judgement:
On 21 March 2016, this court gave a father permission to appeal against the decision of the Court of Appeal that a custody order which he had obtained in Romania should not be enforced in this country under the Brussels II (Revised) Regulation (BIIR), because it had been given without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure in this country.
In the view of the panel giving permission to appeal, the judgment of the Court of Appeal raised an arguable point of law of general public importance, as to the precise extent to which it is a fundamental principle of the procedure relating to all cases about children in the courts of England and Wales that the child should be given an opportunity to be heard.
This is a question of importance in all childrens cases, not just those where the court here is asked to enforce a judgment given in another member state of the European Union.
However, it has now become clear that under BIIR this court has no jurisdiction to entertain such an appeal.
This point was not raised by the respondent mother in her notice of objection to the application for permission to appeal.
No doubt, had she done so, the court would have listed it for oral argument before deciding whether or not to give permission.
In the event, once it was raised, we were able to arrange a hearing at short notice, in advance of the date set for the substantive appeal.
As a point of jurisdiction, it could not be ignored, however inconveniently late in the day it was raised.
We are grateful to the parties for the speed with which they have prepared their written and oral arguments and, in particular, to the Ministry of Justice, whom we asked to intervene in order to give us an account of the relevant history.
The history of the case
The circumstances in which this question arises are deeply unfortunate, not least because of the delays there have been, not only in Romania but also in this country, but they are largely irrelevant to the question of law which we have to decide.
The child in question, DD, was born in Romania on 8 November 2006 and so is now aged nine and a half.
His parents are both Romanian but met while working in this country.
They returned briefly to Romania, where they got married and the child was born, but by January 2007 both parents had returned to live in this country with the child.
They separated in November 2007.
DD has continued to live here with his mother, his main carer, ever since.
The father returned to live in Romania in 2009, but has kept a second home here and for most of the intervening years (with a long gap from November 2012 until March 2014) has shared the care of DD with the mother.
He has a significant relationship with his son.
Although DD is undoubtedly habitually resident in this country, the parties chose to litigate about his future in Romania.
The father issued divorce and custody proceedings there in November 2007.
The couple were divorced in April 2008.
The father was awarded custody of DD, but the mother successfully appealed.
At the retrial, the father was again awarded custody, but first the mother and then the father successfully appealed.
At a further retrial in a different court, in December 2011, the court awarded joint parental authority to both parents, while finding that DDs domicile and residence were at the mothers address in England.
Both parties appealed, but their appeals were dismissed in March 2013, on the basis that joint custody is the norm and sole custody the exception.
Nevertheless, the child should remain living with his mother in England, as it was not in his best interests to change his living arrangements.
The father launched a further appeal, to the Bucharest Court of Appeal.
Its final decision, in November 2013, was that the child should live with the father, on the basis that he could provide the best moral and material conditions.
In February 2014, the father applied for the recognition and enforcement of this order by the English court.
The result was the re establishment of contact between father and son and a High Court ordered arrangement that the parents share his care in this country while the fathers application proceeded.
On 1 May 2014, Peter Jackson J ordered that DD be made a party to the enforcement proceedings: see the summary of the history in In re D (Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam), [2015] 1 FLR 1272.
He quotes, in para 33, the reasons given in his earlier judgment.
This was not so as to make inquiries as to his welfare, which would be inappropriate in enforcement proceedings, but because Ds rights as an individual child are engaged in his fathers application and whatever has happened in this case he bears no responsibility for it (para 15).
His interest was not being represented (para 16) and the facts were egregious (para 10) neither the judge, nor counsel, nor the Childrens Guardian had experienced a case in which enforcement is being sought with regard to a child who has attained the age of seven and has never lived in the country from which the relevant order emanates (para 11).
The registration of an order under BIIR is essentially administrative, although it requires a judicial act: see In re S (Foreign Contact Order) [2009] EWCA Civ 993, [2010] 1 FLR 982, para 12.
Judicial consideration of any dispute occurs at the first appeal stage.
This came before Peter Jackson J who determined it in July 2014 (reference above).
Article 23 lays down seven grounds for non recognition.
The judge rejected the mothers case on article 23(a), that recognition was manifestly contrary to the public policy of the member state in which recognition is sought taking into account the best interests of the child.
This ground is to be narrowly construed and the Bucharest decision was not so extreme as to require recognition to be withheld on this ground (para 74).
However, he did refuse recognition under article 23(b), which provides that a judgment shall not be recognised if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition is sought.
The Bucharest Court of Appeals conclusion about DDs wishes and feelings, namely that he constantly craves for [the fathers] permanent presence, had not arisen from any direct or indirect enquiry involving the child himself (para 83).
It had a report from a Cafcass officer in earlier enforcement proceedings when DD was two years old.
It had a report from a social worker when he was five and a half, in response to the fathers concerns about the mothers care.
At the first tier appeal in February 2013, the father had asked the court to hear the child, but the mother had opposed this (interestingly, given her current stance), and the court had deemed it not useful given the age of the minor.
Peter Jackson J disagreed: The childs entitlement to a voice is a fundamental procedural principle in our system.
If he is old enough, it will be his voice and his words.
An adult voice will convey the younger childs point of view.
Younger children are less able to articulate their wishes, but their feelings may be more vivid than those of older children and of adults, whose views we canvass without a second thought. (para 96)
A report from a court social worker, containing the childs perspective, would be fundamental to the decision of any English court, faced with a striking application of this kind (peremptory change of lifelong carer, country and language) (para 103).
He therefore allowed the mothers appeal on this ground.
He also allowed her appeal on the grounds contained in article 23(c) (lack of service) and (d) (not giving the mother an opportunity of being heard).
The Court of Appeal dismissed the mothers cross appeal on article 23(a), allowed the fathers appeal on article 23(c) and (d), but dismissed the fathers appeal on article 23(b): [2016] EWCA Civ 12, [2016] 1 WLR 2469.
The question of whether and how the childs voice was to be heard in the proceedings was a separate question from the weight to be given to his wishes and feelings: the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her.
That is the fundamental principle that is reflected in our legislation, our rules and practice directions and jurisprudence.
At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard.
The qualification in section 1(3)(a) [of the Children Act 1989] like that in article 12(1) [of the United Nations Convention on the Rights of the Child 1989] relates to the weight to be put upon a childs wishes and feelings, not their participation. (para 44)
This court is not concerned with whether the decisions reached by the trial judge and Court of Appeal in this particular case were right or wrong.
They may very well have been right.
Nor is it concerned with the extent to which the childs right to be heard is a fundamental principle of the procedure in the courts of England and Wales in cases relating to the future of children.
That is a very large question and views may differ as to precisely what the effect is of the Court of Appeals judgment.
This court is solely concerned with whether we have any jurisdiction to entertain an appeal against the decision of the Court of Appeal that the Romanian order should not be registered and enforced in this country.
