Presumption that an Updated Construction should be Applied

Given the importance of preserving the rights of the accused, statutes which are "penal" (a broad term) in their nature will be construed by the courts as strictly limited. Penal liability will not be implied by the courts in the absence of clear and unambiguous words.
Maxwell identifies four aspects of the rule that penal statutes must be strictly construed:
1. the requirement of express language for the creation of an offence;

2. strict interpretation of the words setting out an offence;

3. fulfilment to the letter of statutory conditions precedent to the infliction of punishment;

4. strict observance of technical provisions concerning criminal procedure and jurisdiction.

In Re Emergency Powers Bill, 1976 O'Higgins J noted in relation to the Bill that:

"[a] statutory provision of this nature which makes such inroads on the liberty of the person must be strictly construed. Any arrest sought to be justified by the section must be in strict conformity with it. No such arrest may be justified by importing into the section incidents or characteristics of an arrest which are not expressly or by necessary implication authorised by the section."

1.092 The principle was followed in The People (DPP) v Farrell which concerned the construction of section 30 of the Offences Against the State Act, 1939. O'Higgins J stated:

"The Act of 1939 must be strictly construed. It is legislation of a penal kind which was passed for a special purpose and which has the effect of interfering with the normal rights and liberties of citizens."

In Aamand v Smithwick it was held that the provisions of an extradition statute were also subject to the rule of strict construction, since they incorporated into Irish law a penal statutory code and resulted in penal sanctions against the
individual.

In Mullins v Harnett the rules regarding the interpretation of penal statutes were carefully scrutinised by O'Higgins J. Relying on Maxwell and Bennion, he found that the principle of strict interpretation was to be applied only following the application to the statute of the normal principles of statutory interpretation . Only if the application of these principles left the meaning of the statute open to continuing doubt, was the principle of strict construction to be applied in order to give the benefit of the doubt to the individual as against the State.

The application of the presumption beyond criminal statutes was emphasised by O'Higgins J in Mullins v Hartnett when he said: "Penal statutes are not only criminal statutes, but any statutes that impose a detriment." The application of strict construction to taxation statutes was confirmed in Inspector of Taxes v Kiernan Henchy J stated:

"when a word or expression is used in a statute creating a penal or taxation liability, then if there is looseness or ambiguity attaching to it, it should be construed strictly so as to prevent the fresh imposition of liability from being created unfairly by the use of oblique or slack language."

In Kinsale Yacht Club v Commissioner of Valuation the Supreme Court held that the principle of strict construction did apply to section 5 of theValuation Act, 1988 , although the Act was not a criminal or taxation statute . The Court held that the important factor was that the provision led to the "fresh imposition of liability" as referred to in Inspector of Taxes v Kiernan .

Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)