Statutory Interpretation Flashcards
Literal rule
Judges give words in statutes their plain ordinary grammatical meaning, whatever the consequences. Lord Esher MR summed it up as follows in R V Judge of the City of London 1892: “if the words of an act are clear, you must follow them even though they lead to a manifest absurdity”
Whitely V Chappell (L)
D was charged under a statute which made it an offence to impersonate any person ‘entitled to vote’. D had pretended to be a person whose name was on the voters list, but who had died. The court held that D was not guilty since a dead person is not ‘entitled to vote’
LNER Railway Co. V Berriman (1946) (L)
The D railway Co was under a statutory duty to keep a look out on duty when their emplyoees were ‘repairing or relaying’ the line. Berriman was killed by a train whilst maintaining (oiling) the line. There was no look out on duty. His widow was not entitled to compensation because the court held that maintaining was not covered by ‘repairing or relaying’
Fisher V Bell (1960) (L)
D was a shopkeeper who displayed a flick knife marked with a price in his shop window. He was charged under a statute for making an ‘offer for sale’ of the flick knife. There is a technical meaning of ‘offer for sale’ from contract law, under which putting an article in a shop window is not an offer to sell, but an ‘invitation to treat’. The court used the literal rule and applied the technical legal meaning of ‘offer for sale’ from contract law. This meant D was not guilty of making an ‘offer for sale’
Golden rule
Lord Wensleydale in Grey V Pearson (1857): the grammatical ordinary sense of the word is to be followed until it would lead to some absurdity, or some repugnance, or some inconsistency, in which case the grammatical meaning of the words can be modified so as to avoid the absurdity, but no further
The narrow version
Where words are capable of having more than one meaning, the meaning that is least absurd should be used
Allen (1872) (GN)
D charged with bigamy under s.57 offences against the person act, which provides that ‘whosoever being married shall marry again’ commits an offence. The law on marriage already stated that if you’re married then any second marriage was void. Meaning that if the literal rule was used no one could ever be convicted of bigamy. Court decided this would be absurd and applied to ‘golden rule’ and the word marry could have another meaning of ‘to go through a ceremony of marriage, and D was convicted
Adler V George (1964) (NG)
D was caught inside an RAF base where he was staging a protest. He was accused under a statute with obstructing a member of the armed forces ‘in the vicinity’ of the base. His defence was that as he was inside the RAF base he could not be ‘in the vicinity’ as this meant ‘near to’. The court held that to apply the normal meaning of in the vicinity of would he absurd and held that it could mean near to or near to and within, and chose the second meaning to secure a conviction
Wide version
Can be used to avoid a repugnant. It does not require that the words have more than one meaning, just that the court finds the literal meaning unacceptable
RE Sigsworth (1935) (GW)
A son had murdered his mother. The mother had not made a will, so normally her estate would have been inherited by her issue according to the rules set out in a statute. There was no ambiguity in the words of the act, but it would be repugnant to murderer benefit from his crime, so despite the clear wording of the act it was held that he could not inherit his mothers estate
Mischief rule
Hey dons case (1584): and provides bag judges should use the following factors when interpreting a statute:
- What was the common law before the statute
- What problem or mischief was the statute trying to remedy
- How did parliament try the remedy the mischief
Mischief rule
Judges should then interpret the statute in such a way as to put a stop to the mischief. The courts look at the wording in the act but are also willing to look outside the act to its social and historical context and extrinsic aids for meaning e.g. Hansard and law reform reports
Smith V Hughs (1960) (M)
to interpret the offence of a prostitute ‘soliciting in a street/public place’. One had been attracting customers from a balcony and the other had been from a window on a ground floor. The court decided that they had been rightly convicted because the mischief aimed at by the statute was to enable people to walk along the street without being harassed by prostitutes. So the statute was interpreted to stop this ‘mischief’. The women could be seen from the street
Royal college of nursing V DHSS (1981) (M)
There was a statute which provided that a lawful abortion could be carried out by a ‘registered medical practitioner’. This clearly conveyed doctors, but what about nurses? Advances in medical science meant that from the early 1970s surgical abortions by doctors were largely replaced with abortions using drugs by nurses, without a doctor being present. On appeal, the majority of judges interpreted the relevant statute to stop the mischief of illegal abortions where no medical care was available and allow nurses to carry out abortions in a hospital
