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
What is the purposive approach?
Judges not only look at what the mischief/gap was before the Act was created, but they decide what they believe Parliament meant to achieve. This is forward looking, looking at the purpose and the intention of the Act
What did Lord Denning say under the purposive approach?
‘We sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of them’
R v Registrar General ex parte Smith (1990)
Facts: 18 year old wanted his birth certificate details, but in doing so he could put his mother in danger
Held: Even though the Acts were clear, the purposive approach was applied and the birth certificate details were not given. ‘Parliament could not have intended to promote such serious crime’
Advantages of the purposive approach?
- More likely to respect Parliament’s wishes as it seeks to fulfill find Parliaments new intentions
- Avoids absurd cases, as in Whiteley v Chapel
- Literal rule is not said to be appropriate anymore, Lord Denning championed this
- Allows for new developments in technology
Disadvantages of the purposive approach?
- Uncertainty and unpredictability
- Judicial law-making, goes against the separation of powers and Parliamentary supremacy
- May lead to judges refusing to follow the words in the Act
What are the 3 rules of langauge?
- The Ejusdem Generis Rule
- The Expressio Unius Exclusio Alterius Rule
- The Noscitur A Sociis Rule
What does Ejusdem Generis Rule mean? (Allen v Emmerson)
Words of the same kind
Allen v Emmerson (1944)
Facts: Court had to interpret the phrase ‘theatres and other places of amusement, whether this applied to a fun fair
Held: Funfair did come within the term ‘other places of amusement’
What does the Expressio Unius Alterius Rule mean? (Tempest v Kilner)
The mention of one thing excludes another
Tempest v Kilner (1846)
Facts: the statute of Fraud 1677 required a contract for the sale of ‘goods, wares and merchandise’ or more than £10 is to be evidenced in writing.
Held: stocks and shares did not apply to what was on the list, it was not followed by general words
What does Noscitur A Sociis Rule mean? (Inland Revenue Commissioner v Frere)
Words are known by the company it keeps
Inland Revenue Commissioner v Frere (1965)
Facts: the tax Act set out rules for ‘interest, annuities or other annual interest’, the issue arose of whether this meant daily, monthly or annually.
Held: the words only mean annual interest, the surrounding words have the word ‘annual’ in it so interest had to mean annual and nothing else
What is the definition of an intrinsic aid?
These are matters within the statute itself that may help make the meaning clear, and help the court discover the intention that Parliament had creating the Act
Examples of intrinsic aids and what they are
The short title- states what the Act is called
Long title- Explains further what it is on about
Headings- provides clarification and summarises sections
Schedules- Additioanl information added
Interpretation Sections- specify exact meanings
Marginal notes- clarification and summary
Preamble- short introduction to the Act that may prodcue an indication of its purpose
Extrinsic aid definition
There are matters which are outside the Act, the Court may look to try and discover the intention of Parliament
Examples of extrinsic aids and what they are
Previous Acts of Parliament- understand the law and what it is trying to prevent
Earlier case law- key definitions discussed
Explanatory Notes- explains verdicts
Law Commission Reports
Hansard - book of past cases and verdicts
Dictionary
What is Hansard?
It is the official report of the debates of what was said in Parliament when the Act was debated
Pepper v Hart (1993)
Hansard could be used when: the words in the Act are ambiguous or obscure or lead to absurdity
It was further stated that: even though Hansard could only be used if there was a clear statement by the Minister who introduced the Legislation/Act which would resolve the ambiguity or absurdity
What are law reform reports?
Reports made by agencies such as The Law Commission or Royal Commissions who suggest ways in which the law should change to accomodate changing views in society or time
The Black Clawson Case (1975)
It was accepted in this case that a report which the legislation was based on and designed to deal with, should be looking at in order to discover the mischief or gap in the law
What are explanatory notes?
Explain the background to any proposed law, summarise its main provisions and where a point is complicated, give worked examples
Why is it a problem that explanatory notes are not a part of the law?
It causes conflict on whether they should even be used
Cases under the literal rule
Whiteley v Chappel
London and North Eastern Railway Co. v Berriman
Cases under the golden rule
Adler v George
Re Sigworth
Cases under the mischief rule
Smith v Hughes
Royal College of Nursing v DHSS
Cases under the purposive approach
R v Registrar General ex parte Smith
