Statutory Interpretation Flashcards
What are the 4 rules for statutory interpretation
- The literal rule
- The golden rule
- The mischief rule
- The purposive
What is the definition of the literal rule?
The intention of parliament is considered as contained in the words so the literal meaning of the words are taken, the words are given in there natural meaning
What are the features of the literal rule?
•19th century approach to interpretation
•most aspects of life were inflexible
•the rule reflected the Victorian way of life
•the starting point for interpretating any legislation
•Lord Esher said “if the words of an act are clear, follow them even though they manifest abserdity”
How is the literal rule used in London & Northern Eastern Railway Co v Berrimen(1946)?
Using the literal rule the judge had stated that compensation was allowed if an employee was killed while “repaired or relaying the track” as he was only “maintaining” the wife’s claim of compensation failed
How was the literal rule in Fisher v Bell (1961)?
As the goods were invitations to treat not offers the court applied the literal rule and found he did not do the criminal act to offer flick knifes for sale
Advantages of the literal rule?
• respects parliamentry sovereignty
• judges doing their of applying the law
• gives certainty to the law
• upholds separation of powers
Disadvantages of the literal rule?
• assumes every act is perfectly drafted
• following exact words could lead to unfair decisions
• words can have more than one meaning so which meaning does the judge choose
• when the law is created it is impossible to cater for every legal situation
What is the definition of the golden rule?
Can be defined as a modification of the literal rule
How to use the golden rule?
- Start by looking at the literal rule
- Will there be absurd outcome
- If so secondary meaning may be taken
What are the 2 approaches to the golden?
Narrow approach
Broad approach
What will the judge ask under the narrow approach?
- Will taking the natural meaning lead to abserdity?
- Is the words in the question ambiguous?
- Are the words capable of more than one meaning?
How was the narrow approach used in R v Allen?
As he got married without divorcing his first first wife it was a fellony, the word marry had two meaning the narrow approach would have found non guilty would have been absurd
How is the broad approach used?
• the words only have a clear meaning - not ambiguous
• By giving the pain meaning would prove unacceptable
How was the broad approach used R v Sigsworth?
The broad approach was used as it would have been seen as rewarding the man for murdering his mother by getting the inheritance
Advantages of the golden rule?
• provides an ‘escapre route’ from unjust decisions
• prevents absurdity of literal rule
• still respects parliamentry sovereignty as judges are correcting errors not deciding what parliament intended
• go beyond literal rule by looking into the intention of the passing act
Disadvantages of the golden rule?
• give judges too much power
• makes it difficult for a lawyer to advise their clients
•can lead to inconsistenties as there is no guidance given
• judges are to an extent re-writing statues and adding work
What is the mischief rule?
Where the judges take into account the mischief (problem) and how parliament intended to fix the problem and if the act was taken to parliament how they’d use the statue to fix the problem
What are 4 factors set out in Heydon’s case for the mischief rule?
- What was the common law before the act
- What was the mischief in the previous law?
- Identify the eah in which parliament proposed to remedy the defect
- Give effect to it
What is the 3 part test for the mischief rule in Jones v Wrotham park?
- Is it possible to determine the mischief intended to remedy?
- Is it apparent that parliament failed to deal with the mischief?
- Is it possible to state additional words that could be stated had the omission been raised to parliament attention?
How was the mischief rule used in Smith v Hughes using the 3 part test?
- The mischief they were trying to remedy was the soliciting of innocent people in the street
- Failed to take into account above street level
- The ‘and above’ would have been in addition to the original ‘on street level’
So overall they were found guilty using the mischief rule
How was the mischief rule used in Royal College of Nursing v DHSS using the 3 part test?
- The mischief was back street abortions with no medical care
- Failed to take into account how science has advanced and how the procedure could be carried out
- Additional words would have been ‘persojs trained to perform the procedure’
So overall they were not guilty
Advantages of the mischief rule?
• it helps avoid injustice of literal rule
• allows for ‘quick repairs’ to bad laws by allowing immediate reform
• allows judges to give parliaments true intentions despite a degree of discression
• respects the exact words of parliament in limited situations
Disadvantages of the mischief rule?
• the rule is very old and was created in a time of limited statues
• it must be possible to discover the mischief which can be extremely difficult
• rule allows for judicial law making and subjective decision making
• difficult to predict when this will be used as limited scope for use
What is the purposive approach?
The court will look at the spirit of the act rather than the strict words, the judge decides what they believe parliament meant
How is the purposive approach different to the mischief rule?
Judges don’t need to look for gaps in the old law. Some acts are passed for some social good not just because there was a defect in previous law
How was the purposive approach used in R v registrar-general, ex parte Smith ?
On a literal view they were able obtain the details of the his birth certificate, however a psychiatrist confirmed the danger to the natural mother as the applicant had murdered twice prior, so he was not allowed his birth certificate
How was the purposive approach used in Jones v tower boot company?
As an young employee was being racially abused the employer argued as it happening on the break it was not part of their job behaviour, the employer was liable
Need to do advantages and disadvantages of PA
Aids to interp
Extrinsic aids