The jurisdiction question
The jurisdiction of the Supreme Court of the United Kingdom is governed by section 40 of the Constitutional Reform Act 2005.
So far as material, this provides: (2) An appeal lies to the Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings. (6) An appeal under subsection (2) lies only with the permission of the Court of Appeal or the Supreme Court; but this is subject to provision under any other enactment restricting such an appeal.
The question, therefore, is whether the provisions of BIIR constitute an enactment restricting such an appeal from the Court of Appeal or otherwise override the provisions of the 2005 Act.
This encompasses two questions: first, what is the meaning and effect of the provisions of BIIR in European Union law; and second, what is their effect upon the provisions of an Act of the United Kingdom Parliament?
The Brussels II Revised Regulation
By article 28 of BIIR, a judgment on parental responsibility which is enforceable in the member state where it was given shall be enforced in another member state when it has been declared enforceable there. (In the United Kingdom, this means the part of the United Kingdom where it has been registered.) By article 29, the application for such a declaration shall be submitted to the court appearing in the list notified by each member state to the Commission pursuant to article 68.
The High Court of Justice Principal Registry of the Family Division has been notified for this purpose.
Rule 31.4 of the Family Procedure Rules 2010 provides that applications should be made to a district judge (as had previously been indicated should be the case by Thorpe LJ in In re S, above, at para 16).
By article 31, the court applied to must give its decision without delay and neither the person against whom enforcement is sought nor the child is entitled to make any submissions about it.
Although the application may be refused for one of the reasons set out in articles 22, 23 and 24, under no circumstances may a judgment be reviewed as to its substance (article 31.3).
In essence, therefore, this is intended to be a speedy ex parte (and essentially administrative) process.
The first opportunity for inter partes debate comes with the first appeal under article 33.
Under article 33.1, either party may appeal the decision on the application for a declaration.
Once again it is to be lodged with the court notified under article 68 (article 33.2).
The High Court of Justice Principal Registry of the Family Division has again been notified for this purpose, but rule 31.15(1) of the Family Procedure Rules provides that the appeal must be made to a judge of the High Court (again as advised by Thorpe LJ in In re S).
The appeal must be lodged within one month of service of the declaration, or two months if the person against whom enforcement is sought is habitually resident in a member state other than that where the declaration was given (article 33.5).
Once again, the need for speed is emphasised.
Then comes article 34, the provision which is crucial to this case: The judgment given on appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68.
Article 68 provides that member states shall notify to the Commission the lists of courts and redress procedures referred to (relevantly) in articles 29, 33 and 34 and any amendments thereto.
The Commission is to keep the information up to date and to make it publicly available.
The reference to the United Kingdom in its consolidated list of notifications reads as follows: The appeals provided for in article 34 may be brought only: in the United Kingdom, by a single further appeal on a point of law: (a) in England and Wales, to the Court of Appeal.
On the face of it, therefore, the position under BIIR is quite clear.
There is to be a largely formal first stage when (no doubt usually) the judgment is declared enforceable; there is to be a first appeal when the enforceability decision can be contested; and the decision on that appeal can only be contested by the notified proceedings.
It follows that if there were no notification under articles 34 and 68, as is the case with Cyprus and Malta, there would be no appeal possible under article 34.
The UKs notification expressly limits the proceedings to a single further appeal on a point of law which must be made, in England and Wales, to the Court of Appeal.
No mention is made of a further appeal to the Supreme Court of the United Kingdom.
This too accords with the understanding of Thorpe LJ in In re section
The United Kingdom notification may be contrasted with the notification given by Ireland under articles 33 and 71 of Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation).
Article 33 provides that the decision given on appeal may be contested only by the procedure notified by the member state concerned to the Commission in accordance with article 71.
Article 71 requires member states to communicate to the Commission the redress procedures referred to in article 33.
Irelands notification says this: An appeal on a point of law to the Court of Appeal (it should be noted, however, that in accordance with the provisions of the Irish Constitution, the Supreme Court shall have appellate jurisdiction from a decision of the High Court if it is satisfied that there are exceptional circumstances warranting a direct appeal to it.
The Supreme Court shall also have appellate jurisdiction from a decision of the Court of Appeal if it is satisfied that certain conditions laid down in the Constitution are satisfied.
It would appear, therefore, that at least one member state considers it possible to provide for two tiers of appeal from the first appeal.
It is not for this court to say whether that is consistent with either article 34 of BIIR or article 33 of the Maintenance Regulation.
Whether or not the United Kingdom could have provided for a further appeal to the Supreme Court, which some might think necessary if only to resolve inconsistent decisions in different parts of the United Kingdom concerning a Regulation which applies throughout, the fact remains that it did not do so.
Furthermore, the approach adopted by the United Kingdom in all previous European instruments concerned with the free movement of judgments and judicial cooperation within the European Union has been to provide for only one tier of further appeal.
The first of these was the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the 1968 Convention), concluded by the original six member states of the European Economic Community in 1968, later amended to include the United Kingdom.
The courts and methods of appeal are specified in article 37 of the Convention itself, in England and Wales the first appeal going to the High Court (or in the case of a maintenance judgment, to the magistrates court), and that decision being contested only by a single further appeal on a point of law.
As the official Explanatory Report comments, the object of the Convention was to ensure that the judgment given on the appeal may be contested only by an appeal in cassation and not by any other form of appeal or review (OJ 1979 C 59, pp 1, 51 52).
This was because An excessive number of avenues of appeal might be used by the losing party purely as delaying tactics, and this would constitute an obstacle to the free movement of judgments which is the object of the Convention.
Of course, this rationale only really applies to attempts by the person against whom enforcement is sought, such as the mother in this case, to resist enforcement, but what is sauce for the goose must also be sauce for the gander.
The 1968 Convention (along with its 1971 Protocol and the 1978 Convention on the accession of Denmark, Ireland and the United Kingdom to them both) was given effect in United Kingdom law by the Civil Jurisdiction and Judgments Act 1982.
Interestingly, section 6(1) specifies that the single further appeal on a point of law lies in England and Wales either to the Court of Appeal or to the Supreme Court (formerly to the House of Lords) under the leap frog procedure provided for in the Administration of Justice Act 1969.
Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation) was designed to replace the 1968 Convention with directly applicable Community legislation.
The approach to avenues of challenge was the same, save that instead of containing each countrys permitted avenues in the text of the relevant articles, these referred to lists contained in Annexes to the Regulation.
Thus article 43.2 provided that the first appeal should be lodged with the court indicated in Annex III, which for England and Wales was the High Court of Justice (except for maintenance judgments); and article 44 provided that the judgment given on appeal might be contested only by the appeal referred to in Annex IV, which was once again a single further appeal on a point of law.
The Civil Jurisdiction and Judgments Order 2001 (SI 2001/3929) specified, once again, that in England and Wales this would lie either to the Court of Appeal or on a leap frog appeal to the House of Lords (article 4).
