Crown Prosecution Service, R (on the application of) v Bow Street Magistrates Court & Ors [2006] EWHC 1763 (Admin)

Case No CO/5056/2006[2006] EWHC 1763 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 th July 2006
Before
THE RT. HON. LORD JUSTICE MAYTHE HON. MR JUSTICE FORBES
Between
THE QUEEN (ON THE APPLICATION OF THE CROWN PROSECUTION SERVICE)ClaimantBOW STREET MAGISTRATES COURTDefendantSAMUEL JAMES, BABTUNDE SMITH, VICTORIA JAMES, PAULINE OSOFUDUNRIN, HANNAH SUTTON and THE SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Parties
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Nigel Pleming QC (instructed by Director of Public Prosecutions) for both the Claimant and the Sixth-named Interested Party, the Secretary for State for the Home Department,Andrew Campbell-Tiech QC and Jack Talbot (instructed by Dobson Hillman Solicitors) for First-named Interested Party, Samuel James,Emma Akuwudike (instructed by Mayfair Chamberlain and Co Solicitors) for Third-named Interested Party, Victoria James,Yasmin Qureshi (instructed by Julius Caesar Solicitors) for Fourth-named Interested Party, Pauline Osofudunrin,Hugh Blake-James (instructed by Julius Caesar Solicitors) for Fifth-named Interested Party, Hannah Sutton.
Judgment
[1]Introduction. This is an application for judicial review of the decision of District Judge Purdy, sitting at Bow Street Magistrates Court on 26 May 2006, whereby he discharged the first five Interested Parties (Babatunde Smith, Samuel James, Victoria James, Pauline Osofudunrin and Hannah Sutton) of offences contrary to section 5 of the Forgery and Counterfeiting Act 1981 the (“FCA 1981”), pursuant to section 6 (1) of the Magistrates’ Courts Act 1980.[2]The Facts. There is no dispute as to the relevant factual background, which is as follows.[3]On 4th April 2006, police officers acting under the authority of search warrants issued by the Horseferry Road Magistrates’ Court went to a block of flats in Thamesmead. There the officers commenced to search flat 79 shortly after 6.50 am. Present inside the flat when the police arrived were two of the Interested Parties, Samuel James and Babatunde Smith.[4]From inside a training shoe found in a bedroom occupied by Samuel James the police recovered a car key that was eventually found to fit a Ford Fiesta motor car. The Fiesta itself was located in a car park at the block of flats. It was covered in dust and appeared to have been stationary for a long time.[5]The boot of the Fiesta was searched and two forged British passports were found, amongst other items of property. One of the passports, purportedly issued to an Abbey Jackson, bore a photograph of Babatunde Smith. The other passport, purportedly issued to an Elias Williams, bore a photograph of Samuel James.[6]Both men were arrested and taken to the police station.[7]In the meantime, shortly after 9 a.m., the police had commenced a search of flat 213. Present inside the flat when the police arrived were the remaining three of the first five Interested Parties, Victoria James, Pauline Osofudunrin and Hannah Sutton.[8]Inside a chest of drawers in the main bedroom, the police found a forged Nigerian passport in the name of Pauline Osofudunrin and bearing her photograph. On the top shelf of a fridge, the police found a forged Nigerian passport in the name of Victoria James that bore her photograph. In a cupboard in the hallway the police found a forged Nigerian passport in the name of Hannah Sutton and containing her photograph.[9]On 5th April 2006 each of the first five Interested Parties was separately charged with an offence of possessing a false passport on 4th April 2006, contrary to section 5(2) of the FCA 1981.