Statutory Interpretation

Question 1

What is the need for statutory interpretation P175

Answer 1

The meaning of law in statutes is sometimes not clear. In order to help with understanding an act may include an interpretation section defining the meaning of certain words. Many cases go to court because there is a dispute over the meaning of a word.
The reason meanings may be unclear is: a broad term, ambiguity (a word has two or more meanings), a drafting error, new developments and changes in the use of language.

Question 2

How have the courts overcome these problems and what are the rules of statutory interpretation W17P1 and page 176

Answer 2

Judges have not been able to agree on which approach should be used so different rules of interpretation have been developed. Therefore, the interpretation of a statute may differ because of the one chosen, however once a word has been interpreted it should form a precedent. The Literal Rule, The Mischief Rule, The Golden Rule and The Purposive Approach

Question 3

The Literal Rule W17P1 and P176

Answer 3

The Literal Rule was developed in the early 19th century and was the main rule for the first part of the 20th and is still used for a starting point for interpretation get legislation.
Courts give words their plain, ordinary or literal meaning even if the result is not very sensible.
This was shown in the case Whitely V Chappell and LNER V Berriman

Question 4

Whiteley V Chappell (1868) P176

Answer 4

In this case the defendant was charged under a section which made it an offence to impersonate ‘any person entitled to vote.’ The defendant had pretended to be a person whose name was on the voters list, but who had died. The court held the defendant was not guilty since a dead person is not, in the literal meaning of the words ‘entitled to vote.’

Question 5

London and North Eastern Railway Co V Berriman (1946) P176

Answer 5

A railway worker was killed while doing maintenance work, oiling points along a railway line. His widow tried to claim compensation because there had not been a look out provided by the railway company in a accordance with a regulation under the Fatal Accidents Act which stated that a look-out should be provided for men working on or near the railway line ‘for the purpose of relaying or repairing it.’ The court took the words relaying and repairing in their literal meaning and said that oiling points was maintaining the lines and not relaying or repairing so that Ms Berriman’s claim failed.

Question 6

What are the advantages and disadvantages of the Literal Rule P181

Answer 6

Advantages
Follows the words that the democratically elected Parliament has used, prevents unelected judges making law. It should also make the law more certain as the law will be interpreted exactly as it’s written and easier for lawyers to know the law.
Disadvantages
Assumes every act is perfectly drafted, not possible to write an act that covers every situation Parliament meant as seen in Whiteley, words can have more than one meaning so the act may be unclear, can lead to unfair or unjust decisions Berriman

Question 7

The Mischief Rule W17P1 and page 178 and 179

Answer 7

The rule gives a judge more discretion than the Literal and Golden Rule. The definition of the Mischief Rule comes from the Heydon’s case (1584). The court should look to see what the law was before the act was passed in order to discover what gap or Mischief the Act was intended to cover. The court should then interpret the Act in such a way that the gap is covered (so should provide a remedy). This was shown in the case Smith V Hughes, Corkery V Carpenter and Royal College of Nursing V DHSS (1981).

Question 8

Smith V Hughes (1960) P178

Answer 8

The court considered appeals against the conviction under S.1(1) of the Street Offences Act 1959 of six different women. In each case the women had not been ‘in a street or public place.’ One had been on the first floor balcony of a house and the others had been at the windows of ground floor rooms, with the window either half open or closed. In each case the women were catching the attention of men by calling to them or tapping on the window. It was argued for them that they weren’t literally ‘in a street or public place.’ The court decided they were guilty. Lord Parker approached the matter by considering the mischief aimed at by this Act. Everyone knows that this was an act to clean up the streets, to enable people to walk along the streets without being molested or solicited by prostitutes. Therefore, it doesn’t matter whether they are in the street or on a balcony.

Question 9

Cockery V Carpenter W17P1

Answer 9

The defendant was charged with being drunk in charge of a ‘carriage’ on the highway. He was riding a bicycle. Applying the mischief rule.
The mischief was stopping people being a danger on the highway. Parliament overlooked other forms of transport.

