Statutory Interpretation

Question 1

Define Statutory Interpretation

Answer 1

“The judicial interpretation of words and phrases in Acts of Parliament done so to give effect to the will of Parliament”

Question 2

What are the common reasons for statutory Interpretation?

Answer 2

-The generality of Statue law (broadly written laws)
-Broad words
-Drafting errors
- Impact of ECHR
-New events
-Evolution in language (e.g Cheeseman)

Question 3

State all the case law referring to the Literal Rule

Answer 3

-Cheeseman
-Whiteley v Chappell
-Berriman

Question 4

What are the 4 rules to help interpret an act of Parliament?

Answer 4

Domestic:
-Literal Rule
-Golden Rule
-Mischief Rule
International:
-Purposive

Question 5

What is the Literal Rule?

Answer 5

-Most Traditional
-Least flexible
-Judges give words their ordinary, plain and dictionary meaning, even if it results in an abusrdity

Question 6

State the comment Lord Mackay made about the Literal Rule

Answer 6

“The duty of a judge is to apply the law as he finds it, not to seek to recitify percieved inadequacies by the use of creative interpretation”

Question 7

What happened in Cheeseman?

Answer 7

The word “passanger” had a different definition to the present day. The 1847 definition was anyone using the public places for its “ordianry purpose”. The D had been revealing himself in a public toliet and undercover police were called to arrest him. The police were not using the public tolies for the “original purpose”, instead to arrest the D. The literal rule was applied and D was acquitted as the police had not fufilled the meaning of the 1847 act.
(Example of limitations and evolution of language)
(LIteral Rule)

Question 8

What happened in Whiteley v Chappell?

Answer 8

D impersonated a dead person and voted. As a dead person is not literally entitled to vote, D was acquitted
(Literal Rule)
(Absurd outcome)

Question 9

What happened in Berriman?

Answer 9

C’s husband was killed working on the railway. She tried to claim damages as no safety look out was provided. However, safety look out legally has to be provided when “repairing or relaying” the railway. However, C’s husband was oiling points, therefore “maintaining”. No damages were awarded.
(Literal rule)
(Unfair outcome)

Question 10

What are the advantages of the Literal Rule?

Answer 10

-Respects Parliamentory Sovereignty by giving the courts restricted role and leaving law making up to Parliament
-Judges are applying the law, not making it, thus respecting Separation of Powers theory
-Laws are more certain as they are interpreted excatly as they are written which makes it easier to know what the law is and how judges will apply it. This makes the law objective and fair, respecting rule of law- “equality before the law”

Question 11

What are the disadvantages of the Literal Rule?

Answer 11

-Assumes every statue is perfectly drafted but it is not possible due to evolution in langauage, drafting errors etc.
-Following the exact words can lead to unjust decisions
-Professor Michael Zander has labelled it as “Mechanical and divorced from the realities of the use of langauge”

Question 12

What did Professor Michael Zander label the literal rule as?

Answer 12

“Mechanical and divorced from the realities of the use of langauage”

Question 13

What is the Golden rule?

Answer 13

-Modification of the literal rule
-If using the literal rule will result in an absurdity, judges can “tweak” the application to avoid that absurdity
-Two versions:
-Narrow or Wide approach

Question 14

What is the Narrow Approach?

Answer 14

-If the words within the law have more than one interpretation the court must select the least absurd.
-This is “narrow” as judges still have relatively restricted roles

Question 15

What did Lord Reid state about the Narrow Approach?

Answer 15

“If they are capable of more than one meaning then you can choose between thosw meanings, but beyond this you cannot go”

Question 16

State all the case law relating to the Golden rule

Answer 16

Narrow Approach:
-Adler
Wide Approach:
Sigsworth

Question 17

What happened in Adler?

