QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GROSS
| Brian Haw & Barbara Tucker
|- and -
|City of Westminster Magistrates' Court
Ms Catrin Evans (instructed by Treasury Solicitor) for the Respondent
Mrs Tucker appeared as a litigant in person
Hearing dates: 28 November 2007
Crown Copyright ©
Lord Justice Thomas :
The jurisdictional issue to be determined
i) an appeal to the Crown Court under s.12(5) of the Contempt of Court Act 1981;
ii) an appeal to the Administrative Court under s.13 of the Administration of Justice Act 1960;
iii) an appeal by way of case stated or an application for judicial review to the Administrative Court.
(i) What appeal lies to the Crown Court?
(a) The statutory provisions: s. 12 of the Contempt of Court Act 1981
"(1) A magistrates' court has jurisdiction under this section to deal with any person who –
(a) wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or
(b) wilfully interrupts the proceedings of the court or otherwise misbehaves in court.
(2) In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding £2,500, or both."
"(5) Section 135 of the Powers of Criminal Courts (Sentencing) Act 2000 (limit on fines in respect of young persons) and the following provisions of the Magistrates' Courts Act 1980 apply in relation to an order under this section as they apply in relation to a sentence on conviction or finding of guilty of an offence; and those provisions of the Magistrates' Courts Act 1980 are sections 75 to 91 (enforcement); section 108 (appeal to Crown Court); section 136 (overnight detention in default of payment); and section 142(1) (power to rectify mistakes)."
Section 108 of the Magistrates' Courts Act 1980 provides by subsection (1) as follows:
"A person convicted by a magistrates' court may appeal to the Crown Court –
(a) if he pleaded guilty, against his sentence;
(b) if he did not, against the conviction or sentence."
"The Administrative Court office wrote to Mr Lane on 22nd November, almost a week ago, pointing out that the right of appeal against orders made under section 12 of the 1981 Act consists of a right of appeal to the Crown Court under section 108 of the Magistrates' Courts Act 1980, not to this court. That is indeed the position. Section 12(5) of the 1981 Act states that section 108 applies to an order under section 12 and in its turn section 108 creates a right of appeal to the Crown Court. No right of appeal to this court, whether by case stated or in any other form, is created. However, what is possible in these circumstances is to seek permission to begin judicial review proceedings. They are not excluded by any statutory provision. Judicial review may lie if something has gone wrong with the decision-making process, but, as we have explained to Mr Lane this afternoon, it does not provide a means of challenging a decision on its merits which appears to form at least part of what Mr Lane seeks."
(b) The legislative history of s.12
"As in the case of superior courts, there should be the safeguard of an appeal which would need to be swift in the case of a custodial sentence. We recommend that appeals should lie to the nearest Crown Court, and that arrangements should be made for dealing with them expeditiously."
"Clause 11 confers powers on magistrates to punish disruption or contempt in the face of the court and allows appeal up to the Crown Court, as indeed appeals to the Crown Court are universally allowed from magistrates. This follows paragraph 36 of the Phillimore Report but with rather heavier sanctions after six years than Phillimore then recommended."
"The foregoing provision of this section shall have effect as if enacted in the Magistrates' Courts Act 1980; and for the purposes of section 108 of that Act (appeal to Crown Court) an order under this section shall be treated as an order made on conviction."
"an appeal by way of re-hearing to the Crown Court if someone suffered any penalties under the preceding provisions [of the clause]. However, I shall of course refer what my noble friend said to the draftsman. He is one of the most experienced draftsmen in the business, so my noble friend can be sure that the point will be taken and examined in very safe hands, better than mine."
(c) The decision in ex parte Palmer
"In those circumstances, as again will be readily apparent, it becomes unnecessary for this court to express any final opinion on the decision of the learned circuit Judge at Portsmouth that he had no jurisdiction to hear the appeal by the applicant against the magistrates' decision. However, well appreciating that any views which I now express may well hereafter be said to be obiter, having had the benefit of extensive argument on the point and also because it is perhaps a more important one than the one with which I have already dealt, I do propose to express a view upon it.
Mr Foskett [counsel for Palmer] drew our attention to what at first sight appears to be the somewhat unhappy wording of s. 12(5) of the 1981 Act, particularly the phrase "in relation to a sentence on conviction or finding of guilty of an offence". At first reading, one might be forgiven for expecting either the word "to" or "a" before the words "finding of guilty of an offence", but neither is there and for my part I think that it is not for the reason put forward in his submissions by Mr Foskett. By s. 59 of the Children and Young Persons Act 1933 it was provided that the words "conviction" and "sentence" were to cease to be used in relation to children and young persons dealt with summarily and any reference in any enactment passed before or after the commencement of that Act should in the case of a child or a young person be construed as including a reference to that person being found guilty of an offence, a finding of guilty, or an order made upon such a finding. A child or young person, therefore, is not to be convicted; he or she is to be found guilty of an offence. It is for this reason, Mr Foskett submits, that one finds the word "conviction" and the phrase "finding of guilty of an offence" side by side in subs. (5). For my part, I accept that submission and that then leads one to the proper construction of that subsection.