Question 10

Royal College of Nursing V DHSS (1981) P179

Answer 10

In this case the wording of the Abortion Act 1967, which provided that a pregnancy should be ‘terminated by a registered medical practitioner’ was an issue. When the act was passed in 1967 the procedure to carry out an abortion was such that only a doctor (a registered medical practitioner) could do it. From 1972 onwards improvements in medical technique meant that the normal method of terminating a pregnancy was to induce premature labour with drugs. The first part was carried out by a doctor but the second part was carried out by a nurse without a doctor present. The court had to decide whether this was legal under the Abortion Act. It went to the HOL where the majority said it was lawful. Those that thought it was lawful based their decision off the mischief rule. They pointed out that the mischief Parliament was trying to remedy was the unsatisfactory state of the law before 1967 and the number of illegal abortions put women’s lives at risk. The act was to broaden the grounds for an abortion and ensure that they were carried out with proper skills in hospitals.

Question 11

What are the advantages and disadvantages of the Mischief Rule P182

Answer 11

Advantages
Promotes the purpose of the law as it allows judges to look back at the gap in the law which the Act was designed to cover. More likely to produce a just result, also means judges try and interpret the law in the way that Parliament meant for it to work. In 1969 the Law Commission said that this should be the only statutory interpretation.
Disadvantages
There is a risk of judicial law making (Smith V Hughes), Nursing V DHSS was a 3-2 majority shows that judges do not always agree when to use the rule, it can lead to uncertainty, impossible to know when judges will use it and what it will lead to, which makes it harder for lawyers and not as wide as the Purposive Approach as it’s limited to looking at the gap rather than a more general consideration of the purpose of the law.

Question 12

The Golden Rule W17P1 and P177

Answer 12

The Golden Rule is a modification of the Literal Rule. It starts by looking at the literal meanings of the words but the court is then allowed to avoid an interpretation which would lead to an absurd result. There are two views of how the Golden Rule should be used.
Under the narrow application courts may choose between the possible means of a word or phrase. If there is one meaning this must be taken.
The second and wider application is where the words have only one clear meaning but this would lead to a repugnant situation. In such a case the the court will use the Golden Rule to modify the words of the statute in order the avoid this problem. This was shown in the cases Adler V George and R V Allen.

Question 13

Adler V George (1964) P178

Answer 13

The Official Secrets Act 1920 made it an offence to obstruct Her Majesty’s Forces ‘in the vicinity’ of a prohibited place. The defendant had caused an obstruction in the prohibited place. It was argued that he was not guilty as the literal wording of the Act did apply to anyone in the prohibited place. It only applied to those ‘in the vicinity’ ie outside but close to it. Using the Golden Rule the Divisional Court found the defendant guilty as it would be absurd if those causing an obstruction outside the place was guilty, but anyone inside were not. The words should be read as being ‘in or in the vicinity of’ the prohibited place.

Question 14

R V Allen W17P1

Answer 14

The defendant was charged with bigamy. It was an offence to marry while already married to someone else.
He claimed that as he was already married, the second marriage was invalid and so not a legal ‘marriage.’
The judge interpreted the word ‘marry’ as to simply go through with the ceremony and so he was found liable.

Question 15

What are the advantages and disadvantages of the Golden Rule P182

Answer 15

Advantages
Respects the exact words of Parliament except from limited situations. When there is a problem with the Literal Rule it provides an escape route. It’s only used in limited circumstances so stops judges making law to any great extent. Judges can choose the more sensible meaning of a word so it avoids absurd outcomes. Effectively it avoids the worst problems of the Literal Rule.
Disadvantages
Very limited in use, only used on rare occasions, hard to predict when courts are going to use this rule, it’s an escape route but cannot do much, what is absurd is subjective and it may give judges too much discretion.

Question 16

The Purposive Approach P180

Answer 16

The Purposive Approach goes beyond the mischief rule in that the court is not just looking to see what the gap was in the old law. The judges are deciding what they believe Parliament meant to achieve. They are looking to see what the purpose of the Act was.
This was shown in the case Jones V Tower Boot but can look on page 180 and 181 for other examples.

Question 17

Jones V Tower Boot W17P1

Answer 17

The Race Relations Act made a company liable for racial abuse carried out by workers in the course of their employment. Course of employment means the things workers are employed to do.
The purpose of the act was to avoid discrimination in the work place, so the company was liable.

