Evaluation of Statutory rules Flashcards
Literal Rule
Point 1 - Judges will not be accused of law-making
Judges applying the will of parliament which is democratic as unelected judges are not making laws they are only applying what has been passed by parliament. For example in the case of Fisher v Bell clearly parliament made a mistake in drafting the act as advertising a flick knife should have been a criminal offence, however the judge was only applying the law literally to the case however this flagged up the problem to parliament which then allowed the act to be altered to now make this a criminal offence
point 2 - Saves courts time and court action
The result is pretty certain so lawyers can advise their clients on the likely outcome and there is likely to be less litigation. For example in the case of Cheeseman as there is a strict interpretation of the word ‘passenger’ in the Act, police will know they can’t waste time and money waiting for the suspect to commit an offence as if they do they will not be found guilty
Point 3 - Rule produces absurd, unjust and indefensible results which cannot represent parliaments true intention
Judges have no discretion so if a bad precedent or absurd results are made in a case then judges cannot provide justice in individual cases. For example in the case of LNER v Berriman, surely parliament did mean to offer compensation under the act to people oiling and maintaining, the purpose of the act was to protect the families of railway workers who died in pursuit of their employment regardless if whether he was doing that at that moment of time
point 4 - English language is often unclear and unambiguous
The rule assumes that the act is perfectly written but English language is often unclear and unambiguous and Parliament may not be able to create an act which covers all potential future issues. So in the case of Whitley v Chappel parliament may have been clear as to what they intended as an offence of impersonating someone ‘entitled to vote’ but had not thought of a situation of someone who is impersonating a person who is dead. For such a person to not be liable for their actions and escaping the law due to the literal rule is very unfair and sets a bad example however this case highlights a loophole left by the literal meaning of the word
Golden Rule
Point 1- Include fewer absurd and unjust results unlike literal rule
This rule includes fewer absurd and unjust results being made. So in the case of Allen the literal meaning of marry would have created the absurdity that no one could be charged with the offence of Bigamy but using this approach a reasonable interpretation of the word ‘marry’ was used to convict him.
Point 2- Deals with unfairness of literal rule
The literal rule allowed some D to escape liability however the golden rule deals with this for example, society would not want the country’s security being put at risk by allowing protestors or potentially terrorists in Adler v George from being let off an offence of breaking into an air force base with nuclear weapons simply because of an interpretation of the phrase ‘in the vicinity’. The Golden rule allowed a wide interpretation of the phrase to include in the building as the aim of the act was to protect the countries military bases from unlawful entry regardless of where the D is found on the base
Point 3- Gives too much power to judges and can lead to inconsistency
It depends on each individual judge to decide what is an absurdity or a repugnant result. So in the case of Adler v George another judge may have decided that it wasn’t an absurdity to allow protestors to be found not guilty of entering an air force building as they posed no threat to national security. This can clearly lead to the golden rule being applied inconsistently even the Law commission 1969 said there is no clear definition of what will constitute an ‘absurd’ result and what will not
Point 4 - No guidelines for judges
It is unclear what is an absurd result as there is no guidelines for this issue, for example in the case of Berriman most people would agree that the golden rule should have been used as the literal rule produced an absurd result in when denying compensation due to ‘oiling and maintaining’ the track instead of ‘repairing and relaying’ However, surely the intention of parliament was to grant railway workers families compensation when the main worker in the household is killed whilst doing any work on the railway rather than focusing on technical meanings of words but clearly the judge in this case didn’t believe this was an absurd enough outcome to warrant the use of the golden rule. This means that the rule may be applied inconsistently across cases with potential injustice where the judges don’t correctly use the golden rule
Mischief Rule
Point 1 - Focuses on common sense approach
This rule avoids the inappropriate outcomes of literal rule by focusing on common sense approaches to the overall meaning of words in an act rather than their strict interpretations. So in the case of Smith v Hughes instead of looking at the strict meaning of ‘soliciting in the street’ which would’ve meant the prostitutes wouldn’t be found guilty , the mischief rule focused on the problem the act was trying to solve.
Point 2 - allows flexibility for the judge
It encourages flexibility in adapting the meaning of words in an act to meet social, economic and technical changes in society that allow the mischief to be solved in way parliament may not have though at the time the act was made. For eg. in RCN v DHSS mischief recognised that medical practice has changed since the abortion act was passed because of development of the new techniques so allowing nurses to carry out abortions as ‘Registered medical practitioners’ was regarded as solving the problem the original act was designed for in allowing safe abortions.
point 3 - it allows judicial law making/gives too much power to judges and disrespects parliamentary sovereignty
It allows judicial law making which is regarded as undemocratic as judges are unelected. So in the case of RCN v DHSS about the emotive subject of who is legally allowed to conduct abortions , the mischief rule allowed judges to include nurses as ‘registered medical practitioners’ eventhough the literal interpretation of the phrase only includes doctors. This shows how judges are given too much power as they can interpret the law how they want to when this should have been debated and votes should be made in parliament for any changes to the abortion Act as they are elected by society to represent their views
Point 4 - Can lead to inconsistency
It can cause inconsistency in cases as judges may find different solutions to the mischief in the Act and therefore makes the prediction of the outcomes of cases fir lawyers and their clients very difficult. So in the case of Smith v Hughes lawyers could have been sure of the outcome of the case if the judge had used the literal interpretation of soliciting in the street, the d wouldn’t have been guilty. However, using the mischief rule meant the judge was effectively trying to second guess what parliament intended to solve the mischief of prostitutes soliciting from a balcony, which is a situation parliament may have not contemplated at the time. So different judges may have different outcomes leading to inconsistencies and potential unfairness in similar cases
Purposive rule
Point 1 - Allows judges to cope with unforeseen circumstances
It allows judges to cope with situations unforeseen by Parliament. So in the case of Ex parte smith even though the literal interpretation of the adoption act was clear in giving adopted children the right to detail of their biological parents, the courts used the purposive approach to look at the positive aims of allowing this right. The court decided that the aim of the act was to try and encourage better social relationships as Smith was very likely to injure or kill his biological mother parliament would not allow him to have right to her details
