Crown Prosecution Service, R (on the application of) v Bow Street Magistrates Court & Ors

Where statutory wording contains an obvious drafting error, the court may correct it by adding, omitting or substituting words, but only in a plain case. The court must be abundantly sure of the provision’s intended purpose, that the draftsman and Parliament failed to give effect to it, and of the substance of the correction Parliament would have made. The correction must remain within the judicial interpretative function and must not amount to legislation. Penal character is relevant, but a strict construction does not prevent correction where the construction causes no detriment or greater detriment to affected persons.

The Crown Prosecution Service sought judicial review of a ruling by District Judge Purdy at Bow Street Magistrates’ Court. The District Judge discharged five defendants charged under section 5(2) of the Forgery and Counterfeiting Act 1981, holding that the relevant passport offence had been repealed by section 44(2) of the Identity Cards Act 2006 on 30 March 2006. He nevertheless committed them to the Crown Court on additional charges.

The central issue was whether section 44(3) brought the repeal in Schedule 2 into force immediately, or whether the court could construe it so that repeal occurred only when the replacement offences in sections 25 and 26 came into force.

1. The application was allowed. The District Judge’s conclusion that section 44(2) immediately repealed the relevant provisions of the Forgery and Counterfeiting Act 1981 was reached on an apparently compelling reading of section 44 in isolation, but the statutory context disclosed a drafting error.

2. Section 44(3) of the Identity Cards Act 2006 was intended to secure a smooth transition from the old passport offences to the replacement offences in sections 25 and 26. By inadvertence, Parliament failed to exclude section 44(2) from the bracketed exceptions in section 44(3). The omission meant that the repeal took effect before the replacement offences.

3. Applying the principles stated in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, the court was abundantly sure of: the intended purpose; the failure to give effect to that purpose through drafting error; and the substance of the provision Parliament would have made had the error been noticed. Section 44(3) was therefore construed as if it read: “apart from this section, other than subsection (2) hereof, and sections 36 and 38”.

4. The court recognised the caution expressed in Western Bank Ltd v Schindler (1977) Ch 1 that any inserted language must not be too extensive or too far at variance with the enacted words. That limitation was satisfied here.

5. Although the 2006 Act was penal legislation, the corrected construction merely continued the existing law until replacement provisions came into force. It imposed no detriment or greater detriment on the defendants or others. Strict construction therefore did not prevent the correction.

The judgment describes the underlying ruling by District Judge Purdy at Bow Street Magistrates’ Court on 26 May 2006. This court allowed the application for judicial review.