statutory interpretation(topic3) Flashcards
define statutory interpretation?
interpreting statutes to find parliament’s intention
why is statutory interpretation important?
to ensure the law remains accurate
what are the 5 reasons for statutory interpretations?
1)broad term
2)ambiguity
3)drafting error
4)new developments
5)changes in the use of language
define broad terms giving an example
1)some terms with wide variations of definitions
e.g motor vehicles
define ambiguity giving an example
some unclear terms
e.g theft act -‘ must be dishonest’
define drafting errors giving an example
1)a mistake in the legislation
e.g ABH(s47) and GBH(s20) = mean the same thing
define new developments and give an example
1) new technology + ideas
e.g drones
define changes in language and give an example
1)changed in language, words have different definitions
e.g Cheeseman v DPP
what are the two approaches to statutory interpretations?
1)purposive approach
2) literal approach
explain what the literal approach is
1) judges examine each word individually and take their literal meaning
explain what the purposive approach is
judges finding the intention of parliament by looking at what they were trying to achieve
why is the purposive approach important in EU law
1)different languages mean it is difficult to interpret words literally or even translate one language to another.
what are 2 case examples where the purposive approach was used
1)R v Registrar General, ex parte Smith 1990
2) R v Secretary of State 2003
which act was involved in the R v Registrar General, ex parte Smith 1990
adoption act 1976
which approach was used first in R v Registrar General, ex parte Smith 1990
'’shall supply’’ meant he was entitled to a birth certificate which was the use of a literal approach
why did they apply the purposive approach instead in R v Registrar General, ex parte Smith 1990
the defendant was a convicted killer and parliament refused to supply him with a birth certificate as it would pose a threat to their birth parents
what was the issue which needed to be resolved in R v Secretary of State 2003
1) the issue was the Human Fertilisation + Embiology Act 1990
2)and prove that the embryo was a fertilized egg
what would be the outcome if the literal approach was used in R v Secretary of State 2003
it only referred to fertilised embryos meaning cloned embryos may be misused.
why did HOL use the purposive approach in R v Secretary of State 2003
1) it would include clones
2)would mean embryos of any type would be affected
3) clones = not fertilised so they are included in the rule
state the first pro of the purposive approach explain it and give a counterpoint.
pro: it makes sense to look at the whole purpose of the act
explanation: RV Register general the adoption act did not aim to enable hostility towards birth parents
counterpoints: however, there could be uncertainty if a judge changes the meaning of the statute
state the second pro of the purposive approach explain it and give a counterpoint.
Pro: It gives effect to parliament’s intentions
. For example, in R v Secretary of State Parliament, it meant for clone research to be licensed like embryos.
counterpoint: however, this could be undemocratic as judges are not elected.
Explain the first con of the purposive approach and give a counterpoint.
con: there could be uncertainty if a judge changes the meaning of the statute
explanation: RV Register general the adoption act did not aim to enable hostility towards birth parents
counterpoint: it makes sense to look at the whole purpose of the act
Explain the second con of the purposive approach and give a counterpoint
con: this could be undemocratic as judges are not elected.
explanation: R v Secretary of State Parliament, it meant for clone research to be licensed like embryos.
counterpoint: It gives effect to parliament’s intentions
Explain the third con of the purposive approach and give a counterpoint
con: working out the intention of parliament can be hard because some words/ acts may be difficult to interpret.
explanation: e.g Cheeseman v Dpp we don’t know what parliament meant
counterpoint: can use aids to interpretation like a dictionary
what are the three rules of interpretations
1)the literal rule
2) the mischief rule
3)golden rule
4 problems of using different rules of interpretations
1) causes confusion
2) may cause uncertainty- the public do not know the law
3)unpredictable
4) this might undermine the idea of ‘rule of law’
what are the pros of using multiple rules of interpretation?
1) gives flexibility - it can adapt to different situations through discussions and considerations.
define literal rule
if the words of an act are clear then you must follow them even though they lead to a manifest absurdity
why is the literal approach the most democratic?
