Statutory interpretation

Why may the words/ meanings in the law be unclear in the statutes for judges to interpret? (4)

• If the statute is old- contains words which meaning's have changed

• There may have been technological/ scientific change since the act was passed

• Words may be ambiguous and have more than one meaning

• There may be errors in the Act, especially if it was passed in a hurry in response to public media

What is an example of poorly drafted law due to rush to respond to public media/ pressure?

Dangerous Dogs Act 1991 - didn’t specify which dog breeds (only mentioned types)

What are the 4 rules that judges have created to interpret statutes?

• The Literal Rule

• The Golden Rule

• The Mischief Rule

• The Purposive Approach

What is the literal rule?

• When a judge gives the words of an Act their ordinary, literal meaning

• A dictionary of the time will be used, no other extrinsic aids will be used

• Emphasis what Parliament said rather than what they meant

• Most used in 19th Century

What is an case example of a dictionary at the time being used to find a meaning of a word under the literal rule?

Cheeseman v DPP to find meaning of passenger

Judges will use this rule even if it creates unfair, unjust decisions. What are the 2 types of decisions?

• Harsh Decision

• Absurd Decision

What did Lord Esher say regarding the Literal Rule?

If Parliament has made a mistake with the wordings of an Act, it is for them to fix, not the judges

In 1969, what did the Law Commission do regarding the Literal Rule?

Criticised the Literal Rule

What is a case example of the Literal Rule that lead to a Absurd Decision?

Whitley v Chappell

• D was charged under a section which made it an offence to impersonate any person entitled to vote

• D was impersonating a dead man who was still on the voters list

• D found Non guilty since a dead person is not literally “ entitled” to vote

What is a case example of the Literal Rule that lead to a Harsh Decision?

BRB V Berriman

• Railway worker killed oiling railway tracks for maintenance

• His widow tried to claim compensation under Fatal Accidents Act which stated- a look out had to be present for men working on/ near railways for purposes of relaying / repairing tracks

• Her claim failed as “oiling” does not come under the words of repair or relay

What is the Golden Rule?

• Judges will start by looking at the literal meaning of the word / phrase of an act, but if this would cause a unfair result they will use the narrow or wide version of the golden rule

• It is the least used rule

What is the narrow version of the golden rule?

This is used when a word/ phrase has 2 or more possible meanings. The judge can choose which to apply which will avoid an unfair result

What is the wide version of the golden rule?

This is used if a word/ phrase has only one possible meaning and this will lead to an unfair result. The judges will change the meaning by substituting another meaning which will lead to a fair result

What is a case of example of the Narrow version of the Golden Rule?

Adler v George

• Officials made it an offence to obstruct her majesty’s forces “in the vicinity of a prohibited place”

• D caused obstruction in the prohibited place and argued not guilty as he was NOT in the vicinity of the place but in the place itself

• D Found guilty as it would be absurd to apply the law only for the vicinity and not inside the prohibited place itself

What is a case of example of the Wide version of the Golden Rule?

Re Sigsworth

• Son had murdered her mother, and her mother had not made a will so normally her estate would be inherited by her next of kin, in this case the Victim’s son

• There was no ambiguity in words but the Court did not want the son to benefit for his crime so the golden rule was used to prevent a repugnant situation of the son inheriting

What is the Mischief Rule?

• If a word/ phrase in a statue are unclear, the judge must answer 4 questions to discover what Parliament meant

• The emphasis is on what Parliament meant rather than what was literally said

• This is the most preferred rule by the Law Commission

• Judges using this rule are more likely to use extrinsic aids

Where was the rule first described?

16th Century

Heydon’s case

What are the 4 questions of the Mischief Rule?

1. What was the common law before the Act was passed?

2. What Mischief (problem/ gap) was there that Parliament intended to resolve?

3. What remedy did Parliament create to deal with this mischief?

4. The reason for that remedy?

What is a case example of the Mischief rule which was about solicitation?

Smith V Hughes

• Case against 6 different women who were not “in the street or a public place”, but were attracting the attention of men by calling to them

• Argued that were not guilty as they were not “in the street or a public place” but the Court decided by using the Mischief rule that the mischief Parliament intended to remove was solicitation by common prostitutes so Ds were found Guilty

What is a case example of the Mischief rule which was about a Taxi?

Eastbourne V Stirling

• Taxi driver was charged with “plying” (waiting for passengers) for hire in any street without a license to do so

• His vehicle was parked on a taxi rank on the station forecourt (not in the street)

• Found Guilty as although the taxi was on private land, he was likely getting customers from the street

What is the Purposive Approach?

• More open version of the Mischief rule- No need to answer the 4 rules in Heydon’s case

• Seeks to find out general intention and spirit of the statute

• Broader approach than the mischief rule, as they are actively trying to find out the purpose of the law

• Most modern approach and is the most used nowadays

What is a case example of the Purposive Approach about adoption?