Purposive approach
Requires the court to work out the general purpose of parliament in passing the act and then interpret the act to fulfil that purpose. No particular ‘mischief’ has to be found
Margor and St Mellons V Newport (1951) lord denning stated:
“We do not sit here to pull the language of parliament to pieces and make nonsense of it, we sit here to find out the intention of parliament and carry it out by filling in the gaps and making sense of the enactment
Coltman V Bibby tankers (1978) (P)
A statute imposed liability on an employer for the death of an employee caused by defective ‘equipment’ supplied by that employer. The victim died when a ship he was working on capsized because it had a defective hull, and the court had to decide whether a ship was ‘equipment’. The relevant act contained a definition section which definite equipment but this did not refer to a ship. The court held that equipment could include a ship because the general purpose of the act was to make the employer liable for hard caused by defects in anything provided by them
R V Registrar-General, Ex Parte Smith (P)
D was a violent murderer who had mental health problems. He had already killed a cell mate in the belief that it was his adoptive mother. He then tried out the identity of his natural mother which he was entitled to under the adoption act 1976. The registrar general refused despite him being entitled to the information under the unambiguous wording of the statute. The court held that it could never have been the purpose of parliament to pass a law that could help a possible crime and upheld the decision to the information
Ejusdem generis (general rule)
Where a list of words in a statute is followed by general words, then the general words are limited to the sake kind of items as those in the list
Powell V Kempton Park Racecourse (1899) (GR)
D was charged with keeping a ‘house, office, room or other place for betting’. He had been operating betting outside at a race course. The court decided that the general words ‘other place’ had to refer to indoor places since all the words in the list were inform places and so D was not guilty
Context rule
Word takes on meaning from other words around it. Involves looking at other words in the same section or at other sections in the statute
Bromley London borough council v greater London council (CR)
Issue was whether GLC could operate a cheap fare scheme on their transport systems, where the amounts being charged meant that the transport system would run at a loss. The decision in the case revolved around the meaning of the word ‘economic’. The court looked at the whole statute and, in particular, at another section which imposed a duty to make up any shortfall as far as possible. As a result they decided that ‘economic’ meant being run on business lines and so ruled that the cheap fares policy was unlawful.
Specific rule
Where there is a list of words which is not followed by general words, then the statute applies only to the items on the list
Tempest V Kelner (SR)
Held that the phrase ‘goods, wares and merchandise’ in a statute did not cover stocks and shares
Intrinsic aids
Clues within the statute itself that may help to make its meaning clearer
The short and long title of the statute
Long title is good for mischief and the purposive approaches in that it may give clues as the the purpose of the statute e.g. Law of property act. Short title gives very little away, but the long title explains that the statute is bringing together all the previous statutes relating to conveyancing
Preamble (introduction to statute)
Older statutes often have a preamble that may provide a useful indication of the purpose of the act/mischief in the common law the act was trying to remedy, modern statutes do not tend to have them or only contain a brief one
Definition sections
Set out lists of what meanings are intended for certain words used elsewhere in the statute and are relatively modern drafting technique
Extrinsic aids
Materials which are outside a statute which the judges may use, together with the various approaches to interpretation, to help them interpret the statute
Authorised dictionary of the year the statute was passed
This is useful for the literal rule
Law reform report (e.g. Law commission report) on which the statute is based
Used for the mischief rule
Interpretation act 1978
Can be used if the word is covered by the 1978 act
Hansard
Can be consulted where the word/phrase being interpreted was discussed in a parliamentary debate.
What case used Hansard
Pepper V Hart 1993: allowed Hansard to be consulted in limited circumstances. This is useful for the purposive approach.
