Proportionality test and Value Judgement-part-2

In the case [1]it was observed that: ”Unhappily, the New Zealand statute used the word "characteristics", and proceeded to invest the hypothetical ordinary man with all "the characteristics of the offender" save for his power of self-control. In Camplin [2]LORD DIPLOCK used much the same language. In suggesting how the judge should direct the jury, he said, at p. 718:"The judge should state what the question is, using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him . . ." (emphasis added)[3].

In a relatively old case[4] it was observed that:”it must be remembered that the difficulties presented are essential to the gradual growth and development of all our unwritten law, of which this is only an instance, and further, that the enjoyment of every right which is established not by statute but by a long course of judicial decisions and dicta , would be open to attack if such a remark were allowed unduly to prevail. The substance and practical effect, therefore, of all that has gone before must be kept in view, especially in a case in which it is obvious that, having reference to the subject-matter with which the Courts were dealing and to the rights of the parties affected, the law laid down from time to time must have practically influenced the position of all who were interested in buying, selling, leasing, or building upon land within or near to towns and elsewhere wherever the land was available for building purposes, all of whom might well act and in many cases must have acted upon the supposition that they had acquired rights in accordance with the law so expounded." It must be regretfully admitted that the numerous decisions on this subject in the Courts are not easily reconcilable, and are not infrequently contradictory.[5]”and further speaking about the contradiction in judgement LORD EVERSHED had stated: “That most learned Judge then referred to the mass of authorities and dicta, many of them contradictory, contained in ten House of Lords cases and many cases in the Court of Appeal and to the " able and conscientious attempts" by judges of first instance "to state " the results of decisions by which they are bound, and by which they " should be enlightened "; and he went on to state that the only tribunal which could bring order into chaos was your Lordships' House.[6]”

In the language of COCKBURN C.J.: Feather v. The Queen[7] "where there has been an exposition of the law by judicial decision, or a settled course of practice or understanding of the law among legal practitioners, the language of an instrument" (or of a statute) "may in certain cases be interpreted according to such a standard." In principle, a provisional measure intended to pave the way for the final decision is not therefore a challengeable act[8]’.

‘The obligation of a court is to consider the arguments put, and give its reasons for judgment. There is no requirement, when a court gives reasons for judgment, to deal with every detail of argument that has been presented, or to discuss or refer to every case to which the Court has been referred. Rather, the obligation is for the reasons for judgment to expose the essentials of its own reasoning process. In the present case, the Court has engaged in a detailed construction of the particular statutory provisions, their history and policy. Failure to mention explicitly a four-word Latin maxim that the Court did not find helpful in the present case, in no way vitiates that reasoning process, or calls for any further hearing of the matter.

The maxim was not helpful in the present case because it is not an invariable rule that a particular provision in an enactment always overrides a general one. Rather, treating a particular provision as being subject to a more general one, sometimes (but not always) provides a way in which a statute can be read as a whole, if it contains two provisions that appear to be in conflict with each other. But always, the fundamental task in statutory construction is to ascertain the meaning of the particular provision that is in dispute, in light of the statute as a whole, its history and purpose. It is precisely that task that the judgment carried out.[9]’ "It is not merely of some importance, but is of fundamental importance that justice should not be done, but should manifestly and undoubtedly be seen to be done.[10]"

[1] Smith, R v. [2000] UKHL 49; [2001] 1 AC 146; [2000] 4 All ER 289; [2000] 3 WLR 654 (27th July, 2000)
URL: http://www.bailii.org/uk/cases/UKHL/2000/49.html
Cite as: [2000] UKHL 49, [2001] 1 AC 146, [2000] 3 WLR 654, [2000] 4 All ER 289

[2] Camplin [1978] AC 705

[3] Addiction and chronic alcoholism are not transient states.

[4] Dalton v Henry Angus & Co [1881] UKHL 1 (14 June 1881)
URL: http://www.bailii.org/uk/cases/UKHL/1881/1.html
Cite as: 6 App Cas 740, (1881-72) LR 6 App Cas 740, [1881] UKHL 1 [per POLLOCK, B.]

[5]Colls v Home & Colonial Stores Ltd [1904] UKHL 1 (02 May 1904)
URL: http://www.bailii.org/uk/cases/UKHL/1904/1.html
Cite as: [1904] UKHL 1, [1904] AC 179 [per LORD DAVEY]

[6] Rookes v Barnard (No 1) [1964] UKHL 1 (21 January 1964)
URL: http://www.bailii.org/uk/cases/UKHL/1964/1.html
Cite as: [1964] AC 1129, [1964] UKHL 1[Per LORD EVERSHED]

[7] 6 B. & S. at p. 290

[8] Akzo Nobel Chemicals & Akcros Chemicals v Commission (Competition) [2007] EUECJ T-253/03 (17 September 2007),Cite as: [2007] EUECJ T-253/03, [2008] Bus LR 348

[9] KNAGGS v DIRECTOR OF PUBLIC PROSECUTIONS [2007] NSWCA 232 (4 September 2007

[10] Rex v. Sussex Justices (1924 1 K.B. 256)per LORD HEWART,Cite as: [1993] UKHL 1, [1993] 2 All ER 724, [1993] 2 WLR 883, [1993] AC 646

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