R V Register- general ex parte Smith

• The adoption Act stated “ before supplying information, the customer should be informed about counselling services”

• D was applicant who wanted his birth certificate and applied in the correct manner (In literal sense D should be allowed)

• D had been convicted of 2 murders prior and suffered physcotic illness which made it possible that D could be hostile to his mother

• Court told Register- general to not give information as Parliament would not intend to promote a crime

What is a case example of the Purposive Approach about embryos?

R (Quintavalle) V Human Fertilisation and Embryology

• HoL had to decide if organisms created by CNR came within definition of an embryo in the Human Fertilisation and Embryology Act

• At the time of the Act’s passing there was only 1 possible way of fertilisation, however a new method called CNR was developed later

• Using Purposive approach HoL declared that CNR Embryos are covered in the act as Parliament could not have known about future developments in technology

What are Intrinsic Aids?

Aids that are found within the Statute itself

What are 6 intrinsic aids?

• Long and Short title

• The Preamble

• Interpretation sections

• Other Sections of the same Act

• Schedules

• Marginal Notes and headings

How can the Long and Short title be used as an Intrinsic aid and give an example?

The court can use it as clues to give the meanings of words/ phrases

• Law of Property Act 1925

How can the Preamble be used as an Intrinsic aid?

They may provide a useful indication of the purpose or Mischief of the act.

Modern statues do not tend to have them and it is mostly in Older statutes

How can the Interpretation Sections be used as an Intrinsic aid and give an example?

Sets out lists of what meanings are intended for certain words used elsewhere in the Act and are a relatively modern drafting technique

• Theft Act 1968

How can the Other sections of the same act be used as an Intrinsic aid and give an example?

Help a judge to understand what Parliament meant by a particular section

• Harrow LBS V Shah and Shah

How can the Schedules be used as an Intrinsic aid and give an example?

Provides additional information to be considered in relation to the Act

• The Postal Services Act 2000

How can the Marginal Notes and Headings be used as an Intrinsic aid?

These are inserted by the draftsmen when the Act goes for Printing. However these should not be used as they are more helpful as directions for the printer

What are Extrinsic aids?

Aids that can be found outside the Act itself

What are 8 examples of Extrinsic Aids?

• A Dictionary

• Hansard

• Report of Royal / Law Commissions

• Case Law

• Human Rights Act 1998

• Historical setting

• Reports of International Conventions

• The Interpretation Act

How can a Dictionary be used as an extrinsic aid and give an example?

It will discover the plain meaning of a word

Should be using a dictionary of the same time the Act was passed

• DPP V Cheesman

How can a Hansard be used as an extrinsic aid and give an example?

Reports on the debates in Parliament during the progress of the bill (only used in special circumstances)

• Pepper v Hart

How can a Reports by Royal/ Law Commissions be used as an extrinsic aid?

These reports lead to the passing of the Act, since the case of Black Clawson

How can a Case Law be used as an extrinsic aid?

Judges decisions of the past can be used if appropriate to the area of law

How can a Human Rights Act 1998 be used as an extrinsic aid?

If the law is appropriate to the case, further information can be considered. Legislation must be read out and given effect in way which is compatible with the Human Rights Act

How can the Historical Setting be used as an extrinsic aid and give an example?

Norms and Scientific Knowledge at the time may have been different compared to nowadays

• RCN V DHSS

How can a Reports of International Conventions be used as an extrinsic aid and give an example?

Possible to find the true meaning of a word as it was translated and adapted

• Fothergill V Monarch Airlines- HoL decided that international convention should be considered due to the reason above

How can the Interpretation Act 1978 be used as an extrinsic aid?

Provides definitions for certain words that are frequently used in legislation

What are 4 advantages of the Literal Rule?

• Follows words of Parliament

• Prevents unelected judges making laws

• Forces Parliament to be clear in wording

• Easier to predict how judge will interpret the law

What is meant by Following the words of Parliament?

Since Parliament is a democratic law making body, it is right that they should be the ones making the law and it should be interpreted exactly as it it written

What is meant by Preventing unelected judges making laws?

Judges are not elected and should not be making laws. Respects separation of powers as judges have no legislative function

What is meant by Forcing Parliament to be clear in wording?

Makes them accountable and therefore forces them to be precise with the words in statutes

What is meant by Ease to predict how judge will interpret the law?

More certain for lawyers to advise to their clients as the only outcome would be the exact meaning of a word/ phrase

What are 4 disadvantages of the Literal Rule?

• Not all Laws are perfectly drafted

• Words have more than one meaning

• Can lead to unfair/ unjust decisions

• Does not necessarily uphold Parliamentary Sovereignty

What is meant by Not all laws are perfectly drafted?

Not all laws are made perfectly as some are made in a rush. such as the dangerous dogs act 1991 as it said “types of dog” rather than breed

What is meant by words having more than one meaning?

Could be unclear and cause unfair results due to this

What is meant by it could lead to unfair/ unjust decisions?

The risk of these goes against the rule of law, as it is not reasonable, just and fair

What is meant by not necessarily upholding parliamentary sovereignty?

