD to the Supreme Court in cases of contempt of court; and (b) if not, whether the court, applying common law principles of statutory construction, should rectify the statute by reinserting words that provided a right of appeal from the CACD to the Supreme Court. As to (i), consideration was given, inter alia, to: (i) paragraph 3 of schedule 4 to the 1981 act: (ii) Inco Europe v First Choice Distribution [2000] 2 All ER 109, and the Inco threshold conditions; and (iii) section 378 of, and paragraph 45(2) of schedule 16 to, the 2006 act. In respect of the questions to be certified, consideration was given, inter alia, to: (i) the Extradition Act 2003 (the 2003 act); and (ii) the UK-US Extradition Treaty 2003 (the treaty).

The court ruled: (1) It was not possible to read the amended wording of section 13(2)(c) of the 1960 act as providing a right of appeal from the CACD to the Supreme Court in cases of contempt of court (see [19] of the judgment). The words upon which attention had to be focused were 'Court of Appeal'. Those words had been present in section 13(2)(c) of the 1960 act and had not themselves been the subject of amendment. Accordingly, it was difficult to see that those words did not come squarely within paragraph 3(c) of schedule 4 to the 1981 act as a 'reference to the Court of Appeal' in an 'enactment or document passed or made before 1 October 1966'. It had to follow that those words were to be read as a 'reference to the Civil Division of the Court of Appeal' (see [18] of the judgment).

(2) It was established law that, before adding, omitting or substituting words into statutory provisions in plain cases of drafting mistakes, the court had to be abundantly sure of three matters: (i) the intended purpose of the statute or provision in question; (ii) that by inadvertence the draftsman and parliament had failed to give effect to that purpose in the provision in question; and (iii) 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. Sometimes, even when those conditions were met, the court might find itself inhibited from interpreting the statutory provision in accordance with what it was satisfied was the underlying intention of parliament. The alteration in language might be too far-reaching (see [20] of the judgment).

Applying those principles to the facts of the instant case, after careful reflection, the court was 'abundantly sure' that the Inco threshold conditions had been met and that the required rectification would not have been too far-reaching. The 1960 act ought to be rectified by the court by the reinsertion of words that provided a right of appeal from the CACD to the Supreme Court. First, it was wholly unable to accept that the legislature had had any intention, when enacting the 2006 act, of removing the right of appeal from the CACD to the Supreme Court in cases of contempt of court.

That would have been a most unlikely means of seeking to do so, had that been parliament's intention. Second, the court concluded that the intention of paragraph 45 of schedule 16 to the 2006 act was, primarily, to deal with the name change of the Courts-Martial Appeal Court and various devolution issues. That would have been in keeping with the purpose and scheme of the 2006 act.

Third, the court was satisfied that, as regards paragraph 45 of schedule 16 to the 2006 act, the legislature had intended no more than a tidying up exercise; removing a reference to the Court of Criminal Appeal, a court which had not existed for 40 years. Fourth, on the construction of section 13(2)(c) of the 1960 act, to which the court had felt driven, it had followed that parliament and the draftsman had, 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 section 13(2)(c) of the 1960 act had encompassed the CACD as well as the Civil Division of the Court of Appeal, the effect of the amendment had been 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. Fifth, 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, had occasioned no difficulty.

All that would have been required was the insertion of express wording following 'Court of Appeal' in section 13(2)(c) of the 1960 act, making it plain that, there, the words 'Court of Appeal' encompassed both divisions of the Court of Appeal. Sixth, in the circumstances of the case, the court could not think that the proposed rectification was too far-reaching or contravened any constitutional proprieties. To the contrary, it preserved an important right of appeal and avoided an outcome which had no rational justification; crucially, an outcome which had not been intended by the legislature (see [24]-[31] of the judgment). By the route of rectification, there was a right of appeal to the Supreme Court from the CACD in cases of ­contempt of court (see [33] of the judgment).

(3) On the facts of the instant case, the committal of the defendant to prison for contempt of court was not unsafe. The court refused leave to appeal to the Supreme Court. However, it certified that two points of law of general public importance were involved
in the decision, namely: (i) whether a contempt of court constituted by breach of a restraint order made under section 41 of the 2002 act constituted a civil or a criminal contempt; and (ii) if the answer to (i) was a civil contempt, whether section 151 of the 2003 act and/or article 18 of the treaty precluded a court from dealing with a person for such a contempt when that person had been extradited to the UK in respect of criminal offences, but not the contempt in question (see [3], [34] of the judgment).

Alun Jones QC and Colin Wells (instructed by Morgan Rose) for the defendant; Edward Jenkins QC and Benjamin Douglas-Jones (instructed by the Serious Fraud Office) for the Crown; Andrew O'Connor as the advocate to the court.