OB v Serious Fraud Office

The Court may rectify a statutory drafting error by adding words where it is abundantly sure of the provision’s intended purpose, that the omission was inadvertent, and of the substance of the wording Parliament would have enacted. The correction must not be too far-reaching or amount to judicial legislation. Those conditions were satisfied where an amendment, apparently intended to remove an obsolete reference to the Court of Criminal Appeal, inadvertently removed a long-standing right of appeal from the criminal division of the Court of Appeal in contempt proceedings. The Court therefore preserved that right by reading in words making clear that the reference to the Court of Appeal included both divisions.

The appellant had been committed to prison for contempt of court. The Court of Appeal had dismissed his appeal in an earlier judgment dated 1 February 2012. He sought permission to appeal to the Supreme Court and certification of points of law of general public importance.

The Registrar questioned whether Administration of Justice Act 1960, section 13, as amended by the Armed Forces Act 2006, still provided an appeal from the criminal division of the Court of Appeal in contempt cases. The parties argued that the right of appeal remained, either by construction, statutory rectification or under section 3 of the Human Rights Act 1998. The central issue was whether the apparent deletion of the right of appeal was intended by Parliament and, if not, whether the legislation could be corrected judicially.

1. Construction. The amended reference to the “Court of Appeal” in section 13(2)(c) of the Administration of Justice Act 1960 could not, as a matter of construction, be read as including the criminal division. The words had existed in the provision since 1960 and fell within paragraph 3(c) of Schedule 4 to the Senior Courts Act 1981, which required such a reference in a pre-1966 enactment to be read as a reference to the civil division.

2. Rectification. Applying Inco Europe v First Choice Distribution [2000] 1 WLR 586, the Court was abundantly sure that the three threshold conditions were met. The purpose of the amendment was primarily to address the name of the Courts-Martial Appeal Court and related devolution matters. The deletion of the obsolete reference to the Court of Criminal Appeal was a tidying-up exercise, not an intended removal of the right of appeal from the criminal division. The drafting error therefore failed to give effect to Parliament’s intention.

3. The necessary correction was narrow. Adding words such as “both divisions” after “Court of Appeal” would preserve the long-standing right of appeal without crossing the boundary into judicial legislation. The correction was not too far-reaching and avoided an irrational result.

4. Human Rights Act issue. The question under section 3 of the Human Rights Act 1998 was academic. Provisionally, the Court would not have been inclined to accept that the difference in appeal rights involved a personal characteristic or “other status” for the purposes of article 14 of the ECHR.

5. The Court held that a right of appeal to the Supreme Court existed from the criminal division in contempt cases. Permission to appeal was refused, but two points of law of general public importance were certified, concerning the characterisation of contempt for breach of a restraint order under section 41 of the Proceeds of Crime Act 2002, and the effect of section 151A of the Extradition Act 2003 and article 18 of the United Kingdom–United States Extradition Treaty 2003.

• High Court: The appellant was committed to prison for contempt of court in proceedings identified as U2009/1027 and U2011/0173. No neutral citation is stated.
• Court of Appeal: In an earlier judgment dated 1 February 2012, the Court dismissed the appellant’s appeal and upheld the committal. In this judgment, permission to appeal to the Supreme Court was refused, while two points of law of general public importance were certified.