IN THE COURT OF APPEAL OF TURKS AND CAICOS
CR: AP 16 of 2015
KINGSLEY OUTTEN Appellant
Mr. Justice Mottley, President
Mr. Justice Stollmeyer, Justice of Appeal
Madam Justice Weekes, Justice of Appeal
Mr. Clayton Green for the Appellant
Mr. Clement Joseph for the Respondent
6 February 2016, 15 June 2017
1. This appeal raises a discrete point which relates to the consequence of the failure by the prosecution to comply with the requirement of section 4 (4) of the Criminal Procedure Ordinance Cap 3.03 (“CPO”) which provides that the prosecution shall not less than seven days before the date of the sufficiency hearing, provide an accused person copies of all documents the prosecution intends to use at the sufficiency hearing.
2. Part II of the CPO contains a statutory regime for sufficiency hearings. Sufficiency hearing is the procedure which was put in place after the abolition of the old procedure of preliminary inquiry for criminal cases which are to be tried in the Supreme Court.
3. Section 3 of the CPO provides that, where an accused has been sent to the Supreme Court for a sufficiency hearing pursuant to section 34 of the Magistrate’s Court (“Amendment”) Ordinance 2011 (“MCO”), the Supreme Court shall consider whether the evidence disclosed by the prosecution is sufficient for a jury properly directed to convict an accused of any offence with which he is charged.
4. The consideration by the Supreme Court of the evidence presented by the prosecution is what is known as a sufficiency hearing.
5. Section 4 of the CPO which deals with sufficiency hearing provides that the judge of the Supreme Court shall determine if the prosecution has disclosed sufficient evidence to require the accused to stand trial before the Supreme Court. In making its decision, the Supreme Court shall only examine the documentary evidence submitted by the prosecution. It contains provisions for either party to apply for adjournment.
6. Subsection (4) of section4 provides:
“(4) the prosecution shall provide to the accused person, not less than seven days before the date of the sufficiency hearing, copies of all documents it intends to use at the sufficiency hearing...”
The subsection also contains provisions relating to the introduction of additional evidence.
7. Section 34(1) of the Magistrate’s Court (“Amendment”) Ordinance 2011 provides that when an accused appears before a Magistrate charged with an indictable offence and the Magistrate is of the opinion that he must or ought to sent for trial in the Supreme Court, the Magistrate is required to adjourn the proceedings against the accused to the next sufficiency hearing in the Supreme Court being not less than 35 days after making the Order. The case must also be sent for a sufficiency hearing if the accused has a right to elect trial in the Supreme Court and elect to be so tried.
8. Before the Court, counsel for the appellant alleged that the Chief Justice erred in law in failing to find that the failure of the Crown to serve the Sufficiency Bundle within the time prescribed by the CPO was fatal to the prosecution as there was no jurisdiction to enlarge time. If counsel is correct the consequences of this failure would be that the trial was a nullity and the appellant’s conviction should be set aside.
9. It is not disputed that the prosecution did not comply with the requirement of section 4 of the CPO, not having provided the accused copies of all documents it intended to use not less than seven days before the day fixed for the sufficiency hearing. The question which arises is what is the consequence of the failure to comply with the requirements of section 4 of the CPO. It is common ground that the legislation does not contain any sanction for failing to comply with the requirements of the section.
10. What are the legal consequences of the failure to comply with a statutory requirement. In circumstances where the statute itself makes no provision for failure to comply with the statue. Section 4(4) of the CPO provides that the prosecution “shall provide”... The issue for this Court is how to interpret the subsection.
11. In considering this matter we have found a good starting point in the statement contained in Bennion on Statutory Interpretation at section which discusses the issue of mandatory and directory requirements i.e. whether the statutory provision is mandatory or directory.
Section 10 provides as follows:
“Section 10 Mandatory and directory requirements
(1) Subsections (2) to (4) of this section apply where-
(a) a person (’the person affected') may be affected by a thing done under an enactment, and
(b) the legal effectiveness of that thing is subject to the performance by the same or any other person of some statutory requirement ('the relevant requirement'), and
(c) the relevant requirement is not complied with, and
(d) the intended consequence of the failure to comply is not stated in the legislation.