Question 18

What are the advantages and disadvantages of the Purposive Approach P182 and 183

Answer 18

Advantages
Leads to justice in individual cases, more broad approach which allows the law to cover more situations, good for when there is now new technology which wasn’t around when the law was enacted, it gives judges more discretion, avoid absurdities.
Disadvantages
May mean that judges refuse to follow the clear words of Parliament, how do judges know what Parliament’s intentions were, only the words of the statute can show this, allows judges to make law as they are deciding what they think the law should be rather than using the words of the Act and impossible to know when judges will use it and what it will lead to so it’s hard for lawyers to advise clients on the law.

Question 19

Aids to interpretation: rules of language P183

Answer 19

Even the Literal Rule doesn’t take words in complete isolation. Other words in the Act must be looked at to see if they affect the meaning of the word that has been interpreted. In looking at the other words in the Act the courts have developed a number of minor rules which can help to make the meaning of words and phrases clear. These rules are: the ejusdem generis rule, expressio unius - the express mention of one thing excludes others and noscitur a sociis - a word is known by the company it keeps.

Question 20

What is the ejusdem generis Rule P183 and 184

Answer 20

Where there is a list of specific words followed by general words, then the general words are interpreted in line with the specific words.
This is shown in the case Hobbs V CG Robertson Ltd (1970).
There must be at least two specific words in a list before the general word or phrase for this rule to operate. This was shown in the case Allen V Emmerson (1944).

Question 21

Hobbs V CG Robertson Ltd (1970) P184

Answer 21

A workman injured his eye when brickwork that he was removing splintered. He claimed compensation under the Construction (General Provision) Regulations 1961. These regulations made it a duty for employers to provide goggles for workman when ‘breaking, cutting, dressing or carving of stone, concrete,slag’ and the general words ‘or similar material. The court decided that brick did not come within the term ‘a similar material’. Brick was not ejusdem generis with stone, concrete slag. The reason was that the other materials were hard, so that bits would fly off them when hit with a tool, where as brick was a soft material. This meant the workman’s claim for compensation failed.

Question 21

Allen V Emmerson (1944) P184

Answer 21

The court had to interpret ‘theatres and other places of amusement’ and decide if it applied to a funfair. As there was only one specific word ‘theatres’ it was decided that a funfair did come under the general term ‘other places of amusement’ even though it was not the same kind as theatres.

Question 22

Expressio unius exclusio alterius P184

Answer 22

The phrase means: the express mention of one thing excludes others.
Where there is a list of words which is not followed by general words, then the Act applies only to the items in the list. This was shown in the case Tempest V Kilner (1846).

Question 22

Tempest V Kilner (1846) P184

Answer 22

The court had to consider whether the Statute of Frauds 1677 (which required a contract for the sale of goods, wares and merchandise’ of more than £10 to be evidenced in writing) to applied to the contract of stocks and shares. The list ‘goods, wares and merchandise’ was not followed by any general words, so the court held only contracts for these three types of things were affected by the statute; because stocks and shares were not mentioned they were not caught by the statute.

Question 23

Noscitur a sociis P184

Answer 23

The phrase means: a word is known by the company it keeps.
This means that the words must be looked at in context and interpreted accordingly; it involves looking at other words in the same section or at other sections in the Act. Words in the same section were important in Inland Revenue Commissioners V Frere (1965).

Question 23

Inland Revenue Commissioners V Frere (1965) P184

Answer 23

The case involved interpreting a section which set out rules for ‘interest, annuities or other annual interest.’ The first word of ‘interest’ on its own could have meant any interest paid, whether daily, monthly or annually. Because of the words ‘other annual interest’ in this section, the court decided that ‘interest’ only meant annual interest.

Question 24

Aids to interpretation; intrinsic and extrinsic aids P184

Answer 24

There are some aids to help the judges with interpretation. These can either be intrinsic (internal) aids or extrinsic (external) aids.

