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

For confiscation orders enforced through the fines regime, the default term is fixed by the Crown Court but imposed by the Magistrates’ Court when it issues the warrant of commitment. Interest accruing on the unpaid order is part of the amount recoverable for enforcement and therefore affects the credit given for later payments. It does not automatically lengthen the default term; a longer term requires an application under section 10(2) of the Drug Trafficking Act 1994. The court may adopt a purposive construction, or correct an obvious drafting omission, so that payments made before or after committal are credited against the term.

The appellant received a confiscation order under the Drug Trafficking Act 1994 for £5,430,671, with a six-year default term. Interest increased the amount due before enforcement proceedings in the Magistrates’ Court, which issued a warrant of commitment.

Judicial review of the Ministry of Justice’s calculation of sentence credit for payments made against the order was dismissed by His Honour Judge Gosnell, sitting as a Deputy High Court Judge. The appellant appealed, arguing that section 79(2) of the Magistrates’ Court Act 1980 referred to the sum due when the Crown Court fixed the default term and excluded accrued interest. The central issues were when the default term was imposed and whether interest formed part of the sum used to calculate remission.

1. Jurisdiction. The proceedings were not a criminal cause or matter under section 18(1)(a) of the Senior Courts Act 1981. Applying the approach in Guardian News and Media Limited, the later administrative calculation by Ministry of Justice officials had an insufficient nexus with the concluded criminal proceedings. The Court of Appeal therefore had jurisdiction and granted permission, including the necessary extension of time.
2. Interest and enforcement. Section 10(1) of the Drug Trafficking Act 1994 expressly treats accrued interest, for enforcement purposes, as part of the amount recoverable under the confiscation order. It is not a separate free-standing civil liability. Interest therefore forms part of the sum due when enforcement is undertaken by the Magistrates’ Court.
3. Imposition of the default term. Under sections 31(2) and 32 of the Powers of Criminal Courts Act 1973, the Crown Court fixes a term to apply if the amount is not paid or recovered. The Magistrates’ Court imposes that term in the enforcement proceedings when it issues the warrant of commitment, subject to the statutory reduction for part payment under section 79(2) of the Magistrates’ Court Act 1980.
4. Effect of interest. Accrued interest increases the amount due, but does not automatically increase the default term. A longer term is available only if the prosecutor applies under section 10(2) of the Drug Trafficking Act 1994 and the Crown Court grants the application. Interest does, however, reduce the proportionate credit obtained from a payment because the payment is measured against the larger total sum.
5. Pre-committal payments. A literal reading of section 79(2) might exclude payments made between the Crown Court order and the Magistrates’ Court warrant. That difficulty did not displace the statutory scheme. The provision required a purposive construction, alternatively correction of an obvious drafting omission in accordance with Inco Europe Limited v First Choice Distribution, so that payments made before or after the imposition of detention could be credited. The appeal was rejected.

• Court of Appeal (Civil Division): The court granted permission to appeal and an extension of time, held that it had jurisdiction, and rejected the appeal from the Administrative Court’s dismissal of the judicial review claim.
• Administrative Court: His Honour Judge Gosnell, sitting as a Deputy High Court Judge, dismissed the judicial review application on 4 September 2013.