Answer 17

It is an offence to obstruct a member of the armed forces “in the vicinity of a prohibited place”. D obstructed an officer inside a RAF base and argued that the literal meaning of “in the vicinity of” means the surrounding area not directly inside. The golden rule was used to reasonable assume that the offence covered both in and “in the vicinity of” the prohibited place
(Golden Rule-Narrow Approach)

Question 18

What is the wide approach?

Answer 18

-Used to avoid a repugnant situation, where there is nothing wrong with the law and how it is written but if applied literally to that particular case it would resutl in a repugnant situation

Question 19

What happened in Sigsworth?

Answer 19

A son murdered his mother, but she had not made her will. Inheritance laws provided that her estate wil go to her next of kin, her son. Judges “tweaked” their interpretation to avoid a repugnant situation
(Golden rule- Wide approach)

Question 20

What did Lord Wensledyale state about the Wide approach?

Answer 20

“the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther”

Question 21

What are the advantages of the Golden rule?

Answer 21

-Respects the excat words of Parliament, except in limited situations aimed in preventing an absurdity and injustice caused by the literal rule
-Provdies an “eascape route” by allowing judges to choose the most sensible meaning and avoid the worst problems of the literal rule

Question 22

What are the Disadvantages of the Golden rule?

Answer 22

-Only used on rare occassions
-No clear meaning what an “absurd” result is that will trigger its use
-Professor Zander labelled it as an “unpredictable safety valve”

Question 23

What is the Mischief rule?

Answer 23

-Focuses on what Parliament meant
-GIves judges more freedom to look for the mischief that the act ws orginally created to deal with and interpret the law given the scenario
-The rule driects judges to look wider than the simple words used

Question 24

What case establsihed the Mischief Rule and its four points?

Answer 24

-Heydon (1584)
1) What wa the common law before the act?
2) What was the mischief that the common law did not provide? (gap in the law)
3) What remedy did Parliament create to try and deal with the mischief?
4) Apply that fiding to the case to fix the mischief

Question 25

State all the case law relating to the Mischief rule

Answer 25

-Heydon
-Cookery v Carpenter
-Smith v Hughes
-Royal College of Nursing v DHSS

Question 26

What happened in Cookery v Carpenter?

Answer 26

-It was an offence to be drunk and in charge of a “Carriage” on the highway. D was riding his bicycle whilst drunk. The court decided that riding the bike was the mischief. D was a danger to himself ajd other road users
(Mischief Rule)

Question 27

What happened in Smith v Hughes?

Answer 27

• It was an offence to solicit in a public place. Ds were soliciting from the balacony and windows. Ds convicted as judge deemed that the act was designed to prevent the mischief of soliciting and Ds were still doing this
  (Mischief Rule)

Question 28

What happened in Royal College of Nursing v DHSS?

Answer 28

The Arbortion Act 1967 provided that pregnancy should be terminated by a registered medical practitioner, a doctor . When this law passed, this procedure was surgical and thus requird a doctor. However, the new method was drug induced. The court had decide if the second method of allowing a nurse to oversee the procedure was legal. The court deemed it was still illegal, some judges took the mischief approach, others took the literal, could not agree.

Question 29

What are the advantages of the Mischief rule?

Answer 29

-Promotes the purpose of the law, by allowing judges to look back at the gap that the law intent to cover
- The emphasise is on filling in the gaps, which is more likely to produce just results, help avoid absurdity and injustice whilst promotong flexibility
-Named the Law commissions prefered approach

Question 30

What are the disadvantages to the mischief rule?

Answer 30

-Contradicts seperation of powers as judges are modifying the application of the law, however, this rule was established when parliamentary soverignty was not fully established and common law was the primary source of law
-Filling in the gaps with their own views offends parliamentary soveriegnty
-May lead to uncertainity as it is very subjective e.g Royal College of Nursing v DHSS

Question 31

What is the purposive approach?