Question 24

Intrinsic aids P184 and 185

Answer 24

These are matters within the statute itself that may help to make its meaning clearer. Courts can consider the short title, the long title and the preamble, if any. Older statutes usually have a preamble which sets out the purpose of the statute, while modern statutes don’t include one or have a brief one, Parliaments intentions may also be shown in the long title.
Some acts will have an interpretation section in them such as the Theft Act 1968. Sometimes this section will give extended meanings for certain words.
Headings before a group section or schedules attached to the act can be used but these are not regarded as giving Parliament’s intention because they are added after debate.
It’s also possible to look at other sections in the Act such as in Harrow LBC V Shah and Shah (1999). This case is not included as very complicated but can look on the page.

Question 25

What are the advantages and disadvantages of intrinsic aids P185

Answer 25

Advantages
Some of these are placed in by Parliament meaning the courts are more likely to come to an interpretation that Parliament intended.
Long preamble setting out the purpose was helpful.
Disadvantages
Long preambles are not included in every statute, some extrinsic aids such as headings are placed there by printers and do not reflect the intention of Parliament, definitions are not always included which can lead to uncertainty, which may mean judges have to interpret it.

Question 26

Extrinsic aids P185

Answer 26

These are outside the act, which can help explain the meanings of words in an Act.
Dictionaries of the time of the passing of the Act, must be from the time because the meaning of words change over time. This was used in the case Cheeseman V DPP (1990).
Hansard is the official report of what was said in Parliament when the Act was passed, up until Pepper V Hart (1993) could not be used but now it can be used in a limited way. Only used when words are obscure and could lead to absurdities, even then only used if a clear statement by the minister can resolve the problem.

Question 27

Advantages and disadvantages of using Hansard P185 and 186

Answer 27

Advantages
Available to everyone to consult. The discussion and questions that lead to a statement may make the statute much clearer.
Disadvantages
Not always helpful the word may not have been mentioned and what was said may not make it any clearer, there is also extra costs as lawyers feel obliged to read through the debates so they don’t get sued by their client.

Question 28

What are law reform reports P186

Answer 28

Reports of law reform bodies such as the Law Commission which led to the passing of act has been used since the Black-Clawson case 1975 as it was said that it should be used to discover the mischief. With the increased used of the Purposive Approach it has come more important.

Question 29

Advantages and disadvantages of Law Reform Reports P186

Answer 29

Advantages
Issued after research, consultation and considerable preparation. Normally identify the reasons the proposed change, help understand the purpose of the new law. In cases where the draft bill becomes law without alteration it can help identify the intention of Parliament.
Disadvantages
Sometimes the draft bill will be changed in the legislative process so it’s no longer helpful. Only available for certain areas of law.
International conversations can be used to get an understanding of the interpretation of international rules.

Question 30

The effect of EU law on statutory interpretation P186 and 187

Answer 30

The Purposive approach is used by many countries and the ECJ. The European preferences for the purposive approach have effected the English Courts in two ways. For law which has been passed due to the EU, the purposive approach is the correct one to use.
Second, this has made them more accustomed to it so they are more likely to use it in English law.
Where there is EU law English courts have to use the purposive approach because of the Treaty of Rome. Have to interpret national law in the light and the aim of EU law.

Question 32

What is the effect of the Human Rights Act 1998 W17P1 and P187

Answer 32

Came into force in 2000. It gives effect to the European Convention of Human Rights.
Section 3 states ‘so far as it’s possible to do so, all legislation must be read and given effect in a way which is comparable with the Convention Rights.’
This applies to any case where one of the rights is concerned, but it does not apply where there is no involvement of human rights.

Question 34

What does article 6(2) of the Act state W17P1

Answer 34

Everyone charged with a criminal offence shall be presumed innocent until proved guilty by law. This was shown in the case Sheldrake V DPP.

Question 36

What does section 5 of the Road Traffic Act 1988 provide W17P1

Answer 36

01) If someone is in charge of a motor vehicle, after consuming so much alcohol that the proportion of it in his breath exceeds the prescribed limit.
02) it is a defence for a person charged with an offence to prove that at the time of the offence there was no likelihood of his driving the vehicle while the proportion of alcohol exceeded the prescribed limit. This was shown in Sheldrake V DPP

Question 38

What was the verdict of Sheldrake W17P1

Answer 38

The High Court found that the Road Traffic Act did not breach the Human Rights Act. The burden was on the prosecution to prove ‘beyond all reasonable doubt’ that the defendant did intend to drive the vehicle. The defence in S.3 only applies once this fact has been proved.