STATUTORY INTERPRETATION Flashcards
What is statutory interpretation? (1)
The process of interpreting and understanding the meaning of laws passed by parliament
What is meant by literal rule?
A rule of statutory interpretation that gives the words their plain ordinary or literal meaning.
What is meant by mischief rule? (1)
A rule of statutory interpretation that looks back to the gap in the previous law and interprets the act so as to cover the gap.
What is meant by golden rule? (1)
A rule of statutory interpretation. It is a modification of the literal rule and avoids an interpretation that is absurd.
What are the three rules of statutory interpretation? (3)
-the literal rule
-the golden rule
-the mischief rule
What are the rules of the mischief rule? (3)
-identify what the problem was that state was trying to resolve
-identify the remedy parliament was trying to put in place to deal with the problem
-implement the remedy to resolve the problem
What is an example of where the literal rule has been used in a case? (2)
The London and north eastern railway co v Berriman. (1946)
-a rail worker was oiling the track when he was struck by an oncoming train leading to his death, the London and north eastern railway stated that compensation could be given but only if the rail way worker was relaying or repairing the track. The literal rule was applied to the words ‘relaying’ and ‘repairing’ thus no compensation was given to his family.
What is an example of when the golden rule was applied to a case? (2)
Adler v George (1964)
The official secrets act 1920 made it an offence to obstruct her majesty’s forces ‘in the vicinity’ of a prohibited place.
The defendants had actually obstructed HM forces in the prohibited place, they argued they were out guilty since the law stated only those in the vicinity of would be punished. They plead guilty anyway because the judge used the golden rule to interprétâtes the law as meaning ‘in or in the vicinity of’.
What is an example of when the mischief rule was applied? (2)
Smith v Hughes (1960)
S (1) of the street offences act 1959 stated that ‘it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution’.
In each of these cases the women had not been on a ‘street’ one had been on a balcony and the others in windows of ground floor rooms, each had been calling to the men that walked by but they argued that they were not guilty because they were not on a street. The court pleaded them guilty because even though they were not they were still attracting the service of men.
What are the advantages of the literal rule? (2)
-leaves law making to parliament which is their job
-makes the law more certain
-makes the law more accessible
What are the advantages of the literal rule? (2)
-leaves law making to parliament which is their job
-makes the law more certain
-makes the law more accessible
What are the disadvantages of the literal rule? (4)
-assumes there are no mistakes
-words can have multiple meanings
-unfair decisions
-can create loopholes
What are the disadvantages of the golden rule? (3)
-can only be used in limited circumstances e.g when a word has several meanings
-can only be used once the literal rule had produced absurd results
-judges become law makers
What are the advantages of the golden rule? (4)
-respects parliamentary supremacy
-avoids abused, or unfair results
-allows the urge to choose a sensible meaning
-only used in limited situations
What are the advantages of the mischief rule? (2)
-fills in the gap in the law that parliament has left out
-produces just and fair results
What are the advantages of the mischief rule? (2)
-fills in the gap in the law that parliament has left out
-produces just and fair results
What are the disadvantages of the mischief rule? (3)
-judges can make the law as the interpret the act (not their job)
-can make the law uncertain
-limited to looking back at the law prior to the case and not the general purpose of the law
What is meant by the purposive approach? (1)
An approach to statutory interpretation in which the courts look to see what is the purpose of the law.
What is an example of a case in which the purposive approach was applied?(2)
R (quintavelle) v secretory of state for health (2003)
-act stated embryo meant ‘a live human embryo where fertilisation is complete’.
-embryos were created by cell nuclear replacement, so there was no fertilisation
-the purposive approach was applied, parliament could not have intended to distinguish between embryos so the act applied.
What are the advantages of the purposive approach? (3)
-leads to justice in individual cases
-broad approach covering more situations
-allows for new technology
Wha are the disadvantages of the purposive approach? (3)
-leads to judicial law making
-can make law uncertain
-difficult to discover the intention of parliament
What can assist judges with interpretation? (2)
Internal (intrinsic) aids or external (extrinsic) aids.
What are internal (intrinsic) aids? (2)
Are matters within the statute itself that may help to make its meaning clearer. E.g the long tile, short title, and the preamble.
What is a preamble? (1)
Most common in older statutes, which sets out parliaments purpose in enacting the statute.
What are external (extrinsic) aids? (2)
Are matters which are outside the act and it has always been accepted that some external sources can help explain the meaning of an act.
What are some sources of external (extrinsic) aids? (4)
-previous acts of parliament on the same topic
-the historical setting
-earlier case law
-dictionaries of the time
What are the three main external aids? (3)
-Hansard-official report of what was said in parliament when the act was debated
-reports of law reform bodies which led to the passing of the law
-international conventions, regulations or directives which have been implemented by English legislation
What is an example of a case where internal (intrinsic) aids are applied? (2)
Harrow LBC v Shah and Shah (1999)
The defendants were charged under s 13 of the national lottery act 1993, this subsection does not include any words indicating either that means mens rea is required or not, nor does it contain any Provision for a defence of ‘due diligence’.
However another subsection clearly allows a defence of ‘due diligence’ which allowed the divisional court to come to the decision that s 13 was an offence of strict liability.
What is an example of a case in which external (extrinsic) aids such as Hansard were applied? (2)
Pepper v Hart (1992)
A teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. He sought to rely upon a statement in Hansard made at the time the finance act was passed in which the minister gave his exact circumstances as being where tax would not be payable. Though previously speaking the court was not allowed to use hansard, but referred to it on this case.
What is an example in which external (extrinsic). Aids such as law commission reports were applied?(2)
Black-Clawson case (1975)
What is an example of a case in which external (extrinsic) aids dictionaries were applied? (2)
Cheeseman v DPP (1990)
A man was masturbating in a public toilet, The police who found him convicted him under a section that said being found by a ‘passenger’ was part of the crime. It was decided that the police were stationed outside the public toilet because he had been doing it before. He was acquitted because the police were not deemed as ‘passengers’.
What is the impact of the EU law on statutory interpretation? (2)
EU law uses the purposive approach:
-interpreting national law in the light and the aim of the European law
-has mad our judges more ready to use the purposive approach
What is the impact of the human rights act 1998 on statutory interpretation? (1)
Legislation must be read and given effect in a way which is compatible with the rights in the European convention on human rights.
