Statutory Interpretation 1.3

Question 1

Definition of Statutory Interpretation.

Answer 1

The process by which judges interpret the words in a statute and apply those words to cases.

Question 2

What are the 4 rules of Statutory Interpretation?

Answer 2

1. The Literal Rule
2. The Golden Rule
3. The Mischief Rule
4. The Purposive Approach

Question 3

Definition of the Literal Rule

Answer 3

In this approach, the judge holds that the intention of Parliament is contained in the words of the Act exactly as they are written.

Words are applied literally even if it’s not what parliament intended or if the outcome is absurd.

Question 4

Literal Rule - Case Law

Answer 4

Fisher v Bell
The court held that in accordance with the general principles of contract law, the display of the knife was not an offer of sale but merely an invitation to treat, and as such the defendant had not offered the knife for sale within the meaning of s1(1) of the Act.

Question 5

Literal Rule - advantages

Answer 5

Respects parliamentary sovereignty

Question 6

Literal Rule - disadvantages

Answer 6

Can cause absurd results.
Doesn’t account for times changes

Question 7

Definition of the Golden Rule

Answer 7

If the words in a statute are ambiguous and result in two or more possible meanings, a judge, using the Golden Rule, will interpret the words in a way which produces the most sensible result.

Question 8

Definition - The Golden Rule, narrow approach

Answer 8

Narrow Approach – used if word has more than one meaning e.g season

Question 9

Definition - The Golden Rule, broad approach

Answer 9

Broad Approach used if word has one meaning but would cause absurdity so the courts modify the word.

Question 10

Narrow Approach - case law

Answer 10

R v Allen (1872) LR 1 CCR 367
The defendant was charged with the offence of bigamy under s.57 of the Offences Against the Person Act 1861.
The court applied the golden rule and held that the word ‘marry’ should be interpreted as ‘to go through a marriage ceremony’. The defendant’s conviction was upheld.

Question 11

Broad Approach - Case Law

Answer 11

Adler v George [1964] 2 QB 7
Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces ‘in the vicinity’ of a prohibited place. The defendant was actually in the prohibited place, rather than ‘in the vicinity’ of it, at the time of obstruction. The court applied the golden rule. It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. His conviction was therefore upheld.

Question 12

Golden Rule - advantages

Answer 12

Gives judges discretion and puts right absurdities caused by the literal rule

Question 13

Golden Rule - disadvantages

Answer 13

Judges given power to interpret what is constitutionally the roles of the legislator
No continuity.

The judges are interpreting the words, parliamentary sovereignty is not upheld

Question 14

Definition of the Mischief Rule

Answer 14

The Mischief rule allows the judge to look for the mischief or problem the statute in question was trying to remedy.

Question 15

Name the Landmark case when the mischief rule was first used.

Answer 15

Heydon’s Case (1584) - very tedious case to do with religious property!!!!!

Question 16

The mischief rule was laid down in Heydon’s case in the sixteenth century and provides that judges should consider three factors, what are they?

Answer 16

1. What the law was before the statute was passed;
2. What problem or mischief the statute was trying to remedy;
3. What remedy Parliament was trying to provide.

Question 17

What is the legal principle used in the Mischief Rule?

Answer 17

Legal Principle: Judges can interpret a statute so that it effectively tackles the problem that Parliament wanted to deal with: the Mischief rule.

Question 18

Mischief Rule - case law

Answer 18

Smith v Hughes [1960] 1 WLR 830
Prostitutes in window and balconies of private property - the Street Offences Act 1959 which made it an offence to solicit in a public place.
The court applied the mischief rule, holding that the activities of the defendants were within the mischief the Act was aimed at, even though under a literal interpretation they would be in a private place.

Question 19

Mischief Rule - advantages

Answer 19

The mischief rule helps avoid absurdity and injustice, and promotes flexibility. It was described by the Law Commission in 1969 as a ‘rather more satisfactory approach’ than the two other established rules.

Question 20

Mischief Rule - dis-advantages

Answer 20

Disadvantages: Use of the mischief rule could lead to uncertainty in the law. It is impossible to predict when judges will use the rule and what the result of the interpretation will be. This makes it increasingly difficult for lawyers to advise their clients on what the law might be.

Question 21

Definition of the Purposive Approach

Answer 21

The newest judicial approach in the process of interpretation of statutes is the purposive approach. Membership of the EU has encouraged judges to adopt this approach.
Approach taken by ECJ, it’s an extension of the mischief rule and is very flexible looking at multiple sources.

Question 22

Purposive Approach - case law

Answer 22

Jones v Tower Boot Company (1997
The Race Relations Act
Employer liable for employees serious verbal and physical abuse of another employee

Question 23

Purposive Approach - advantages

Answer 23

Flexible and seeks the purpose or reason why the Act was passed

Advantages leads to justice in individual cases allows for new developments in technology avoids absurd result

Question 24

Purposive Approach - disadvantages

Answer 24

Disadvantages difficult to find Parliament’s intention allows judges to make law leads to uncertainty in the law

Question 25

Judges have to decide the meaning of the words in an Act to apply them to a case. Give up to 5 reasons when interpretation of Acts can be difficult.

