Non - substantive Flashcards
The Golden Rule
starting point for interpretation, applies the dictionary definition where the judge is required to consider what the legislation actually says rather than to consider what it means
Case: LNER V Berriman
‘repairing or relaying lines’, Berriman killed whilst ‘maintaining’ lines
Advantages of the Literal Rule
- leaves law making to parliament
Parliamentary sovereignty is respected which is that Parliament is the supreme law maker
Sometimes highlight to Parliament the problems with the Act and then Parliament can ammend legislation (Berriman) - predictable/certainty
Solicitors can advise their clients at the most likely outcome of their case (Berriman)
Disadvantages of the Literal Rule
-unfair/unjust decisions, if the literal rule is used to create bad precedent then this has to be followed by all judges in lower courts in future cases
- Ignoring parliament’s intention, Parliament would not intend the act to produce absurd results (Berriman)
-words have more than one meaning so the act is unclear, in this case another rule or aid to interpretation is required
The Golden Rule
extension of the literal rule, generally applied where the application of the literal rule is likely to be an obviously absurd result
2 applications of the Golden Rule
Narrow application
where the words can have more than one meaning the judge can choose between the meanings
Case: Allen - “Whosover being married shall marry any other person during the life of the former husband and wife shall be guilty of bigamy”
Wider application
where the words only have one meaning but that meaning would lead to an unsatisfactory result
Case: Sigsworth - using the literal rule in this instance would have meant that the son would inherit his mother’s will, the golden rule would be used to stop the son from inheriting as he murdered his mother
Advantages of the Golden Rule
- Respects the exact working of Parliament, escape route (Sigsworth)
- Judges can choose the most sensible meaning of words when there is more than one meaning to an act, provides sensible decisions when the literal rule would lead to a repugnant situation (Allen)
- Judges are still seen to be applying law upholding the doctrine of the Separation of Powers
Disadvantages of the Golden Rule
- only used on rare occasions as an escape route from the literal rule but can only be used when the wording is absurd or repugnant
Michael Zander ‘a feeble parachute’ - not always predictable making it difficult for lawyers to advise their clients on whether to pursue a case (Berriman)
The Mischief Rule
Judges fill in the ‘gaps’ in the law, an attempt to discover the intention of Parliament, the ‘mischief’ Parliament intended to cover
First used in Heydon’s to consider:
- what was the law before the act was passed
- judges looks at this common law in order to establish what gap or ‘mischief’ the act was intended to cover
- the court should then interpret the Act in such a way that the gap is covered
Case: Smith V Hughes ‘soliciting in a street or public place’
Advantages of the Mischief Rule
- avoids absurdity and injustice of the literal rule
Smith V Hughes (soliciting on balcony) - flexibility
promotes to find the purpose of the act, gives legal experts more freedom of choice in their decision, allows the law to be applied as Parliament intended rather than what is stated in the act (Smith V Hughes)
Disadvantages of the Mischief Rule
-risk of judicial law making
allows judicial law making which is undemocratic, judges shouldn’t make law that is the role of Parliament, judges fill in the gaps with their own views
- makes the law uncertain
impossible to know when a judge may use the rule and what result it may lead to
different judges may come to different conclusions as to the remedy and outcome of the case - inconsistent interpretation - retrospective law making
judges are ‘creating’ law after legislation has been passed and applying it to cases that may not previously had been considered
Purposive approach
not just looking to see what the gap was in the old law; the judges are deciding what they believe Parliament meant to achieve - the purpose of the act
Case: Jones V Tower Boot Co “to physically or verbally abuse within the course of employment” - racially abused during unpaid work hour, Parliament’s intention
Advantages of the Purposive Approach
flexibility
promotes to find the purpose of the act and gives the legal experts more freedom of choice in their decision, enables the law to be applied as Parliament intented rather than as stated in the act (Jones)
- allows judges to find the purpose of the legislation
Lord Denning, Parliament has left something out and to use common sense and to use wording to reflect what P was trying to deal with (Jones) - changes in society
allows the act to be interpreted to take into account the social, economic and technological changes into account (Jones)
Disadvantages of the Purposive Approach
(ALL JONES)
- risk of judicial law making
undemocratic as judges shouldn’t make law - role of Parliament
- makes the law uncertain
- retrospective law making
Aids to Interpretation
- intrinsic assistance
come from within the statue - judges use the full statue to understand the meaning of a particular part of it
e.g. long and short title
short: just name the act ‘The Abortion Act’
long: give some explanation as to what the act is trying to achieve
e.g. preamble - newer statutes may contain an objective or purpose section at the beginning of the act
Judicial precedent
rules judges must follow when deciding cases
a judge must follow any decision that has been made by a higher court with similar facts
rules are known as ‘rules of judicial precedent’ or ‘stare decisis’