In 1998, the Council approved a Convention extending the scope of the Brussels regime to matrimonial matters.
This took the same approach to the methods of challenging enforcement applications as had the 1968 Convention.
The 1998 Convention never became applicable but was the source of the 2000 Council Regulation (EC) 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (the Brussels II Regulation), which was the immediate predecessor to the BIIR Regulation.
This adopted the same method as the Brussels I Regulation was to adopt some seven months later.
Article 26.2 provided that the first appeal should be lodged with the court listed in Annex II, which for England and Wales was the High Court of Justice.
Article 27 provided that the judgment given on appeal might be contested only by the proceedings listed in Annex III, which for the UK was by a single further appeal on a point of law.
However, the European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001 (SI 2001/310), unlike the 2001 Order relating to the Brussels I Regulation, did not specify what was meant by a single further appeal on a point of law, nor did the new Chapter 5 of the Family Proceedings Rules 1991, introduced by article 29 of the Family Proceedings (Amendment) Rules 2001 (SI 2001/821) to cater for the Brussels II Regulation.
However, BIIR, which replaced the Brussels II Regulation, adopts a slightly different technique.
Instead of describing the appeal processes in the text, or in Annexes, it provides for each member state to communicate the avenues of first appeal and further contestation to the Commission thus enabling member states to change the processes without the need to revise the Regulation.
Unlike both the Brussels II and the Brussels I Regulations, BIIR does not contain either in its main text or in Annexes a reference to a single further appeal on a point of law.
There is no express limit in article 34 to the number of proceedings whereby the judgment on the first appeal may be contested (although article 35 refers to the appeal under article 34 rather than an appeal).
This more flexible approach is also taken in the 2009 Maintenance Regulation (which removed maintenance obligations from the scope of the Brussels I Regulation).
While article 33 provides that the decision given on first appeal may be contested only by the procedure notified in accordance with article 71, article 71 requires member states to communicate the redress procedures referred to in article 33.
For what it is worth, the recast version of the Brussels I Regulation, Regulation (EU) 1215/2012 of the European Parliament and of the Council, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, also adopts this more flexible technique.
Article 50 provides that the judgment given on the first appeal can only be contested by an appeal where the courts with which any further appeal is to be lodged have been communicated to the Commission under article 75(c), which also refers to courts.
The United Kingdom has retained the previous reference (for England and Wales) to an appeal either to the Court of Appeal or under the leap frog procedure to the Supreme Court.
The purpose of all these instruments is that, save in very narrowly defined circumstances, member states should recognise and enforce one anothers judgments.
The recitals to BIIR are typical: The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured (Recital 1).
The recognition and enforcement of judgments given in a member state should be based on the principle of mutual trust and the grounds for non recognition should be kept to the minimum required (Recital 21).
From the very outset, in 1968, member states were anxious that there should not be too many avenues and methods of challenging enforcement decisions, hence the restriction to cassation type further appeals.
It may well be, as Mr Richard Harrison QC has argued very ably on behalf of the father, that the strict approach taken in the earlier instruments has had to give way to the more flexible approach taken more recently.
It may well be that it would be open to the United Kingdom to do as Ireland has done and notify the possibility, not only of leap frog appeals from the High Court to the Supreme Court, but also of appeals from the Courts of Appeal in each part of the United Kingdom to the Supreme Court.
The fact remains that it has not done so.
It is also true to say that the policy of the United Kingdom has not been entirely consistent.
In relation to civil and commercial judgments, the 1968 Convention, the Brussels I Regulation and the recast Brussels I Regulation provide for the possibility of either an appeal to the Court of Appeal or a leap frog appeal to the House of Lords or Supreme Court (thus, it would appear, giving the Supreme Court jurisdiction where the Court of Appeal has gone wrong in law in an earlier case, but not if it does so in the current case).
It has not been possible to discover why a different approach, excluding the House of Lords or Supreme Court altogether, was taken in relation to family matters in the Brussels II Regulation and BIIR.
It is known that the President of the Family Division, the Solicitors Family Law Association, The Law Society, the Family Law Bar Association, Reunite, Pact, and the Child Abduction Unit in the Office of the Official Solicitor were consulted on the Commissions revised draft text of BIIR and that the Lord Chancellors Department continued to consult the President of the Family Division, Thorpe LJ (Chairman of the Presidents International Committee), senior practitioners and Reunite during the negotiations.
But it is not known precisely how and why the decision was taken to adopt the new approach in article 34 or how and why the United Kingdom government chose to make the notification which it did.
The Minutes of the International Family Law Committee of the Family Justice Council held on 8 November 2004, at which the proposed BIIR was discussed, do not record any discussion of these matters.
But it is not surprising that the notification was to the same effect as Annex III to the Brussels II Regulation, nor is it unlikely that limiting the scope for multiple appeals was seen as an important consideration.
The fact remains that the United Kingdom did make the notification in question.
The question, therefore, is whether BIIR, combined with that notification, is effective to restrict what would otherwise be the jurisdiction of the Supreme Court under section 40 of the 2005 Act.
The effect of BIIR in United Kingdom law
Mr Harrison faces the serious difficulty that article 34 clearly states that the decision on appeal may only be contested by the notified proceedings.
On the face of it, therefore, as Mr Hugh Mercer QC submits on behalf of the Ministry of Justice, if there were no relevant notification, there would be no possibility of further challenge (as is apparently the case with Cyprus and Malta).
Mr Harrison seeks to avoid this problem in two ways.
First, he argues that the notification, being an act of the executive without any Parliamentary scrutiny or approval, cannot be an enactment for the purpose of section 40(6).
He is of course quite correct that the executive has no power to amend or qualify primary or delegated legislation unless Parliament has given it the power to do so.
An example is the power given by the United Nations Act 1946 to make Orders in Council without Parliamentary scrutiny where necessary to comply with the United Kingdoms obligations under the United Nations Charter.
Express language would be required for such a power to permit the executive to abrogate fundamental rights such as the right of access to a court: see A v HM Treasury (JUSTICE intervening) [2010] UKSC 2; [2010] 2 AC 534.
In fact, such delegated legislative powers are far more frequently exercised by statutory instrument which has to be laid before, and in some cases positively approved by, Parliament.
It is also correct that the power to amend primary legislation and otherwise to legislate for the purpose of complying with the United Kingdoms obligations in European Union law, conferred by section 2(2) of the European Communities Act 1972, has to be exercised by Order in Council or by orders, rules, regulations or schemes.
The notification was none of these things.
By itself, therefore, it could not be effective to amend or qualify section 40(2) of the Constitutional Reform Act 2005.
However, we are concerned, not with the notification alone, but with the combined effect of article 34 of BIIR and the notification.
It is trite law that European Regulations are directly applicable in all member states without the need for further legislative implementation there: Treaty on the Functioning of the European Union, article 288.
It was, of course, necessary for the United Kingdom to legislate to make this treaty provision the law in the United Kingdom.