Answer 25

1. A broad term is used.
2. Changes in the use of language
3. New Development - advances many not have been foreseen at the time of passing the Act.

.
4. Ambiguous words such as ‘wind’ which has more than one meaning.
5. A drafting error.

Question 26

Case Law - Use of a broad term.

Answer 26

Brock v DPP 1993 - Dangerous Dogs Act 1991 - The case referred to dogs of the ‘type’ known as the pit bull terrier, which the court held to include not only pedigree pit bull terriers but also dogs with a substantial number of characteristics of pit bulls
The golden rule was applied - expanded the meaning of breed to cover characteristics of the pedigree.

Question 27

Case law - Change in language

Answer 27

Cheeseman v DPP (1990).
Masturbating in a public toilet. Public Indecency Act stated the words ‘passing by and or through’.
Cheeseman was arrested by two policemen who were stationed near the toilet so literally speaking they were not ‘passing by and or through’ Mr. Cheeseman was found not guilty of public indecency.
Literal rule applied

Question 28

Case Law - New development

Answer 28

Royal College of Nursing v DHSS (1981) - dispute over whether nurses are ‘medical practitioners’ and therefore legal to carry out abortions. Court ruled they should be considered medical practitioners as their role had developed more responsibility over time.
Mischief rule applied .

Question 29

What aids to interpretation are available to judges?

Answer 29

1. Intrinsic Aids- (of the ACT - The long title, pre-amble, headings, schedules, glossary)
2. Extrinsic Aids - dictionaries, reports (Law Commission), historical setting), treaties, and previous case Law.

Question 30

Definition Ejusdem Generis

Answer 30

This means ‘of the same kind’. Where general words follow a list of specific words, the general words are limited to the same kind/class/nature as the specific words.

Question 31

Ejusdem Generis - Case law

Answer 31

Powell V Kempton Racecorse 1899 – A statute stated that it was as offence to a ‘house, office, room, or other place for betting’. The defendant was using a ring at a racecourse. The court held that the general term ‘other place’ had to include other indoor places because the specific words in the list were indoor places. The defendant was found not guilty.

Question 32

Definition Expressio unius est exclusio alterius

Answer 32

This means ‘express mention of one thing is the exclusion of all others’.

Question 33

Expressio unius est exclusio alterius -case law

Answer 33

R v Inhabitants of Sedgley (1831) – In this case, it was held that due to the fact statute stated ‘lands, houses and coalmines’ specifically in the Act, this excluded application to other types of mine – in this case a limestone mine.

Question 34

Definition Noscitur a sociis

Answer 34

This means ‘a word is known by the company it keeps’. Words in a statute must be read in context of the other words around them.

Question 35

Noscitur a sociis - Case law

Answer 35

Muir v Kay (1875) – A statute required for the licensing of all venues that provided ‘public refreshment and entertainment’. Defendant argued that this café did not fall within the Act because he did not provide entertainment.
The court held the word entertainment in the Act referred to refreshment houses, receptions and accommodation of the public, not musical entertainment and therefore did include the defendant’s cafe.

Question 36

Definition - Hansard

Answer 36

The daily record of parliamentary debate during the passage of legislation.

Question 37

Traditionally judges were not allowed to consult Hansard - which case changed this?

Answer 37

Davis v Johnson (1979)
Lord Denning stated that: ‘Some may say, and indeed have said, that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view …’

Question 38

The House of Lords held that the prohibition of Hansard should stand - which 2 cases finally permitted the use of Hansard?

Answer 38

The case of Pepper v Hart (1993) finally permitted the use of Hansard, albeit in limited circumstances. This was confirmed in the case of the Three Rivers District Council v Bank of England (No. 2) (1996).

Question 39

How does the Human Rights Act 1998 impact on Statutory Interpretation?

Answer 39

The HRA incorporates into UK law the European Convention on Human Rights. Under s3 HRA, courts are required, so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with convention rights’.

Question 40

If the statute cannot be interpreted to be compatible what can courts issue?

Answer 40

The courts can issue a ‘declaration of incompatibility’ under s4. This asks the government to change the law to bring it in line with the convention. They can use the fast track procedure to make amendments quickly but there has to be a ‘compelling reason’ to do so.

Question 41

Section 2 of the HRA specifies that judges must take into account what…?

Answer 41

Section 2 requires judges to take into account any previous decision of the European court of Human Rights (ECtHR) though they are not bound by it.

Question 42

What does supremacy of Parliament mean?

Answer 42

It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies.

Question 43

What does separation of powers mean?

Answer 43

Separation of powers is the division of a state’s government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with others

Question 44

What are the 3 branches referred to in separation of powers

Answer 44

1. Executive,
2. Legislature and
3. Judiciary
   Each should be clearly divided in order to safeguard citizens’ liberties and guard against tyranny

Question 45

Judges can make new laws - True or False?

Answer 45

FALSE Judges can apply and interpret laws made by Parliament, but they cannot make new laws.