BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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.
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