Stat Interp

Question 1

Define the literal rule

Answer 1

When judges apply the plain, ordinary and literal meaning of the words contained in a statute. They apply the words exactly as they are written, according to Lord Escher, this should be done even if it leads to a ‘manifest absurdity’.

Question 2

Give the first literal rule case + facts

Answer 2

LNER v Berriman - oiling tracks with no lookout, Fatal Accidents Act, ‘repairing or relaying’, maintenance didn’t count, literal rule meant not liable

Question 3

Give the second literal rule case + facts

Answer 3

DPP v Cheeseman - D masturbated in public toilet, charged with exposing to passengers in street, Town Police Clauses Act, toilet counted as street but passengers was defined in 1847 dictionary as ‘using a street for ordinary purposes’, police did not count so D found not guilty

Question 4

Give the advantages of the literal rule

Answer 4

Creates certainty (DPP v Cheeseman) 
Easy to use and saves time (DPP v Cheeseman)
Parliamentary Supremacy (LNER v Berriman - stuck to strict meaning not what wasn't specified) 
Separation of powers (DPP v Cheeseman - judge took dictionary definition)

Question 5

Define the golden rule

Answer 5

When using the golden rule, judges begin by using the plain dictionary meaning of the words in a statute, but if this would lead to an absurd result, judges can either choose between possible meanings of the words (narrow approach) or invent a new meaning to avoid absurdity (broad approach)

Question 6

Give the narrow approach case + facts

Answer 6

R v Allen - man tried to marry again before divorce, charged with bigamy under OAPA, ‘marry’ could mean either ‘legally marry’ or ‘go through ceremony’, they chose the latter so that it was possible to commit the crime

Question 7

Give the broad approach + facts

Answer 7

Re Sigsworth - defendant killed mother to gain inheritance, Administration of Estates Act, inheritance to next of kin when no will, court said it would be absurd for D to gain from murder, so assumed wording meant ‘unless D killed deceased’. He did not get the inheritance.

Question 8

Give the advantages of the golden rule

Answer 8

Avoids absurd decisions (R v Allen)
Achieves Parliament’s true intentions (Re Sigsworth)
Applicable to alternative meanings (R v Allen)
Allows for judicial creativity (Re Sigsworth)

Question 9

Define the mischief rule

Answer 9

The mischief rule looks at the problem that Parliament aimed to stop, and interprets the act to stop it. This allows judges to look past the literal meanings of words. In Heydon’s Case, the court established that 4 questions must be asked when using this rule, two of which are: what was the common law before the act? and what mischief was the law not addressing?

Question 10

Give case 1 of the mischief rule + facts

Answer 10

Smith v Hughes - prostitutes on balcony charged with soliciting prostitution in a public place under Street Offences Act. if literal rule was used then acquitted as not in street. the court decided the mischief parliament wanted to stop was prostitutes harassing passengers therefore they were found guilty

Question 11

Give case 2 of the mischief rule + facts

Answer 11

RCN v DHSS - nurses were helping to perform abortions but only registered medical practitioners could (Abortion Act) which was only doctors at the time. the court decided the mischief parliament wanted to stop was back street abortions and so (due to scientific advancements) decided nurses could also aid with abortions safely. Note: two judges wanted to use literal rule and said others were redrafting legislation.

Question 12

Give the advantages of the mischief rule

Answer 12

Avoids absurd decisions (Smith v Hughes)
Allows for Parliament’s true intentions to be met (Smith v Hughes)
Allows for judicial creativity (Smith v Hughes)
Promote flexibility in the law (RCN v DHSS)

Question 13

Give the disadvantages of the literal rule

Answer 13

Leads to absurd decisions (LNER v Berriman)
Multiple meanings difficult to apply (R v Allen)
Assumes impossible perfection in drafting (LNER v Berriman)
No room for judicial creativity (LNER v Berriman)

Question 14

Give the disadvantages of the golden rule

Answer 14

Creates uncertainty (Re Sigsworth)
Goes against Parliamentary supremacy (Re Sigsworth)
Narrow approach is inflexible (Re Sigsworth)
Doesn’t respect separation of powers (Re Sigsworth)

Question 15

Give the disadvantages of the mischief rule

Answer 15

Creates uncertainty (RCN v DHSS)
Goes against Parliamentary supremacy (RCN v DHSS - two judges said they were re-drafting leg.)
Limited to fixing one problem (ex parte Smith)
Goes against separation of powers (Smith v Hughes - judges made it illegal to solicit from a private place)

Question 16

Define the purposive approach

Answer 16

The purposive approach requires judges to look at what Parliament intended when making an act and put that intention into effect. Lord Denning says that judges can look beyond the wording of the act and ‘read between the lines’ to find parliament’s intention. This means judges have broad powers of interpretation and aren’t strictly bound by the wording, going beyond other rules of interpretation.