[10]At subsequent preliminary court appearances, the Magistrates declined jurisdiction in relation to each offence. Accordingly, on the 12th May 2006, the case was set down for a contested committal hearing at Bow Street Magistrates’ Court on the 17th May 2006, for argument before District Judge Purdy as to whether the offence contrary to Section 5(2) of the FCA 1981 in relation to passports had been repealed on 30th March 2006 by Section 44(2) of the Identity Cards Act 2006 (“the ICA 2006”: as to which see below).[11]Prior to commencement of the contested committal hearing, each of the first five Interested Parties was additionally and separately charged with the following two offences:(i) making a false passport on or before 4th April 2006, contrary to Section 1 of the FCA 1981 and(ii) possessing a false passport before 31st March 2006, contrary to Section 5(1) of the FCA 1981.[12]The relevant Statutory Provisions. So far as is material, section 5 of the FCA 1981 is in the following terms:- “5. Offences relating to money orders, share certificates, passports etc.(1) It is an offence for a person to have in his custody or under his control an instrument to which this section applies which is, and which he knows or believes to be, false, with the intention that he or another shall use it to induce somebody to accept it to do or not to do some act to his own or any other person’s prejudice.(2) It is an offence for a person to have in his custody or have under his control without lawful authority or excuse, an instrument to which this section applies, which is, and which he knows or believes to be false. … (5) The Instruments to which this section applies are- … (f) Passports and documents which can be used instead of passports; (fa) immigration documents; …”[13]As indicated by its introductory heading, the offences created by section 5 of the FCA 1981 are concerned with documents such as money orders, share certificates and passports etc. Sections 25 and 26 of the ICA 2006 provide for a series of similar offences in relation to false identity documents. Although sections 25 and 26 are not in identical terms to the antecedent provisions of the FCA 1981, it is common ground that, in all relevant respects, the penalties for the equivalent offences under the two statutes are the same. It is also common ground that Parliament cannot have intended that both sets of provisions should subsist simultaneously.[14]The ICA 2006 received Royal Assent on 30th March 2006. So far as is material, section 44 of the ICA 2006 provides as follows:
“44. Short title, repeals, commencement, transitory provision and extent (1) This act may be cited as the Identity Cards Act 2006. (2) The enactments in Schedule 2 are repealed to the extent shown in the second column of that Schedule. (3) This Act, (apart from this section and sections 36 and 38) shall come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes …” (1) This act may be cited as the Identity Cards Act 2006. (2) The enactments in Schedule 2 are repealed to the extent shown in the second column of that Schedule. (3) This Act, (apart from this section and sections 36 and 38) shall come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes …”
[15]Schedule 2 of the ICA 2006 is entitled “Repeals” and in its second column it lists those sections of other enactments that are repealed. Schedule 2 includes section 5(5)(f) and (fa) and section 5(9) to (11) of the FA 1981 in its second column.[16]It was and is common ground that section 44 of the ICA 2006 was brought into force in its entirety on the date of Royal Assent, i.e. 30th March 2006. It is accepted that this follows from the terms of section 44(3) of the ICA 2006 (in particular, from the inclusion of section 44 in the excepted provisions specified in brackets: see above) and section 4 of the Interpretation Act 1978, which is in the following terms:
“4. An Act or provision of an Act comes into force- a) where provision is made for it to come into force on a particular day, at the beginning of that day; (b) where no provisions is made for its coming into force at the beginning of the day on which the Act receives the Royal Assent.”