This it did by section 2(1) of the European Communities Act 1972: (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly;
Furthermore, by section 2(4): (4) any enactment passed or to be passed shall be construed and have effect subject to the foregoing provisions
of this section
Thus, Parliament has decreed that its own legislation is to have effect subject to the requirements of directly applicable European Union law.
This includes section 40(2) of the 2005 Act.
Mr Harrison is therefore driven to argue that articles 34 and 68 of BIIR are not, in fact, directly applicable.
This is because they require measures of application to be adopted by member states in order to be implemented.
He relies, in particular, on the cases of Azienda Agricola Monte Arcosu Srl v Regione Autonoma Della Sardegna and Others (Case C 403/98) [2001] ECR I 103; [2002] 2 CMLR 14 and OBB Personenverkehr AG v Schienen Control Kommission (Case C 509/11) [2014] 1 CMLR 51.
His best example is the OBB case, which concerned a Regulation (1371/2007) providing for rail passengers to be compensated for delay.
Under article 30, each member state was to designate a body responsible for enforcing the Regulation.
But the Regulation did not define the specific measures which that body had to be able to adopt to secure compliance.
The relevant body in Austria, the Kommission, required the railway company, OBB, to alter the terms and conditions of its tickets so as to comply with the compensation requirements of article 17 of the Regulation.
But under Austrian law the Kommission did not have the power to do so.
The Court held that article 30 by itself did not give it the power to impose terms on the railway company. (I note that it would be a completely separate question whether the passenger could rely on the direct effect of the Regulation in order to claim the compensation which it prescribed.)
The Azienda case concerned Regulation No 797/85, which provided for certain payments to farmers practising farming as [their] main occupation.
Member states were required to define what that meant, both for natural and non natural persons.
The relevant Italian law defined it for individuals and certain other entities, such as farming co operatives, but did not provide for limited companies at all.
The Court held that, as the Regulation required a definition before it could be operated, a limited company conducting farming operations could not make claims under the Regulation.
The principle was stated thus: 26.
In this respect, although, by virtue of the very nature of regulations and of their function in the system of sources of Community law, the provisions of those regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application, some of their provisions may nonetheless necessitate, for their implementation, the adoption of measures of application by the member states.
Thus, says Mr Harrison, as articles 34 and 68 of BIIR required further measures of implementation in the form of notifications by the member states, they cannot be directly applicable.
The simple answer to this argument is that articles 34 and 68 are not comparable with the articles under consideration in these two cases.
Article 34 does not depend for its implementation upon the member states choice of avenue of appeal.
If the member state fails to notify any such avenue of appeal, then none will exist.
But in any event, the member state in question did make a relevant notification.
There is nothing in these cases to suggest that, if the required measures of implementation are adopted in a member state, the Regulation is not directly applicable there (and indeed effective to create individual rights).
The farmers who were covered by the Italian definition would no doubt have been able to claim their rights under the Regulation.
Mr Harrisons final argument is that the notification cannot be effective if it does not give an accurate picture of the appellate rights under United Kingdom law.
Article 68 requires member states to supply information as to the position in their country; it does not permit them to change the position as it would otherwise be.
However, so to interpret article 68 would run counter to the purpose of the provisions relating to routes of challenge which date back to the 1968 Convention and continue through all the European instruments discussed earlier.
This is to limit the avenues and methods of appeal so as to avoid delays and manoeuvrings which will defeat the object of effective enforcement of one anothers orders.
This object may have become slightly diluted in the more recent instruments, but the Regulation clearly contemplates the possibility that Member States will make notifications which cut down the routes of appeal which would otherwise be available.
Conclusion
I am therefore satisfied that the Supreme Court of the United Kingdom has no jurisdiction to entertain an appeal in this case.
The appeal which has been lodged should therefore be struck out.

dataset_name: UK-Abs

summary/full:
These proceedings concern a child, called DD in the judgment, who was born in 2006 in Romania, to Romanian parents who met while working in England.
The family returned to England after the birth.
The parents separated in 2007 and DD has lived in England since then in the care of his mother.
The father returned to Romania in 2009 but has maintained a significant relationship with his son.
He commenced divorce and custody proceedings in Romania in 2007 which, after long delays, culminated in a decision of the Bucharest Court of Appeal in November 2013 that DD should live with his father.
The father applied for the recognition and enforcement of this custody order by the English court in February 2014.
These proceedings are governed by the Brussels II (Revised) Regulation (BIIR).
DD was made a party.
In July 2014 a High Court judge refused the fathers application, applying article 23(b) BIIR which provides that a judgment should not be recognised if it was given, except in a case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition was sought.
The Romanian court had not made direct or indirect enquiry of DD regarding his wishes and feelings.
The Court of Appeal upheld the judges order.
The father sought to pursue a further appeal to the Supreme Court.
The Supreme Court considered as a preliminary issue whether it had jurisdiction to hear an appeal against an order for the enforcement of a custody order in proceedings governed by BIIR.
The Supreme Court unanimously rules that it does not have jurisdiction to hear the fathers appeal, which must therefore be struck out.
Lady Hale gives the only substantive judgment.
Under s 40 of the Constitutional Reform Act 2005, appeals to the Supreme Court are subject to provision under any other enactment restricting such an appeal.
The question therefore is whether the provisions of BIIR constitute such an enactment or otherwise override the jurisdiction granted to the Supreme Court by s 40 [12].
The application to register a judgment governed by BIIR is intended to be a speedy and essentially administrative process.
Either party may appeal the decision under article 33, which is subject to the provision in article 34 that the judgment given on such an appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68.
The UK has provided in its list of notifications under article 68 that appeals in England and Wales
under article 34 may be brought only by a single further appeal on a point of law to the Court of Appeal [16].
It has been the practice of the UK in several previous European instruments concerned with the free movement of judgments and judicial cooperation to provide for only one tier of further appeal.
The purpose of this restriction is to further the intention of these instruments that member states should recognise and enforce each others judgments without too many avenues for challenge [26].
The provisions of BIIR and the notification under article 68 are directly applicable in the UK.
Article 34 does not depend for its implementation upon the member states choice of avenue of appeal and in any event the UK did make a notification [37].
It is not necessary for the notification to reflect all appellate rights under UK law: to further the objective of BIIR, article 68 permits member states to make notifications which cut down the routes of appeal which would otherwise be available [38].
It follows that the Supreme Court has no jurisdiction to entertain an appeal in this case and the appeal is struck out.


judgement:
This case concerns the enforcement of confiscation orders made by the Crown Court upon conviction.
As well as various statutory mechanisms for enforcement via the appointment of receivers, successive confiscation statutes have adopted the scheme of making confiscation orders enforceable as if they were fines imposed by the Crown Court.
That involves using the powers of the Magistrates Court, which is the court which can, if payment is not made, issue a warrant committing the non paying defendant to prison.
