Strict construction of criminal statutes?

R v de Montalk (07.03.05; CA157/03) I'm quite uneasy with this recent decision of the Court of Appeal. On its face, it’s a simple case about whether the Crown must prove that a person has actually been operating the vehicle when they are charged under section 34(1)(b) of the Land Transport Act 1998 (“operating a motor vehicle on a road without displaying current evidence of a vehicle inspection” (ie a warrant of fitness). The Court ruled that it need not because the offence was a “stationary vehicle offence” (by virtue of section 41A of the Transport Act 1961) and therefore subject to the (statutory) strict liability provisions applicable to such offences. I’ve previously come across the peculiarities of the transport legislation and, particularly, the issue of whether offences which refer to “operating” a vehicle can qualify as “parking” or “stationary vehicle offences” (particularly when the vehicle is, factually, parked or stationary at the time the “operating” offence is committed). But I didn’t see the “ingenious” solution the Court came up with. It goes like this: - The warrant of fitness offence used to be in the Transport Regulations (reg 85) made under the Transport Act. - Section 41A of the Transport Act 1961 defines “stationary vehicle offences” to include:

(c) Any offence against any regulations made under this Act or the Transport (Vehicle and Driver Registration and Licensing) Act 1986 that is declared by such regulations to be a stationary vehicle offence for the purposes of this definition.

(Before 1997, the section had specifically referred to reg 85.) - Regulation 136A of the Transport Regulations specifically declares that regulation 85 is a stationary vehicle offence. (This provision was enacted when section 41A was made generic in 1997.) - When the Land Transport Act 1998 was passed, it: * repealed (revoked?) reg 85 (but not reg 136A), and * provided the warrant of fitness offence in section 34(1)(b) of the (new) Land Transport Act. - By dint of section 22 of the Interpretation Act (“a reference in an enactment to a repealed enactment is a reference to an enactment that, with or without modification replaces, or that corresponds to, the enactment repealed”), the reference in (still live) reg 136A to (now repealed) reg 85 must be read as being a reference to the (new) section 34(1)(b) because section 34(1)(b) “replaces” or “corresponds” to reg 85. - Therefore, section 41A of the Transport Act “deems” the offence in section 34(1)(b) of the Land Transport Act 1998 to be a “stationary vehicle offence” and subject to the codified strict liability provisions in section 41A of the Transport Act. Cunning (by their own admission, their argument was “semantically a little awkward”), but not very satisfying. The Court’s reliance on the Parliament’s intention and purpose is weak. It said:

It is simply not credible to attribute to Parliament an intention that the relevant offence no longer be a stationary vehicle offence. In situations such as this, it is important where possible to construe legislation in a way consistent with, and not destructive of, the overall scheme.

In my view, imputing some notional intention to Parliament in this situation is, in itself, not credible. Significantly, the “offence” had been moved from the Transport Act and placed it in the Land Transport Act. There was a clear demarcation of the offences moved. “Moving vehicle offences” or “driving offences” were moved to the Land Transport Act, “stationary vehicle offences” or “parking offences” remained in the Transport Act. However, the interpretation effectively treats the offence as being one against the Transport Act, not the Land Transport Act. Also, the Court seems to be pulling itself up by its boot-straps when it relies on section 22 of the Interpretation Act. Section 34(1)(b) is a complete provision. There is no redundant reference or reference overtaking by repeal. There is no necessity for it to be “paired or tied” with reg 136A or section 41A of the Transport Act. It operates effectively independantly - the Crown just has to prove that the offender was "operating" the vehicle as an essential ingredient of the offence. Most troubling though, in my view, is the lengths to which the Court was prepared to go to ensure the provision was subject to the strict liability provisions and in doing so ignored the fundamental interpretative principle that, in cases of ambiguity in criminal offences, the courts ought to give the benefit of any uncertainty to an accused. Lord Reid in Sweet v Parsley [1969] 1 All ER 347 said:

[I]t is a universal principle that if a penal provision is rasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.

Our Court of Appeal endorsed that principle in Millar v MOT [1986] 1 NZLR 660 (Cooke P and Richardson J):

[I]t is legitimate and in our view important to pay more than lip service to Lord Reid's proposition in Sweet v Parsley that it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted. The qualification reasonably is also important and prevents an overweighting in favour of the accused.

Ashworth (Principles of Criminal Law (2 ed, 1995, p76)) describes its justification as being part of the Rule of Law or the principle of legality (along with non-retroactivity and maximum certainty) as follows: One justification for this might be fair warning: where a person acts on the apparent meaning of a statute but the court gives it a wider meaning, it is unfair to convict that person because that would amount to retroactive lawmaking. Of course, this is principle is not absolute. It implicitly recognises that the provision must have reasonably tenable alternative interpretations – the principle cannot be used to circumvent clear language. Also, the principle complements the principle of interpretation (recognised in s5 of the Interpretation Act) that the meaning of a provision must be “interpreted in the light of its purpose”. The House of Lords in DPP v Ottewall [1970] AC 642 has previously indicated any “doubt” about lexically-possible interpretations might be resolved by reference to the purpose and statutory context without need to resort to the principle of strict construction. Ashworth describes that its “proper place is in a sequence of points to be considered by a court when construing a statutory offence, i.e. only if doubt remains after examining the legislative purpose”. However, in my view, this case wasn’t one readily resolved by reference to the purpose and scheme of the legislation (if anything, it added more doubt!). It will be interesting to see if the case gets appealed to the Supreme Court (and, if it does, whether that makes any difference!).