BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Page 36 Relevant Index entry: plain language movement By reason of the principle of the open court (see Index), judgments ought not to contain unexplained terms that constitute legal or other jargon. For an example see R v Barker [2010] EWCA Crim 4 at [13], [14], [25], [28], [30], [45] and [52] where Lord Judge LCJ used the term „ABE interview‟ without explanation. Section 8. Duty to obey legislation Page 37 Relevant Index entry: statutory duty:types of On use of the term sub modo cf Secretary of State for the Home Department v Nasseri [2009] 1 All ER 116 at [32]. Page 39 Relevant Index entry: specialty As to an Act of Parliament as a specialty see Nolan v Wright [2009] EWHC 305(Ch), [2009] 3 All ER 823 (claim to reopen credit bargain under Consumer Credit Act 1974 s 139(1)). Section 9. Ignorantia juris neminem excusat Page 40 Relevant Index entry: ignorantia juris neminem excusat „Ignorance of the law is no defence, but it can sometimes amount to mitigation‟: R v Rahman, R v Mohammed [2008] EWCA Crim 1465, [2008] 4 All ER 661, at [44]. Section 10. Mandatory and directory requirements Page 44 Relevant Index entry: mandatory and directory requirements Code s 10 was applied in R v B [2000] EWCA Crim 42. Regarding the first sentence in Code s. 10 see McBride, Re Application for Judicial Review [2003] NICA 23(1) at [30] (preamble to Queen‟s Regulations says that they are to be interpreted „reasonably and intelligently … bearing in mind that no attempt has been made to provide for necessary and self evident exceptions‟, in other words, they are not to be construed literally and with the strictness of a statute). As to failure to observe a requirement for leave to be obtained for a step in legal proceedings see Adorian v Metropolitan Police Commissioner [2009] EWCA Civ 18, [2009] 4 All ER 227. Page 45 Relevant Index entry: mandatory and directory requirements As to the passage beginning „There is a recent tendency‟ near the foot of page 45, note that in Curistan v Times Newspapers Ltd [2008] EWCA Civ 432, [2008] 3 All ER 923, at [22], the Court of Appeal held that the Defamation Act 1996 s 15 „constitutes a mandatory rule of law‟. As to the passage beginning „Where a requirement arises‟ near the top of p. 46 and continuing to the end of p. 47 see Robinson, Re Application for Judicial Review [2001] NIQB 49. Page 46 Relevant Index entry: mandatory and directory requirements As regards the first complete paragraph on page 46 see Sekhon & Ors v R [2002] EWCA Crim 2954 at [25}: „Even if the terms “directory” and “mandatory” are not used the problem remains of answering the question “what is the effect of non-compliance with procedural requirements?”. Bowen LJ‟s observation about not closing the gates of mercy upon the applicant was followed in India by S. B. Sinha J: see www.tdsat.nic.in/11.02.2010/PNo.3of04.htm at [11]. Page 48 Relevant Index entry: consequential construction:mandatory and directory provisions, and The passage beginning „If the court were to hold . . .‟ immediately before Example 10.4 was considered in Goshawk Dedicated (No 2) Ltd v The Bank of Scotland [2005] EWHC 2906 (Ch) at paragraphs 107, 108. www.francisbennion.com/5th-edn 20
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Page 49 Relevant Index entry: mandatory and directory requirements The words „A duty to do a thing in a certain way by implication imports a duty not to do it in any other way‟ were applied in Australia, see Campbell v Tow Truck Directorate of Victoria (1995/34314) [2000] VICCAT 3. Page 50 Relevant Index entry: mandatory and directory requirements The Federal Court of Australia applied the passage headed Statutory procedures in Jacqueline Hamilton and Olive Mary Mcmurray v Minister of Immigration and Ethnic Affairs [1994] FCA 1424; (1994) 53 FCR 349 at [34]. Page 52 Relevant Index entry: mandatory and directory requirements In relation to the passage on page 52 headed Interference with liberty, note the following: (1) The sentence beginning „Where an Act‟ was followed in R v B [2000] EWCA Crim 42; (2) In the case of an appeal relating to a criminal conviction the appeal court may not apply the mandatory/directory test expressly but, where it in fact considers the duty breached to be mandatory, may quash the conviction on the ground that it was obtained unlawfully: see eg R v Christopher Bristol [2007] EWCA Crim 3214. Page 56 Relevant Index entry: mandatory and directory requirements With regard to the passage headed Purely technical contraventions: (1) See Glasgow City Council v AD [2005] ScotSC 35 at [22]. (2) Note that Parliament sometimes states expressly that purely technical contraventions are not to vitiate an act: see eg Proceeds of Crime Act 2002 s 14(11) and Sekhon & Ors v R [2002] EWCA Crim 2954 at [28]. Section 12. Where contracting out and waiver not allowed Page 60 Relevant Index entry: statutory right:contracting out of Contracting out may be disallowed because it involves ousting the court‟s jurisdiction: see Aribisala v St James Homes (Grosvenor Dock) Ltd. [2007] EWHC 1694 (Ch) at [34]-[36]. For an interesting discussion of this section of the Code by the High Court of Australia see Caltex Oil (Aust) Pty Ltd v Best [1990] HCA 53; (1990) 170 CLR 516; (1990) 97 ALR 217; (1990) 65 ALJR 64, at [5]. Section 14. Civil sanction for disobedience (the tort of breach of statutory duty) Pages 73-74 Relevant Index entry: relator action As to the use of Local Government Act 172 s 222 in place of a relator action see Example 87.3 and Birmingham City Council v Shafi and another [2008] EWCA Civ 1186, [2009] 3 Alll ER 127. Page 79 Relevant Index entry: strict liability In relation to the reference here to strict liability note that Waller LJ said that strict liability „should only be imposed by strict language‟: Smith v Northamptonshire County Council [2008] EWCA Civ 181, [2008] 3 All ER 1054, at [29]. Page 80 Relevant Index entry: Ombudsman:general Legislation has not drawn the clear line necessary between standards of conduct justifying a finding of negligence and those justifying an adverse finding by an Ombudsman: see R (on the application of) Attwood v Health Service Commissioner [2008] EWHC 2315 (Admin), [2009] 1 All ER 415. Section 15. Administrative or executive agencies www.francisbennion.com/5th-edn 21
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