[17]It is to be noted that, as drafted, there is nothing in the wording of section 44(3) of the ICA 2006 that appears to suggest that section 44(2) does not form part of section 44 for the purposes expressed in section 44(3). As already indicated, section 44(2) provides that the enactments in Schedule 2 “are repealed” to the extent shown in the second column of that Schedule and the second column itself is headed “Extent of Repeal”. It is also to be noted that Schedule 2 is not expressly mentioned in section 44(3) of the 2006 Act. In particular, Schedule 2 is not included in the excepted provisions that are set out in brackets in section 44(3).[18]The Ruling by the District Judge. Following submissions at the committal hearing on the 17th May 2006, District Judge Purdy adjourned the case and subsequently handed down a written judgment relating to his ruling on 26th May 2006.[19]The District Judge concluded that Section 44(2) of the ICA 2006 operated to repeal section 5(5)(f) and (fa) of the FCA 1981 as of the 30th March 2006 (i.e. the date upon which it was common ground section 44 had come into force). At paragraph 7 of his judgment, the District Judge stated his conclusions in the following terms: “In my judgment all of S.44 1.D. Cards Act 2006 came into force upon royal assent on 30th March 2006. S.44(2) is part of that Section. The provisions of S.44(2) bring into law Schedule 2, without need for qualification or further action of any kind, which simply and clearly repeals, inter alia, S.5(5)(f) F&C Act 1981. This is the clear intent of Parliament. I simply cannot read the legislation in any other way without an Alice in Wonderland exercise in totally misreading clear statutory provisions to give the meaning the Crown contends. There is nothing unclear about the repeal nor the reasoning behind it. The concern, rightly, is the fact Sections 25 and 26 have not been brought into force to run from 30th March 2006. That is the responsibility of the Secretary of State. I must give effect to the primary legislation. Accordingly I hold that S.44 (2) I.D. Cards Act 2006 has operated to repeal S.5(5)(f) F&CA 1981 as of 30th March 2006. Therefore the charge pursuant to section 5(5)(f) F&C Act 1981 alleging an offence on 4th April 2006 is one not known to the Criminal Law at that date. I make clear, aided if need be by Section 16 of the Interpretation Act 1978, that all alleged offences prior to that date can be prosecuted under the full provisions of F&C Act 1981 and that is so for existing cases already charged and any offences coming to light now but committed before 30th March 2006. That charge in each Defendant’s case is thus discharged”.[20]So it was that the District Judge ruled that the charges alleging the commission of an offence in relation to a passport on 4th April 2006, contrary to section 5(2) of the FCA 1981, was in each case an allegation of an offence not known to the criminal law. He therefore discharged each of the five Defendants on each such charge. However, he went on to decide that there was a case to answer in relation to each of the additional charges and therefore committed all five Defendants to the Crown Court for trial pursuant to section 6(1) of the Magistrates’ Courts Act 1980.[21]The Parties’ Submissions. On behalf of the Claimant, Mr Pleming QC made it clear that it was the Claimant’s primary case that section 44(2) of the ICA 2006 had come into force on the 30th March 2006 but that Schedule 2 of that Act had not. Mr Pleming submitted that by virtue of section 44(3) of the 2006 Act, Schedule 2 was to come into force on a date to be appointed by the Secretary of State (the sixth Interested Party), because it was not one of the excepted provisions listed in brackets in the subsection. He argued that it was clearly Parliament’s intention that the Secretary of State would also bring sections 25 and 26 of the ICA 2006 into force on the same date as Schedule 2. He pointed out that this was precisely what did happen on the 31st May 2006, when the responsible Minister promulgated the Identity Cards Act 2006 (Commencement No.1) Order 2006 (S.1.No 2006/1439), which brought into force both sections 25 and 26 and Schedule 2 of the 2006 Act with effect from 7th June 2006.[22]Mr Pleming relied on four main submissions in support of the Claimant’s primary case.[23]First Mr Pleming submitted that a schedule to an Act of Parliament should be seen as part of the relevant Act to which it is attached, but separate from the body of the Act which contains the sections of the Act. Mr Pleming submitted that a schedule is attached to the body of the Act by appropriate words in a section that contains “inducing words” and is known as an “inducing section”. He suggested that a schedule may also be properly regarded as an extension of the section that induces it: see the current edition of Halsbury’s Laws, Volume 44(1) paragraphs 1257 and 1260.[24]However, Mr Pleming contended that it does not follow from the foregoing principles that a schedule is to be regarded as part of the inducing section itself; the schedule should not be treated as being incorporated into the section merely by the reference to it in the inducing section. Mr Pleming argued that the schedule retains a separate identity, although it is part of the Act in question; it is attached to the body of the Act; but it contains separate provisions from those contained in the body of the Act.