staturoty interpretation- law making Flashcards
what is s interpretation?
. the process when a court looks at a statute+ determines what it means through interpretation
why is s interpretation important?
. statutes are not always clear
. can be disputed over the meanings of words
. courts are required to interpret the wording of Acts of Parliament
. helps judiciary+ public to understand law
Cheeseman v DPP
. police officers witnessed man masturbating in public lavatory
. Town Police Clauses Act 1847 section 28- ‘passengers’
. Lord Justice Bingham said The Oxford English Dictionary showed in 1847, ‘passenger’ meant ‘passer-by’ or ‘foot-passenger’
. officers stationed in public lavatory> weren’t passengers> defendant found not guilty
problems with different rules?
. less continuity+ certainty> inconsistent
: achieves justice- different details> different interpretations
literal rule
. a judge will give words their plain, ordinary or literal (dictionary) meaning, even if result is not very sensible
. most respectable in separation+ parliamentary sovereignty
. developed in early 19th century> main ruler applied since- older rule of interpretation
literal: Whiteley v Chappell 1868
. defendant used vote of dead man
. charged with impersonating ‘/ person entitled to vote’> found not guiltily
. dead= not entitled to vote
literal: London & North Eastern Railway Co. v Berriman 1946
. d was railway worker killed whist oiling track, with no lookout
. court wouldn’t grant Mrs Berriman compensation- Act stated look out points had to be issued for workers ‘relaying’ or ‘repairing’ line> oiling didn’t fall under these categories
literal: Fisher v Bell 1960
. d was a shopkeeper- displayed a flick knife, marked with price in shop window; hadn’t sold any
- charged with the restriction of Offensive Weapons Act 1959
- ‘offers for sale…any knife which has a blade…shall be guilty of an offence.’
>Fisher won- offer for sale occurs when you offer to pay, otherwise ‘invitation to treat’
- acceptance occurs when taken money> contract forms
literal: pros
. follows words used by parliament
-par sov, democratic, separation
. makes law certain
- clarity, equal, easier for lawyers
. focuses on mind of parliament- forces clear language, prevents ambiguity
. respects parliamentary sovereignty
- elected body over judicial discretion
. respects separation of powers
- judges have no legislative function
literal: cons
assumes every act carefully drafted
- uncertainty, confusion, inconsistent
. can’t cover every situation
- not enough detail>unfair
.words have multiple meanings
- can’t take literally- unclear
. unjust or harsh decisions made
- unclear to defendant> no justice
. unrealistic perfection from draftsmen
- act can’t cover every situation
golden rule
. modification of literal rule- looks at literal meaning but allowed to avoid interpretation with absurd result
golden rule: narrow approach
. choose most sensible meaning to fit context if word has 2 or more meanings
narrow approach: Alder v George 1964
. Official Secrets Act 1920> offence to obstruct Her Majesty’s Forces ‘in the vicinity’ of a prohibited place
. d was in prohibited place> found guilty- interpreted phrase narrowly to mean ‘being in or in the vicinity of the prohibited place’
golden rule: broad approach
. allows judge to modify meaning of a word if outcome would lead to a repugnant result
broad approach: Re Sigsworth 1935
. Administration of Justice Act 1925
. son murdered mother, who didn’t have will> inherited by next of kin (son)
- 1925 act inherited by kin or ‘issue’
. held ‘issue’ was clear but didn’t include those who murdered the person they were inheriting from
golden rule: pros
. respects exact words used
- conforms to par sov
. chooses most sensible outcome
- achieves actual justice
golden rule: cons
. limited in its use
- controversy, separation, democratic
. judges change meaning of statute
- inconsistent+ weakens power balance
. what is absurd?
- inconsistent/ uncertain>unfair
mischief rule
. gives judge more discretion than golden+ literal- fits in more with purposive approach
. definition comes from Heydon’s Case 1584
. what was the common law before making the act?
.what was the mischief/gap for which the common law did not provide?
. what was the remedy Parliament was trying to provide
. what was the reason for the remedy?
mischief rule: Smith v Hughes 1960
. Street Offences Act 1959> offence to solicit ‘in the street or public place’
. d’s appeal= prostitutes weren’t in street or in any public place- own home
. mischief/gap= stop prostitution
mischief rule: Royal College of Nursing v DHSS
. Abortion Act 1967> a pregnancy should be terminated by a ‘registered medical practitioner’- doctor
. part of procedure led by doctor, part by nurse without doctor present
. since passing of act, way abortions carried out changed
. 3 judges agreed that procedure was lawful> mischief was to decrease number of illegal abortions, ensure carried out with proper skill
. 2 dissenting judges- literal rule
- wanted terminations to be carried out by doctor- said judges were ‘redrafting it with a vengeance’, not interpreting
mischief rule: pros
. promotes purpose of law
- look at gap of law> produce just result
. law commission prefers mischief rule
- recommend only rule used> democratic, approved by par- good was to fill gap+ apply law for specific cases, efficient, consistent, lawyers give clearer results
mischief rule: cons
. risk of judicial law making
- undemocratic, against separation
. uncertainty
- legal advice difficult- different judges
. judges don’t always agree
- creates uncertainty, confusion
. not as wide as purposive approach
- limited to gap, not intention
purposive approach
. judges decide what they believe parliament meant to achieve+ give effect to that purpose
. EU law favours- legislation drafted in broad terms>needs to be applicable to all state members, difficult to take words literally- translation
purposive approach: R v (Quintvelle) v Secretary of State 2003
. CNR doesn’t use fertilisation
- issue whether CNR embryos are protected under the Human Embryology and Fertilisation Act 1990
. if literal rule was applied, CNR embryos wouldn’t be protected as they were cloned, not fertilised
.HoL used purposive> par couldn’t have intended to leave embryos unregulated >changed meaning of what embryo is
- looking at purpose of legislation