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R (on the application of Gibson) v Secretary of State for Justice - (24 Jan 2018)

Scheme under which period of imprisonment served in default of payment in full of the amount specified in confiscation order is based on entire amount outstanding, including interest


Present case concerns the enforcement of confiscation orders made by the Crown Court upon conviction. As well as various statutory mechanisms for enforcement via the appointment of receivers, successive confiscation statutes have adopted the scheme of making confiscation orders enforceable as if they were fines imposed by the Crown Court. That involves using the powers of the Magistrates’ Court, which is the Court which can, if payment is not made, issue a warrant committing the non-paying defendant to prison. When making the confiscation order (as when imposing a fine), the Crown Court is required by statute to fix a default term of imprisonment to be served if the Defendant does not pay.

In a simple case of non-payment, the magistrates will usually issue a warrant committing the defendant to prison for the period which the Crown Court fixed as the default term, and that term has to be served consecutively to any sentence passed for the substantive offences which led to the making of the confiscation order. There are, however, two possible adjustments which may have to be considered. The first is interest. The second is part payment. The present appeal concerns how these two adjustments fall to be made when they coincide.

The statutory scheme for the enforcement of confiscation orders proceeded then, as it does now, by a process of successive referrals. First, Section 9 of the Drug Trafficking Act makes the confiscation order enforceable as if it were a fine imposed by the Crown Court. That refers one on to the 2000 Sentencing Act, by which a fine imposed by the Crown Court is by Section 140(1) treated for enforcement purposes as if it had been imposed by the magistrates, and thus so is a confiscation order. But the magistrates’ general powers in relation to their own fines are not in the 2000 Sentencing Act; they are found in the Magistrates’ Courts Act 1980, to which one is thus further referred on. It is in the Magistrates’ Courts Act 1980 that the magistrates’ power to commit to prison for failure to pay a fine is found, together with an alternative power to issue a warrant of distress (now re-named a warrant of control). And it is in the Magistrates’ Courts Act 1980 that the only provision dealing with part payments is found.

The straining of the wording of Section 79(2) of the Magistrates’ Courts Act 1980, cannot be justified in circumstances where it would adversely impact on the period of imprisonment to which a person would be subject. Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty. The words of Section 79(2) do not provide clearly for a period of imprisonment calculated on the basis for which the Secretary of State contends; on the contrary, they suggest the natural construction that the starting point for the arithmetical calculation of reduction in days of imprisonment is the sum outstanding at the time of the Crown Court order.

Nor is the Secretary of State’s construction warranted by the example of the reference in Section 79(2) to the costs and charges of distress, where such have been incurred. Since Section 79(2) was plainly not drafted with confiscation, or for that matter Crown Court fines, in mind, the reference is adequately explained by the orthodox case of the magistrates first issuing a warrant for distress and only subsequently fixing the default term for non-payment; in such a case the reference to the sum outstanding at the time the period of detention was imposed makes perfectly good sense. In any event, the addition of such costs and charges is expressly provided; that does not mean that an equivalent provision can be read in as a consequence of a provision in a different statute, namely Section 10(1) of the Drug Trafficking Act.

A scheme under which the period of imprisonment served in default of payment in full of the amount specified in the confiscation order is based on the entire amount outstanding, including interest, may or may not be what the framers of the confiscation legislation might have wished for or intended if the point had been considered. However, because the means adopted took the form of statutory reference (and re-reference) to provisions which were drafted for a different purpose and without confiscation in mind, they have not achieved that effect. If it is desired that they should do so, express legislation will be needed.

It is also of some relevance that the practical consequences of the Secretary of State’s proposed construction would, without specific machinery, be difficult to work out. Interest accrues daily, so the net amount outstanding would also vary daily. That difficulty may be met by a calculation geared to the particular day (or days) on which any part payment is made. But additionally, this construction would have the effect of progressively reducing the incentive to make part payment, as interest rises, because the days credited for such part payment would progressively reduce. Nor would such a scheme provide any consequences at all for the not uncommon defendant who simply makes no payment whatever. Appeal allowed.


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