Statutory Interpretation Flashcards
What might make statute unclear
Broad term, ambiguity, drafting errors, inventions/technology, changes in use of language
Four rules of interpretation
Literal rule
Golden rule
Mischief rule
Purposive approach
The literal rule
The literal rule requires judges to apply the literal, ordinary, dictionary meanings of words even if they lead to ‘manifest absurdity’
Lord Esher: “if the words of an Act are clear, you must follow them even if they lead to manifest absurdity”
LNER v Berriman
Berriman looking points on the train line when he was hit and killed as no lookout had been provided. Fatal Accidents Act 1846 says a lookout must be provided whenever a railway worker is ‘repairing or relaying’ a track. Court said piling was maintenance and not repairing or relaying. Therefore LNER did not have to provide a lookout and were not liable.
DDP v Cheeseman
D was said to be masturbating in a public toilet. He was charged with exposing himself to passengers in a street, contrary to the Town Police Clauses Act 1847.
Toilet was said to be a street, but ‘passengers’ was defined in the 1847 dictionary as anyone passing by through for its ordinary purpose. As the police were there for a specific reason other than toilets ordinary use, they were not technically passengers and so D was found not guilty
Advantage of literal rule- provides certainty within the law
Literal rule creates certainty because it follows the Act strictly word for word so the Act will always have the same meaning.
Cheeseman, word passenger was taken from the dictionary and so everyone will be viewed under the same sedition of ‘passenger’
Good because it keeps the law fair and consistent and allows lawyers and defendants to know the law and properly prepare for trials
Advantage of literal rule- saves Judge’s time
This is because judges do not need to think about the meaning of words, just apply them as they are
Cheeseman, the judge simply had to find the definition of passenger in the dictionary and then decide if the police fit the description
Good because it means ‘swift justice’ and more cases can be dealt with in less time
Advantage of literal rule- respects parliamentary supremacy
The literal rule ensures parliamentary supremacy because it follows the exact wording parliament used and the literal meaning of those words
LNER v Berriman, judges stuck to the strict meaning of relaying and repairing and refused to include maintaining because it had not been specific in Parliament
Parliamentary supremacy is good because it is parliaments job, not a judge’s to make the law due to them being elected and representing society
Advantage of the literal rule- respects separation of powers
This is because judges are merely interpreting the law rather than making it changing it
Cheeseman judges merely took the dictionary meaning of the words rather than changing the meaning or wording
Because it means judges are doing their constitutional role and not exceeding their powers
Disadvantage of literal rule- leads to absurdity
Follows words straight from the Act strictly and may end up being restrictive.
LNER v Berriman
It was absurd that the victim was not entitled to a lookout just because he was maintaining rather than repairing, as the danger was the same either way.
Because it means bad decisions will be made due to technicalities and may prevent justice
Disadvantages of literal rule- doesn’t apply to words with multiple meanings
Because some words have more than one meaning.
R V Allen
Marriage had two meanings, at the time, which could be taken.
Because it could make it difficult to actually apply the literal rule and therefore is not really quick or easy to use.
Disadvantage of the literal rule- assumes perfection in drafting
Because judges take the wording exactly out the Act, even when parliament have made a mistake.
LNER V Berriman
Only ‘repairing and relaying’ entitles employees to lookout. Missed out maintaining that had the same risk. Clearly not what parliament wanted.
Because it means Parliament’s intention isn’t actually fulfilled and it leads to absurd decisions which parliament didn’t intend
Disadvantage of literal rule- does not allow for judicial creativity
Because judges will have to use the exact same definition from the time even if it’s outdated.
LNER V Berriman
Fatal accidents act was 100 years old by the time of the case. Judges had to apply old wording on a modern case.
Because the law may not be updated and will require parliament to spend time tweaking increasing numbers of old Acts rather than bigger problems.
