Statutory Interpretation

Why is it used?
Judges need to interpret (explain the meaning) of the laws which have been created via parlimantary law making or delegated legislation.
- The reasons we have statutory interpretation:
1) Broad terms being used, ie the word ‘type’ in the Dangerous Dogs Act 1991 as interpreted in Brock V DPP.
2) Ambiguity - some words have more than one meaning.
3) Drafting errors - Offences Against the person Act 1861 S20 refers to ‘inflict’, S18 refers to ‘cause’. The case of R V Burtstow = interpret with the same meaning
4) New developments - the process of abortions change (Royal college of nursing V DHSS)
5) Changes in language - The meaning of words will change over time (DPP V Cheeseman)

How do Judges interpret the law?
Judges chose which of the three rules (literal, golden (narrow / wide) or mischeif); they may also use the purposive approach

The Literal rule
This is the oldest rule and judges simply apply the literal dictionary definition of the words in the Act.

• Lord Esher explained by saying: ‘If the words of an Act are clear you must follow them even though they lead to a manifest absurdity. The court has nothing to do with whether the legislature ahs committed and absurdity’.
  
  Example cases of the literal rule

• Fraudulently impersonating deceased not an offence as the dead are ‘not entitled to vote’ Whitley V Chappel.

• No compensation for no spotten when ‘maintaining/oiling’ track as not ‘repairing/relaying’ London & North Eastern Railway Co V Berriman

The Golden rule

• Two approaches: one narrow, one wide.

The narrow approach:

• Explained by Lord Reid: ‘If..[the words].. are capable of more than one meaning, then you can choose between those meanings but beyond that you cannot go’ - In other words, apply the literal rule first (Jones V DPP)

Example of the narrow approach

• The words ‘in the vicinity’ were interpreted to include ‘inside of’ of military base (Alder V George)

• The word ‘marry’ was interpreted as not the legal description, but to ‘go through a marridge ceremony’ (R V Allen)

The wide approach:

• Where the meaning is clear, but leads to an absurdity or reupgnance the court can modify the words in the act. There is no judicial definition for the word absurdity or repugnanc.

• The Administration of Estates Act 1925 was clear ‘sole issues’ should inherit property, but courts added the condition that where a person kills to inherit they cannot inherit (Re: Sigworth)

The mischeif rule

• The courts look to see what the mischeif is (what was Parliment trying to stop) and then interpret the law to try and stop it. It’s important to note the Common Law is judge made law and it’s older than parlimentary law.

Heydon’s case 1584 criteria (the tests that set out the above):

• What was the common law before the passage of the act?

• What was the mischeif or defect (gap) the common law did not provide?

• What remedy Parliment hath resolved and appointed to cure the disease of the Commonwealth?

• What was the true reason of the remedy; and then the office of the judges is to make such construction as shall supress the mischeif and apply the remedy.

Examples of the mischeif rule:

• Woman soliciting (advertising as prostitutes) from private balconies / behind windows were still having the effect of soliciting in public also their actions were still covered by the Street Offences Act 1859 which outlawed soliciting in public places. This was because the court identified the unwanted soliciting as the mischeif. (Smith V Hughes)

The Purposive Rule

• Different to the mischief rule, judges look for Parliament’s intention and try to apply it - rather than looking for mischief.

• Explained by Lord Denning: ‘We sit here to find out the intentions of Parliament and ministers and carry it out, and we do this better by filling in the gaps and making sense of enactment than by opening it up to destructive analysis’

The effect of the European Communities Act 1972

• S2 of the European Communities Act 1972 stated that the EU treaties had the effect of primary legislation; therefore, when the Merchant Shipping Act 1990 conflicted with EU treaties, the court held that it could not apply as Parliament had intended for the UK to be bound by EU law when they passes the 1972 Act and would need to expressly repeal this act as EU law took precedent following Costa V ENEL. This is no longer good law following the European Union (Withdrawal Agreement) Act 2018.

The effect of the Human Rights Act 1998

• S3 of the Human Rights Act 1998 establishes a duty to interpret legislation, so far as is possible, in light with convention rights.

• The House of ~Lords decided not to follow a previous authority to comply with Article 8 of the Human Rights Act 1998; this involved interpreting the word ‘spouse’ to include homosexual couples for the purposes of the Rent Act 1977.

• S4 Human Rights Act 1998: Where an act cannot be interpreted to comply with convention rights the court must issue a declaration of incompatibility.

What do judges use to help them understand what the law means?

Judges use what they call aids to interpretation  to assist in interpreting the law as seen below:

Evaluating the different rules

The literal rule

The Golden Rule

The Mischief Rule

The Purposive approach