SI Flashcards
What is Statutory Interpretation?
Determining how law should apply to a case
What is the golden rule?
Used to come to a verdict to avoid an absurd/repugnant situation
Case eg: Adler v George- The Official Secrets Act 1920 made it an offence to obstruct Her Majesty’s forces ‘in the vicinity’ of a prohibited place. D had obstructed forces in their base. D argued they weren’t guilty because the Act only accounts for those outside but close to it whereas D was in the prohibited place. To avoid an absurd result D was found guilty because Parliament would have intended to stop such a situation.
What is literal rule?
Judge following the law to every word
Case eg: London and Northern Eastern Railway Co v Berriman- railway worker killed by train and his widow made a claim for damages as her husband should have had a watch man. However according to the Fatal Accidents Act a watch man is only provided where workers were relaying or repairing tracks. The worker had been doing maintenance and oiling so he was not covered under the Act and widow lost the case.
What is mischief rule?
Deciding what the original intention of the law was regardless of how it was worded - what ‘mischief’ is the law trying to tackle
Case eg: Smith v Hughes- women on a balcony calling for men, the linked Act is s.1 Street Offences Act 1959 offence to loiter/solicit in a street or public place for prostitution, women were not on a street but the Act was to prevent prostitution so mischief rule applied and they were guilty.
What is the narrow approach?
Changing a small part of t he law eg. A word
What is broad approach?
Changing whole law to avoid repugnant situation
Advantages and disadvantages of literal rule
A: rule follows exact words of parliament, since parliament is the democratic law making body judges should follow law exactly
Makes law more certain as the law will be interpreted exactly as it was written.
D: words may have more than one meaning.
Assumes every act will be perfectly drafted eg. Dangerous Dogs Act-‘type of dog’
Advantages and disadvantages of golden rule
A: respects exact words of parliament except in limited situations. The narrow approach allows the judge to choose the most sensible meaning.
The wider approach can provide sensible decisions in cases where the literal rule would lead to a repugnant situation.
D: very limited in its use only on rare occasions and it’s not always possible to predict when courts will use golden or literal rule.
Michael Zander describes it as a ‘feeble parachute’- it’s an escape route but can’t do much.
What is the purposive approach?
Judges must interpret what they believe parliament meant to achieve by the Act, sometimes consulting the Hansard (record of everything said in parliament).
Advantages and disadvantages of mischief rule
A: allows judges to look back at the gap in law that the Act was designed to cover creating a just result.
The Law Commission prefers the mischief rule and recommended it should be the only statutory interpretation used.
D: risk of law making by judges- undemocratic.
May lead to uncertainty in law making legal advice difficult.
Advantages and disadvantages of purposive approach
A: judges can fill in any gaps in law left by parliament or dealing with novel situations.
D: undemocratic.
May be time consuming, Hansard and govt statements have to be studied.
What is an extrinsic aid?
One that is found outside of the statute itself. This aid may help a judge to find the meaning of words in an Act. Eg. Hansard, dictionaries, The Interpretation Act 1978 etc.
What is intrinsic aid?
To be found within an Act, these include the long and short title, the preamble, interpretation sections, schedules, marginal notes and headings.
What is the long and short title?
The long title can give clues on the meanings of words in an Act, the short title gives very little away. The long title is more useful in stating that it is ‘An Act to consolidate the enactments relating to Conveyancing and The Law of Property in England and Wales.’ Briefly explains Parliament’s intention.
What is the preamble?
Further explanation. Older statutes often have a preamble that may provide useful indication of the purpose of mischief of the Act.
