Paper 2: statutory interpretation Flashcards
What does the Theft Act 1968 state?
“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention to permanently depriving the other of it”
What are the five elements to theft?
- Belonging to another
- Appropriation
- Dishonest
- Property
- Intention to permanently deprive
What is the need for statutory interpretation?
Despite the aid of the interpretation sections, many cases have come to the courts due to disputes over the meaning of the words in an Act of Parliament. Judges have had to decide the exact meaning of a word or phrase
Why may the meanings of the Acts be unclear?
- Broad terms
- Ambiguity
- Drafting error
- New developments
- Changes in the use of language
What is the literal rule?
Using this rule involves judges giving words their plan, ordinary, dictionary meaning
When should the literal rule be used?
Lord Esher stated in R v City of London court (1892):
“If the words in an Act are clear, then you must follow them even though they lead to a manifest absurdity”
Whiteley v Chappel (1868)
Facts: The Representation of the People Act made it an offence to: ‘impersonate any person entitled to vote’
Held: He was found not guilty as the dead person is not entitled to vote
London and North Eastern Railways Co. v Berriman (1946)
Facts: A railway worker was doing oiling points along a railway when he died. His wife tried to sue in accordance with the Fatal Accident Act stating ‘a look-out should be provided for men working on or near the railway line for the purposes of relaying or repairing it’
Held: Oiling does not come under the Act
Advantages of the literal rule?
- Can lead to certainty/predictability to the law; solicitors can advice their clients well
- Shows judges respect Parliaments wishes rather than look for their intention (democracy)
- Judges are keeping to their constitutional role in relation to law making
Disadvantages of the literal rule?
- Assumes the acts are perfectly written. It is not always possible to ensure the act covers every single meaning of a word
- The cases illustrate that through this appproach, the judges can make no sense of the law, this leads to a manifest absurdity
- Leads to unfair and unjust results for claimants as the approach is rigid and can create a bad precedent for future cases
- It is said that the literal rule is ‘mechanical and divorced from the realities of the use of language’
What is the golden rule?
This rule is a modification of the literal rule. Judges can interpret a word or phrase differently to its literal meaning in order to avoid an absurd result
When should the golden rule be used?
Narrow application (courts may only choose between the possible meanings of a word or phrase. The courts in this situation will use the least absurd meaning) and a wider application (only one clear meaning, the meaning will lead to a repugnant situation, so the courts will use the rule to modify the word so as to not lead to an absurd result)
Adler v George (1964)
Facts: Official Secrets Act made it an offence to: ‘obstruct a member of the HM Forces in the vicinity of a restricted place’. D obstructed a member of the HM forces inside an airfield, which was restricted
Held: The judges found the defendant guilty as ‘in the vicinity of’ also included in the restricted place, to avoid an absurd result
Re Sigworth (1935)
Facts: Son murdered his mother. The Administration of estates Act 1925 stated the estate would go to the persons next of kin. In this instance, the inheritance would go to the murderer
Held: The judge stated the golden rule could be used to prevent the repugnant situation of the son inheriting. Effectively the court was writing into the Act, stating that the issue would not be entitled to the inheritance where they have killed the deceased.
Advantages of the golden rule?
- Provides an escape route and prevents problems of the literal rule. Avoids repugnant/absurd outcome, as in Re Sigworth
- Can only be used in limited circumstances and therefore respects Parliamentary supremacy by not allowing judges too much freedom
- This rule put into practice what Parliament intended and effectively avoids the worst problems of the literal rule
Disadvantages of the golden rule?
- Can cause uncertainty and unpredictability in the law, it is impossible to know when judges will use this rule
- The rule may give too much discretion- could go against the separation of powers
- An absurdity may mean different things to different people
- Zander calls this rule ‘an unpredictable safety valve and a feeble parachute’
- Can be described as an ineffective check on the literal rule
What is the mischief rule?
This rule gives a judge more discretion in their interpretation this allows a judge to look beyond the word of an Act to find the intention of Parliament. Established in the case of Heydon’s case
What are the 4 points outlined by Heydon’s case (1584)?
- What was the common law before the making of the Act
- What was the problem for which the common law did not provide
- What solution did Parliament create to solve the problem
- The courts should interpret the statute to make the solution as effective as possible
When should the mischief rule be used?
Interprets the new Act to fill the gap that the previous law did not cover.
Mischief rule example
Dangerous Dogs Act
Smith v Hughes (1960)
Facts: The Street Offences Act made it an offence to: ‘For a prostitute to loiter or solicit in the street or public place for the purpose of prostitution’. D went to a balcony and others sat in front of a window and attracting the attention of men by calling them
Held: Found guilty. Even though they were not in the street, the defendants were still attempting to solicit (seek or request in persistent manner) for the purposes of prostitution
Royal College of Nursing v DHSS (1981)
Facts: Abortion Act 1967 legalised abortion subject to the condition it be ‘carried out by a registered medical practitioner’. Nurses were not classed as ‘registered medical practitioners’
Held: Nurses were under this Act deemed to be performing abortion in legal manner and could continue to do so. The mischief was that the Act was passed so as to stop the performing of back street abortions and so if new advances in medicine meant that nurses could perform abortions when they should do so
Advantages of the mischief rule?
- Gives judges more discretion and flexibility than the other two rules and helps achieve Parliamentary intent, this saves Parliament time in not having to create another new Act
- Helps remove absurd and unjust results due to the other two rules by repairing the law (Smith v Hughes). This produces a just result
- Leads to reforming and improving the law as each case is interpreted to try and prevent a specific mischief, this allows the laws to be developed and adapts them to changing economic, social and physical conditions
- The Law Commission prefers the mischief rule and in 1969 recommended that it was the only rule to be used
Disadvantages of the mischief rule?
- Can cause uncertainty and unpredictability in the law
- Risks to judicial law making, this has an impact on Parliamentary Supremacy and goes against the separation of powers
- Rule is limited to looking back at old laws described as the redundant rule
- Old rule and outdated