[25]In short, Mr Pleming’s first submission was that the mere coming into force of the “inducing words” of section 44(2) without more was insufficient to activate Schedule 2 of the 2006 Act and the repeal of the provisions listed in that schedule.[26]Second, Mr Pleming submitted that repeal schedules have, by parliamentary convention, a particular purpose. Mr Pleming maintained that, in cases where (as here) the positive provisions of the new Act are designed to supersede the complementary provisions of an earlier Act, it is standard parliamentary practice to list the provisions to be replaced in a repeal schedule and to introduce that schedule by a section in the Act saying that the enactments mentioned in the schedule are repealed to the extent specified in the schedule. He submitted, uncontroversially, that the repeals are not effectuated unless and until the schedule has been brought into force by the terms of the Act. However, it was Mr Pleming’s submission that the coming into force of an inducing section does no more than activate a “signpost” to its matching schedule and it does not effectuate anything more than that.[27]Mr Pleming submitted that the present case exemplifies a particular type of consequential repeal that is closely analogous to (and, to all intents, the same as) an “implied repeal”; i.e. where the new statutory provision is inconsistent with or repugnant to the continued existence of the old, with the result that the new provision impliedly repeals the old: see Halsbury’s Laws, Volume 44(1), paragraph 1299. Mr Pleming suggested that, in such a case, there is no need for the repealing effect of the new provision to be spelt out by Parliament in the body of the Act, because in practical terms the substantive law remains the same, in contrast with the position relating to a substantive repeal; i.e. the repeal of a provision that is not obsolete or spent and which is not replaced by the positive provisions of the new Act.[28]Mr Pleming submitted that in the case of a substantive repeal it is Parliamentary practice that the repeal must always be made or “paved for” in the main body of the Act and not “hidden” in a repeal schedule. This practice ensures that the repeal provision is fully considered and debated whilst the Bill is passing through Parliament. Mr Pleming therefore contended that, if it had been Parliament’s intention to repeal section 5 of the FCA 1981 before bringing into force sections 25 and 26 of the ICA 2006, it would have done so by appropriate provision in the main body of the new Act, because it would have been a substantive repeal. He stressed that there was no such provision in the main body of the 2006 Act and submitted that it was therefore clear that this was a consequential repeal and that Parliament had thus intended that section 44(2) should be regarded and construed as no more than “a signpost” to the relevant repeal schedule, namely Schedule 2.[29]Mr Pleming suggested that those considering and debating the Identity Cards Bill would have known that the repeal schedule contained nothing that warranted specific consideration, because the only real purpose of the schedule was to tidy up the statute book in the light of the coming into force of the new provisions, which would (of course) have been subjected to full Parliamentary scrutiny.[30]In short, Mr Pleming’s second submission was that it is clear from the form and terms of the ICA 2006 that the repeals effectuated by it are repeals consequential upon the bringing into force of the relevant new provisions. To that end, the repeal Schedule 2 needs to be brought into force simultaneously with the new superseding provisions and sections 44(2) and 44(3) should be so construed. Accordingly, section 44(2) is no more that a “signposting section” and is insufficient to effectuate the repeal schedule. The repeal schedule still requires to be brought separately into force and that is why there is no specific reference to it in the excepted provisions specified in brackets in section 44(3). Mr Pleming therefore submitted that the correct construction of section 44(3) is as follows: section 44(2) comes into force on Royal Assent, but Schedule 2 (which is not part of section 44) comes into force on a day appointed by the Secretary of State.[31]Third, Mr Pleming submitted that the Parliamentary practice referred to above is supported by a number of broadly analogous statutory examples. However, he readily accepted that these analogies are not so close to the present case that they may be said to supply a direct answer to it. As it seems to me, there is little assistance to be derived from these examples and I do not feel that it is necessary to make any further reference to them.[32]Mr Pleming’s fourth submission was that his suggested construction of section 44(2) and (3) of the ICA 2006 achieves harmony with section 17(1) of the Interpretation Act 1978, which is in the following terms:
“17. – (1) Where an Act repeals a previous enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into force.”
