BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

BENNION ON STATUTORY INTERPRETATION
Fifth Edition Updating Notes (Version 24, 25 Mar 2010)
The first complete paragraph at the top of page 823 was applied by the Supreme Court of New
Zealand in Lisa Cropp v A Judicial Committee and Bryan McKenzie [2008] NZSC 46 at [26].
Part XVII. Principle against doubtful penalisation
Section 271. Principle against penalisation under a doubtful law
Page 825 Relevant Index entry: doubtful penalisation, principle against
In R v T [2008] EWCA Crim 815 at 4, Latham LJ referred to „the well-known passages in
Bennion Part XVII entitled The Principle Against Doubtful Penalisation‟.
The principle against doubtful penalisation was relied on in Perrin and another v Northampton
Borough Council and others [2008] EWCA Civ 1353, [2008] 4 All ER 673, at [34].
Code s 271 was applied to delegated legislation by the Federal Court of Australia in Hanna v
Migration Agents Registration Authority [1999] FCA 1657 at [22], [23].
The principle against doubtful penalisation was discussed in Gordon, Re Application for
Judicial Review [2006] NIQB 20 at [21].
Page 826 Relevant Index entry: doubtful penalisation, principle against:nature of
To the authorities listed in footnote 3 on page 826 add: Revenue & Customs v Walsh [2005]
EWCA Civ 1291 at [10]; Crofts & Ors v Cathay Pacific Airways Ltd & Ors [2005] EWCA Civ
599 at [22]; AG’s Reference 004/2003 under s 36 of Criminal Justice Act 1988 v Suchedina
[2004] EWCA Crim 1944, [2005] 1 WLR 1574, at [12].
Page 828 Relevant Index entry: doubtful penalisation, principle against:nature of
As to the passage at the beginning of p. 828 see Re An Application for Judicial Review,
Landlords Association for Northern Ireland [2005] NIQB 22 at [46]. The passage headed
Where other factors are stronger was followed in Council for the Regulation of Health Care
Professionals v General Medical Council & Anor [2004] EWHC 527 (Admin) at [39]. Another
relevant authority is Bowers v Gloucester Corporation [1963] 1 QB 881 at 886-887, where
Lord Parker CJ referred to „having applied “all the canons of interpretation”„.
Pages 828-829 Relevant Index entry: legal policy:property rights and
For an Australian case where the principle of no deprivation without compensation was
disapplied by clear words see Mount Lawley Pty Ltd v Western Australian Planning
Commission [2004] WASCA 149 at [296].
Section 273. Statutory restraint of the person
Page 836 Relevant Index entry: doubtful penalisation, principle against:physical restraint of the
person
Sir Igor Judge P: „The starting point is the hallowed principle that each and every detention
must be justified by clear, unequivocal, legal authority‟: R (on the application of G) v Chief
Constable of West Yorkshire Police [2008] EWCA Civ 28, [2008] 4 All ER 594, at [29].
Page 837 Relevant Index entry: habeas corpus
„Scott Baker LJ said that it would require the strongest words . . . to remove the ancient remedy
of habeas corpus . . .‟: per Lord Hope of Craighead in Re Hilali [2008] UKHL 3, [2008] 2 All
ER 207, at [21]. Nevertheless that case decided that, as respects extradition decisions against
which there is a right of appeal under the Extradition Act 2003 (European arrest warrant),
habeas corpus is excluded by the clear and unequivocal wording of s. 34. Baroness Hale of
Richmond said at [32]: „For better or worse we have committed ourselves to this system and it
is up to us to make it work‟.
www.francisbennion.com/5th-edn
48