(2) In ascertaining the effect of the failure to comply with the relevant requirement, it is necessary to determine whether the legislature can fairly be taken to have intended non- compliance to result in total invalidity.
(3) Precedents applying the former distinction between mandatory and directory requirements are not relevant unless they addressed the question of Parliamentary intention as to the consequence of non-compliance with the relevant requirement.
Comment on Code s 10
Previous editions of this work have explained in detail the distinction between mandatory and directory statutory requirements. The distinction was there described as 'long¬standing and useful'. However, in R v Soneji  UKHL 49,  4 All ER 321, a majority of the House of Lords held that the distinction and 'its many artificial requirements' had 'outlived their usefulness'. Instead, 'the emphasis ought to be on the consequences of non- compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity': , , . This reflects developments in statutory interpretation by the High Court of Australia,167 the Supreme Court of Canada168 and the Supreme Court of New Zealand.169
The courts remain bound by judgments that pre-date Soneji, and apply the mandatory-directory terminology where it can be established that those judgments 'addressed the question of Parliamentary intention': R (on the application of Garland) v Secretary of State for Justice  EWCA Civ 1335 at . The question of Parliamentary intention is not to be equated with the 'judge's view of the seriousness of the non-compliance on the particular facts': M (by his litigation friend TM) v Hackney London Borough Council  EWCA Civ 4 at .
Reason for difficulty
Where a requirement is imposed by statute, the court charged with the task of enforcing the statute needs to decide what consequence Parliament intended should follow from failure to implement the requirement. This is an area where legislative drafting has been deficient. Drafters find it easy to use the language of command. They say that a thing 'shall' be done.170 Too often they fail to consider the consequence when it is not done. Millett LJ echoed this statement when he said of the difficulty in deciding whether a statutory requirement is mandatory or directory:
"The difficulty arises from the common practice of the legislature of stating that something "shall" be done (which means that it "must" be done) without stating what are to be the consequences if it is not done'.171'
Blackstone said 'it is but lost labour to say, "do this, or avoid that," unless we also declare, "this shall be the consequence of your non-compliance".172
What is not thought of by the drafter is not expressed in the statute. Yet the courts are forced to reach a decision. It would be draconian to hold that in every case failure to comply with the relevant requirement invalidates the thing done. So the courts' present answer, where the consequences of breach are not spelt out in the statute, is to divine the legislative intention.
The legislative intention
There is no rule of thumb in this matter. 'No universal rule can be laid down ...It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed'.173 Lord Penzance supported this in a later case:
"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory ... I have been very carefully through all the principal cases, but upon reading them all the conclusion at which I am constrained to arrive is this, that you cannot glean a great deal that is very decisive from a perusal of these cases. They are on all sorts of subjects. It is very difficult to group them together, and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord Campbell in the case of Liverpool Borough Bank v Turner'.174'
Another formulation of the principle is the following:
"When the provisions of a statute relate to the performance of a public duty, and the case is such that to hold null and void acts done in respect of this duty would work serious inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.,175'
True nature of the interpretative task
The interpreter's task is always to scrutinise the Act and determine, in the light of its particular provisions, the legal consequence most likely to have been intended for breach of the duty. ... Many of the interpretative criteria available under the Code are relevant to the inquiry.
For example, if the relevant requirement is present in other legislation which has already been judicially considered, there may be scope to apply the Barras principle.176 One area where this may arise is statutory notices. Where the wording of a notice or similar document is prescribed, a failure to use the precise form of words may not result in total invalidity. It may be enough that the substance is conveyed. ”
12. In order to ascertain the effect of the failure to comply with the requirement of section 4(4) of the CPO, it is necessary to determine whether the legislation can be taken to have intended non-compliance would result in the sufficiency hearing being a nullity and the accused being freed or acquitted without having a trial.
13. In London & Clydeside Estates Ltd v Aberdeen District Council and another -  3 All ER 876 where Lord Hailsham of St Marylebone stated:
“When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non compliance on the rights of the subject viewed in the light of a concrete slab of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences on himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial... that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like "mandatory", "directory", "void", "voidable", "nullity" and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition.