Briefly explain how golden rule works
Start by using literal rule and finding out literal meanings of words in statute. If using them will produce an absurd or unjust result, they have two options. Narrow or broad approach
Golden rule- narrow approach
If a word or phrase has two or more possible meanings, judge may choose meaning most appropriate to fit the case. (Can not invent new meanings)
Golden rule- broad approach
When words have 1 meaning which will lead to absurdity, the court can modify words of statute
Case showing narrow approach
R v Allen
D charged with bigamy for trying to marry a second woman. Offences Against the Person Act 1861 means he can’t be married to another woman whilst being married to another. “Married” can mean to be legally married or to have had a wedding ceremony. Court chose to use the meaning of having a ceremony as he couldn’t have technically been ‘legally’ married again. Therefore D was found guilty
Case showing broad approach
Re Sigsworth
Sigsworth killed his mother who didn’t leave a will and tried to claim inheritance through Administration of Estates Act 1925, which states the ‘issue’/next of kin would inherit. The court didn’t want him to benefit from his crime so they assumed the act meant it goes to the next of kin unless they killed the deceased. Denied the inheritance
Explain how mischief rule works
Identify the mischief/problem they want to solve and what parliament wanted to stop. Interpret the statute to stop the mischief
Mischief rule, Heydon’s case to show guidelines
What was common law before act was made?
What was the mischief and defect for which the common law did not provide?
What was the remedy parliament created to cure the mischief?
What was the reason behind the remedy?
Judges should make such construction as shall surprise the mischief and advance remedy
Case for mischief rule
Smith V Hughes
D were prostitutes behind a window and on a balcony of private residence trying to entice people on the street. Street Offences Act 1959 made it a crime to be on streets or public place for the purposes of prostitution. As they were on private property, not a street or public place. Stop the mischief of members of public being harassed by prostitutes on streets. Court said guilty- didn’t matter where the prostitutes literally were, matters is causing illegal consequence on the street
Advantage of golden rule- avoids absurdity
Because judges can change the meaning of words in an Act so it makes sense in the circumstances.
R v Allen
It would be absurd to define marry as ‘legally marry’ as it would be impossible to ever commit bigamy.
Good because justice is still being served in cases where if the literal rule was applied it would have led to an absurd decision
Advantage of golden rule- puts Parliament’s intention into practice
Judges can change meaning of words in an Act to carry out what Parliament intended.
Re Sigsworth
Unlikely parliament would want D to benefit from killing his mother, so the courts were able to prevent this from happening despite the wording.
This is good because judges can enforce the law to give effect to what parliament wanted
Advantage of the golden rule- applies to words with multiple meanings
Judges can choose between different meanings when using narrow approach
R v Allen
Marriage could mean ‘legally married’ or to ‘go through a ceremony’ the court were able to choose the second meaning to avoid an absurd result.
Good because it fixes the problem with the literal rule in these situations and so makes the law quick and easy to interpret
Advantage of golden rule- allows judicial creativity
If words of an Act will not achieve justice, judges can change the meaning of the words.
Re Sigsworth
Court able to prevent someone benefitting from a murder by changing the meaning of the literal words in the Act, rather than always allowing inheritance to go to the next of kin.
Good because it saved Parliament from spending lots of time updating old laws because judges can work around any problems in wording
Disadvantage of golden rule- creates uncertainty
Because all judges will differ in their opinions of what is absurd and so may disagree on when or how to change the words in the Act.
Re Sigsworth
Some judges may not have thought that D getting his inheritance was an absurd decision and so may have stuck with the literal rule
Because it leads to inconsistent decisions and lawyers and defendants will be unable to prepare properly for their cases
Disadvantage of golden rule- goes against parliamentary supremacy
Because all judges are allowed to change the wording of an Act and so are clearly changing the law from how Parliament wrote it
Re Sigsworth
Court assumed Parliament meant only if D did not kill his mother, even though that was not written in the act
Because it is Parliament’s job, not judges’ to make the law due to them being elected and representing society. Therefore, the golden rule gives a lot of undemocratic power to judges
Disadvantage of the golden rule- narrow approach is inflexible
Because judges still have to choose between two set meanings of a word
Re Sigsworth
No meaning of words could have resolved the problem of D getting inheritance, only changing/inventing new meaning would work
Because judges are still restricted when using narrow approach and still may not be able to avoid absurdity
Disadvantage of golden rule- separation of powers
Allows judges to alter the law/wording in the act
Re Sigsworth
Judges chose to invent new meaning for when someone should get their inheritance, rather than taking the law how it was literally wrote
Because it is not meant to be judge’s role to make law and is therefore unconstitutional
Case for mischief
RCN v DHSS
Nurses were helping perform abortions. Abortion Act 1967 states only a ‘registered medical practitioner’ can perform abortions, so nurses were technically not allowed. The judges decided the mischief the Act was in place to prevent was women getting unsafe abortions not in a hospital, so then saw it beneficial to allow nurses to help so more safe ones can take place. 2 judges disagreed and wanted literal rule
Purposive approach
Making a decision based on the purpose of Parliament’s Act, not the wording
Case for purposive approach
Jones v Tower Boot Co
D’s employees were shouting abuse and physically abusing a coworker. C was suing his employer for racial abuse at work. Race Relations Act 1976 made employers liable for their employees acts when in course of employment. D claimed he wasn’t employing them for the purpose of being racially abusive so it wasn’t in the course of employment. Because Parliament’s intent would be to stop racial discrimination and to strengthen interracial relationships, they found D liable
Case for purposive approach
R v RG ex parte Smith
D was applying for his birth certificate. Adoption Act 1976 said the registrar general ‘shall’ supply this. Shall means they must do it, however D was in jail for attempting to kill someone he thought was his mother. In order to not encourage him to commit crime(which they think Parliament would intend), they denied him access to his birth certificate.