Answer 31

-Required method of interpretation in the EctHR
-International laws commonly have a broader construction and require judges to interpret laws in a manner consistent with their national langauge, requies flexibility
-Closely linked to the Mischief rule in terms of flexibilty but goes further by looking at the overall purposive of the entire act
-Looks at the law with the context of facts know today that were not available at the time of legislating
-Judges have the freedom to interpret words to make the suitable for society today

Question 32

What is Lord Simonds view on the Purposive approach?

Answer 32

“A naked usurpation of the legislative function”

Question 33

State all the case law relating to the Purposive approach?

Answer 33

-Quintavalle

Question 34

What happened in Quintavalle?

Answer 34

The HL had to decide if a cloned embryo came within the exisitng definition of “embryo” in the 1990 Act. As in 2003, after the act had been written, scientists developed clonign techniques, which was able to produced an embryo. Judges deemed that the wide purpose of the law was to regulate the research and experiments of all embryos.

Question 35

What are the advantages of the Purposive approach?

Answer 35

-Flexible and seeks the purpose for why the act was passed, allowing for developments
-Reduces the need for Parliament to make new laws

Question 36

What are the disadvantages of the Purposive approach?

Answer 36

-Described as a “naked usurpation” of the legislative function
-Judges could replace the clear words of parliament with their own
-How can judges ensure they give effect to the will of parliament accurately

Question 37

What presumptions can judges make about the law?

Answer 37

1) Presumption that mens rea is required
e.g Sweet v Parsley
(exception in strict liability)
2) Presumption that the crown is not bound by the law
(however, in some statutes this is rebutted as it will clearly state that the presumption does not apply e.g s.12 Hunting Act 2004)
3) Presumption that the law does not apply retrospectively
(however, on occasion the act will apply retrospectively e,g War Crimes Act 1991 and S.3 Human Rights Act 1998 dictates that the act applies retrospectively

Question 38

What happened in the case Sweet v Parsley?

Answer 38

D was charged with being “concerned in the management of premises” which were used for the purposes of smoking cannabis. She clearly “managed the property” and cannabis was being smoked there, but she had no knowledge and thus no mens rea. HL quashed her conviction and read in the mens rea of knowingly to the offence.

Question 39

What is an intrinsic aid?

Answer 39

-Inside the act of Parliament, can include:
-Short title
-Long title (outlines the aims of the act and can be useful in the mischief and purposive approach)
-Definition sections (the meaning of words/ phrases can often be found within the statute)
-Rules of language

Question 40

What are the rules of language ?

Answer 40

• “common sense” rules of language have been developed by judges over the years to help ensure words are looked at in context
  -“Ejusdem Generis” = (of the same kind)
  -“Expressio unius est exclusio alterius” = (cannot add more)
  -“Nescitur a sociss” = (look at the associated words)

Question 41

What is the Latin phrase that roughly translates to “of the same kind”?

Answer 41

-“Ejusdem Generis”

Question 42

What is the rule of language- “Ejusdem Generis” ?

Answer 42

-“Of the same kind”
-Where there is a list of specific items or objects any general terms that follow the list shall be taken as meaning objects of the same kind
(e.g cats, dogs, and other such animals would logically include other domestic animals)
e.g Powell

Question 43

What happened in Powell?

Answer 43

An act prohibited the keeping of a “house, office, room or other place” for betting purposes. This list suggested indoor locations. The D operated a betting ring outside, therefore it was deemed that it was not within the term “other place”.

Question 44

What is the rule of language- “Expressio unius est exclusio alterius”?

Answer 44

-“cannot add more”
-Where there is a list of words, but they are not followed by general words, the act applies only to the items in the list.
(e.g if the act referred to one breed of cats specifically then the act would not refer to other breeds of cats)
e.g Sedgley Inhabitants

Question 45

What happened in the case of Sedgley Inhabitants?

Answer 45

The mention of “lands, houses and coal mines” was held to exclude any other type of mine

Question 46

What is the rule of language- “Nescitur a sociis”?

