statutory interpretation Flashcards
literal rule definition
plain ordinary and literal meaning even if it leads to a manifest absurdity- use a dictionary from time act was made
literal rule case
CHEESEMEN v DPP- ‘passenger’ plain ordinary meaning meant passer by so did not include lurking policemen
literal rule advantages
-respects parliamentary sovereignty and is democratic
-uses exact words written by parliament so is easy for lawyers to predict and advise clients
literal rule disadvantages
-words have more than one meaning
-leads to absurd decisions (CHEESEMEN)
golden rule definition
extension of the literal rule, used when the literal rule would lead to absurdity
golden rule narrow approach
when you have to choose between two words (R V ALLEN to marry)
golden rule wider approach
when there’s one meaning but is avoided as causes a repugnant situation (Re SIGSWORTH)
golden rule advantages
-narrow approach respects parliamentary supremecy
- can avoid repugnant situations (RE SIGSWORTH)
golden rule disadvantages
-can only be use in limited situations
-professor Zander described it as “a feeble parachute” escape root that doesn’t do much
-too much power to judges so undemocratic
mischief rule definition
looks at why parliament passed the act and what gap it was designed to cover
case that established the mischief rule
HEYDONS CASE 1584
case to support mischief rule
SMITH V HUGHES- illegal to solicit on the street, literally they weren’t but behaviour was mischief so guilty
advantages of mischief rule
-more discretion for judges
-looks at mischief so more likely to produce a just result
disadvantages of mischief rule
-risk of judicial law making as too much discretion
-undemocratic as goes beyond words parliament used which can cause uncertainty
purposive approach definition
looks beyond the exact words in the act to find what parliament intended the purpose of the act to be
case for purposive approach
ROYAL COLLEGE OF NURSING v DHSS- abortion act states only legal if performed by doctors, nurses allowed as purpose of act was to stop backstreet abortions
advantages of purposive approach
-gives judges freedom to look for parls intention
-helps cover new situations such as advances in medicine
-allows absurd results to be avoided (CHEESEMAN)
disadvantages of purposive approach
-too much discretion so undemocratic
-LORD ESHER-not a hodges job to search for the intention of parl but to apply the words they have enacted
external aids
aids found outside of the act, may assist judges in finding meanings of certain words (dictionary & hansard)
Dictionary
uncontroversial, useful for literal rule, Cheesemen and R v Allen examples
hansard
record of the debates from when bill went through parliament
- was banned until PEPPER V HART now limited use
-mischief and purposive rule
-expensive and confusing
intrinsic aids
inside the act itself, may assist in finding meaning of certain words (short title, long title, preambles)
short title
limited use (STREET OFFENCES ACT 1967)
long title
may define what the act concerns