Intrinsic aids
Definition section
Short title
Marginal notes
Extrinsic aids
Dictionary
Interpretation Act
Law reforms reports
Hansard
Short title
Title eg ‘Fatal Accidents Act 1846’ date useful to tell is which dictionary to use for the words and to determine from similar Acts
Definition sections
Sections in an Act that define key words
Allow Parliament to show what they man if it’s a different definition than the dictionary would give.
Case example Oxford v Moss
Marginal notes
Guidance and a provided section by section summary
Added by PCO (parliamentary counsel office)
R v Montila and others
Dictionary
Interpret key words that haven’t got a definition provided by parliament. Oxford English Dictionary. They will use the edition from the year of the Act. Eg. DPP v Cheeseman used dictionary for ‘street’ and ‘passenger’ from Town Police Clauses Act 1847
‘passenger’ passerby or though a place for its ordinary purpose
Hansard
Record of everything said in Parliament. Useful to find out what they were talking about when making Acts (purposive and mischief)
Pepper v Hart says allowed to use of Hansard when words of an Act are unclear, something in Hansard about those words and using Hansard will fix your problem
Law reform reports
Legislation is often preceded by a report by the Law Commission(group of legal experts who review the law and suggest changes to Parliament). DPP v Bull Law Commission’s report made it apparent it only applied to female prostitutes
Interpretation Act 1978
Act contains the meaning of words which will be used in many statutes. Words in singular form will also include plural and use of ‘he’ also includes ‘she’ unless otherwise informed.
Rules of language: ejusdem generis
Translation: things of the same kind
Given specific examples you’ll be able to figure out the broader term it comes under and what applies to it.
Powell v KPR
Betting Act 1853 ‘house, office, room or other place’ for betting was illegal. Taking bets at a racecourse was not illegal as it wasn’t the same type of thing as what was listed
Rules of language: expressio unius est exclusio alterius
Translation: expressing of one thing excludes others
If you specially you want one thing, it means you don’t want other things
Inhabitants of Sedgley 1837
Raised the amount of tax if you owned a house, land or coal mines. Inhabitants owned a limestone mine so didn’t need to pay tax as it wasn’t one of the specified things
Rules of language: Noscitur a sociis
Translation: known by its associates
Interpret words based on the context of the Act
IRC v Frere
Act was on annual interest so when ‘interest’ was mentioned alone they assumed they were referring to ‘annual interest’
8 marker on rules of interpretation
Describe the rule - what are the judges looking at - how strictly do they follow the wording - are there any guidelines/limits 2 case examples - what was D or V doing - what was the statute and wording interpreted - literal meanings - interpretation the court took and why - decision and outcome
12 marker structure
Advantages and disadvantages:
4 developed points. 2 positives, 2 negatives.
Just advantages or disadvantages:
4 developed points (brief counter arguments at the end of each one)
8 marker on aids to interpretation
Difference between internal and external. 2 examples from each side of 4 of 1 side. Explain 2 saids from each: 4 in total - what aid is - what useful for - how aid used in each case example
8 marker rules of language
- Latin + what it means
- what it does/how to use it
- general example
- case example
- repeat for each of rules
Advantage of the mischief rule- avoids absurdity
Judges can ignore strict words in an act and prevent the problem parliament wanted to stop
Smith V Hughes
Would have been absurd to find D not guilty just because they were on a balcony when they were still doing the thing parliament wanted to stop. By ignoring the word ‘street or public place’ the court were able to stop the mischief
Good because it means justice will be served in cases where had the literal rule been used there would have been an absurd result
Advantage of mischief rule- puts Parliament’s intentions into practice
Because judges are fixing the problems for parliament rather than sticking to the wording strictly.
Smith V Hughes
Court could identify the problem of people being harassed and come to the decision Parliament would have wanted rather than being forced into making on against their wishes due to the word street
Because it ensures the law world’s as intended
Advantage of mischief rule- creates flexibility in the law
Because judges can ignore the strict words in an Act and use their own legal knowledge and intuition to come to a sensible and just decision
RCN v DHSS
Judges could consider medical advances since the abortions, despite them not technically being ‘medically registered practitioners’
Because it means judges are not forced to make unjust decisions and can consider the circumstances and changes in a society when deciding a law
Advantage of mischief rule- allows for judicial creativity
Because judges can alter the law if a problem is still being caused despite the wording of the Act
Smith V Hughes
Parliament’s wording of ‘street or public place’ did not fully solve the problem of prostitution, but judges were able to achieve this by focusing on the problem rather than the wording
Means parliament do not have to labour over/constantly update the wording of their Acts because judges can solve any issues that arise
Disadvantage of mischief rule- creates uncertainty
Because judges may disagree on what mischief Parliament wants to solve
RCN v DHSS
2 judges felt literal rule should have been applied instead of the mischief rule, which shows a different set of judges may have come to a different decision
Because it leads to inconsistent decisions so lawyers and defendants won’t be able to prepare properly for the cases
Disadvantage of mischief rule- parliamentary supremacy
Because judges have to decide for themselves what the mischief is and may end up ignoring Parliaments word to do so
RCN v DHSS
2 of the judges said that the other judges were taking over Parliament’s role as supreme law maker in redrafting legislation which they should just be interpreting law
Because that’s Parliament’s job, not a judge’s to make the law due to them being elected democratically
Disadvantage of the mischief rule- limited to fixing one problem at a time
Judges can only use it to fill in the gap in the old law rather than look at the purpose more relevant now
R v RG ex Parte Smith
Mischief rule would not be used as it was not created to fix the mischief of serial killers murdering their mothers, instead the purposive approach had to be used
Because the rule is still limited in it’s use and does not go so far as to consider Parliament’s purpose
Disadvantage of the mischief rule- does not respect separation of powers
Judges are changing the law rather than taking Parliament’s words exactly
Smith V Hughes
Judges made it illegal to solicit from a private place even though the Act clearly specified public places
Going against their constitutional role of interpreting and applying it
DPP v Cheeseman important info
Town Police Clauses Act 1847
‘Street’ ‘passenger’
Police weren’t passengers
Literal rule
R v Allen
Offences Against the Person Act 1861
Marry
Ceremony
Golden rule-narrow approach
Re Sigsworth
Administration of Estates Act 1925
‘Issue’ / next of kin
Unless they killed the deceased
Golden rule- broad
Smith v Hughes
Street Offences Act 1959
Street or public place
Mischief was prostitutes harassing people, doesn’t matter if it’s in a public place
Mischief rule
LNER v Berriman
Fatal Accidents Act 1846
Relaying or repairing
D was maintaining
Literal rule
Jones v TBC
Race Relations Act 1976
Course of employment
Parliament’s purpose was to prevent discrimination
Purposive approach
RCN v DHSS
Abortion Act 1967
Registered medical practitioner
Mischief was illegal dangerous abortions not in hospitals
Mischief rule
R v RG ex parte Smith
Adoption Act 1976
Shall supply
Parliament’s purpose not to encourage murder
Purposive approach
Advantage of purposive approach- avoids absurdity
Because judges can ignore the strict words in an Act and choose sensible wording which puts Parliament’s true intention into effect
Jones v TBC
Would’ve been absurd to let D be racist in the workplace and not be found liable because he wasn’t technically in ‘course of employment’. By ignoring the wording the court prevented discrimination as Parliament would want
Because it means justice will be served in situations where the wording would otherwise lead to a bad decision
Advantage of the purposive approach- puts Parliament’s intention into practice
Because judges can ignore the strict words in an Act and put Parliament’s true intention into effect
Jones V TBC
Parliament didn’t have to make a new statute addressing racial harrassment, the court could recognise what Parliament would want and so put that intention into effect