Advantages of using Hansard
It’s useful if the judges can make use of all relevant materials to interpret a statute. It might be the case that the very question of interpretation at issue was considered by parliament
Disadvantages of using Hansard
- lawyers researching Hansard adds to the time and cost of a case
- the phrase in question has usually not even been discussed
- when it has the meaning is often still not clear
International treaty entered into by the U.K.
If the word is defined there
Advantage of literal rule: respects the seperation of peers and ensures that
Judges carry out the will of parliament as stated in the wording of the legislation. Judges are not seen to make law
Advantages of the golden rule: when there is a problem with legislation and using literal rule would lead to absurdity, the golden rule provides…
An escape route
Advantages of the literal rule: using the plain, ordinary meaning
Seen in…
Fisher V Bell as most people would think a display in a shop window is an offer for sale
Judge in this case was probably a minority but meaning was open to interpretation
Advantages of the liberal rule: some judges argue that they’re doing…
Parliament a service by drawing faulty legislation and loopholes to their attention
Advantages of the literal rule: doing Parliament a service by drawing faulty legislation and loopholes to their attention
As seen in…
Fisher V Bell: parliament had to amend the statute shortly after the case
Disadvantages of the literal rule: doing Parliament a service by drawing faulty legislation and loopholes to their attention
However…
Legislation in fisher v Bell clearly meant to cover advertisements and displays and saves a lot of time and money if judges use the mischief rule/purposive approach to give meaning parliament must’ve intended
Advantages of the literal rule: legislation written by highly skilled draftsmen who…
Try to ensure the meaning is clear so judges
Should accept the clear words in the statute
Disadvantages of the literal rule: legislation written by highly skilled draftsmen who…
However…
Not always possible to draft laws to cover every possible situation that might arise
Not always possible to draft laws to cover every possible situation that might arise, as seen in
Whitely v Chappell where nobody thought about possibility of using a dead persons vote where legislation was drafted
Whitely v Chappell where nobody thought about possibility of using a dead persons vote where legislation was drafted, in such situations judges should…
Be able to fill in the gaps
Advantages of the literal rule: saves time and money because
No research has to be don’t looking up extrinsic aids eg. Hansard/law reform reports
Disadvantages of the literal rule: saves time and money
However
Use of extrinsic aids could clear up any uncertainty over the interpretation of the act, but they cannot be used
Advantages of the golden rule: when there is a problem with legislation and using literal rule would lead to absurdity, the golden rule provides an escape route, as seen in
Fisher v Bell
‘Offer for sale’ could easily be said to have 2 meanings: one of which is ‘display for sale’
Would’ve avoided need for time and expense
Advantages of the golden rule: when there is a problem with legislation and using literal rule would lead to absurdity, the golden rule provides an escape route, as seen in fisher v Bell and
Berriman
The phrase ‘repairing or relaying’ could easily have the meaning ‘working on’
Disadvantages of the golden rule: provides an escape route
However…
Different judges have different views on deciding whether a result is ‘absurd’ or not. Which leads to uncertainty in law.
Disadvantages of the golden rule: Different judges have different views on deciding whether a result is ‘absurd’ or not. Which leads to uncertainty in law.
Seen in…
Adler v George
Literal meaning of ‘in the vicinity’ not necessarily a sure because there was already a law governing trespassing in military bases. Makes it difficult for lawyer to advise their client on outcome
Advantages of the golden rule: for narrow version, judges must use
A meaning that the words could reasonably have
Not breaching the doctrine of the separation of powers
Disadvantages of the golden rule: for narrow version, judges must use a reasonable meaning
However…
Narrow version limited as judges can only choose between possible meanings of words
Disadvantages of golden rule: Narrow version limited as judges can only choose between possible meanings of words, seen in…
Sigsworth
Meaning of the words were clear and had no other possible meaning
If marrow version used, he would’ve inheritors mothers money despite killing her
Advantages of golden rule: wife version allows judges to work out
What parliaments intention was and interpret the law to avoid unacceptable outcomes regardless of wording
Would’ve clearly been unjust to allow in Sigsworth
Disadvantages of golden rule: wide version allows judges to work out parliaments intention
However
Unelected judges beginning to make law as they’re not confining themselves to actual words of statute but trying to work out what parliament intended
Can be said to be undemocratic
Advantages of the mischief rule and purposive approach: helps avoid
Absurd outcomes to cases
Advantages of the mischief rule and purposive approach: helps avoid absurd outcomes
Seen in…
Whitely v Chappell: mischief was obviously electoral fraud
Berriman: mischief was the risk of the LIKE of railway workers
Could’ve been used to recognise this and apply law that parliament intended to produce a ‘just’ result
Disadvantages of the mischief rule: helps avoid absurd cases
However..