14. In Petch v Gurney (Inspector of Taxes); Gurney (Inspector of Taxes) v Petch -  3 All ER 731, the Court of Appeal had occasion to comment not on the failure to comply with statutory requirement but on the consequence of such failure. The Court did not follow the guidelines given by Lord Hailsham but followed the earlier decision. Millet LJ, in giving the judgment of the Court, stated:
“The principles upon which this question should be decided are well established. The court must attempt to discern the legislative intention. In Liverpool Borough Bank v Turner (1861) 30 LJ Ch 379 at 380 Lord Campbell LC said:
'No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed.'
In a well-known passage of his judgment in Howard v Bodington (1877) 2 PD 203 at 211 Lord Penzance said:
I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the sub-ject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory. ”
The Court preferred the approach of seeking to ascertain the intentions of the legislature and this was to be done by looking at the statue as a whole.
15. In R v Soneji and another  UKHL 49 the House of Lords had to consider what are the legal consequences of failure under the confiscation regime under section 72(a) of the Criminal Justice Act 1988 as amended. Lord Steyn in the main judgment reviewed a number of cases including cases from New Zealand, Australia and Canada. We consider this to be important and therefore set out this passage at length:
“ Charles v Judicial Legal Service Commission  1 LRC 422 involved an appeal from Trinidad and Tobago. It is a decision of some importance. The case concerned the effect of failures to observe time limits laid down by regulations dealing with discipline and misconduct in the public service. Giving the judgment of the Privy Council Tipping J (of the New Zealand Court of Appeal) observed, at pp 428-429, para 12:
"At the outset their Lordships observe that it seems highly unlikely that the Commission can have intended that breaches of time limits at the investigation stage would inevitably prevent it from discharging its public function and duty of in-quiring into and, if appropriate, prosecuting relevant indiscipline or misconduct. A self-imposed fetter of such a kind on the discharge of an important public function would seem inimical to the whole purpose of the investigation and disci-plinary regime."
He added at p 430, para 17:
". . . If a complaint is made about the non-fulfilment of a time limit the giving of relief will usually be discretionary. This discretionary element to which Lord Hailsham referred [in the London & Clydeside Estates case] underlines the fact that problems arising from breach of time limits and other like procedural flaws are not generally susceptible of rigid classification or black and white a priori rules. With this in mind their Lordships note that in the present case the delays were in good faith, they were not lengthy and they were entirely understandable. The appellant suffered no material prejudice; no fair trial considerations were or could have been raised, and no fundamental human rights are in issue."
The reasoning in Charles is along the same lines as Lord Hailsham's observations and the Wang case.
 There is also subsequent House of Lords authority to similar effect: A-G's Reference (No 3 of 1999)  2 AC 91,  1 All ER 577. In imperative language Parliament had provided that if a defendant is cleared of an offence fingerprints or samples taken from him in the investigation of the offence must be destroyed. There was a breach of the duty. A DNA profile obtained from swabs taken from a rape victim was found to match that of the defendant. He was charged and convicted. The Court of Appeal quashed the conviction. The House of Lords reversed the decision of the Court of Appeal. The House declined to apply the mandatory/directory distinction. Instead the House adopted the reasoning of Lord Hailsham, concentrated on the consequence of non- compliance, and addressed the question what in the light of the consequences must Parliament be taken to have been intended. The House held that the Parliamentary intent would have been inimical to holding that that the prosecution was invalid: see my judgment, at pp 117-118; Lord Cooke of Thorndon, at pp 120-121; and Lord Clyde, at p 121. Lord Hobhouse of Woodborough agreed, at pp 125-126. Lord
Hutton concurred in the result. This decision involved a rejection of the mandatory/directory distinction in the face of explicit imperative language. It is a strong decision.
 Moreover, in the courts of New Zealand, Australia and Canada parallel developments took place. In New Zea-land Institute of Agriculture Science Inc v Ellesmere County  1 NZLR 630. Cooke J (subsequently Lord Cooke of Thorndon) speaking for the court said, at p 636:
"Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance."
