Gibson, R (on the application of) v Secretary of State for Justice

For confiscation orders enforced as fines, the period of imprisonment in default is imposed when the Magistrates Court issues the commitment warrant, not when the Crown Court fixes the default term. Part payments are assessed by reference to the sum due when the default term is imposed. Interest accruing under the Drug Trafficking Act 1994 forms part of the amount recoverable for enforcement. The statutory scheme may produce harsh results after delay, but the court must give effect to Parliament’s scheme.

The claimant was serving a sentence for importing Class A drugs. The Crown Court determined that he had benefited from drug trafficking and made a confiscation order for £5,430,671, fixing six years’ imprisonment in default. When enforcement later occurred, the Magistrates Court issued a commitment warrant after interest and payments had altered the figures. The claimant challenged the calculation of remission for part payments.

The central issue was whether the words “at the time the period of detention was imposed” in section 79(2) of the Magistrates Courts Act 1980 referred to the Crown Court’s fixing of the default term or the Magistrates Court’s later imposition of that term.

1. Claim dismissed. The ordinary meaning and historical function of section 79(2) of the Magistrates Courts Act 1980 point to the Magistrates Court’s imposition of the default term. The Crown Court fixes the maximum term, but the sentence is imposed when the Magistrates Court issues the commitment warrant.
2. Sections 32(1) and 32(2) of the Powers of Criminal Courts Act 1973 support that construction. The Magistrates Court may issue a warrant for the term fixed by the Crown Court, reduced under section 79(2) to reflect payments made by the time of enforcement.
3. Section 10(1) of the Drug Trafficking Act 1994 requires interest on an unpaid confiscation sum to be treated as part of the amount recoverable for enforcement. Interest is therefore included in calculating the sum due at the imposition of the default term. Section 10(2), which permits an increase in the default term where accrued interest moves the case into a higher statutory bracket, supports that conclusion.
4. The potentially unfair consequences of delayed enforcement could not justify a different interpretation. Parliament had intended interest to run notwithstanding the scheme’s harshness.
5. The Proceeds of Crime Act 2002 did not assist the claimant. Section 12(4), read with the enforcement provisions in Part 2, treats interest as part of the amount payable. Section 37 provides a distinct regime which excludes section 79(2); interest may consequently continue to affect the proportionate reduction during the default term.
6. The reasoning was reinforced by Hansford v Southampton Magistrates Court [2008] EWHC 67 (Admin), despite the point having been conceded and not fully argued in that case. The court also accepted that the later statutory regime could be considered as an aid to construing the earlier legislation, following Anglesey County Council v Welsh Ministers [2009] EWCA Civ 94.

First-instance judicial review in the Administrative Court. No appellate history is stated in the judgment.