BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Section 131. Application to Britons and British matters outside the territory Pages 379-380 Relevant Index entry: application of Act:non-resident Britons, to Add the following to the enactments listed in the passage on pp. 379-380 beginning „Other criminal statutes dealing with offences overseas include‟: Criminal Justice and Immigration Act 2008 s 72 (sex tourism). Section 133. Deemed location of an omission Page 387 Relevant Index entry: omission to act Code s 133 was considered by Sedley J in Kennet District Council v Young & Ors [1998] EWHC Admin 938 and by the Federal Court of Australia in Re Stephen Richard Luckins; Ex Parte: Columbia Pictures Industries & Anor [1996] FCA 567. Section 134. Deemed location of composite act or composite omission Pages 387-388 Relevant Index entry: composite act or omission Code s 134 was considered by Sedley J in Kennet District Council v Young & Ors [1998] EWHC Admin 938 Part VI. The Enactment and the Facts Section 136. Applying the enactment to the facts Pages 393-394 Relevant Index entry: jury:function of „In this country trial by jury is a hallowed principle of the administration of criminal justice. It is properly described as a right . . . [It] is so deeply entrenched in our constitution that, unless express statutory language indicates otherwise, the highest possible forensic standard of proof is required to be established before the right is removed. That is the criminal standard.”: R v T and others [2009] EWCA Crim 1035, [2009] 3 All ER 1002 Per Judge LCJ at [10], [16].) Page 394 Relevant Index entry: assessor In the Comment on Code s 136, add to the note on p. 394 a reference to Mastercigars Direct Ltd v Withers LLP [2008] 3 All ER 417, [2007] EWHC 2733 (Ch), at [129], where Morgan J revealed that his assessors did not agree with parts of his decision. Page 394 Relevant Index entry: recusal A judge should not recuse himself from further proceedings in a case merely because a decision of his in the case has been reversed on appeal: Re B (children) (sexual abuse: standard of proof) [2008] UKHL 35, [2008] 4 All ER 1, at [81]. Section 139. Selective comminution Pages 401-404 Relevant Index entry: selective comminution:meaning of For a case where the trial Judge in effect put to the jury a selective comminution of the Domestic Violence, Crime and Victims Act 2004 s 5 see R v Ikram and another [2008] EWCA Crim 586, [2008] 4 All ER 253, at [62]. While retaining the essential statutory wording, the Judge „disentangled‟ the enactment so as to present it to the jury so far as possible in ordinary language. Section 142. Drafting presumed competent www.francisbennion.com/5th-edn 32
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Page 414 Relevant Index entry: drafting error:presumption against As to the sentence before Example 142.2 see the further example in R v Murray & Anor [2006] NICA 33 (failure to include commencement provision). Section 144. The legal thrust Pages 422-423 Relevant Index entry: cause of action In the Comment on Code s 144, add to the passage on pp. 422-423 a reference to Legal Services Commission v Rasool [2008] 3 All ER 381, [2008] EWCA Civ 154, at [30] where Ward LJ said „a cause of action for a sum recoverable by virtue of an enactment accrues notwithstanding that it remains to be quantified‟. Section 145. Relevant and irrelevant facts Pages 423-427 Relevant Index entry: fact:relevant and irrelevant Relevance may fall to be determined by implication. Section 91(1) of the Criminal Justice Act 1967 says: „any person who in any public place is guilty while drunk of disorderly behaviour, shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale‟. By implication this means that the defendant must be intoxicated by his own intention (i.e. that his drink is not spiked), and also that the disorderly behaviour must be intended. In the absence of evidence to the contrary both will be presumed. The terms drunk‟ and „disorderly‟ will be given their „ordinary and natural meaning‟.(See Carroll v Director of Public Prosecutions [2009] EWHC 554 (Admin). Section 146. Proof of relevant facts Page 427 Relevant Index entry: fact:proof of As to Code s 146(2) see Re B (children) (sexual abuse: standard of proof) [2008] UKHL 35, [2008] 4 All ER 1 at [2], [32] („He is not allowed to sit on the fence‟). Section 149. Opposing constructions of an enactment Page 434-435 Relevant Index entry: court: adversarial system For an extraordinary failure by prosecuting counsel to assist the court properly see Attorney General’s Reference (No 24 of 2008) [2008] EWCA Crim 2936, [2009] 3 All ER 839 at [50] (failure to mention Criminal Justice Act 2003 ss 269, 270). What is said here about the duty of advocates to assist the court in ascertaining the law cannot of course apply to litigants in person unless they happen to be legal experts. As to the parties dictating to the court on the law to be applied see Kay v Commissioner of Police of the Metropolis [2008] UKHL 69 at [74]. Division Two. The Legal Meaning of an Enactment Part VII. Grammatical and Strained Constructions Section 150. Nature of the legal meaning Pages 441-442 Relevant Index entry: legal meaning:nature of The first paragraph of the Comment was applied by the High Court of Australia in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 www.francisbennion.com/5th-edn 33
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BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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