This observation was subsequently cited in the Charles case in the Privy Council to which I have referred.
 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the Australian High Court addressed the same problem. In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ the court concluded, at para 93:
"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory rec-ords a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute.'"
This reasoning contains an improved analytical framework for examining such questions. In the evolution of this cor-ner of the law in the common law world the decision in Project Blue Sky is most valuable.
 In Canada there have been developments along similar lines. The starting point is British Columbia (Attorney General) v Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re)  2 SCR 41. The mandatory/directory distinction was strongly criticized. For the majority Iacobucci J observed: "courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?" My understanding is that, seven of the Supreme Court Justices were agreed on this point, with Lamer CJ and McLach-lin J dissenting. In Society Promoting Environmental Conservation v Canada (Attorney-General) (2003) 228 DLR (4th) 693 this development was taken a stage further by the Federal Court of Appeal. Relying on Lord Hailsham's dictum, Evans J A gave the main judgment for the court with Strayer JA concurring in the result and reasoning on this point, at p 710, para 35:
"(iv) ... the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting admin-istrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity."
I regard the developments in Canada as very similar to those in New Zealand and Australia.
 Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in A-G's Reference (No 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and pos-ing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. In my view it follows that the approach of the Court of Appeal was incorrect. ”
16. In DPP of the Virgin Islands v Penn  UKPC 29,  2 LRC 90, a case about statutory provisions for the empanelling of jurors to try a criminal case, Lord Mance, in adopting what he considered to be the modem approach, stated at para 18:
“ The modern tendency is no longer to seek to identify or distinguish between mandatory and directory acts, but the Board's judgment in [Montreal Street Rly Co v Normandin  AC 170, [1916-17] All ER Rep Ext 1244] underlines the need for careful examination of the relevant legislation, to ascertain the purpose of statutory procedures for the empanelling of an array and whether an intention should be attributed to the legislature that non-compliance with such procedures should render a jury trial a nullity, irrespective whether it may have occasioned potential unfairness or prejudice. ”
17. This modem trend was followed in the case of M (by his litigation friend TM) v Hackney London Borough Council and others -  3 All ER 529, where Toulson LJ pointed out that:
“ Lord Steyn concluded (at ) by expressing his agreement with the view that the rigid mandatory and directory distinction, and its many artificial refinements, had outlived their usefulness. Instead, he said that the emphasis ought to be on the consequences of non-compliance and on the question whether Parliament could fairly be taken to have intended total invalidity.
 As these citations show, there is a tendency for the courts to express their conclusions by reference to the imputed intention of the legislature. This is valuable in so far as it concentrates the mind of the court on the purpose of the particular statutory provision in the wider statutory scheme, although beyond that it can be an oratorical device for clothing the judge's view of the seriousness of the non- compliance on the particular facts with the mantle of the hypothetical view of the legislature. ”
18. In Garland, R (on the application of) v Secretary of State for Justice & Anor  1WLR 1879, Hughes LJ, as he then was, with whom the other justices agreed, stated:
“ There is no doubt that in Soneji the House of Lords abandoned the old analysis of rules of this kind as either mandatory or directory, and the sub-analysis of directory rules into those where substantial compliance was necessary to validate subsequent actions and those where it was not. Rather, their Lordships held, the simple question should be addressed: 'what consequence did Parliament intend should ensue from non-compliance with the rule?'  Although Soneji helpfully re-phrased the question which it is necessary to ask when the issue is what is the legal consequence of failure to comply with a legislative rule, and thus re-focussed attention on Parliamentary intention, it was often the case that the old terminology of mandatory and directory provisions merely attached those labels to the results of a similar process of enquiry. In Soneji Lord Carswell (at ) described the expressions 'mandatory' and 'directory' as "convenient shorthand", whilst in Clarke and McDaid Lord Rodger (at ) remarked that those expressions were the end, rather than the beginning, of the relevant enquiry. Whilst this court in ex p Smith did employ the then conventional language of those expressions, it also, as it seems to me, addressed the question of Parliamentary intention.
