ELS Unit 1 Flashcards
what are the four main sources of English Law?
case law, UK legislation, retained EU law and ECHR
what case shows ambiguity
Corkery Versus Carpenter (1951)
why is statutory interpretation necessary?
resolves ambiguities in order to find its true meanings
speak about the rules of construction
these are about statute, this expression os used to distinguish the rules of statutory interpretation from any other rules or aids
what is the meaning of the literal rule?
- words must be given their plain, ordinary and literal meaning
- if the words are clear they must be applied, even if the intent of the legislator is different
what are some problems of the literal rule?
o Due to parliamentary sovereignty, judges should try not to thwart the will of parliament
o This could occur with use of the literal rule alone – eg Berriman case
o Its use can defeat the intention of parliament and lead to absurd results (Whiteley v Chappell 1868)
o Lead to injustice (North Eastern Railway Co v Berriman (1946))
o Does not take into account the consequences of literal interpretation
what is the meaning of the golden rule?
- Designed to mitigate problems arising with Literal Rule
- An adaptation of literal rule
- If there are 2 meanings of a word, they should be given their ordinary meaning as far as possible, but not if an absurd result is produced
- Court applies if the literal rule leads to manifest absurdity – then the court departs from literal meaning if there is any ambiguity
what are some other uses of the golden rule?
- Mostly applied where some ambiguity or absurdity in the words
- Can also be applied to avoid a result obnoxious to principles of public policy, even if words only have one meaning
what are the four stages the court conducts in order to consider what defect in the existing law the statute was intended to consider (mischief rule)
o 1. Was the law before the statute passed
o 2. What was the mischief and defect which was not remedied by the existing law
o 3. What remedy did parliament propose to put right
o 4. What is the true reason for the remedy
what does the mischief rule require
the interpreter of the statute to ascertain the legislators intention
what does the mischief rule allow
interpretation of a statute in line with the intent if parliament
what does the purposive approach entail
- Judges look at the reasons why the statute was passed and its purpose even if it means distorting the ordinary meaning of the words
what is the purposive approach similar to
the mischief rule
what comes under the rules of construction?
literal, golden and mischief rules and the purposive approach
what is meant by the rules of language
technical tools to use language to resolve ambiguity
Noscitur a scociis
recognition by associated words, derives its meaning from surrounding words–> cats, dogs, hamsters, gerbils in flat example
Eisudem generis
of the same kind of nature/type
what is the process to determine whether or not this rule applies?
(1) are the general words following a list of specific words
2) if so, what type are the specific words?
(3) interpretation – any new item will be included in statute only if it is of the same type as the specific words
Expressio unius ext exclusio alterius
expressing one thing excludes another > mention of one or more specific things may be taken to exclude others of the same type e.g., if says coal mine, it excludes other mines
what is the most commonly used rule of language?
eisudem generis
what does aids to interpretation imply
resources outside statute e.g., dictionaries
what are intrinsic aids
the use if the statute itself, anything in the same act
what are extrinsic aids
aids outside the statute itself
what do interpretation acts do
give definitions of words commonly found in legislation (interpretation act 1978- the masculine includes the feminine)
when are dictionaries used
when a word has no specific legal meaning - of value when a judge is using the literal approach
what is hansard
record of proceedings of parliament, which helps determine intention
when is Hansard best used?
when applying the mischief rule
when can you refer to parliamentary material recorded in Hansard? (Pepper V Hart 1993)
- when the statute is ambiguous
- the material consists of clear statements by a minister or other promoter of the Bill
list all the aids to interpretation (extrinsic)
interpretation acts, hansard, previous statutes, dictionaries, previous judicial interpretation
list all aids to interpretation (intrinsic)
anything in the same act > definitions, headings, marginal notes etc
is it always possible to rebut any presumption?
yes- to bring strong evidence to prove that parliament had a contrary intention
what are rebuttable presumptions
loose rules giving lawyers a common starting point
what are the presumptions for statutory interpretation
- Against alteration of common law
- against the retrospective operation statutes
- No criminal liability without guilt intent (mens rea)
- Others:
what does ‘against alteration of common law’ entail
the interpretation which does not alter the existing law will be preferred
what does ‘against the operation if statutes’ imply
when an act of parliament becomes law, a presumption arises that it will apply only to future actions
what does ‘against criminal liability without guilty intention (mens rea)’ imply
there is a presumption in favour of mens rea or guilty mind in criminal matters
what does against deprivation of the liberty of the individual imply?
any ambiguity in a penal or criminal statute will be interpreted in favour of the citizen
what does against binding the crown imply
legislation is presumed not to apply to the crown
any other presumptions?
against outing the jurisdiction of the courts and against deprivation of property or interference with private rights
what do presumptions do?
provide a set of assumptions about the intent of parliament to back up reasoning
In the case of Corkery v. Carpenter [1951] 1 KB 102 the court held that under s.12 of the Licensing Act 1872, a person found drunk in charge of a ‘carriage’ on the highway may be arrested without a warrant.