[33]On behalf of the first five Interested Parties it was submitted that a schedule is part of the Act to which it is attached and that it comes into force when the section giving it effect comes into force. As it seems to me, that simple and succinct submission is self-evidently correct and none of the submissions put forward by Mr Pleming in support of the Claimant’s primary case have persuaded me that it is in any sense wrong or misleading.[34]It was further submitted that there is no necessity as a matter of law for separate express provision to be made for the coming into force of a repeal schedule; on the contrary, where the express terms of a section or subsection in the Act are sufficient to effectuate such a schedule, then it is an absolute necessity to qualify the commencement of the section or subsection in suitable terms that ensure the repeal takes effect at the appropriate time: see page 3 of the paper “Identity Cards Act 2006 – Commencement” by James Richardson, dated 20th May 2006. As Mr Richardson observes and illustrates in that paper, there are many examples of this in practice. Again, I would agree with that submission.[35]On behalf of the first five Interested Parties it was submitted that, in effect, the District Judge’s detailed reasoning for the conclusion that he reached dealt satisfactorily with all Mr Pleming’s submissions in support of the Claimant’s primary case and each of the first five Interested Parties adopted the District Judge’s reasoning accordingly. It is therefore helpful to quote the following further passages from his written judgment:
“4. On reading the I.D. Cards Act 2006 it is plain Sections 25 & 26 are intended to replace S.5(5)(f) F&CA 198. Parliament clearly envisaged a commendable tidying up of criminal provisions and hence the specific repeal of S.5(5)(f) on passports. Thus as an exercise in seeking the intent, aim or purpose of the legislature I have no doubt a smooth transition effectively replacing S5(5)(f) 1981 Act with Sections 25 & 26 I.D.Cards Act 2006 was/is the parliamentary objective. Any statutory interpretation seeking to submit no intention to repeal this specific provision simply cannot pass muster, the express intention is clear. … The Crown concede that Section 44 I.D. Cards Act 2006 came into force on 30th March 2006 but contend only the section not Schedule 2 and thus not the repeal of S.5(5)(f) 1981 Act. In short the Crown submit Schedule 2, in any part, can only come into force, if ever it does, by operation of the transitionary provisions provided for in S.44(3). Therefore, in the Crown’s contention, only S.44 is in force save for Sections 36 & 38 after two months as expressly provided for in s44(5), but nothing more. 5. The difficulty, in my judgment, with the Crown’s position are the words of Section 44(3) in particular the words in brackets. If the words in brackets did not exist the entire statute would depend upon further commencement provisions at the behest of the Secretary of State. However, the words in brackets are not limited to S.44(3) but read “apart from this Section” which is the entirety of S.44 – not simply subsection 44(3) – which includes the apparently unambiguous wording of S.44(2) “the enactments in Schedule 2 are repealed to the extent shown in the second column of that schedule” i.e. S.5(5)(f) F&C Act 1981. … the Crown’s view … does not, in my judgment, stand with any reading of the words actually enacted. The clearly enacted words bind me. They alone comprise the relevant law, the more so given the penal nature of the legislation. 6. By way of illustration with other statutory provisions Mr Shaw relied on numerous statutes. … My researches of those provisions … do not seem to me to support the Crown at all. … No template format for commencement provisions is adopted by Parliamentary draftsmen, styles vary. Nevertheless, nowhere have I found any authority for the proposition (that) a Schedule necessarily requires action by the Secretary of State to be brought into force. If primary legislation has a Schedule(s), which is part of the Statute by its very nature, I know of no requirement preventing a Schedule coming into force without secondary legislation of any kind. … However, once Parliament has enacted clear provisions they are the law of the land unless or until repealed or amended by Parliament. …”
