On appeal from: [2015] EWCA Civ 1148.

The issue in the appeal is whether interest is included in the starting point under the Magistrates’ Courts Act 1980, s 79(2) for the giving of proportionate credit for part payment of a confiscation order.

This appeal considered whether, when a confiscation order is made under the Drug Trafficking Act 1994, the words ‘the said sum… as was due at the time of the period of detention was imposed’ in s 79(2) of the 1980 Act mean the sum due when the default term was fixed by the Crown Court judge or the sum due when the default term was activated by the Magistrates’ Court.

The Supreme Court unanimously allowed the appeal. The Court considered that the difficulties raised in this case stem from the fact that the enforcement of confiscation orders is achieved by applying statutory provisions to confiscation orders which were not designed for them and therefore a confiscation order is treated as if it was a fine imposed by the magistrates. However, there are differences between a magistrates imposed fine and a Crown Court imposed fine in that magistrates do not fix a default term when imposing the fine. The difference in practices led the lower courts to analyse s 79(2) of the 1980 Act as assuming the standard magistrates’ practice and thus to conclude that the references in that subsection to a period of imprisonment having been “imposed… in default of payment” were references to the act of the magistrates in issuing the warrant of commitment. This caused the consequential difficulty that s 79(2) would say nothing about how to deal with part payments made in Crown Court cases between the Crown Court making a confiscation order and the later magistrates’ proceedings. As a result the Court of Appeal read additional words into s 79(2). The Supreme Court held that straining the wording of s 79(2) could not be justified where it would adversely impact on the period of imprisonment to which a person is subject as penal legislation is strictly construed. Therefore the Supreme Court concluded that the natural construction of the section is that the starting point for the arithmetical calculation of reduction in days of imprisonment is the sum outstanding at the time of the Crown Court order.

For judgment, please download: [2018] UKSC 2
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (5 Dec 2017 morning session) (5 Dec 2017 afternoon session)