Statutory Instruments Flashcards
Literal rule
Follow literal meaning of words in act even if it lead to an obscure outcome
Judges give words plan and ordinary meaning
Literal rule advantages
Democratic - judges apply
Respect separation for powers
Consistent - needed for justice
Certain- advise with clarity
Literal rule disadvantage
Obsurd outcome
Mockery of law
Harsh decisions
Literal rule disadvantage
Obsurd outcome
Mockery of law
Harsh decisions
Obstruct justice / obsurd outcome
Whitely V chapel - one man one vote yet voted for dead dad
No justice and obsurd to be allowed
Mockery of law case
Fisher V bell
Labelled knife in shop window yet stated it was not for sale as illegal and was just showing how much it was worth
Harsh decision case
Berriman
Job to maintain track and died
Wife tried to claim compensation but he died repairing track so no compensation given.
Gold rule
Literal rule to be followed unless lead to absurd outcome.
2 types of golden rule
Narrow
Broad
Narrow approach
Where word has more than one meaning judge is allowed to pick most sensible one
Narrow approach case
Re allen
Broad
Only one literally meaning to the word but applying it would lead to absurdity then judges can modify meaning to avoid absurdity
Broad case
Sigsworth
Advantages golden
Avoids absurd
Avoids mockery of law
Avoids harsh decision
Disadvantages golden
Lack of consistency - cannot advise client
Judicial independence - gives judge power to adjust laws
Uncertainty - departs from ordinary meaning so cannot be certain if results or how law will be applied
Mischief
Courts look back at what law was before act and what the purpose of the act and what gap it was meant to fill. Courts will interpret act to ensure that gap is covered
Mischief case
Smith V hughes
Street offences act
Prositutes cannot curb crawl but prositute was in public view so act was interpreted to fix gap of being in public view
Hansard
Recording of debates in House of Commons
Hart V pepper
Where does mischief rule come form
Heydons case
Advantages of mischief
Looks at parliament intent - respect separation of powers
Avoids mockery of law
Stops absurd
Avoids harsh decision
Disadvantages of mischief
Hansard is only debate not final outcome
Time consuming to look at law before act then parliament intent
Uncertainty- hard to advise as unknown how law will be applied
Most common approach used now
Purposive
Purposive approach
Looks beyond words of act and looks at purpose behind it
Looks forward at the law
Judges look at what they believe parliament intented and giving it effect to that purpose
Purposive approach case
R V Coleman
Burgled narrow boat - theft or burglary- deemed parliament intention was to stop people entering private property
Purposive advantages
Justice - purpose is followed
Avoids absurd - gives judges discretion
Fair decisions - uphold public confidence
Keeps laws up to date as looks forward like new technology
Disadvantages purposive
Judiciary supremacy as judge make law
Hard to find parliament intent as Hansard is only debate
Undemocratic S judge are not elect and can disobey act is giving absurdity
Uncertain - flexibly can creat inconsistency and hard to advise
