BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Page 1062 Relevant Index entry: court:functus officio As to when a court can reopen its decision see R (on the application of AM (Cameroon)) v Asylum & Immigration Tribunal & Anor [2008] EWCA Civ 100, [2008] 4 All ER 1159. As to the power of a decision-maker to revoke{decision-making rules:revocation of decision [New entry, not in fifth edition]} his decision see R (on the application of Dwr Cymru Cyf) v Environment Agency [2009] EWHC 453 (Admin), [2009] 2 All ER 919, at [22]. Section 330. Presumption that rules of equity apply Page 1064 Relevant Index entry: equity, rules of:implied application of For the implied application of the equitable doctrine of acquiescence see Watson and others v Croft Promosport Ltd [2008] EWHC 759 (QB), [2008] 3 All ER 1171, at [74]. For the need, where equitable doctrines arise in a case, to have a judge who is familiar with those doctrines see The Serious Fraud Office v Lexi Holdings Plc [2008] EWCA Crim 1443, [2009] 1 All ER 586, at [92]. Page 1067 Relevant Index entry: estoppel:general See Sinclair Gardens Investments (Kensington) Ltd v Poets Chase Freehold Co Ltd [2007] EWHC 1776 (Ch), [2008] 2 All ER 187. Section 331. Presumption that rules of contract law apply Page 1069 Relevant Index entry: contract:application of law of See R (on the application of Association of British Travel Agents Ltd (ABTA)) v Civil Aviation Authority (CAA) & Anor [2006] EWHC 13 (Admin) at [103]. The court may apply contract law even where, because of the interposition of statute, a true contract is not in question: Warren v Random House Group Ltd [2008] EWCA Civ 834, [2009] 2 All ER 245, at [17] (case under Defamation Act 1996 ss 2-4). Employment law is based partly on statute and partly on the common law of contract: see Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121. Page 1070 Relevant Index entry: contract:application of law of Effect of Act on existing contracts This passage was applied by the Court of Appeal of New Zealand in Australasian Correctional Management Limited v Corrections Association of New Zealand (Inc) & Anor [2002] NZCA 181 at [18]. Page 1071 Relevant Index entry: contract:application of law of As to the passage regarding contrary intention on p. 1071 see Moore v Scottish Daily Record & Sunday Mail Ltd [2007] ScotCS CSOH_24 at [22], [60], [71] (statutory modification of rules of offer and acceptance). Section 332. Presumption that rules of property law apply Pages 1072-1073 Relevant Index entry: private Act:construction of The passage on pp. 1072-1073 was approved by Laffoy J in Pierce v Dublin Cemeteries Committee [2006] IEHC 182. This passage is applicable to the construction of private Acts in Ireland: Pierce trading as Swords Memorials & Anor v The Dublin Cemeteries Committee & Ors [2006] IEHC 182. Section 334. Presumption that rules of criminal law apply Pages 1078-1080 Relevant Index entry: criminal law:mens rea www.francisbennion.com/5th-edn 56
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) For the abolition of the doctrine of doli incapax, and the criminal liability of persons who have not attained the age of discretion (14), see R v JTB [2009] UKHL 20, [2009] 3 All ER 1 and F A R Bennion, „Mens rea and defendants below the age of discretion‟ [2009] Criminal Law Review 757-770, www.francisbennion.com/2009/031.htm. Pages 1083-1084 Relevant Index entry: nemo debet bis vexari Anomalously, the principle of this maxim does not apply where the first „jeopardy‟ was vitiated by a procedural defect, eg a conviction inadvertently obtained on unsworn evidence as in R v Marsham, ex p Lawrence [1912] 2 KB 263 (see Green & Green Scaffolding Ltd v Staines Magistrates’ Court [2008] EWHC 1443 (Admin) at para 10). No reduction in sentence can any longer be made for double jeopardy: see Criminal Justice Act 1988 s 36(3A) and Attorney General’s Reference (No 24 of 2008) [2008] EWCA Crim 2936, [2009] 3 All ER 839, at [35]. As to autrefois acquit see Coke-Wallis v Institute of Chartered Accountants in England and Wales [2009] EWCA Civ 730. Section 335. Rules of evidence Page 1086 Relevant Index entry: evidence:admissibility of Implied rules of evidence are taken to be imported in their latest form, unless the implication is to the contrary. For a fundamental change regarding the admissibility of infant evidence see R v Barker [2010] EWCA Crim 4 at [33]-[52]. Page 1086n Relevant Index entry: evidence:hearsay As to hearsay at common law and under the Criminal Justice Act 2003 (footnote 3) see R. v Athwal [2009] EWCA Crim 789; [2009] Crim L. R. 726; R v Horncastle and another [2009] EWCA Crim 964, [2009] 4 All ER 183. Page 1088 Relevant Index entry: evidence:fresh Example 335.6 was applied in Iarnroid Eireann v Social Welfare Tribunal [2007] IEHC 406 at para. 8.1. Pages 1088-1091 Relevant Index entry: standard of proof:civil On the question of whether the civil standard varies with the seriousness of the matter see the important case of Re B (children) (sexual abuse: standard of proof) [2008] UKHL 35, [2008] 4 All ER 1. See also R (on the application of D) v Life Sentence Review Commissioners [2008] UKHL 33, [2008] 4 All ER 992. The statement on p. 1088 that an enactment will be construed strictly where it allows a departure from the rules of evidence{evidence:rules of, implied importation of} was followed in the Hong Kong case of Tse Mui Chun v Hong Kong Special Administrative Region (2003) FACC No 4 at para 53 where the court (which included Lord Scott of Foscote) said, citing that statement, „if a statutory shortcut to the proof of essential matters is to be taken advantage of it is essential that the conditions of the statutory shortcut be strictly observed‟. Pages 1092-1094 Relevant Index entry: evidence:exceptions rule The judgment in Director of Public Prosecutions v Wright [2009] EWHC 105 (Admin), [2009] 3 All ER 726 (prosecution under Hunting Act 2004 s 1) contains important dicta and citations on this rule, particularly in relation to art 6 of the European Convention on Human Rights and the distinction between the „persuasive‟ and „evidential‟ burdens on an accused. If in a criminal case there is a burden of proof on the defendant it would be discharged on the civil standard (see [39]). Evidence may raise the possibility of a defence of, for instance, accident or selfdefence, which the prosecution then has the burden of disproving to the criminal standard (see [41]). Page 1094 Relevant Index entry: estoppel: in pais www.francisbennion.com/5th-edn 57
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