[36]In my view, the District Judge’s reasoning was impeccable as far as it went and, if section 44(2) and (3) are read in isolation from their context, the argument that his reasoning encapsulates is apparently unanswerable: i.e. the whole of section 44 came into force on 30th March 2006, section 44(2) therefore came into force on 30th March 2006 and the words of section 44(2) are clear and sufficient to effectuate the repeal of the statutory provisions listed in Schedule 2.[37]As it seems to me, Mr Pleming’s primary case must fail because it proceeds on the basis that although section 44(2) did come into force on 30th March 2006, Schedule 2 did not. Essential to the success of that case is the suggestion that the wording of section 44(2) is insufficient to effectuate the repeals listed in Schedule 2 and that section 44(2) is no more than a “signpost”. For my part, I cannot accept that this is correct because the words of section 44(2) are perfectly clear and are plainly capable of expressly effectuating the repeal of the statutory provisions listed in Schedule 2. In short, it is clear from its express wording that section 44(2) is not merely a “signpost” to a schedule that is yet to be brought into force. In my view, the absence of Schedule 2 from the excepted provisions specified in brackets in section 44(3) does not prevent section 44(2) from being construed to mean precisely what it says and I would reject Mr Pleming’s submissions to the contrary effect.[38]However, that is not the end of the matter. Mr Pleming’s “fallback” position, in the event that the Claimant’s primary case failed, was that, since the draftsman of section 44(3) of the ICA 2006 had not used language apt to achieve the clear intention of the legislature (i.e. to effect a smooth transition in replacing section 5(5)(f) and (fa) of the FCA 1981 with the new provisions contained in sections 25 and 26 of the ICA 2006), it is permissible for the Court to use its interpretative powers to read words into section 44(3) of the ICA 2006 in order to give effect to that intention: see Inco Europe Ltd and Others ~v~ First Choice Distribution (a Firm) and Others [2000] 1 WLR 586 (“Inco Europe”).[39]In Inco Europe the court was concerned (inter alia) with the question whether section 107 and paragraph 37(2) of Schedule 3 of the Arbitration Act 1996 had amended section 18(1)(g) of the Supreme Court Act 1981 so as to deprive the Court of Appeal of its jurisdiction to entertain an appeal against the grant or refusal of a stay in favour of arbitration. The House of Lords held that it was plain from the legislative history and from the fact that section 107 of the 1996 Act was concerned with “consequential” amendments; that the sole object of the amendment made to section 18(1) of the 1981 Act had been to substitute a new paragraph (g), serving the same purpose as the original paragraph had done in relation to the Arbitration Act 1979; and that, since the draftsman in paragraph 37(2) of Schedule 3 to the 1996 Act had not used language apt to achieve the intention of the legislature, it was permissible to read words into the amended paragraph (g) to give effect to that intention.[40]In the course of his speech in Inco Europe, Lord Nicholls of Birkenhead stated the relevant principles in the following terms:
“I am left in no doubt that, for once, the draftsman slipped up. The sole object of paragraph 37(2) in Schedule 3 was to amend section 18(1)(g) by substituting a new paragraph (g) that would serve the same purpose regarding the Act of 1996 as the original paragraph (g) had served regarding the Act of 1979. The language used was not apt to achieve this result. Given that the intended object of paragraph 37(2) is so plain, the paragraph should be read in a manner which gives effect to the parliamentary intention. Thus the new section 18(1)(g), substituted by paragraph 37(2), should be read as confined to decisions of the High Court under sections of Part I which make provision regarding an appeal from such decisions. In other words, “from any decision of the High Court under that Part” is to be read as meaning “from any decision of the High Court under a section in that Part which provides for an appeal from such decision.”
