ELS Unit 1

Question 1

what are the four main sources of English Law?

Answer 1

case law, UK legislation, retained EU law and ECHR

Question 2

what case shows ambiguity

Answer 2

Corkery Versus Carpenter (1951)

Question 3

why is statutory interpretation necessary?

Answer 3

resolves ambiguities in order to find its true meanings

Question 4

speak about the rules of construction

Answer 4

these are about statute, this expression os used to distinguish the rules of statutory interpretation from any other rules or aids

Question 5

what is the meaning of the literal rule?

Answer 5

• 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

Question 6

what are some problems of the literal rule?

Answer 6

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

Question 7

what is the meaning of the golden rule?

Answer 7

• 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

Question 8

what are some other uses of the golden rule?

Answer 8

• 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

Question 9

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)

Answer 9

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

Question 10

what does the mischief rule require

Answer 10

the interpreter of the statute to ascertain the legislators intention

Question 11

what does the mischief rule allow

Answer 11

interpretation of a statute in line with the intent if parliament

Question 12

what does the purposive approach entail

Answer 12

• Judges look at the reasons why the statute was passed and its purpose even if it means distorting the ordinary meaning of the words

Question 13

what is the purposive approach similar to

Answer 13

the mischief rule

Question 14

what comes under the rules of construction?

Answer 14

literal, golden and mischief rules and the purposive approach

Question 15

what is meant by the rules of language

Answer 15

technical tools to use language to resolve ambiguity

Question 16

Noscitur a scociis

Answer 16

recognition by associated words, derives its meaning from surrounding words–> cats, dogs, hamsters, gerbils in flat example

Question 17

Eisudem generis

Answer 17

of the same kind of nature/type

Question 18

what is the process to determine whether or not this rule applies?

Answer 18

(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

Question 19

Expressio unius ext exclusio alterius

Answer 19

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

Question 20

what is the most commonly used rule of language?

Answer 20

eisudem generis

Question 21

what does aids to interpretation imply

Answer 21

resources outside statute e.g., dictionaries

Question 22

what are intrinsic aids

Answer 22

the use if the statute itself, anything in the same act

Question 23

what are extrinsic aids

Answer 23

aids outside the statute itself

Question 24

what do interpretation acts do

Answer 24

give definitions of words commonly found in legislation (interpretation act 1978- the masculine includes the feminine)

Question 25

when are dictionaries used

Answer 25

when a word has no specific legal meaning - of value when a judge is using the literal approach

Question 26

what is hansard

Answer 26

record of proceedings of parliament, which helps determine intention

Question 27

when is Hansard best used?

Answer 27

when applying the mischief rule

Question 28

when can you refer to parliamentary material recorded in Hansard? (Pepper V Hart 1993)

Answer 28

1. when the statute is ambiguous
2. the material consists of clear statements by a minister or other promoter of the Bill

Question 29

list all the aids to interpretation (extrinsic)

Answer 29

interpretation acts, hansard, previous statutes, dictionaries, previous judicial interpretation

Question 30

list all aids to interpretation (intrinsic)

Answer 30

anything in the same act > definitions, headings, marginal notes etc

Question 31

is it always possible to rebut any presumption?

Answer 31

yes- to bring strong evidence to prove that parliament had a contrary intention

Question 32

what are rebuttable presumptions

Answer 32

loose rules giving lawyers a common starting point

Question 33

what are the presumptions for statutory interpretation

Answer 33

1. Against alteration of common law
2. against the retrospective operation statutes
3. No criminal liability without guilt intent (mens rea)
4. Others:

Question 34

what does ‘against alteration of common law’ entail

Answer 34

the interpretation which does not alter the existing law will be preferred

Question 35

what does ‘against the operation if statutes’ imply

Answer 35

when an act of parliament becomes law, a presumption arises that it will apply only to future actions

Question 36

what does ‘against criminal liability without guilty intention (mens rea)’ imply

Answer 36

there is a presumption in favour of mens rea or guilty mind in criminal matters

Question 37

what does against deprivation of the liberty of the individual imply?

Answer 37

any ambiguity in a penal or criminal statute will be interpreted in favour of the citizen

Question 38

what does against binding the crown imply

Answer 38

legislation is presumed not to apply to the crown

Question 39

any other presumptions?

Answer 39

against outing the jurisdiction of the courts and against deprivation of property or interference with private rights

Question 40

what do presumptions do?

Answer 40

provide a set of assumptions about the intent of parliament to back up reasoning

Question 41

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?

Answer 41

Injury of pedestrians from drunken road users
The preservation of public order

Question 42

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.

Answer 42

Literal Rule: acquittal
Mischief Rule: conviction
Golden Rule: doesn’t apply

Question 43

definiton of intrinsic aid

Answer 43

Intrinsic Aid is the use of the statute itself, for instance by use of noscitur a sociis

Question 44

defintion of extrinsic aid

Answer 44

Extrinsic Aid is the use of material from outside the statute

Question 45

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.

Answer 45

micschief, purposive, literal

Question 46

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.

Answer 46

Interpretation Acts

Question 47

what does section 6 of the interpretation Act (1978) state?

Answer 47

masculine includes the feminine and vice versa (above example Mandy is guilty)

Question 48

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?

Answer 48

another statute, purposive, mischief

Question 49

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?

Answer 49

golden rule

Question 50

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.”

Answer 50

false

Question 51

Can records of speeches by MPs be used to help resolve any ambiguities in statutes?

Answer 51

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.

Question 52

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?

Answer 52

mischief

Question 53

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?

Answer 53

No

Question 54

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?

Answer 54

false

Question 55

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?

Answer 55

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.

Question 56

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?

Answer 56

the poor rate did not apply

Question 57

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?

Answer 57

Eiusdem generis