When making the confiscation order (as when imposing a fine), the Crown Court is required by statute to fix a default term of imprisonment to be served if the defendant does not pay.
In a simple case of non payment, the magistrates will usually issue a warrant committing the defendant to prison for the period which the Crown Court fixed as the default term, and that term has to be served consecutively to any sentence passed for the substantive offences which led to the making of the confiscation order.
There are, however, two possible adjustments which may have to be considered.
The first is interest.
The second is part payment.
The present appeal concerns how these two adjustments fall to be made when they coincide.
Because the confiscation order made in this case, and the enforcement action taken in consequence, happened some time ago, this case falls to be decided upon legislation now repealed and replaced.
It is not, however, of merely historical interest.
Although the drafting of later legislation has not been identical, the issue raised by this appeal arises in much the same way under the current legislation, the Proceeds of Crime Act 2002.
Put shortly, the issue is this.
If between the making of the confiscation order by the Crown Court and the issue of a warrant by the magistrates committing the defendant to prison, part payment has been made, but also interest has accrued, what does the statutory scheme say about how credit is to be given for the part payment? Is the term of imprisonment ordered by the magistrates to be reduced, by reason of the part payment, by reference to the total net sum outstanding (including interest), or is reduction for part payment to be calculated by reference only to the principal sum payable under the confiscation order? It is trite, but important, to say at the outset that the question is not what scheme might be thought desirable, but rather what the convoluted statutes actually mean.
It is also relevant to note that although the issue makes a difference of 11 days in the present case, in the context of a defendant sentenced originally to a term of 25 years for his substantive offences, it will apply to a large number of prisoners, and may fall for decision not only by courts, but also by prison governors who have to determine release dates.
The facts
Mr Gibson was convicted of drug trafficking offences on 21 May 1999 and sentenced to 25 years imprisonment.
On 29 March 2000 at the confiscation hearing, he was ordered to pay a little over 5.4m; that meant that it had been determined by the judge that his benefit was not less than that sum and that he had assets from which that sum might be realised.
He was given 12 months to pay, and the judge fixed the term of six years imprisonment in default of payment.
Interest therefore ran from the expiry of the 12 months to pay.
He paid nothing until 4 May 2007, when 12,500 was paid, it would appear via a receiver appointed to realise his assets.
A month later, he appeared before the magistrates for consideration of a warrant of commitment.
The magistrates deducted seven days from the six year term in default, to take account of the recent part payment.
As at that time, interest had lifted the net sum outstanding, allowing for the part payment, to 8.1m.
Subsequently, later in 2007 and in 2011, two further realisations were achieved by his receiver, which produced payments of 12,500 and 65,370.
The prison authorities, and through them the Secretary of State for Justice, calculated the reduction in the six year default term on the basis of the proportion which these payments bore to the 8.1m outstanding at the time of his committal.
That produced reductions of three days and 21 days, totalling 24 days.
If the arithmetic had been applied instead to an outstanding figure confined to the original 5.4m, something like 11 extra days reduction would have been made.
The issue in the present appeal is whether he was entitled to those 11 extra days.
Interest on confiscation orders
Uniquely amongst orders for payment of money made by criminal courts, confiscation orders carry interest.
They have done so since the early 1990s: see section 15 of the Criminal Justice (International Co operation) Act 1990 and section 9 of the Proceeds of Crime Act 1995, which introduced the rule respectively in relation to drugs offences and to other forms of crime.
Interest has been set, by successive statutes, at the same rate as is prescribed from time to time for civil judgment debts under section 17 of the Judgments Act 1838.
The interest provisions relevant to the present case were contained in section 10 of the Drug Trafficking Act 1994 (the Drug Trafficking Act), as in force at the relevant time: 10.
Interest on sums unpaid under confiscation orders. (1) If any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether forthwith on the making of the order or at a time specified under section 139(1) of the Powers of Criminal Courts (Sentencing) Act 2000) that person shall be liable to pay interest on that sum for the period for which it remains unpaid; and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order. (2) The Crown Court may, on the application of the prosecutor, increase the term of imprisonment or detention fixed in respect of the confiscation order under subsection (2) of section 139 of the 2000 Act (as it has effect by virtue of section 9 of this Act) if the effect of subsection (1) above is to increase the maximum period applicable in relation to the order under subsection (4) of that section. (3) The rate of interest under subsection (1) above shall be the same rate as that specified in section 17 of the Judgments Act 1838 (interest on civil judgment debts).
For present purposes, the key provisions are: (1) the concluding words of section 10(1), by which the interest is to be treated for the purposes of enforcement as part of the amount to be recovered under the confiscation order; and section 10(2), which enables a Crown Court judge to re fix, and (2) increase, the default term if the addition of accrued interest takes the sum outstanding into a higher bracket in the relevant schedule of permissible default terms.
If the statutory scheme had stopped at this point, there would no doubt have been a powerful argument for saying that for all enforcement purposes interest is simply added to the original confiscation order.
But this apparently fairly simple provision has to be considered in its place in the much more complex statutory scheme under which the magistrates powers of commitment to prison are made applicable to confiscation orders.
The application of the magistrates powers of commitment
In common with other confiscation statutes, the Drug Trafficking Act referred enforcement by committal to prison to the Magistrates Court.
By the time of the 2007 commitment proceedings in this case, section 9 provided: 9.
Application of procedure for enforcing fines. (1) Where the Crown Court orders the defendant to pay any amount under section 2 of this Act, sections 139(1) to (4) and 140(1) to (3) of the Powers of Criminal Courts (Sentencing) Act 2000 (powers of Crown Court in relation to fines and enforcement of Crown Court fines) shall have effect as if that amount were a fine imposed on him by the Crown Court.
The provisions there referred to in the (essentially consolidating) Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Sentencing Act) were previously contained in sections 31 and 32 of the Powers of Criminal Courts Act 1973, to which section 9 in its original form referred.
In the courts below all parties, and thus the courts, proceeded on the basis that the 1973 provisions were the relevant ones.
It was common ground before this court that the 2000 Act provisions had become the relevant ones by the time of the commitment proceedings in this case.
The difference does not matter, because although the wording is not identical, it is agreed that the effect of the two sets of provisions is the same.
It follows that section 9 of the Drug Trafficking Act referred one on to sections 139 and 140 of the 2000 Sentencing Act, which are about fines.
So far as material, they provided as follows: 139.
Powers and duties of Crown Court in relation to fines and forfeited recognizances. (1) Subject to the provisions of this section, if the Crown Court imposes a fine on any person or forfeits his recognizance, the court may make an order (a) allowing time for the payment of the amount of the fine or the amount due under the recognizance; (b) directing payment of that amount by instalments of such amounts and on such dates as may be specified in the order; (c) [applicable only to recognizances] (2) Subject to the provisions of this section, if the Crown Court imposes a fine on any person or forfeits his recognizance, the court shall make an order fixing a term of imprisonment or of detention under section 108 above (detention of persons aged 18 to 20 for default) which he is to undergo if any sum which he is liable to pay is not duly paid or recovered. 140.