Answer 46

-“look at the associated words”
-Words must be looked at in context which involves looking at other words in the same section or other sections of the act to draw their overall meaning
(e.g if an act states hamster, cages, straw and food the meaning of the word “food” is found by looking at the other words, hamster food, not dog food)
e,g Inland Revenue Commissioners v Frere

Question 47

What happened on the case Inland Revenue Commissioners v Frere?

Answer 47

The law covered “interest and annual interest”. The word “interest” on it’s own could mean monthly, weekly or annually. However, because of the phrase “or other annual interest” it was deemed it only meant “annual” interest.

Question 48

What are the advantages and disadvantages of Intrinsic aids?

Answer 48

Advantages:
-Direct from the legislature and thus should help judges maintain an accurate interpretation.
Disadvantages:
-There are very view intrinsic aids available and not all the statues have clear help within them

Question 49

What are extrinsic aids?

Answer 49

-Aids found outside of Parliament, can include:
-Other/ Earlier statues on similar topics (might allow the judge to see a pattern that the law is intending to achieve)
-Historical setting
-Earlier case law
-Interpretation Act 1978 (provides standard definitions of common provisions e.g when an act refers to “he” the act is referring to everyone)
-Explanatory notes (such 1999, such notes are published to provide information about its purpose)
-Dictionary (consult the relevant Oxford Dictionary at the time the act was passed)
-International Conventions (e.g European Convention on Human Rights)
-Hansard (The official daily record of Parliament debates)

Question 50

Why was the previous attitude towards the banning of Hansard so harsh?

Answer 50

• Because it was a political document, it was thought that the courts should not concern themselves with what Parliament had said, to maintain separation of Powers.

Question 51

What happened in the case of Davis v Johnson?

Answer 51

-Supreme court reaffirmed the ban on consulting Hansard

Question 52

What was Lord Denning’s view on the use of Hansard?

Answer 52

In Davis v Johnson, he argued that judges in regard to Hansard “should grope in the dark for the meaning of an Act without switching on the light. I do not accede to this view”

Question 53

What was Lord Scarman’s view on the use of Hansard?

Answer 53

“Such material is an unreliable guide … it promotes confusion not clarity”

Question 54

What case over ruled the case of Davis v Johnson on regards to the use of Hansard?

Answer 54

Pepper v Hart 1993

Question 55

After 1993, when could Hansard be consulted?

Answer 55

• When the Act is ambiguous, obscure pr leads to an absurdity and only the comments made by the minister can be consulted if they are clear statements

Question 56

In AE Beckett and sons, what did Lord Philips state about the reference to Hansard?

Answer 56

“Immediately made clear what had previously been obscure”

Question 57

What are the advantages of Hansard?

Answer 57

• Useful aid
  -Many foreign jurisdictions use such legislative materials to aid interpretation

Question 58

What are the disadvantages of Hansard?

Answer 58

-Lack of clarity, debates do not necessarily clarify the meaning or intention of legislation
-Not always helpful, courts may have come to the same verdict without consulting Hansard
- Concerns that too much time and cost is being spent considering Hansard

Question 59

What are the advantages and disadvantages of extrinsic aids?

Answer 59

Advantages:
-Lots of aids available
Disadvantages:
-Such aids are not necessarily written for the act in question and thus caution is advised

Question 60

What influence does the Human Rights Act have on Statutory interpretation?

Answer 60

-S.3 HRA 1998, Uk laws must be interpretated in line with the ECHR, as far as it is possible to do so
-requires a purposive approach
-Therefore, judges may have to modify the interpretation of the law to make it compatible
e.g Mendoza
-S.4 “declaration of incompatibility” can be issued if judges believe S.3 is unable to solve the issue

Question 61

What happened in the case Mendoza?

Answer 61

The Rent Act 1977 allowed an unmarried partner to inherit the others rental tenancy of a property if a partner dies. The CA had to decide if this act included same sex couples. CA read in some words to prevent a breach of Article 14.