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Statutory Interpretation Flashcards

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1
Q

What are the advantages of the purposive approach? (4)

A
  • Allows for more situations to be covered than the literal rule
  • Leads to justice in many individual cases
  • Useful where technology or scientific advancement is made, for otherwise Parliament would have to legislate
  • Gives judges more discretion to avoid an absurd result
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2
Q

What are the disadvantages of the purposive approach? (4)

A
  • Judges refuse to follow Parliament’s clear words (gives too much power to judges)
  • Difficult to discover what Parliament’s intentions were
  • Unelected judges are making law
  • Leads to uncertainty in the law and it is unclear when it will be used, which makes it difficult for lawyers to advise clients
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3
Q

What are the advantages of the literal rule? (2)

A
  • It prevents non elected judges from making law (restricts their role)
  • Makes the law more certain and easier to understand
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4
Q

What happened in Smith v Hughes (1960)? (4)

A
  • 6 women charged for soliciting in the street
  • They were on a balcony
  • With the literal rule they would’ve gotten away with it
  • To avoid this ‘mischief’ they were found guilty as the Act was interpreted to have been passed in order to clean the streets of common prostitutes
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5
Q

How do judges decide which rule/approach is best?

A
  • They use aids to interpretation
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6
Q

What is the mischief rule? What happens under it? (3)

A
  • The mischief rule means that the court has to consider three questions when making a decision
  • It is used to avoid a ‘mischief’
  • Gives more discretion to judges
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7
Q

What happened in Royal College of Nursing v DHSS (1981)? (4)

A
  • Law under the Abortion Act 1967 only allowed a ‘registered medical practitioner’ to undertake an abortion
  • Advances in medicine meant that now nurses could help
  • However, nurses were not ‘registered medical practitioners’
  • The House of Lords found it lawful for nurses to perform the procedure
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8
Q

What happened in Re Sigsworth (1935)? (4)

A
  • The defendant murdered his mother
  • She had no will so he stood to inherit her estate
  • It was deemed by the judge that letting him inherit the estate would be absurd
  • The golden rule was used and the defendant did not inherit his mother’s estate
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9
Q

Give an example of a case where there has been a wider application of the golden rule

A
  • Re Sigsworth (1935)
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10
Q

Give an example of a case where there has been a narrow application of the golden rule

A
  • Adler v George (1964)
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11
Q

What are the disadvantages of the mischief rule? (5)

A
  • Risk of judicial law making
  • Judges are filling the gaps in the law with their own views, and not all agree
  • Can lead to uncertainty and make it difficult for lawyers to advise
  • Not as wide as purposive approach, as it is limited to looking at the gap in the old law
  • Outdated - the legislative process is now different to Heydon’s case (1584)
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12
Q

What happened in R v Registrar General ex parte Smith (1990)? (3)

A
  • Concerned the interpretation of the Adoption Act 1976 which allowed an adopted person over the age of 18 to obtain a record of their birth, providing that they had undertaken counselling
  • Charles Smith met this criteria, but had been convicted of 2 murders and had been detained in a mental hospital
  • The Courts decided against him accessing his birth records, using the purposive approach to do this
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13
Q

What is a good example of when the purposive approach has been used? (2)

A
  • R v Registrar General ex parte Smith (1990)

- R (Quintavalle) v Secretary of State (2003)

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14
Q

What are the advantages of the golden rule? (3)

A
  • Provides an escape route from absurd literal meaning
  • Allows the judge to choose the most sensible meaning of words
  • Can avoid a repugnant situation
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15
Q

What are the disadvantages of the golden rule? (3)

A
  • Limited in its use and used rarely
  • Not possible to predict when the courts will use it
  • The rule provides no clear meaning of what is an absurd result
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16
Q

What are the 3 questions asked when using the mischief rule?

A

1) What was the common law before the Act?
2) What was the ‘mischief’ that common law hadn’t fixed?
3) What remedy was Parliament trying to provide?

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17
Q

What are the advantages of the mischief rule? (4)

A
  • Promotes the purpose of the law
  • Fills any gaps in the law, usually producing a ‘just result’
  • Judges try to interpret the law as Parliament meant it to work
  • The Law Commission prefers the mischief rule
18
Q

What happened in R (Quintavalle) v Secretary of State (2003)? (4)

A
  • An Act stated that ‘embryo’ means a live human embryo where fertilisation is complete
  • When the Act was passed, there was only artificial insemination
  • By 2003, CNR was available and used cloning
  • The House of Lords used the purposive approach, believing that Parliament’s purpose would not have been to distinguish embryos depending on how they were made
19
Q

What are the internal/instrinsic aids used by judges? (4)