1) The law is the same for everyone
2)follows the law as it is written by parliament
what happened in Whiteley v Chappell 1868
1) a man was charged with voting while impersonating a deceased person
was the defendant acquitted or convicted?
1)Whitely was acquitted
2) the court ruled the dead person was not considered a ‘person’ under the law
what was the offence in Whitely v Chapel 1868
voter fraud
what was the intention of parliament in passing the law in Whitely v Chappel 1868
the ruling suggests that Parliament never intended to cover situations involving deceased individuals within the law and It was only to prevent voter fraud
what are two case examples where the literal rule was used
1) Whiteley v Chappel 1868
2)London and north eastern railway v Berriman 1946
what happened in London and north eastern railway v Berriman 1946
Mr. Berriman was run over by a train and his widow Mrs Berriman was looking for compensation
when did he act to state that a lookout should be provided in London and north eastern railway v Berriman 1946
1)during re-laying
2)repairing
3)rail trade
how was Defendant killed in London and North Eastern Railway v Berriman 1946
hit by a train while oiling the tracks
what did the court decide during London and North Eastern Railway v Berriman 1946
no payment for Mrs Berriman
what was the intention of parliament in London and North Eastern Railway v Berriman 1946
1) was to protect workers and pay payments when accidents happen.
what is one pro of the literal rule and explain it
1)follows the words used by Parliament
2)parliament is supreme so it is only right that judges should apply the law exactly as written
what is the second pro of using the literal rule, and explain
1)makes the law certain
2) law is interpreted exactly as it is written which should make the law easier for people to know what the law is and how judges will apply it
what is the first con of using the literal rule and explain
1) one con is that it assumes every act is carefully drafted
2) it is not always possible to word an act that it covers every situation that Parliament intended e.g whitely v Chappell
what is the second con of using a literal rule and explain
1) one con is that if a word has more than one meaning it may be unclear. Dictionaries often provide different meanings
what is the third con of using a literal rule explain it
1)one con is that unjust or harsh decisions may be made
2)e.g London and North Eastern Railway v Berriman 1946
explain what the golden rule is
starts by looking at the literal meaning, it is then allowed to avoid an interpretation that would lead to absurd or harsh results.
what two applications of the golden rule can courts use:
1) the narrow application
2) wider application
what is an example where a narrow application of the golden rule was used and explain what it is
1) R v Allen 1872 - a man caught marrying more than one wife
explain how the narrow application of the golden rule was used in R v allen 1872
1) the ambiguous definition of ‘shall marry’ within the Offences Against Person Act 1861 for Bigamy
2)interpret using the narrow approach of the golden rule.
3)’’ Shall marry’ was interpreted to mean to go through with the marriage ceremony
4) therefore Allen was found guilty of Bigamy by going through a marriage ceremony
what is an example of a wider application and explain it
1) Re Sigsworth 1935 - a man who killed his mother to try to get her inheritance
using the case of Re sigs-worth 1935 to explain how a wider approach was used
1)a wider approach by choosing an entirely different meaning altogether
2)in Re sigs-worth 1955 the Administration of Justice Act 1925 used a wider approach to not allow her son who murdered his mother to inherit where no will was established.
3) therefore the wider approach was used to determine that the included inheritance being allowed where it would not be a benefit to another crime.
what is the first pro of using the golden rule and explain
1) the first pro is that it respects the exact words used
2) follows the words of parliament but provides an escape route where there is a harsh or absurd result.
what is the second pro of using the golden rule and explain
1) chooses the most sensible outcome
2)this again avoids the problems of the literal rule by providing sensible decisions
what is one con of using the golden rule and explain it
1) limited in its use
2) only used on rare occasions so it is impossible to predict when it will be used
what is the second con of using the golden rule explain it
1) judges can change the meaning of the statute
2)this infringes the rules of the separation of power by allowing judges to become lawmakers
4 way judges decide a mischief rule
1)what was the law before making the act
2)what was the mischief/gap in the law for while the common law did not provide
where did the mischief rule get its definition/origin
1) the definition comes from Heydon case 1584, where it said that there were four points that the court should consider
what are 2 case examples where the mischief rule was applied
1)smith v Hughess 1960
2)Royal College of Nursing v DHSS
what was the act and offense in Smith v Hughes 1960?