Enforcement of fines imposed and recognizances forfeited by Crown Court. (1) Subject to subsection (5) below, a fine imposed or a recognizance forfeited by the Crown Court shall be treated for the purposes of collection, enforcement and remission of the fine or other sum as having been imposed or forfeited (a) by a magistrates court specified in an order made by the Crown Court, or if no such order is made, by the magistrates (b) court by which the offender was committed to the Crown Court to be tried or dealt with or by which he was sent to the Crown Court for trial under section 51 or 51A of the Crime and Disorder Act 1998, and, in the case of a fine, as having been so imposed on conviction by the magistrates court in question. (2) Subsection (3) below applies where a magistrates court issues a warrant of commitment on a default in the payment of a fine imposed by the Crown Court; or a sum due under a recognizance forfeited by the (a) (b) Crown Court.
In such a case, the term of imprisonment or detention (3) under section 108 above specified in the warrant of commitment as the term which the offender is liable to serve shall be (a) 139(2) above, or (b) if that term has been reduced under section 79(2) of the Magistrates Courts Act 1980 (part payment) or section 85(2) of that Act (remission), that term as so reduced, the term fixed by the Crown Court under section notwithstanding that that term exceeds the period applicable to the case under section 149(1) of the Customs and Excise Management Act 1979 (maximum periods of imprisonment in default of payment of certain fines).
Subsection (5), referred to in section 140(1), removes from the magistrates the power to remit part of a fine if the fine was imposed by the Crown Court.
A similar stipulation against remission is additionally specifically applied to confiscation orders by section 9(4)(a) of the Drug Trafficking Act.
It follows that the statutory scheme for the enforcement of confiscation orders proceeded then, as it does now, by a process of successive referrals.
First, section 9 of the Drug Trafficking Act makes the confiscation order enforceable as if it were a fine imposed by the Crown Court.
That refers one on to the 2000 Sentencing Act, by which a fine imposed by the Crown Court is by section 140(1) treated for enforcement purposes as if it had been imposed by the magistrates, and thus so is a confiscation order.
But the magistrates general powers in relation to their own fines are not in the 2000 Sentencing Act; they are found in the Magistrates Courts Act 1980, to which one is thus further referred on.
It is in the Magistrates Courts Act 1980 (section 76) that the magistrates power to commit to prison for failure to pay a fine is found, together with an alternative power to issue a warrant of distress (now re named a warrant of control).
And it is in the Magistrates Courts Act 1980 that the only provision dealing with part payments is found.
That is section 79 which at the time material to these magistrates proceedings read as follows: 79.
Release from custody and reduction of detention on payment. (1) Where imprisonment or other detention has been imposed on any person by the order of a magistrates court in default of payment of any sum adjudged to be paid by the conviction or order of a magistrates court or for want of sufficient distress to satisfy such a sum, then, on the payment of the sum, together with the costs and charges, if any, of the commitment and distress, the order shall cease to have effect; and if the person has been committed to custody he shall be released unless he is in custody for some other cause. (2) Where, after a period of imprisonment or other detention has been imposed on any person in default of payment of any sum adjudged to be paid by the conviction or order of a magistrates court or for want of sufficient distress to satisfy such a sum, payment is made in accordance with rules of court of part of the sum, the period of detention shall be reduced by such number of days as bears to the total number of days in that period less one day the same proportion as the amount so paid bears to so much of the said sum, and the costs and charges of any distress levied to satisfy that sum, as was due at the time the period of detention was imposed. (3) In calculating the reduction required under subsection (2) above any fraction of a day shall be left out of account.
The problem of part payments
Many of the difficulties which have beset the present case arise out of the fact that the enforcement of confiscation orders is thus achieved by applying to them statutory provisions which were not designed for them.
In particular, the process of referrals just described has the effect that a confiscation order is treated for enforcement as if it was a fine imposed by the magistrates.
But there is a very important difference in practice as between fines imposed by magistrates and fines (and confiscation orders) imposed by the Crown Court.
In the case of the former, the magistrates do not fix a default term when imposing the fine.
Instead, they approach the matter of imprisonment in default only after default has occurred.
By then, of course, it will be known whether the default is total or partial, and the term imposed under the warrant of commitment can be, and ordinarily is, adjusted accordingly, thus in effect giving credit for part payments made before the commitment process is undertaken.
Section 79(1) and (2) then deal with the situation if whole (subsection (1)) or part (subsection (2)) payment is made after the warrant of commitment is issued.
But in the case of Crown Court fines and confiscation orders, section 139(2) of the 2000 Sentencing Act mandates the fixing of an anticipatory default term at the time the fine or order is imposed.
It follows that something is required to cope with part payments made after the Crown Court order and before the Magistrates proceedings, as well as with payments made after the latter.
This difference of practice led the courts below to analyse section 79(2) 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.
That in turn gave rise to the difficulty that, on that basis, section 79(2) would say nothing about how to deal with part payments made in a Crown Court case between the Crown Court order and the later magistrates proceedings, and there was no other provision which filled the gap.
The Court of Appeal understandably concluded that such part payments had to be taken into account, and to give effect to that conclusion it read two additional words into section 79(2) so that it read Where, before or after a period of imprisonment has been imposed : see [2017] 1 WLR 1115, para 51.
On the very helpful further argument which this court has had from counsel on both sides, it is now clear that section 79 does not, when it speaks of a period of imprisonment imposed in default of payment, necessarily refer only to the magistrates proceedings.
That will of course be the position when the default term is imposed in the ordinary case of magistrates deciding whether or not to issue a warrant of commitment some time after default has occurred.
But even then, the magistrates are entitled to issue the warrant and postpone its execution on terms, usually no doubt requiring prompt payment and perhaps by instalments.
Section 77(2) of the Magistrates Courts Act 1980 specifically so provides.
It follows that even in the case of an exclusively magistrates case, there may be a warrant of commitment without immediate imprisonment.
Before this court, the parties were agreed that in the case of a Crown Court confiscation order or fine, the period of imprisonment in default of payment is imposed for the purposes of section 79 when the Crown Court discharges its statutory duty under section 139(2) of the 2000 Sentencing Act and fixes the (anticipatory) term in default.
That is clearly the position where the period of imprisonment in default is imposed by the magistrates court, since section 79(1) specifically says that on full payment the default term ceases to have effect whether or not the person has been committed to prison, thus providing for the case permitted by section 77(2) where a warrant of commitment has been issued, but not yet executed.
It also follows from section 150 of the Magistrates Courts Act, to which the courts below were not referred.
That definition section provides: imprisonment means pass a sentence of impose imprisonment or fix a term of imprisonment for failure to pay any sum of money, or for want of sufficient distress to satisfy any sum of money, or for failure to do or abstain from doing anything required to be done or left undone.