A
  • The Act itself
  • Schedules
  • Explanatory notes
  • Rules of language
20
Q

What are the rules of language used in statutory interpretation? (3)

A
  • Ejusdem generis rule
  • Expressio unius est exclusio alterius
  • Noscitur a sociis
21
Q

What does ejusdem generis rule mean? (3)

A
  • Applies where a statute contains a list followed by ‘other’
  • Judges use the context of the list to determine what is ‘other’
  • E.g a statute which states lions, cheetahs, tigers and other would be thought to apply to leopards but not horses
22
Q

What does expression unius est alterius mean? (2)

A
  • The express mention of one thing implies the exclusion of another
  • E.g if a statute states lions and cheetahs (without stating and other), it would only apply to lions and cheetahs, not tigers
23
Q

What are the presumptions? (In terms of finding Parliament’s intentions) (3)

A

1) Statutes do not change the common law
2) Legislation does not operate retrospectively
3) Laws which create crimes should be interpreted in favour of the defendant

24
Q

What are the external/extrinsic aids used by judges? (6)

A
  • The historical setting + dictionaries and textbooks of the time
  • Earlier case law
  • Hansard
  • Law Commission reports
  • Treaties
  • HRA 1998
25
Q

What happens after statutory interpretation?

A
  • Once the courts have interpreted a statute, that interpretation becomes part of case law, just like any other judicial decision, and is therefore subject to the rules of precedent
26
Q

Why are there different rules of interpretation? (2)

A
  • The law is ambiguous and can be interpreted various ways
  • This could be because of the wording in the original legislation, or because Parliament did not foresee circumstances that have arisen due to new developments or technology
27
Q

What happened in Whitley v Chappell (1868)? (3)

A
  • Defendant charges under statute where it was an offence to impersonate ‘any person entitled to vote’
  • The person the defendant had impersonated had died
  • He was found not guilty, since technically he didn’t break the law, as a dead person is not entitled to vote
28
Q

What is a good example case of when the literal rule has been used? (2)

A
  • Whitley v Chappell (1868)

- R v Bassett (2008)

29
Q

What is the purposive approach? What happens under it? (2)

A
  • A rule of interpretation that goes beyond the mischief rule
  • Instead of looking at the gap in the law, judges look at what Parliament was trying to achieve with the law
30
Q

What are the three organs of government?

A

1) The Legislative (Parliament)
2) The Executive (Cabinet)
3) The Judges (Judicial)

31
Q

What happened in London & North Eastern Railway Co v Berriman (1946)? (3)

A
  • Railway worker killed doing maintenance work on a railway line
  • Widow sought compensations as a lookout had not been provided
  • Claim failed because the Act only made a lookout compulsory for men ‘relaying or repairing’ the line - he was doing maintenance
32
Q

What is Montesquieu’s Theory of Chaos?

A
  • When one branch of the government interferes with the workings of another, there will be chaos
33
Q

What are the four rules of interpretation?

A

1) The Literal Rule
2) The Golden Rule
3) The Mischief Rule
4) The Purposive Approach

34
Q

What is the literal rule? What happens under it?

A
  • Gives all words in a statute their ordinary and natural meaning
  • Under this rule, the literal meaning must be followed, even if the result is absurd
35
Q

What happened in R v Bassett (2008)? (2)

A
  • Peeping Tom drilled a hole in a changing room wall to stare at men
  • Got away with it because the 2003 Sexual Offences Act was interpreted to only include women’s breasts, and he was looking at men
36
Q

What is the golden rule? What happens under it?

A
  • Starts by looking at the literal rule, but to avoid and interpretation that would be ‘absurd’, the judge can substitute reasonable meaning in the light of the statute as a whole
  • It can be applied through narrow or wider application
37
Q

What is a good example of a case where the mischief rule has been used?

A
  • Smith v Hughes (1960)
38
Q

What happened in Adler v George (1964)? (3)

A
  • The Official Secrets Act 1920 made it an offence to obstruct Her Majesty’s forces ‘in the vicinity’ of a prohibited place
  • Defendants did as such IN a prohibited place, then argued that ‘in the vicinity’ meant ‘outside but close’
  • The court found them guilty to avoid an absurd result, using the golden rule to do this
39
Q

What are the disadvantages of the literal rule? (4)

A
  • Not every Act is perfectly drafted
  • Not every Act covers every situation
  • Words may have more than one meaning and the Act may be unclear
  • Can lead to an absurd, unfair or unjust decision
40
Q

What is the effect of E.U membership on statutory interpretation? (2)

A
  • Growth of a more purposive approach
  • Effect of S2(4) European Communities Act 1972 - all parliamentary legislation must be construed and applied in accordance with Union law

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