1) Street Offences Act 1954
2)’ soliciting in a street or public place’
what was the defendant’s appeal on the basis of? in the case Smith v Hughes 1960
1) appealed because soliciting was done from an upstairs window
what was the ‘mischief’ or gap in the law in the case Smith v Hughes 1960
1)soliciting from upstairs windows was not considered public
what did Lord Parker decide for Smith v Hughes 1960
case
1)the act was meant to clean up the streets, to enable to walk along the streets without being molested or solicited by common prostitutes
what is the issue in the act of the Royal College of Nursing v DHSS case?
1) the abortion act of 1967
2)’ Registered medical practitioners - were authorized to carry out abortions
what changed since the passing of the act in Royal College of Nursing v DHSS
1) is it possible to get non-surgical termination i.e drugs
why did only three judges agree that this procedure was lawful because the mischief was to? ( in Royal College of Nursing v DHSS
1) allow nurses to carry out abortions legally
the two dissenting judges used which rule and said what in Royal College of Nursing v DHSS
1) they disagreed(dissenting) - they used the literal rule which restricted abortion
what is the first pro of using the mischief rule and explain
1)promotes the purpose of the law
2)allows judges to look back at the gap in the law which decides the act it was designed to cover.
2) it emphasizes making sure the hap in the law is filled
what is the second pro of using the mischief rule and explain
1) more likely to produce a ‘just’ result
2) judges can be more flexible
what is the first con of using the mischief rule and explain it
1) risk of judicial law-making
2) if judges are trying to fill the gaps in the law with their views on how the law should remedy the gap
what is the second con of using the mischief rule and explain it
1) it causes uncertainty
2) it is impossible to know when judges use the rule and also what result it might lead to
3) makes it difficult for lawyers to achieve their clients
what happened during the Fisher v Bell 1960 case
1)followed the Restriction Weapons Act 1959
2) a man was found to have an illegal knife displayed for sale
3)the court had to consider the phrase ‘offers for sale’
explain how ‘offers for sale’ would apply if the literal rule was used in the Fisher v Bell 1960 case
1)literal rule: it was displayed and was seen as an invitation into the store
explain how ‘offers for sale’ would apply if the golden rule was used in the Fisher v Bell 1960 case
1) ‘‘Offers for sale’’ - meant the man had the intention of selling the knife
explain how ‘offers for sale’ would apply if the mischief rule was used in the Fisher v Bell 1960 case
1)it had the intention to stop offensive weapons, which the defendant was selling
what are the two aids of interpretation
1) intrinsic aids
2)extrinsic aids
what are intrinsic aids
1)matters within the statute itself that may help make its meaning clearer
what do intrinsic aids include:
1) long title
2) short title
3) schedules attached to the act
4) preamble - purpose of the act
5)heading
6)marginal notes=explaining the sections
what are short and long titles
1) A short title is the forward name
2) the long title adds a full description of the legislation’s purpose and effects
3) gives guidance on the aim of the law
what are extrinsic aids
matter which is outside the statute
what are law reform reports(part of extrinsic aid)
1)they are reports by the law commission
2)an independent body that reviews and suggests changes to the law
3)their use was banned in the past
4)this rule was released in the black claws case in 1975(involved interpreting international law).
what is Hansard(part of extrinsic aids)
1)this is the official report of what was said in parliament when the act was debated.
