The decision of the Court of Appeal (Criminal Division) (CACD) in OB v Director of the Serious Fraud Office [2012] EWCA Civ 501 is an interesting one in that it confirms the approach the court will take to dealing with ambiguities in legislation. For the background to the decision, see Legal update, Contempt of court: civil or criminal? (Court of Appeal). Having dismissed the appellant OB’s appeal and upheld his committal to prison for contempt, the CACD indicated that it was minded to refuse his request to seek permission to appeal to the Supreme Court.
However, at this stage, it was noted that although a right to appeal a contempt of court from the CACD to the Supreme Court existed in section 13(2)(c) of the Administration of Justice Act 1960 (AJA 1960) and subsequent legislation (including the Senior Courts Act 1981), Parliament had inadvertently removed that right when Schedule 16 of the Armed Forces Act 2006 (AFA 2006) came into force. This meant that, with effect from 31 October 2009, an appeal to the Supreme Court would only lie from:
- A decision of a single judge in the High Court.
- An order or decision of a Divisional Court of the Court of Appeal.
- An order or decision (except one in Scotland or Northern Ireland) of the Court Martial Appeal Court.
The reference to the CACD in section 13(2)(c) of the AJA 1960 having been removed, there was no other statutory reference to suggest that an appeal from the CACD could be made to the Supreme Court. Therefore, in order to resolve the ambiguity in the legislation, the CACD needed to address the following questions.
- Issue 1: construction. Was it possible to read the amended wording of section 13(2)(c) of the AJA 1960 as providing a right of appeal from the CACD to the Supreme Court in cases of contempt of court?
- Issue 2: rectification. If the words could not be construed as giving a right of appeal from the CACD to the Supreme Court, could the CACD, applying common law principles of statutory construction, rectify the statute by re-inserting words that provide a right of appeal from the CACD to the Supreme Court?
- Issue 3: reading down under section 3 of the Human Rights Act 1998. If it was not possible to construe the words of the AJA 1960 (as amended) as giving a right of appeal, should words providing a right of appeal from the CACD to the Supreme Court be read into the sub-section under section 3 of the Human Rights Act 1998 (HRA 1998)?
On the issue of construction, the CACD rejected the SFO’s submission that the reference in section 13(2)(c) of the AJA 1960 was a reference to the one Court of Appeal that now exists and not simply to the Court of Appeal, Civil Division. Although it was attracted to this argument, the CACD rejected it as going too far. CACD’s view was that it would require a leap of construction for the same words “Court of Appeal” to have been confined to the civil division of the Court of Appeal from 1960 until the coming into force of the AFA 2006, after which they acquired a different and wider meaning simply as a result of deleting other words in the sub-section. For this reason, the CACD was not persuaded that it was possible to construe the amended wording of section 13(2) of the AJA 1960 as providing a right of appeal.
Moving on to the question of rectification, the CACD considered the decision of the House of Lords in Inco Europe v First Choice Distribution [2000] 1 WLR 586 (HL) which concerned a dispute as to whether a right of appeal had been unintentionally excluded from section 9 of the Arbitration Act 1996. The House of Lords, by reading words into the relevant statutory provision to give effect to the intention of the legislature, had found that an appeal continued to lie from a decision made at first instance to the Court of Appeal. However, in order to do this, the court must be in no doubt about what provision ought to have been made for the missing case. The power of rectification is confined to plain cases of drafting mistakes and the court should be mindful that its constitutional role in this field is interpretative. In particular, the court must abstain from any course that may have the appearance of judicial legislation. Since a statute is expressed in language that is approved and enacted by the legislature, the courts must exercise considerable caution before adding, omitting or substituting words. Therefore, before interpreting a statute in this way, the court must be sure:
- Of the intended purpose of the statute or provision.
- That the draftsman and Parliament have, inadvertently, failed to give effect to that purpose in the provision in question.
- Of the substance of the provision Parliament would have made, although not necessarily the precise words that Parliament would have used, had the error in the Bill been noticed. This condition is crucial as otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.
Even where these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament as the alteration in language may be too far-reaching. There was no rational explanation for the removal of the right of appeal from the CACD in contempt cases particularly when such a right of appeal remained in respect of decisions of the civil division of the Court of Appeal, the Divisional Court and the Court Martial Appeal Court. If as a matter of construction, “Court of Appeal” in section 13(2)(c) of the AJA 1960 meant “Court of Appeal (Civil Division)”, then the sub-section should be rectified so as to preserve the right of appeal from the CACD to the Supreme Court.
Although the CACD was mindful of the need to avoid impermissible judicial legislation, it decided after careful reflection that the case met the Inco thresholds and that the required rectification would not be too far-reaching. In particular, the CACD:
- Could not accept that the legislature had any intention, when enacting the AFA 2006, of removing the right of appeal from the CACD to the Supreme Court in cases of contempt of court. In reaching this view, it noted that the long title of the AFA 2006 was “An Act to make provision with respect to the armed forces, and for connected purposes”.
- Commented that the primary intention of paragraph 45 of Schedule 16 was to deal with the name change of the Courts Martial Appeal Court.
- Was satisfied that the deletion of the words, “and from an order or decision of the Court of Criminal Appeal”, was a “tidying up” exercise, removing a reference to the Court of Criminal Appeal that had not existed for 40 years. However, it was not satisfied that the legislature in enacting paragraph 45 of Schedule 16 intended to remove a long-standing right of appeal.
- Considered that the draftsman had a mistaken belief that the words “Court of Appeal” encompassed the CACD as well as the civil division of the Court of Appeal.
- Was satisfied that the proposed rectification was not too far-reaching and did not contravene any constitutional proprieties. On the contrary, it preserved an important right of appeal and avoided an outcome that had no rational justification.
On this basis, the CACD was satisfied that the statute could be rectified by applying common law principles of statutory construction. Given that conclusion, it only summarily addressed issue three which had become academic in finding that it was not possible for section 13(2)(c) of the AJA 1960 to be “read down” to comply with the European Convention on Human Rights under section 3 of the HRA 1998.
More information on the interpretation of legislation can be found in the following PLC materials: