statutory interpretation - topic 2 Flashcards
key questions
what is the literal rule?
gives the word plain ordinary or dictionary meaning
Why might the courts have to become involved in interpreting an Act of Parliament?
- A broad term - Dangerous Dogs Act 1991 the phrase ‘any dog of the type’ - Brock v DPP Queens Bench Divisional Court decided ‘type’ has a wider meaning than ‘breed’.
- ambiguity - word has two or more meanings so unclear which should be used
3.drafting error several old acts brought together in one act there may be differences in the wording of sections. Shown in S18 and S20 as S18 uses the word ‘cause’ and S20 uses ‘inflict’.
R v Burstow House of Lords - although words didn’t have the same meaning it would be absurd to differentiate between S18 and S20
- new developments - new technology means that an old Act doesn’t cover present day situations.
Royal College of Nursing v DHSS - medical science and methods changed since passing the Abortion Act in 1967. - change in use of language - words can change over years.
DPP v Cheeseman - man masturbating in public toilet ‘passengers’ changed to ‘passers by’.
Whitley v Chappell
Not guilty of impersonating someone entitled to vote because a dead person isn’t entitled to vote
LNER v Berriman
Not literally‘relaying or repairing’ the track it was just maintenance so widow couldn’t get compensation
what are the advantages of the literal rule?
- rules follow wording of parliament.
- Prevents unelected judges making law.
- Makes the law more certain.
- Easier to predict how judges will interpret the law.
what are the disadvantages of the literal rule?
- Not all acts are perfectly drafted
- Words have more than one meaning.
- following the words exactly can lead to unfair or unjust outcomes
what is the golden rule?
A wide approach which avoids an absurd interpretation
Adler v George
Words ‘in the vicinity’ held to include being in the prohibited place of her majesty’s forces
Re Sigworth
A songwho murdered his mother couldn’t inherit her estate as it would be repugnant
what are the advantages of the golden rule?
- respects the words of parliament
- allows the judge to choose the most sensible meaning
- Avoids the worst problems of the literal rule
what are the disadvantages of the golden rule?
- Can only be used in limited situations
- Not possible to predict when the courts will use it.
- A ‘feeble parachute’ e.g. escape route that can’t do much.
what is the mischief rule?
looks back to the gap in previous law and interprets the words to suppress the mischief
Smith v Hughes?
Prostitutes calling from doorways, windows or balconies were ruled to be “in a street or public place.”
Delete
Royal college of nursing v DHSS
Even thought the second part of an abortion procedure wasn’t carried out by a doctor the procedure was lawful as it prevented the mischief of illegal abortions
what are the advantages of the mischief rule?
- promotes the purpose of the law
- more likely to produce a just result
- Fills the gap in law
what are the disadvantages of the mischief rule?
- risk of judicial law making
- Not as wide as the purposive approach
- Limited to looking back at old law.
- Can make law uncertain.
what is the purposive approach?
courts look to see what is the purpose of law
R v Registrar General, ex parte Smith?
S51 of The Adoption Act 1976 - aged 18 can obtain info about the birth mother providing they have attended an interview with a counsellor.
Application was made by Smith however he was convicted of 2 murders and detained for psychotic illness so counsellors thought it was possible he could be hostile towards his mother.
Parliaments purpose was not to promote serious crime so they didn’t have to supply any information
Quintaville
S1 embryo means a live human embryo where human fertilisation is complete which at the time was the only way to make an embryo however by 2003 CNR method was created and using the purposive approach the HOL decided it was covered in the Human Fertilisation and Embryology Act 1990
What are the advantages of the Purposive Approach?
- Leads to justice in individual cases.
- useful where there is new technology
- Avoids absurd decisions
What are the disadvantages of the purposive approach?
- Allows judges to make law
- Difficult to find Parliaments intention
- Leads to uncertainty in the law
what are intrinsic aids?
aid ‘inside the act’ that may help make its meaning clearer.
what are some examples of intrinsic aids?
The courts can consider the long title, short title, marginal notes, punctuation, schedules, other sections (Harrow v Shah - inclusion of ‘due diligence’ was in S13 but not under the section he was charged with which was important to coming to the decision that the offence was strict liability) and the preamble (intro).
Some Acts have an interpretation section in them e.g. S4(1) of The Theft Act 1968 states that ‘property’ includes money and all other property real or personal.
what are extrinsic aids?
aids ‘outside the act’ and it has always been accepted that some external sources can help explain the meaning of the Act
what are some examples of extrinsic aids?
- Dictionaries- where a dictionary is used it must be a published dictionary at the time when the Act was passed because meanings of words change over time. Cheese man v DPP used an 1847 dictionary because the Act in question was passed in 1847.
- Hansard = Peoper v Hart - when courts look at what was said in debates in parliament assists the courts to consider the true intent of the parliament regarding the legislation in question.
- Law commission reports - Black-Clawson 1975 it was accepted reports by reform agencies should be looked at to discover the mischief or gap in the law which the legislation is based on the report was designed to deal with, and has in 2014 was used 404 times.