This construction is also necessary to make sense of section 140(3) of the 2000 Sentencing Act, to which the courts below were not referred.
This section is in more expansive form than its predecessor, section 32 of the Powers of Criminal Courts Act 1973.
It makes clear by subsection 140(3)(b) that the default term fixed by the Crown Court may already have been reduced under section 79(2) of the Magistrates Court Act 1980 before the magistrates undertake the assessment of the length of any warrant of commitment.
Lastly, this construction is clearly assumed by the Magistrates Courts Rules 1981 (SI 1981/552), to which the courts below were again not referred.
These rules provide for the persons to whom part or full payment may be made for the purposes of section 79(2).
By rule 55(1)(a) the designated officer of the court may receive such payment unless there has been issued a warrant of commitment, whereas if there is such a warrant, the payment must be made by rule 55(1)(c) or (d) either to a constable holding it (for execution) or the prison governor.
That again demonstrates that payments which fall within section 79(2) can be made before a warrant of commitment is issued, although clearly they can only be made after the default term has been imposed.
Thus the default term in the case of Crown Court orders must be the term that court imposed at the time of making its order.
Does section 79(2) include interest in its starting point?
That leads one to the issue in the present case.
If the court which imposes the default term is, for the purposes of section 79(2), the Crown Court in the case of a confiscation order, which is the correct starting point for the arithmetical giving of proportionate credit for part payment? Is it the sum stated in the order as originally made by the Crown Court, or is it that sum plus any interest which has accrued by the time the exercise is conducted by the magistrates? In the present case, is it 5.4m or is it 8.1m?
For the Secretary of State, Mr Perry QC powerfully submits that it must be the original sum plus interest.
The plain purpose of the various statutory provisions for interest, including section 10 of the Drug Trafficking Act, is, he submits, that interest is treated for any enforcement purpose as added to the confiscation order and is expressly made part of the amount to be recovered from [the defendant] under the confiscation order.
So, it is said, the references in section 79(2) to the term set in default of payment of any sum adjudged to be paid must, by what he refers to as a necessary statutory fiction, be references to the sum fixed by the original confiscation order plus interest.
That is to do no more, he argues, than is already provided for in section 79(2) for the costs and charges of any distress which has been levied, which are expressly added to the principal sum outstanding.
Those also, he submits, will in the case of a Crown Court order, necessarily have been incurred after the default term was fixed by that Court.
He points to the plain intention, gathered from section 10(1), that interest is to be paid, and to the fact that in the case of a criminal who is in default of payment of the principal sum, civil means of enforcement of interest are unlikely to be effective.
He rightly reminds us that a confiscation order is premised on the proposition that the defendant has the means to pay, so that any default is his election.
If circumstances change in a way which reduces his ability to pay, the various confiscation statutes provide a procedure for application for a certificate of inadequacy and consequent downward reduction in the amount of the confiscation order.
Those arguments may well reflect, in a purposive manner, the kind of regime for which the successive statutory referrals might have provided.
The difficulty with them lies in the operative words of section 79(2), which are the only ones which provide for the treatment of part payments.
They say expressly that the days to be deducted are to be the number which bear the same proportion to the total default term imposed (by the Crown Court) as the part payments bear to so much of the said sum as was due at the time the period of detention was imposed.
If the Secretary of States argument is to be accepted, the words at the time the period of detention was imposed have to be done no little violence.
At the time the Crown Court imposed the default term, there was as yet no interest accrued at all.
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.
Nor is the Secretary of States construction warranted by the example of the reference in section 79(2) to the costs and charges of distress, where such have been incurred.
Since section 79(2) was plainly not drafted with confiscation, or for that matter Crown Court fines, in mind, the reference is adequately explained by the orthodox case of the magistrates first issuing a warrant for distress and only subsequently fixing the default term for non payment; in such a case the reference to the sum outstanding at the time the period of detention was imposed makes perfectly good sense.
In any event, the addition of such costs and charges is expressly provided; that does not mean that an equivalent provision can be read in as a consequence of a provision in a different statute, namely section 10(1) of the Drug Trafficking Act.
A scheme under which the period of imprisonment served in default of payment in full of the amount specified in the confiscation order is based on the entire amount outstanding, including interest, may or may not be what the framers of the confiscation legislation might have wished for or intended if the point had been considered.
However, because the means adopted took the form of statutory reference (and re reference) to provisions which were drafted for a different purpose and without confiscation in mind, they have not achieved that effect.
If it is desired that they should do so, express legislation will be needed.
It is also of some relevance that the practical consequences of the Secretary of States proposed construction would, without specific machinery, be difficult to work out.
Interest accrues daily, so the net amount outstanding would also vary daily.
That difficulty may be met by a calculation geared to the particular day (or days) on which any part payment is made.
But additionally, this construction would have the effect of progressively reducing the incentive to make part payment, as interest rises, because the days credited for such part payment would progressively reduce.
Nor would such a scheme provide any consequences at all for the not uncommon defendant who simply makes no payment whatever.
Conclusion
For these reasons we would allow the appeal.

summary/full:
The appellant was convicted of drug trafficking offences on 21 May 1999 and sentenced to 25 years imprisonment.
On 29 March 2000, he was ordered to pay a little over 5.4 million by way of a confiscation order.
The order required the appellant to pay the amount within 12 months or serve six years imprisonment in default of payment.
On 4 May 2007, a receiver appointed to realise the appellants assets paid 12,500.
The magistrates deducted seven days from the six year term in default, to account for that part payment.
At that time interest had increased the net sum outstanding, allowing for the part payment, to 8.1 million.
Later in 2007 and 2011, the appellants receiver made further payments of 12,500 and 65,370.
The prison authorities calculated the reduction in the six year default term on the basis of the proportion which these payments bore to the 8.1 million at the time of his committal.
That produced a total reduction of 24 days.
Had the arithmetic been applied instead to an outstanding figure confined to the original 5.4m, an extra 11 days reduction would have been made.
The issue in the appeal is whether interest is included in the starting point under s.79(2) Magistrates Courts Act 1980 for the giving of proportionate credit for part payment of a confiscation order.
The Supreme Court unanimously allows the appeal.
Lord Reed and Lord Hughes give a joint judgment with which the other Justices agree.
The key provisions of the Drug Trafficking Act 1994 (DTA), as in force at the relevant time, were s.10(1), which treats interest for the purposes of enforcement as part of the amount to be recovered under the confiscation order and s.10(2) which enables a Crown Court judge to refix and increase the default term if the addition of accrued interest takes the sum outstanding into a higher bracket in the relevant schedule of defaults terms. [7] At the relevant time, s.9 DTA stated that where the Crown Court orders a defendant to pay any amount under s.2 DTA, ss.139(1) (4) and 140(1) (3) of the Powers of Criminal Courts (Sentencing Act) 2000 (the 2000 Sentencing Act) shall have the effect as if that amount were a fine imposed on the defendant by the Crown Court. [9] S.140(1) of the 2000 Sentencing Act treats for enforcement purposes a fine imposed by the Crown Court as if it had been imposed by the magistrates, and thus a confiscation order is treated the same.