Relies on being able to find defect in common law that parliament was trying to remedy
Involves use of extrinsic aids and can be difficult, expensive and time consuming
Disadvantages of the literal rule: respects the separation of powers however…
Where use of the literal rule does lead to absurdity, isn’t carrying out
- The intention of parliament
- parliament unlikely to have intended absurdity or injustice
- cannot have been parliaments intention to leave workers maintaining railways unprotected in LNER V BERRIMAN
Advantages of the mischief rule: promotes flexibility in legislation as it enables
Judges to interpret acts in the light of changing social, economic and technological circumstances
Advantages of the mischief rule: promotes flexibility in interpretation of legislation
As seen in
Royal college of nursing v dhss
Case took into account changes in medical capabilities since legislation was passed
Disadvantages of mischief rule: promotes flexibility in interpretation of legislation
However…
Legislation written by highly skilled draftsmen who try to ensure meaning is so clear that judges accept clear words in statute
Any injustices are the fault of parliament and should be dealt with by parliament
Disadvantages of the mischief rule: dates back to
Heydons case in 16th century where there were far fewer acts of parliament and they were less complex- easier to work out parliaments intentions
Makes rule less suited to quantity and complexity of modern legislation
Disadvantages of the mischief rule: increased law making power of judges
As seen in…
Royal college of nursing v dhss
Judges hearing the appeal disagreed on use of mischief rule
One dissenting just stated law hadn’t been interpreted but re-written
Advantages of the mischief rule and purposive approach: attempts to follow the will of parliament rather than…
The exact words written by it
Advantages of the mischief rule and purposive approach: attempts to follow the will of parliament rather than the exact words written by it. As seen in…
Berriman
Parliament probably meant to cover all people working on railways and the court could’ve interpreted the state this way
Disadvantages of the mischief rule: attempts to follow will of parliament
However…
Increased law making power of unelected judges at expense of parliament (as they can’t be asked what they meant)
Disadvantages of the purposive approach: enables unelected judges to take over function of parliament in making new law as judges did in…
Smith case: goes against sovereignty of parliament and separation of powers
Royal college of nursing v dhss: judges hearing appeal disagrees on use of purposive approach and one dissenting judge stated law had been re-written not interpreted
Disadvantages of purposive approach: attempts to follow will of parliament
However…
Critics argue it’s impossible to discover general purpose of parliament in passing legislation: only words of statute show what parliament wanted
Not for judges to argue that parliament meant one thing but said another
Disadvantages of purposive approach: impossible to discover will of parliament. Seen in…
Coltman
If Hansard had been referred to the court would’ve found that parliament didn’t intend that ships should be included under ‘equipment’
Advantages of purposive approach: suited to interpretation of European law and…
Human rights act 1998
Written in very broad terms with general principles set out and the judges having to interpret according to spirit rather than the letter of the law
Disadvantages of purposive approach: suited to interpretation of European law and human rights act
However…
Less suited to more precise and detailed structure of English legislation
Advantages of purposive approach: promotes flexibility in interpretation of legislation and is useful where…
There is new technology which was unknown when act was passed
Seen in: quintaville and RCN V DHSS
Disadvantages of purposive approach: promotes flexibility in interpretation of legislation
However…
Legislation written by highly skilled draftsmen who try to ensure that meaning is so clear that judges should accept words in state
Any injustice is fault of parliament and should be dealt with by them
