OB v The Director of the Serious Fraud Office (Rev 1)

A court may rectify an evident statutory drafting error by adding, omitting or substituting words only where it is abundantly sure of the provision’s intended purpose, that inadvertence has defeated that purpose, and of the substance Parliament would have enacted. The alteration must not amount to impermissible judicial legislation.

Applying that approach, the court held that an amendment made by Armed Forces Act 2006 had accidentally removed, rather than deliberately abolished, the right to appeal from the Criminal Division to the Supreme Court in contempt cases under Administration of Justice Act 1960. The provision was rectified to preserve that right.

OB’s appeal against committal to prison for contempt had previously been dismissed and the committal upheld. He then sought permission to appeal to the Supreme Court and certification of points of law of general public importance.

The Registrar identified a possible statutory obstacle: following amendment of section 13 of the Administration of Justice Act 1960, the legislation appeared no longer to provide an appeal from the Court of Appeal Criminal Division in contempt cases. Both parties submitted that the right remained, and an advocate to the court addressed the issue.

The court considered whether the right existed on ordinary construction, whether the provision could be rectified for legislative inadvertence, and, if necessary, whether section 3 of the Human Rights Act 1998 required a Convention-compliant reading.

1. The court held that there is a right of appeal to the Supreme Court from the Court of Appeal Criminal Division in contempt cases. It refused OB permission to appeal, but certified two points of law of general public importance.

2. On ordinary construction, section 13(2)(c) of the Administration of Justice Act 1960 did not preserve the right. The unamended words “Court of Appeal” remained words in a pre-1 October 1966 enactment. Under paragraph 3(c) of Schedule 4 to the Senior Courts Act 1981, they therefore referred to the Civil Division. Deleting other words from the subsection could not, by construction alone, give those words a wider meaning.

3. The court applied the rectification principles in Inco Europe v First Choice Distribution [2000] 1 WLR 586 (HL). Rectification was justified because the court was abundantly sure that Parliament did not intend, through an armed-forces measure, to remove a long-standing right of appeal only from Criminal Division contempt decisions. The amendment was a tidying exercise which removed an obsolete reference to the Court of Criminal Appeal. Its unintended effect resulted from the interaction with Schedule 4 to the Senior Courts Act 1981.

4. The requisite correction was clear and constitutionally modest: section 13(2)(c) was to be read as referring to both divisions of the Court of Appeal. That preserved the intended appellate route and avoided an irrational distinction between contempt decisions.

5. The proposed section 3 Human Rights Act 1998 argument was academic. The court expressed no concluded view, but provisionally considered that the differential right of appeal would not amount to a personal characteristic or “other status” for article 14 purposes.

• Court of Appeal (Criminal Division): In this judgment, [2012] EWCA Crim 901, the court held that the statutory right to appeal to the Supreme Court in contempt cases remained available after rectification. It refused permission to appeal and certified two points of law.

• Court of Appeal (Criminal Division): By an earlier judgment dated 1 February 2012, the court dismissed OB’s appeal and upheld his committal to prison for contempt.

• Common Serjeant (HHJ Barker QC): Committed OB to prison for contempt. No judgment citation was stated.