Because it means the law works as intended
Advantage of purposive approach- promotes flexibility in the law
Because judges can arrive at the decision Parliament would make if it were considering the case in modern times, rather than strictly to old wording
RCN v DHSS
Medicine and society had changed since the Abortion Act and Parliament’s purpose of making abortions safer could be fulfilled by allowing nurses to help with the procedure
Because it allows judges to make sensible decisions about the law and update it with the times
Advance of the purposive approach- allows for judicial creativity
Because judges can change the law to conform with the purpose of the Act rather than taking the law exactly as written
Jones v TBC
Judges able to accomplish the purpose of the Act even though the wording of the Act could have led to racial discrimination being unpunished
Parliament don’t have to spend lots of time constantly updating words of old Acts
Disadvantage of purposive approach- creates uncertainty
Because judges may disagree on the purpose of the Act
R v RG ex parte Smith
Some judges may have felt Parliament’s wording was clear and meant D should get the certificate in all circumstances
Because it leads to inconsistency. Problematic for D and lawyers preparing for cases
Disadvantage of purposive approach- goes against Parliamentary supremacy
Because judges can make up what they think Parliament wanted and so ignore what the Act says
R v RG ex parte Smith
Judge didn’t give the certificate despite the instruction ‘shall supply’ being very clear D should have received it
Because Parliament’s job, not a judge’s to make the law
Disadvantage of purposive approach- makes judge’s too powerful
Because no guidelines on how/when to use it
R v Clinton
Judges ignored wording in an Act which says sexual infidelity cannot reduce a murder charge to man slaughter. They still chose to reduce.
Judges call into question Parliament’s role as senior law maker. Creates risk of unelected judges deciding what’s in the best interest of UK public
Disadvantage of purposive approach- does not respect separation of powers
Because judges are able to change laws instead of interpreting them
Jones v TBC
Not interpreting words ‘course of employment’. They instead were deciding if it was the right thing to apply to this situation.
Because it’s not a judges constitutional role
Explain effect EU law on SI
Judges must interpret law so respects EU law (Marleasing case)
EU favour purposive approach, influencing UK
Purposive approach requires looking at P’s intention
Lord Denning says you can look beyond wording and read between the lines
Judges have broad power and aren’t bound by wording
(Example para purposive approach Jones v TBC/R v RG ex parte smith)
Explain effect European law has on SI
Judges must interpret law so respects EU law
European Court of Justice made this clear in Marleasing case
EU favour purposive approach which influences Uk
Uk have to abide by European convention of human rights (Human Rights Act 1998)
S3 says UK judges have to interpret UK law so is compatible with ECHR
Mendoza v Ghaiden- tenancies can go to unmarried if living as husband or wife
Court decided it would breach human rights if I allowed for same sex couple
If not possible to interpret Act so solves problem S4 says judges must make a ‘declaration of incompatibility’
Explain intrinsic aids of SI
Found within act itself
Short titles, definition sections and marginal notes
Short title contains: name of act and date
Idea of what act is about and help differentiate between different Acts
Eg. 2 theft Acts
Date helps to know which dictionaries to use
Eg. Cheeseman 1747 Town Police Clauses Act
Definition sec defines key words
P can specific what they mean
Eg. Definition of property in Oxford v Moss
Marginal notes: summary of section and how act should be used
Montilla- do not need to be used but written by Parliamentary Counsel Office
Explain extrinsic aids SI
Help found outside of Act
Hansard, dictionaries, law reform reports & interpretation Act
Hansard is record of p’s debates
Useful for mischief/purposive
Pepper v Hart use Hansard under 3 conditions: words of Act ambiguous, minister in charge of Act made statement on those words and the statement clears up that ambiguity
Dictionaries useful for literal
Oxford English Dictionary from date of Act
Eg. Cheeseman ‘passenger’ 1847
Law reform reports written by LC
Judges use to figure out mischief
DPP v Bill report before Act was made shows mischief was female prostitutes so male ones were not guilty
Interpretation Act 1978 eg. Any mention of ‘he’ includes ‘she’
