Carson was governed by the Lobbying Act 1985 RSC c 44 which, in effect, is supposed to severely restrict ex-office holders from trading on their previous knowledge.
The point of this comment is the method of statutory interpretation of a penal statute. In sum, the trial judge got it wrong on count #3. McLeod at the appeal (first instance) got the right answer on count #3 for the wrong reason. Nordheimer J.A. at the Court of Appeal, was wrong to reverse McLeod on the specific count #3 point. (Even if Nordheimer was right to want to give robustness to the Lobbying Act).
One of the most important implicit protections of individual liberty in common law is the rule of construction of penal statutes. As McLeod stated, penal statutes are to be construed strictly which implies that all benefit of alternative interpretation goes to the accused. These are not ‘remedial’ statutes with ‘large and liberal’ interpretations.
So McLeod read count #3 which stated that Carson ‘did undertake to communicate with public office holders in respect of the awarding of a grant.’
McLeod was right to find that Carson did not ‘undertake to communicate’ when Carson merely responded to the federal government’s communication to him.
Nordheimer is right to say that this interpretation narrows the ambit of the Act. But this is a penal statute: ‘narrowing’ trumps efficiency in English common law, because liberty is the primary interest of the common law.
McLeod’s interpretation turned upon the fact that the government contacted Carson. Carson was the receiver, not the initiator of the communication.
Secondly, the grant was already in place. This was not an ‘awarding’. The communication was about continuance of the grant. Nordheimer saw nothing in this distinction and if this were not a criminal statute I would completely agree.
Nordheimer ignored that count #3 was not strictly proved on the Cason facts as a passive receiver of information rather than an initiator.
Such Carson facts would have led an experienced criminal prosecutor to make a motion to amend the indictment at the end of the evidence at trial, so that count #3 read ‘did communicate’ rather than ‘did undertake to communicate’. These motions to amend the count are always granted. But if not made then the state’s case fails as McLeod properly determined.
McLeod’s interpretation turned upon this being a criminal statute, a point which Nordheimer commented upon (at para 23) to the effect that there is only one interpretation of a statute.
In other words penal statutes are not to be construed strictly? If Nordheimer is right, all the ‘large and liberal’ and ‘remedial’ nonsense that came out of the supreme court over the last forty years now applies to interpretation of a criminal statute – the last bastion of strict interpretation.
Obviously this is not the last word on interpretation of a criminal statute, though it may be the final word on interpretation of the Lobbying Act.
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