Supreme Court allows appeal and settles law relating to interest accruing on non-payment of confiscation orders and whether or not interest impacts on default term

30 January 2018

R (Gene Gibson) v Secretary of State for Justice [2018] UKSC 2, the Supreme Court allowed Mr Gibson’s appeal against the way in which his default term was calculated after he made various payments against a confiscation order.

Mr Gibson was represented by Garden Court North Chambers’ Pete Weatherby QC and Matthew Stanbury.

The issue in the appeal was whether interest accrued on non-payment of confiscation orders affects penal enforcement. In other words, when part payments are made against a confiscation order, is the default term reduced in proportion to the original amount, or that amount with interest?

The Supreme Court accepted that the Secretary of State’s argument, that interest should affect penal enforcement, might well have been what parliament intended (§20). It noted, however, that for the Secretary of State’s construction to work it was necessary to do “no little violence” to the wording of section 79(2) of the Magistrates’ Court Act, a proper reading of which favoured Mr Gibson’s position. It concluded:

We have concluded that this straining of the wording of section 79(2) cannot be justified in circumstances where it would adversely impact on the period of imprisonment to which a person would be subject. Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty. The words of section 79(2) do not provide clearly for a period of imprisonment calculated on the basis for which the Secretary of State contends; on the contrary, they suggest the natural construction 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.

This appeal emphasises the importance of construing penal provisions strictly, and in favour of liberty, where there is ambiguity. Mr Gibson had lost in both the Administrative Court and the Court of Appeal.  The Supreme Court has now settled this issue which is of widespread application.

Pete Weatherby QC and Matthew Stanbury were instructed by Dean Kingham of Swain & Co, Havant.

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