The relevant section of the Magistrates' Courts Act 1980 in the instant case of those referred to in s. 12(5) of the 1981 Act is s. 108, which provides for a right of appeal to the Crown Court for a person convicted by magistrates – if he pleaded guilty, against sentence; if he did not, against the conviction or sentence. But s. 12(5) of the 1981 Act merely refers to an "order" under s. 12 and applies s. 108 of the Act of the previous year to that order only as it applies "in relation to a sentence on conviction or finding of guilty of an offence." Thus, in my opinion, the jurisdiction of a Crown court in this context is limited to hearing an appeal against the penalty imposed by magistrates for the contempt which they have found to have been committed: there is no jurisdiction in a Crown Court to hear an appeal by a person against the actual finding of contempt by justices under s. 12(1) of the Contempt of Court Act 1981.
Thus, in my judgment, in the instant case the learned circuit Judge was wholly right to decline jurisdiction in so far as the appeal against the finding of contempt was concerned, although had he been minded to and had the applicant been prepared to proceed on that limited basis, he did, in my judgment, have jurisdiction in respect of penalty."
The judge went on to deal with s.13 of the Administration of Justice Act 1960, but it is convenient to deal with that part of his judgment when we turn to consider the jurisdiction of the High Court under s.13 of that Act at paragraphs 31 and following below.
"59. (1) The words "conviction" and "sentence" shall cease to be used in relation to children and young persons dealt with summarily and any reference in any enactment whether passed before or after the commencement of this Act to a person convicted, a conviction or a sentence shall, in the case of a child or young person, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order made upon such a finding, as the case may be:"
First it can be noted that s.59 of the Children and Young Persons Act uses the term "found guilty of an offence, a finding of guilt or an order made upon such a finding" and not the term in s.12(5) "finding of guilty of an offence". The wording of s.12(5) therefore does not track the wording of s.59 of the Children and Young Persons Act. The summary of the provisions of s.59 by the then May LJ is therefore mistaken insofar as he summarises the section as referring to "a finding of guilty". Those are the words used in s. 12(5) but not in s. 59.
(d) Our conclusion
"All this suggests that some mishap has occurred in the drafting but exactly what it was is difficult to say. The result is unfortunate. There seems to be no good reason why the person convicted (or found guilty) under the section should have no right of appeal against the conviction (or finding) as well as against sentence (or any order made on conviction)."
We agree that there can be no good reason why a person convicted under s.12 should not have a right of appeal against conviction as well as against sentence.
"I freely acknowledge that this interpretation of section 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation, 3rd ed. (1995), pp. 93-105. He comments, at p. 103:
"In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role."
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v. Wrotham Park Settled Estates  A.C. 74, 105-106. In the present case these three conditions are fulfilled."
(2) Does an appeal lie to the High Court under s.13(1)?
"(1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.
(2) An appeal under this section shall lie in any case at the instance of the defendant and, in the case of an application for committal or attachment, at the instance of the applicant; and the appeal shall lie –
(a) from an order or decision of any inferior court not referred to in the next following paragraphs, to … the High Court;
(5) In this section "court" includes any tribunal or person having power to punish for contempt; and references in this section to an order or decision of a court in the exercise of jurisdiction to punish for contempt of court include references –
(a) to an order or decision of the High Court, the Crown Court or a county court under any enactment enabling that court to deal with an offence as if it were contempt of court;
(b) to an order or decision of a county court, or of any court having the powers of a county court, under section 14, 92 or 118 of the County Courts Act 1984;
(c) to an order or decision of a magistrates' court under subsection (3) of section 63 of the Magistrates' Courts Act 1980,
but do not include references to orders under section five of the Debtors Act 1869, or under any provision of the Magistrates' Courts Act 1980] or the County Courts Act 1984, except those referred to in paragraphs (b) and (c) of this subsection and except sections 38 and 142 of the last mentioned Act so far as those sections confer jurisdiction in respect of contempt of court."
"There remains some doubt, therefore, as to the circumstances in which it is appropriate to go to the Crown Court, or to the High Court for judicial review or to the High Court by way of appeal under s.13 of the 1960 Act. The answer may be that s.13 does not apply to the exercise of the jurisdiction under s.12 of the Contempt of Court Act 1981 at all, for the reason that it is a specific statutory jurisdiction which is, although analogous to the contempt jurisdiction, not in fact to be so classified."
"If that provision [s.13 of the 1960 Act] operated or was held to operate in relation to situations covered by s.12 of the 1981 Act, the position would be this. Parliament with one hand would have given by subs. (5) of s.12 of the 1981 Act a right of appeal, albeit limited to the extent that I have indicated, but then would have taken it away again with its other hand by virtue of the second half of subs. (1) of s.13 of the 1960 Act. In my judgement, that cannot have been the intention of parliament and cannot be a proper construction to put on s.13(1) of the Administration of Justice Act 1960, in the circumstances which obtained in the instant case."
"Another way of putting the point would be on the basis of generalia non specialibus derogant; that is to say that the specific provisions of s.12(5), however poorly drafted they may be, must be taken to have priority over those of the earlier, more general provisions."
This is also the view of Professor C.J. Miller in Contempt of Court at paragraph 3.105 footnote 473.
(3) Appeals by way of case stated and applications for judicial review
i) An appeal lies to the Crown Court from a conviction or a sentence under s. 12 of the Contempt of Court Act 1981 at the Magistrates' Court.
ii) There is no right of appeal against a conviction or sentence under s.12 of the Contempt of Court Act 1981 to the High Court under s.13 of the Administration of Justice Act 1960.
iii) An appeal to the High Court lies by way of case stated and proceedings for judicial review can be brought where appropriate.