Statutory Interpretation The Technique of Statutory ... - Francis Bennion

Guides to Legislative Intention II: Principles 143
of proof will be required to establish those facts (eg R v Milk Marketing Board, ex pane Austin
(1983) The Times 21 March).
Types of detriment
We now consider in detail the various types of detriment to which the principle against doubtful
penalisation applies. It is convenient to do this in conjunction with references to relevant provisions
of the European Convention on Human Rights, since our courts are required by treaty to have regard
to these.
First we look at impairment of human life or health. Then follow various kinds of interference, namely
with freedom of the person, family rights, religion, free asssembly and association, and free speech.
Next come detriment to property and other economic interests, detriment to status or reputation,
and infringement of privacy. We conclude with impairment of rights in relation to law and legal
proceedings, and with other infringement of a person's rights as a citizen. Criminal sanctions, with
which the principle against doubtful penalisation is chiefly identified, appear in several of these
categories. Capital and corporal punishment fall within the first. Imprisonment curtails freedom of the
person and interferes with family rights. A fine is an economic detriment. All convictions impose a
stigma, and therefore affect status or reputation.
Impairment of human life or health The leading aspect of the principle against doubtful
penalisation is that by the exercise of state power the life or health of a person should not be taken
away, impaired or endangered, except under clear authority of law. An exception as to preservation of
human life is imported whenever necessary into a penal enactment. Even where the exception is not
stated expressly, the probability that it is to be taken as implied necessarily raises doubt as to the
application of the enactment, and thus the principle against doubtful penalisation applies. As was said
long ago by an advocate in Reniger v Fogossa (1550) 1 Plowd 1,
When laws or statutes are made, yet there are certain things which are exempted and excepted out of the
provision of the same by the law of reason, although they are not expressly excepted. As the breaking of prison is
felony in the prisoner himself by the Statute de Frangentibus Prisonam: yet if the prison be on fire, and they who
are in break the prison to save their lives, this shall be excused by the law of reason, and yet the words of the
statute are against it.
Similarly in R y Rose (1847) 2 Cox CC 329 an enactment penalising 'revolt in a ship' was held subject
to an implied exception where revolt was justified to prevent the master from unlawfully killing
persons on board.