stat interp Flashcards
literal rule
judges give words in statutes their plain ordinary grammatical meaning whatever the consequences
who summed up the literal rule in what case
LORD ESHER IN R V JUDGE OF CITY OF LONDON
what did lord esher state in r v judge of city of london
‘if the words of an act are clear, you must follow them even though they lead to a manifest absurdity’
which cases illustrate the literal rule
- whitely v chappell
- lner railway co v berriman
- fisher v bell
whitely v chappell
the court held that d was not guilty since a dead person is not ‘entitled to vote’
lner railway co v berriman
his widow was not entitled to compensation because the court held that maintaining was not covered by ‘repairing/relaying’
fisher v bell
the court used the literal rule and applied the technical legal meaning of offer for sale from contract law, meant that d not guilty of making an offer for sale
advantage/disadvantage of literal rule? separation of powers
advantage
how is separation of powers an advantage of literal rule
resects SOP and ensures judges carry out will of parliament as stated in wording of legislation. judges not seen to make law
how does the literal rule encourage certainty in the law
plain, ordinary, grammatical meaning used
judges not allowed to alter meaning of words in acts (can in mischief/purposive)
predictable result makes it easier to know what law is and how judges will apply it
how do some judges argue theyre doing parliament a favour by using the literal rule
drawing faulty legislation and loopholes to their attention
where was faulty legislation drawn to parilament’s attention after the literal rule had been applied
fisher v bell- parliament amended case shortly afterwards
when can the literal rule hardly be said to carry out the intention of parliament
where it leads to an absurd conclusion- parliament unlikely to have intended absurdity/injustice
when can the literal rule be said to not have been carrying out the intention of parliament
LNER V BERRIMAN- cannot have been parliaments intention to leave workers maintaining railways unprotected
which case illustrates the disadvantage of the literal rule that words often don’t have one plain meaning
fisher v bell- most people would think a display in a shop window is an offer for sale- judge hearing case probably a minority
why does it save time to use mischief/purposive in some cases
to give meaning that parliament must’ve intended, fisher v bell clearly meant to cover advertisements
what is the golden rule a modification of
the literal rule
who explains the golden rule in which case
lord wenslydale in grey v pearson
who does lw describe golden rule in GVP
the grammatical ordinary sense of the word is to be followed unless it would lead to some absurdity/some repugnance- in which case the grammatical meaning of the words can be modified so as to avoid the absurdity, but no further
what are the two versions of the golden rule
narrow and wide
narrow version
where words are capable of having more than one meaning, the meaning that is least absurd should be used
which cases illustrate narrow version of golden rule
allen
adler v george
allen
d charged with bigamy- whosoever being married shall marry again
law stated that any second marriage void- literal rule used? no one could be convicted
court decided it would be absurd- marry could mean ‘go through ceremony of marriage’- d convicted
adler v george
held that to apply normal meaning of ‘in the vicinity of’ would be absurd and held that it could mean near to and within- chose second meaning to secure convictin
wide version
can be used to avoid a repugnant. doesn’t require that words have more than one meaning, just that court finds literal meaning unacceptable
case to illustrate wide version
re sigsworth
re sigsworth
there was no ambiguity in words of the act but it would be repugnant to let a murderer benefit from his crime, despite clear wording of act it was held that he couldn’t inherit mothers estate
when does the golden rule provide an escape route
when there is a problem with the legislation and using the literal rule would lead to an absurdity
when would the escape route by golden rule have been useful
fisher v bell
two meanings: one of which is display for sale
would’ve avoided need for time and expense
berriman
repairing/relaying could mean working on
how does the narrow version ensure not to breach the doctrine of the separation of powers
judges must use a meaning that the words could reasonably have
how does the wide version allow to avoid unacceptable outcomes regardless of the wording
allows judges to work out what parliaments intention would’ve been and interpret the law to avoid unacceptable outcomes
sigsworth- unacceptable for son to benefit from his crime
when can the golden rule lead to uncertainty in the law
when it is decided that a literal interpretation produces an absurd result, requiring modification by the golden rule as different judges have different views
which case illustrates that golden rule can lead to uncertainty
adler v George- literal meaning of in vicinity not absurd because there was already a law governing trespassing in military bases
difficult for laywer to advise client on what result of a case may be
why is the narrow version limited
judges can only choose between possible meanings of words
what case illustrates that narrow version is limited
sigsworth- if narrow version had been used he would’ve inherited mothers estate despite killing her because meaning of words were clear
how can the wide version be said to be undemocratic
unelected judges beginning to make law as theyre not confining themselves to actual words in stature and instead are trying to work out what parliament intended
which case was the mischief rule laid down in
heydons case
which factors does the mischief rule state should be taken into consideration when interpreting a statute
- common law before statute
- problem/mischief was statute trying to remedy
- how parliament tried to remedy mischief
in what way do judges interpret the statute using the mischief rule
in such a way as to put a stop to the mischief
what do the courts look at when using the mischief rule
wording of act
also willing to look outside act to its social and historical context and extrinsic aids for meaning eg hansard and law reform reports
examples of cases illustrating mischief rule
- smith v hughs
- royal college of nursing v dhss
smith v hughs`
court decided theyd been rightly convicted because mischief aimed at by statute was to enable people to walk along the streets without being harassed by prostitutes. thus, the statute was interpreted to stop this mischief. didn’t matter than women were not literally on the street- could be seen from street
royal college nursing v dhss
on appeal, majority of judges interpreted relevant statute to stop mischief of illegal abortions where no medical care was available and allowed nurses to carry out abortions in hospital
in which cases could the mischief rule/purposive approach have been used to avoid absurd outcomes to cases