Question 17

Give the advantages of the purposive approach

Answer 17

Avoids absurd decisions (Jones v TBC)
Achieves Parliament’s true intentions (Jones v TBC)
Allows for judicial creativity (Jones v TBC) - judges can change the law to conform with the purpose
Promotes flexibility in the law (RCN v DHSS)

Question 18

Give the disadvantages of the purposive approach

Answer 18

Creates uncertainty (ex parte Smith)
Goes against Parliamentary supremacy (ex parte Smith)
Goes against separation of powers (Jones v TBC)
Makes judges too powerful - no guidelines (R v Clinton)

Question 19

Define intrinsic aids + give 3 examples

Answer 19

Intrinstic aids are found within the act itself.

Eg: Short titles, definition sections, marginal notes

Question 20

Define extrinsic aids + give 4 examples

Answer 20

Extrinsic aids are found outside of the statute itself.

Eg: Hansard, dictionaries, Law reform reports, the Interpretation Act

Question 21

What are short titles? + case

Answer 21

Contain name of act and date passed, tells judge what about + helps differentiate (e.g. theft act 68 & 78). also helps know which dictionary to use (DPP v Cheeseman)

Question 22

What are definition sections? + case

Answer 22

Section of act defines key words. Parliament can specify what they meant (multiple meanings/diff to dictionary). E.g. Oxford v Moss, definition section of property section of Theft Act used to decide info couldn’t be stolen.

Question 23

What are marginal notes? + case

Answer 23

Written in the margin of acts, gives a summary and how to use the act. Montilla showed these don’t need to be used, but should be trustworthy (written by Parliamentary Counsel Office)

Question 24

What is Hansard? + case

Answer 24

Record of Parliament debates, used to figure out their intentions (for mischief/purposive). Pepper v Hart allows Hansard to be used under 3 conditions: words of act are ambiguous, minister in charge of act made statement about these words, statement clears up ambiguity

Question 25

Use of dictionaries + case

Answer 25

Helpful when using literal rule, judges find Oxford dictionary from date of act to figure out meaning of key words. DPP v Cheeseman, dictionary used to find meaning of ‘passenger’ (give case facts)

Question 26

What is Law Reform Report? + case

Answer 26

Written by Law Commission to explain problems with old law, judges use to see the mischief. DPP v Bull, prostitutes charged under Street Offences Act. Report before said female prostitutes were the problem so judges didn’t find male prostitutes guilty

Question 27

What is the Interpretation Act?

Answer 27

Gives guidance on how to interpret other statutes. For example, any mention of the word ‘he’ should also include ‘she’, and any singular word includes plurals

Question 28

What has happened since joining the EU? (Marleasing)

Answer 28

Since joining the EU, judges in the UK must interpret UK acts to respect the wording of EU laws, as was made clear in Marleasing. This is no longer the case since we have left. The EU also favour the purposive approach and the UK started using it more due to EU influence, this will likely remain the case.

Question 29

When asked to explain the impact of EU law what should you do?

Answer 29

Talk about Marleasing, explain the purposive approach and give a purposive approach case

Question 30

What is the impact of European law on the UK?

Answer 30

Marleasing (UK must interpret UK acts to respect EU laws) + the UK must abide by the ECHR. The Human Rights Act is used to handle UK cases involving the ECHR, judges have to interpret legislation to make it compatible if possible. In Mendoza v Ghaidan, the Rent Act said tenancy went to unmarried spouses. Same sex marriage wasn’t legal at the time and Mendoza claimed this was gender discrimination, court decided it breached human rights not to give Mendoza tenancy and allow the act to apply to same sex couples as well

Question 31

What happens if it isn’t possible to interpret the act and solve the problem in EU/European Law?

Answer 31

Judges must make a ‘declaration of incompatibility’, Parliament are supreme so this doesn’t actually change the law but just alerts them.

Question 32

What are the advantages of precedent?

Answer 32

Creates certainty in the law
Precedent is fairly flexible
Responds to real situations
Allows for judicial creativity

Question 33

Explain creating certainty in the law as an advantage of precedent + cases

Answer 33

Based on ‘stare decisis’ meaning the same decision will always be made by lower courts, higher courts also rarely overrule themselves. For example, Jones v SoSSS wouldn’t overrule Re Dowling to maintain certainty

Question 34

Explain precedent being flexible as an advantage of precedent + cases

Answer 34

Several ways of avoiding precedent if bad decision made. Higher courts can overrule/reverse and any court can distinguish. For example, R v Shivpuri overruled Anderton v Ryan because a serious error was made that needed correcting fast.

Question 35

Explain responding to real situations as an advantage of precedent + case

Answer 35

Based on case law which deals with real situations rather than hypotheticals. For example in R v R, husband tried to have unconsensual sex with wife, society no longer deemed this acceptable so court made marital rape a crime.

Question 36

Explain allowing for judicial creativity as an advantage of precedent + case

Answer 36

Courts can distinguish if an existing law doesn’t apply to current facts or create a law with original precedent. E.g. parliament gave no guidance about marital rape so judges made it illegal in R v R. This leads to justice and saves Parliament time.