In that case the court took the view that the word ‘carriage’ could include a bicycle for the purpose of construing the Act.
What mischief or mischiefs do you think the Act intended to remedy?
Injury of pedestrians from drunken road users
The preservation of public order
The case of Smith v. Hughes [1960] 2 All ER 859, considered the meaning of s.1(1) of the Street Offences Act 1959. It is an offence under that Act for a prostitute to solicit in a ‘street or public place’. The women were not actually in the street, but were inside their homes, tapping on their windows and calling to attract the attention of men.
Which of the following reflect the correct consequences of applying the rules? There is more than one correct answer.
Literal Rule: acquittal
Mischief Rule: conviction
Golden Rule: doesn’t apply
definiton of intrinsic aid
Intrinsic Aid is the use of the statute itself, for instance by use of noscitur a sociis
defintion of extrinsic aid
Extrinsic Aid is the use of material from outside the statute
Let us assume for the purposes of the next three questions, that the legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.
Which of all the ‘rules’ and aids listed are likely to be the most helpful in each case?
Do not try to reach a conclusion as to whether each person has committed the offence.
First, Jack is arrested for standing in a street with an unlit cigarette in his mouth.
micschief, purposive, literal
The recent legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.
Secondly, Mandy is arrested whilst smoking a cigarette in the street.
Interpretation Acts
what does section 6 of the interpretation Act (1978) state?
masculine includes the feminine and vice versa (above example Mandy is guilty)
The recent legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.
Finally, Andrew is found smoking in his university halls of residence - is this a public place?
another statute, purposive, mischief
The case of R v. Allen (1872) LR 1 CCR 367 required an interpretation of s.57 of the Offences Against the Person Act 1861. This section provided that:
“Whosoever being married, shall marry any other person during the lifetime of his spouse . . . shall commit the offence of bigamy.”
The court concluded that the word ‘marry’ can mean:
(1) to become legally married to a person; or
(2) to go through a marriage ceremony.
If the word ‘marry’ had been given the first interpretation, it would be impossible for anyone ever to commit this offence as one cannot legally marry if one is already married! The court therefore interpreted the word as meaning ‘going through the ceremony’ of marriage.
Which rule of construction was the court using?
golden rule
In the case of Whiteley v. Chappell (1868) LR 4 QB 147 the defendant pretended to be someone who was on the voters’ list, but who had died. He was charged with impersonating ‘a person entitled to vote’, but was found not guilty.
The reluctant conclusion drawn by the court was that Whiteley could not be convicted of the statutory offence because the person he impersonated was dead, and on a literal construction of the relevant statutory provision, the deceased was not ‘a person entitled to vote’.
Is the following statement correct?
“If the mischief rule had been used. The defendant would have been found not guilty.”
false
Can records of speeches by MPs be used to help resolve any ambiguities in statutes?
Speeches by MPs can be used to help resolve statutory ambiguities, but only if the particular MP was the sponsor of the Bill, or the relevant minister.
If the court was using a speech by an MP to help resolve a statutory ambiguity, which rule of interpretation would it most likely be applying?
mischief
A clause in a lease agreement states:
‘The following animals must not be brought into this block of flats: dogs, cats, hamsters and gerbils’.
Using the noscitur a sociis rule, would the list include a leopard?
No
The Factories Act 1961 required that all ‘floors, steps, stairs, passageways and gangways’ had to be kept free from obstruction.
The question which the court had to decide in Pengelly v. Bell Punch Co. Ltd [1964] 1 WLR 1055 was whether a floor used for storage came under the provisions of the Act. What do you think was the answer to this question?
false
The case of Wood v. Commissioner of Police of the Metropolis [1986] 1 WLR 796 highlighted the difficulty in interpreting exactly what is meant by an offensive weapon.
This was defined by s.4 of the Vagrancy Act 1824 as being ‘any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon’.
Mr Wood was charged under this Act after using a piece of broken glass, which had fallen out of his front door, as a weapon.
which is correct?
Correct: Broken glass is not of the same type as it was neither made nor adapted for causing injury to a person - Eiusdem Generis. It is not enough that an item has the potential for such use.
In R v. Inhabitants of Sedgley (1831) 2 B & Ald 65, the court considered whether the poor rate levied on occupiers of ‘lands, houses and coal mines’ under the Poor Relief Act 1601 could be levied on owners of other types of mine.
Bearing in mind how this list is different to the list of offensive weapons under s.4 of the Vagrancy Act 1824, what do you think the outcome of the case was?
the poor rate did not apply
Consider the example taken from a decided case.
A statute requires an employer to protect employees from ‘danger from shock, burn or other injury’
Does this include tripping?
Eiusdem generis