whitely v chappell: mischief electoral fraud
berriman: mischief risk to life of railway workers
could’ve been used to recognise this and apply the law as parliament intended to produce a just result in a case
what does the mischief rule/purposive approach attempt to follow
the will of parliament rather than the exact words written by it
berriman: parliament probably meant to cover all people working on railways- court could’ve interpreted statute this way
how does the mischief rule promote flexibility in the interpretation of legislation
enables judges to interpret acts in the light of changing social, economic and technological circumstances
which acts was interpreted in light of changing technological circumstances
RCN V DHSS- took into account changes in medical capabilities since legislation was passed
what does the use of the mischief rule rely on
being able to find out what defect in the common law parliament was trying to remedy
what does finding the defect in the common law involve
extrinsic aids- can be difficult, time consuming and expensive
why does the mischief rule/purposive approach increase the law making power of unelected judges at the expense of parliament
parliament can never be asked what it meant
happened in dhss where judges hearing appeal disagreed on use of mischief rule
what do the highly skilled draftsmen who write legislation try to ensure
that the meaning is absolutely clear so judges should accept clear words in statute
any injustices/absurdities are fault of parliament and should be dealt with by them
what does the purposive approach require the court to work out
the general purpose of parliament passing the act and then interpret the act to fulfil that purpose. no articular mischief has to be found however
which judge explains the purposive approach in which case
lord denning in magor and st mellons v Newport
what did lord denning say in magor and st mellons v Newport
‘we do not sit here to pull the language of parliament to pieces and make nonsense of it, we sit here to find out the intention of parliament and carry it out, and we do this by filling in the gaps and making sense of the enactment
which cases illustrate the purposive approach
coltman v bibby tankers
r v registrar general ex parte smith
coltman v bibby tankers
the court held that the ‘equipment’ could include a ship because the general purpose of the act was to make the employer liable for harm caused by defects in anything provided by the employer
r v registrar general, ex parte smith
despite the fact that smith was entitled to this info under unambiguous wording of statute, the court held that it could never have been the purpose of parliament to pass a law that could help a possible crime and upheld decision to refuse the info
what is the purposive approach particularly suited to
the interpretation of European law and the human rights act
how is the purposive approach suited to the interpretation of european law and the human rights act
- written in broad terms
- general principles set out and judges having to interpret according to the spirit rather than the letter of the law
what does the purposive approach enable unelected judges to do
take over the function of parliament in making new law as the judges did in the smith case
what does the purposive approach go against
the sovereignty of parliament and the separation of powers
why do critics of the purposive approach argue that it is impossible to discover the general purpose of parliament in passing legislation
- only words of statute can show what parliament wanted
- not for judge to argue that parliament said one thing but meant another
case to support not knowing what parliament intends
if hansard had been referred to in coltman, the court would’ve found parliament did not intend that ships should be included under ‘equipment’
what is the purposive approach less suited to
the more precise and detailed structure of English legislation
what are rules of language
rules to aid interpreting certain formats of words- if the particular format is not used then the rule has no relevance.
latin for general rule
ejusdem generis
general rule
where a list of words in a statute is followed by general words, then the general words are limited to the same kind of items as those in the list
case for general rule
POWELL V KEMPTON PARK RACE COURSE
POWELL V KEMPTON PARK RACE COURSE
court decided that the general words ‘other place’ had to refer to indoor places since all the words in the list were indoor places and so d was not guilty
latin for the context rule
noscitur a sociis
context rule
a word is known by the company It keeps, a word taken on the meaning from other words around it
case for context rule
BROMLEY LONDON BOROUGH COUNCIL V GREATER LONDON COUNCIL
BROMLEY LONDON BOROUGH COUNCIL V GREATER LONDON COUNCIL
they decided that ‘economic’ meant being run on business lines and so rules the cheap fares policy unlawful
latin for specific rule
expression unius exclusion alterius
specific rule
the mention of one thing excludes others. where there is a list of words which is not followed by general words, then the statute applies only to the items in the list
case for specific rule
TEMPEST V KELNER
TEMPEST V KELNER
it was held that the phrase ‘goods, wares and merchandise’ in a statute didn’t cover stocks/shares
internal aids
clues within the statute itself that may help to make its meaning clearer
short and long title of statute (intrinsic)
- court can consider either
- long good for mischief/purposive- may give clues as to purpose of statute
example of short and long title
LAW OF PROPERTY ACT
- short: gives little away
long: explains that statute is bringing together all previous statutes related to conveyancing
preamble (intrinsic)
- intro to statute
- older statutes often have them
- may provide useful indication of purpose of act/mischief in common law that act was designed to remedy
- modern statutes don’t tend to have them/ are only brief
definition sections (intrinsic)
set out lists of what meanings are intended for certain words used elsewhere in statute
-modern drafting technique
schedules (intrinsic)
- towards end of statute
- give extra detail required by earlier parts of statute
external aids
materials which are outside a statute which judges may use, together with various approaches to interpretation to help them interpret that statute
which specific authorised dictionary can be used (extrinsic)
of the year the statute was passed
which specific law reports can be used (extrinsic)
- eg law commission report
- on which statute is based
when can the interpretation act 1978 be used (extrinsic)
if the word is covered by the 1978 act
when can hansard be used (extrinsic)
where the word/phrase being interpreted was discussed in a parliamentary debate
which case allowed hansard to be consulted
pepper v hart- in limited circumstances
when can an international treaty entered into by the uk be used (extrinsic)
-if the word is defined there