Parliament cannot intend to see every outcome, and in some instances could not have intended the use words that would lead to unfair/ unjust decisions

What are 4 advantages of the Golden Rule?

• Respects Words of Parliament

• Allows judges to choose sensible meanings

• Avoids worst problems of the literal rule

• Still promotes certainty to an extent

What is meant by respecting the words of Parliament?

Only used in limited situations (narrow or wide) . Least used

What is meant by Allowing judges to choose a sensible meaning?

Judges can choose the best substitute instead of causing a repugnant result like in the literal rule

What is meant by avoiding worst problems of the Literal rule?

Literal rules have a chance of causing unfair/ unjust decisions if they are restricted to the meaning only whereas the Golden rule is not

What is meant by promoting certainty to an extent?

Only used in limited situations means it is fairly easy for lawyers to advise clients

What are 4 disadvantages of the Golden Rule?

• Can only be used in limited situations

• Not possible to predict when the courts will use this rule

• It is a “feeble parachute”

• Wide version allows too much judicial law making

What is meant by Can only be used in limited situations?

Only on rare occasions will it be used, which makes it ineffective to an extent

What is meant by Not possible to predict when the courts will use this rule?

Due to its rare chance of being used, it has a high chance of unpredictability if it will be used or not, which promotes uncertainty in the law

What is meant by It is a “feeble parachute”?

It is an escape route that cannot do very much

What is meant by Wide version allows too much judicial law making?

Judicial law making does not respect Parliamentary Sovereignty

What are 4 advantages of the Mischief Rule?

• Promotes the Purpose of the Law

• Law Commission prefers this rule

• Questions are structured

• More likely to produce fair/ just decision

What is meant by Promotes the Purpose of the Law?

Allows judges to look in the gap of the law rather than look at the meaning only

What is meant by Law Commission prefers this rule?

They recommended it should be the only form of Statutory Interpretation

What is meant by Questions are structured?

The 4 questions must be answered, if the rule is to be used which promotes certainty

What is meant by More likely to produce fair/ just decision?

This ability to look at the gap in the law rather than only use the meanings of the literal removes the chance to create unfair, unjust decisions

What are 4 disadvantages of the Mischief Rule?

• Risk of Judicial Law Making

• Split decision of the Law Lords in Royal College of Nursing

• Uncertainty in the law

• Not as wide as purposive approach

What is meant by Risk of Judicial Law Making?

Does not respect Parliamentary Sovereignty

What is meant by Split decision of the Law Lords in Royal College of Nursing?

even senior judges don’t always agree on the use of this rule

What is meant by Uncertainty in the law?

Makes legal advice difficult

What is meant by Not as wide as purposive approach?

Restricted to the 4 questions, and cannot be used as a more general consideration of the purpose of the law

What are 4 advantages of the purposive approach?

• Justice was achieved in each case

• Judges can take into account new technology

• Judges can fill in any gaps in the law

• Encourages a broader view

What is meant by Justice in each case?

Can be seen as justice being served in each case. seen in Jones V Tower Boot case

What is meant by Judges can take into account new Technology?

New developments can be included in law

What is meant by Judges can fill in gaps in law?

New situations in law can be resolved by judges

What is meant by encouraging a broader view?

Considers the purpose of texts

What are 4 disadvantages of the purposive approach?

• Undemocratic

• Time consuming

• Litigation is notoriously uncertain and expensive

• Can be subjective

What is meant by undemocratic?

Judicial law making

What is meant by time consuming?

Hansard and government statements have to be studied in great depths

What is meant by litigation can be uncertain and expensive?

Legal advice is difficult and unpredictability if judges will use this rule

What is meant by it can be subjective?

different judges may reach different conclusions about what that purpose is.

What are the advantages of Intrinsic Aids

• It is more respectful of Parliament to look elsewhere in the Act rather than outside the Act

• It is quick and easy to look at things like marginal notes, which were helpful in Tivnan, or at the long title ( used in Cornwall CC v Baker)

• Some internal aids like interpretation sections and Schedules are designed to provide definitions and explanations, so it its common sense to look at them e.g. s.10 of the Theft Act

What are the disadvantages of Intrinsic Aids

• Problems with wording are not likely to be solved by looking elsewhere in the Act, especially if the words are ambiguous as in Allen or very plain but wrong as in Whitely v Chappell (1868)

• Internal aids alone are unlikely to be sufficient and if judges were not allowed to refer to anything outside the Act it would be more difficult for them to avoid unfair or absurd decisions

What are the advantages of Extrinsic Aids

• using a dictionary is quick and easy

• using Hansard might clarify what parliament meant

• Europe allows background papers to be used so it is sensible for English courts to use them when acts are based on international rules

What are the disadvantages of Extrinsic Aids

• Using Hansard may not reveal what parliament as a whole intended

• sometimes what the minister said may not be clear

• there is the danger of treating materials that are not part of the act as having the same status as the act and so undermining the authority of parliament