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 (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 … Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd ~v~ Schindler (1977) Ch 1, Scarman L.J. observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation. None of these considerations apply in the present case. Here the court is able to give effect to a construction of the statute which accords with the intention of the legislature.” “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.”[41]I am abundantly sure (as was the District Judge) that the intended purpose of section 44(3) of the ICA 2006 was to effect a smooth transition in replacing the relevant provisions of section 5 of the FCA 1981 with the new provisions contained in sections 25 and 26 of the ICA 2006. I agree with Mr Pleming that, to that end, Parliament clearly intended that the repeal of the relevant provisions of section 5 of the 1981 Act should be consequential upon the coming into force of the new provisions contained in sections 25 and 26 of the 2006 Act. Section 44(3) was intended by Parliament to achieve that purpose.[42]I am also satisfied that, as a result of an error and inadvertence on the part of the draftsman and Parliament, the terms of section 44(3) of the 2006 Act failed to give effect to that intended purpose because section 44(2) was not excluded from the list of excepted provisions specified in brackets in section 44(3) and the exclusion of Schedule 2 from the bracketed list of exceptions was insufficient to achieve the intended purpose, particularly having regard to the terms of section 44(2) itself. In my view, this is a plain case of a drafting mistake.[43]For those reasons I am satisfied that the first two conditions identified by Lord Nicholls in Inco Europe are clearly satisfied in this case.[44]So far as concerns Lord Nicholls’ third condition, I am satisfied that the substance of the provision that Parliament would have made, had the error in the Bill been noticed, would have been to exclude section 44(2) from the excepted provisions specified in section 44(3). In other words the expression “(apart from this section and sections 36 and 38)” in section 44(3) is to be read as meaning “(apart from this section, other than subsection (2) hereof, and sections 36 and 38)”. Subject to what follows, I am therefore satisfied that Lord Nicholls’ three conditions are satisfied in this case and that it would be open to this court to exercise its interpretative function in this way perfectly properly in order to correct the drafting error in section 44(3) of the 2006 Act and achieve the purpose clearly intended by Parliament.[45]On behalf of the first five Interested Parties it was submitted that the court should exercise its discretion against the grant of relief in the circumstances of this case and that, in any event, since the 2006 Act is a penal statute, the subject matter calls for a strict interpretation that would prevent section 44(3) from being construed in the manner suggested in the previous paragraph..[46]As to the first point, it seems to me that there is no reason to exercise the court’s discretion against the grant of relief in these proceedings if it is right to construe section 44(3) as suggested in paragraph 44 above.[47]So far as concerns the second point, Mr Pleming rightly accepted that the 2006 Act is penal in nature. However, he submitted that, in the circumstances of this case, that fact does not present any obstacle to section 44(3) being construed in the way suggested above because that construction does not inflict any hardship or greater detriment on any of the first five Interested Parties or any other person. Mr Pleming pointed out that the proper construction of section 44(3) merely continues the existing law until its replacement by the new provisions and that no increase in penalty is involved at any stage. Mr Pleming referred to and relied on the following passage in paragraph 1249 of Volume 44(1) of the current edition of Halsbury’s Laws:
“…the true test is now considered to be whether a particular construction inflicts a detriment, or greater detriment, on persons affected. A law that inflicts hardship or deprivation of any kind on a person is in essence penal. There are degrees of penalisation, but the concept of detriment inflicted through the state’s coercive power pervades them all. The substance, not the form, of the penalty is what matters. The law is concerned that a person should not be put in peril of any kind upon an ambiguity; hence the principle against doubtful penalisation.”
[48]I consider that Mr Pleming’s submissions on this aspect of the matter are correct. In my view, the construction of section 44(3) of the 2006 Act that I have set out in paragraph 44 above does not inflict any detriment or greater detriment upon any of the first five Interested Parties or any other person for the reasons advanced by Mr Pleming with which I agree. Accordingly, I am satisfied that section 44(3) can and should be construed as indicated in paragraph 44 above and for those reasons I would allow this application.[49]I agree.

Cited in 2 later judgments