 I conclude that Parliament did not intend that any non- compliance with this rule, however minimal and however devoid of prejudicial effect, should render invalid everything which follows. ”
19. In R (on the application of Trail Riders Fellowship and another) v Dorset County Council  UKSC 18, Lord Carnwath, in adopting the analysis of Lord Steyn in Soneji’s case, observed at para 58:
“ In this court, Mr Adrian Pay asks us to hold that the reasoning in the Winchester case was erroneous, with the consequence that failure to comply strictly with the Regulations was not necessarily fatal to the application. In short, he submits that Dyson LJ was wrong to adopt a different approach under s 67(6) than would have been applied to an application under s 53(5) apart from the 2006 Act. Under general principles, he submits, failure to comply with procedural requirements, even those of more than 'minor' significance, does not necessarily make an application void, and so incapable of having legal effect. Under the modern law, the question depends not on whether the procedural provision is mandatory or directory, or indeed whether the defect can be described as minor or de minimis, but (as Lord Steyn explained R v Soneji  UKHL 49,  4 All ER 321,  1 AC 340 (at )) the emphasis is 'on the consequences of non-compliance ... posing the question whether Parliament can fairly be taken to have intended total invalidity'. ”
20. In Oldham Metropolitan Borough Council v Tanna  EWCA Civ 50, Lewison LJ, giving the judgment of the Court, with which Lady Justice Arden agreed, stated:
“ ...But the fact of non-compliance is not the end of the inquiry. It is necessary to pose the further question: Can Parliament fairly be taken to have intended total invalidity in the event of non-compliance on the scale of Oldham's non- compliance? The intense focus on the consequence of the particular non-compliance with statutory requirements is a well-trodden path in the law: see e.g. London & Clydeside Estates Ltd v Aberdeen District Council  1 WLR 182; R v Soneji  UKHL 49,  1 AC 340; Petch v Gurney  3 All ER 731; Newbold v The Coal Board  EWCA Civ 584,  1 WLR 1288.
 It is a fundamental principle of the interpretation of statutes that Parliament does not intend an absurd or futile result. ”
21. In 1994, Millet LJ preferred to follow the older authorities and indicated that it was the duty of the court “to discern the legislative intention”. In Soneji’s case, Lord Steyn, having reviewed a number of judgments from common law jurisdictions, accepted the position as expressed by the Australia High Court in the Project Blue Sky Inc where the Court stated that the rigid mandatory and directory distinction has outlived their usefulness. His Lordship accepted that the Court in determining the issue of validity of legislation, the emphasis ought to be on the consequence of non-compliance. The Court should inquire “whether it was a purpose of the legislation that the act done in breach of the provisions should be invalid.”
22. The approach has been adopted in DPP of the Virgin Islands v Penn, M (by his litigation friend TM) v Hackney London Borough Council and others, Garland, R (on the application of) v Secretary of State for Justice & Anor, R (on the application of Trail Riders Fellowship and another) v Dorset County Council and more recently in Oldham Metropolitan Borough Council v Tanna.
23. To apply this test to the provision of the PCO, it is necessary to examine why the provision was passed by the legislature. The purpose was to modernize the procedure by abolishing the old procedure of preliminary inquiries for the hearing of indictable offences and replacing it with the sufficiency hearing. The requirement of serving the documents on the accused seven days before the date fixed for the sufficiency hearing was to ensure that the accused and his lawyers would have been given adequate time to peruse the document and to make any submissions they wish to make.
24. In the Court’s view, the failure to comply with section 4(4) of the does not necessarily render the conviction of the appellant a nullity. It is not alleged that the accused did not have a fair trial. He was convicted after a fair trial. Nothing has been put before the Court to suggest that the trial in the Supreme Court was unfair. We consider that the legislature could not have intended that the failure to serve the accused with the document required for the sufficiency hearing should result in the charges brought against the accused being dismissed. It could not be said to be in the interest of justice to quash the conviction on the ground that the prosecution had failed to comply with the requirement of section 4(4) of the PCO.
25. It was for these reasons that the Court dismissed the appeal and affirm the conviction and sentence.
Weekes J A