BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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
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