S.76 Magistrates Courts Act 1980 contains the magistrates power to commit an individual to prison for failure to pay a fine and an alternative power to issue a warrant of distress (now named a warrant of control).
S.79 Magistrates Courts Act 1980 is the only provision dealing with part payments. [11] The difficulties in this case arise from the fact that the enforcement of confiscation orders is achieved by applying statutory provisions to confiscation orders which were not designed for them.
A confiscation order is thus treated as if it was a fine imposed by the magistrates.
The difference between a magistrates imposed fine and a Crown Court imposed fine is that magistrates do not fix a default term when imposing the fine.
Imprisonment in default is only considered in the event of a default and, at that time, the magistrates will know whether the default is total or partial.
Thus, credit can be given for part payments made before the commitment process is undertaken.
However, s.139(2) of the 2000 Sentencing Act mandates the fixing of an anticipatory default term at the time the fine or order is imposed. [12] The difference in practices led the lower courts to analyse s.79(2) Magistrates Courts Act 1980 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.
Hence the Court of Appeal understandably read additional words into s.79(2). [13] The period of imprisonment in default of payment is imposed for the purposes of s.79 when the Crown Court discharges its statutory duty under s.139(2) of the 2000 Sentencing Act and fixes the (anticipatory) term in default.
This construction follows from s.150 Magistrates Courts Act 1980 and is necessary to make sense of s.140(3) of the 2000 Sentencing Act.
It is also assumed by the Magistrates Court Rules.
Thus, the default term in the case of Crown Court orders must be the term that the court imposed at the time of making its order. [15 17] The operative words of s.79(2) expressly say that the days to be deducted are to be the number which bear the same proportion to the total default term imposed (by the Crown Court) as the part payments bear to so much of the said sum as was due at the time the period of detention was imposed.
At the time the Crown Court imposed the default term, there was as yet no interest accrued at all. [20] Straining of the wording of s.79(2) cannot be justified where it would adversely impact on the period of imprisonment to which a person is subject.
Penal legislation, particularly legislation imposing penalties that deprive liberty, is construed strictly.
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. [21] charges of distress do not support the respondents construction.
The reference is explained by the case of magistrates first issuing a warrant for distress and only subsequently fixing the default term for non payment.
The addition of such costs and charges is expressly provided for and that does not mean that an equivalent provision can be read in as a consequence of a provision in different statute (s.10(1) DTA). [22]

summary/background: The appellant was convicted of drug trafficking offences on 21 May 1999 and sentenced to 25 years imprisonment. On 29 March 2000, he was ordered to pay a little over 5.4 million by way of a confiscation order. The order required the appellant to pay the amount within 12 months or serve six years imprisonment in default of payment. On 4 May 2007, a receiver appointed to realise the appellants assets paid 12,500. The magistrates deducted seven days from the six-year term in default, to account for that part payment. At that time interest had increased the net sum outstanding, allowing for the part payment, to 8.1 million. Later in 2007 and 2011, the appellants receiver made further payments of 12,500 and 65,370. The prison authorities calculated the reduction in the six-year default term on the basis of the proportion which these payments bore to the 8.1 million at the time of his committal. That produced a total reduction of 24 days. Had the arithmetic been applied instead to an outstanding figure confined to the original 5.4m, an extra 11 days reduction would have been made. The issue in the appeal is whether interest is included in the starting point under s.79(2) Magistrates Courts Act 1980 for the giving of proportionate credit for part payment of a confiscation order.

summary/reasons: The key provisions of the Drug Trafficking Act 1994 (DTA), as in force at the relevant time, were s.10(1), which treats interest for the purposes of enforcement as part of the amount to be recovered under the confiscation order and s.10(2) which enables a Crown Court judge to refix and increase the default term if the addition of accrued interest takes the sum outstanding into a higher bracket in the relevant schedule of defaults terms. [7] At the relevant time, s.9 DTA stated that where the Crown Court orders a defendant to pay any amount under s.2 DTA, ss.139(1) (4) and 140(1) (3) of the Powers of Criminal Courts (Sentencing Act) 2000 (the 2000 Sentencing Act) shall have the effect as if that amount were a fine imposed on the defendant by the Crown Court. [9] S.140(1) of the 2000 Sentencing Act treats for enforcement purposes a fine imposed by the Crown Court as if it had been imposed by the magistrates, and thus a confiscation order is treated the same. S.76 Magistrates Courts Act 1980 contains the magistrates power to commit an individual to prison for failure to pay a fine and an alternative power to issue a warrant of distress (now named a warrant of control). S.79 Magistrates Courts Act 1980 is the only provision dealing with part payments. [11] The difficulties in this case arise from the fact that the enforcement of confiscation orders is achieved by applying statutory provisions to confiscation orders which were not designed for them. A confiscation order is thus treated as if it was a fine imposed by the magistrates. The difference between a magistrates imposed fine and a Crown Court imposed fine is that magistrates do not fix a default term when imposing the fine. Imprisonment in default is only considered in the event of a default and, at that time, the magistrates will know whether the default is total or partial. Thus, credit can be given for part payments made before the commitment process is undertaken. However, s.139(2) of the 2000 Sentencing Act mandates the fixing of an anticipatory default term at the time the fine or order is imposed. [12] The difference in practices led the lower courts to analyse s.79(2) Magistrates Courts Act 1980 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. Hence the Court of Appeal understandably read additional words into s.79(2). [13] The period of imprisonment in default of payment is imposed for the purposes of s.79 when the Crown Court discharges its statutory duty under s.139(2) of the 2000 Sentencing Act and fixes the (anticipatory) term in default. This construction follows from s.150 Magistrates Courts Act 1980 and is necessary to make sense of s.140(3) of the 2000 Sentencing Act. It is also assumed by the Magistrates Court Rules. Thus, the default term in the case of Crown Court orders must be the term that the court imposed at the time of making its order. [15-17] The operative words of s.79(2) expressly say that the days to be deducted are to be the number which bear the same proportion to the total default term imposed (by the Crown Court) as the part payments bear to so much of the said sum as was due at the time the period of detention was imposed. At the time the Crown Court imposed the default term, there was as yet no interest accrued at all. [20] Straining of the wording of s.79(2) cannot be justified where it would adversely impact on the period of imprisonment to which a person is subject. Penal legislation, particularly legislation imposing penalties that deprive liberty, is construed strictly. 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. [21] charges of distress do not support the respondents construction. The reference is explained by the case of magistrates first issuing a warrant for distress and only subsequently fixing the default term for non-payment. The addition of such costs and charges is expressly provided for and that does not mean that an equivalent provision can be read in as a consequence of a provision in different statute (s.10(1) DTA). [22]