Presumptions

Certain presumptions or rules of evidence must also be born in mind. These presumptions apply to the construction of a statute, unless there are express words to the contrary. The following examples are some of the more important presumptions in law:

(a) The presumption against criminal liability, unless mens rea (guilty mind) is shown to exist. Proof of criminal intent is generally necessary to secure a conviction. Thus a motorist involved in a road accident of which he or she was unaware, could not rightly be convicted of “failing to report the accident to the police within 24 hours”, since the motorist was unaware of involvement, and the law does not compel the impossible (Harding v. Price, 1948).

(b) The presumption against the ouster of jurisdiction of the courts. Thus, where a particular statute provides that tribunals be set up to determine questions arising in administration (as under the National Service Act, 1948, to consider appeals for postponement of military service) and excludes the jurisdiction of the courts of law expressly, then the terms of the statute will be applied. Where no such express terms exist the jurisdiction of the courts is not ousted.

(c) The presumption that the Crown is not bound by statute, unless expressly stated therein.

(d) The presumption that a statute does not alter the general principles of the common law, unless expressly so stated.

(e) The presumption against the infringement of international law.

(f) The presumption against the deprivation of property. Statutes empower­ing the acquisition of private property will be strictly construed. Where private property is taken away from an owner, the law infers that compensation will be paid unless there are clear words in the statute to the contrary.

(g) The presumption against arbitrary conduct and abuse of a power given by statute.

(h) The presumption that the legal meaning of an Act is that which corresponds to its literal meaning.

Task 11. Write down the resume:

Reference to statutes

There are three forms of referring to an Act of Parliament: by its short title, by its official reference, or by its full title.

(a) Short Title. When we refer to an Act such as the Theft Act, 1968, or the Data Protection Act, 1984, we are using its short title.

(b) Official Reference. This shows the calendar year in which the Act was passed and the number of the Chapter (or Act) passed in that year. For example,

1968 CHAPTER 60

is the official reference to the Theft Act, 1968, and

1984 CHAPTER 35

is the official reference to the Data Protection Act, 1984.

(c) Full Title. This gives the official reference and a short description of the object of the statute. For example, the full title of the Theft Act, 1968, is

ELIZABETH II 1968 CHAPTER 60

An Act to revise the law of England and Wales as to theft and similar associated offences, and in connection therewith to make provision as to criminal proceedings by one party to a marriage against the other, and to make certain amendments extending beyond England and Wales in the Post Office Act, 1953 and other enactments; and for other purposes connected therewith.

The full title of the Data Protection Act, 1984, is

ELIZABETH II 1984 CHAPTER 35

An Act to regulate the use of automatically processed information relating to individuals and the provision of services in respect to such information.

Reference to statutory instruments

The most common form of delegated legislation is the statutory instrument. Each statutory instrument is allocated a number, and reference to the instrument is to the year of issue followed by the number so allocated. For example,

S.I. 1968 No. 1911

relates to the Town and Country Planning (Planning Inquiry Commissions) Regulations, 1968.

The printing of Bills, Acts of Parliament and statutory instruments is done by Her Majesty’s Stationery Office. The Statutory Instruments (Production 1730, Sir Edward Coke’s Institutes (1628-41), Sir William Blackstone’s Commentaries (1765), and Sir Michael Foster’s Crown Law (eighteenth century).

The above works and a few other early works, written when law reporting had barely begun, are accepted as books of authority and therefore as an original source of common law.

The modern textbook is not a source of law, and not a book of authority. However, such works may have persuasive authority; counsel may adopt the view of a distinguished academic writer and the court may accept that view of the law. In this way the writer is influencing the law. Works by Cheshire, Dicey, Winfield, Salmond, Williams and Smith and Hogan have often been referred to in this way, particularly on points which are not covered by authority or where there is some doubt about the authority. As Mr. R.J. Walker has commented, “On the whole the persuasive authority of a standard textbook is of considerable weight.”

Similarly, articles in legal journals such as the Criminal Law Review, the Law Quarterly Review and the Cambridge Law Journal have been referred to in the courts.