2)Hansard may be considered but only when the words of the words of the act are ambiguous or obscure or lead to absurdity
what did lord Denning do in the case of Davis v. Johnson 1979
1) interpretation of the domestic violence and matrimonial proceedings act 1976
2) lord denning referred to Hansard stating, ‘ that not to do so would be like ‘groping in the dark’ without switching on the light’
3)lord scarman: a stated unreliable guide to the meaning of what is enacted. promotes confusion
4) pepper v hart(1992) 3 WLR1032 house of lords reserves this decision
what is a pro and con of Hansard
1)pro: it can provide into the legislative intent and purpose behind the statute
2)con: may result in the words in the act less important
what is a pro and con of law reform reports
1) make the purpose of the new law clear as it explains why it was reformed
2)con: may result in the words in the act being seen as less important
what is a pro and con of dictionaries
1)pro: allows the judges to look at the specific meaning of the word used by parliament
2)con: meanings may change, and have to use from the time the law was made
what is a pro and con of previous case law
1) pro: applies the principles of stare decisis- consistent law
con: some decisions may contradict each other
2)con: some decisions may contradict each other
what is a pro and con of textbooks
1) can help clarify the historical approach to an area of law
2) may result in the words In the act being seen as less important
what are the three rules of language
1) Ejusdeu Generis
2) Expressio unius exclusio alterius
3)Noscitur a sociis
translate and explain what Ejusdeu Generis means
1)’of the same kind’- where specific words are followed by a general list of words, then the general words are limited to the same kind of items as the specific words
translate and explain what Expressio unius exclusio alterius means
1)’ The mention of one thing excludes all others - where there is a list of words that is not followed by general words when the act only applies to the items in the list
translate and explain what Noscitur a sociis means
a word is known by the company it keeps- the words must be looked at in context and interpreted
accordingly
what are 2 case examples where Ejusdem Generis was used
1)Hobbs V CG Robertson Ltd 1970
2)Powell v Kempton Raecours 1989
what was Hobbs V CG Robertson Ltd 1970 about
1) A workman injured his eye when backward splintered
what are the specific words used in the act Hobbs V CG Robertson Ltd 1970
1) the regulation made it a duty for employees to provide goggles for ‘breaking cutting, dressing or carving of stone concrete, slag or similar materials’
What general words were used in the Hobbs V CG Robertson Ltd 1970 act?
it was similar materials
what was the outcome of Hobbs V CG Robertson Ltd 1970
1) the court found that brick did not apply under ‘similar material’ as it was not Ejusdem Generis with stone, concrete, or slag.
what are the specific words used in
Powell v Kempton Raecours 1989
1) made it illegal to keep a house, office, room, or other place for betting
what was Powell v Kempton Raecours 1989
1)restrictions for gambling
what are the general words used in
Powell v Kempton Raecours 1989
1)other similar places
what was the outcome of Powell v Kempton Raecours 1989
1)in this case - gambling was in an enclosure held not in a house, office, or room
2) The court applied the Ejusdem Genris rule and they decided there was no offense committed
what happened in Allen V Emmerson 1994
the court had to interpret the phrase ‘theaters and other places of amusement and decide if it applied to a funfair.
what are three examples cases of Ejusdem Generis
1)Hobbs v CG Roberston Ltd 1970
2)Powell v Kempton Racecourse 1989
3)Allen v Emmerson1994
what were the specific words used in the act of Powell v Kempton Racecourse 1989
1)made it illegal to keep a house, office room, or other place for betting
explain Powell v Kempton Racecourse 1989
1) restrictions on gambling
what are the general words used in the act in the case Powell v Kempton Racecourse 1989
-‘ or other place’
what was the outcome of the case of Powell v Kempton Racecourse 1989
in case = gambling was in an enclosure it would not be in a house, office, or room.
-The court applied the ejusdem generis rule and they decided there was no offense committed.
explain during Hobbs v CG Roberston Ltd 1970
workman injured his eye when brickwork splintered
what are the specific words used in the act
1)the regulation made it a duty for employees to provide goggles for ‘breaking cutting dressing, or carving of stone, concrete or similar materials’
what are the general words used in the act of Hobbs v CG Roberston Ltd 1970
1) similar material
what was the outcome of Hobbs v CG Roberston Ltd 1970
the court found that brick did not apply under ‘similar material’ as it was not Ejusdem generis with stone, concrete, or slag.
explain Allen v Emmerson1994
the court had to interpret the phrase ‘theatres and other places of amusement’ and decide if it applied to funfair.
result of using Ejusdem generis rule on Allen v Emmerson1994
as their was only one specific word ‘theatres’ it was decided funfair did constitute ‘other places of amusement’ even though it is not similar to theatres
give one example the case of Expressio unius
tempest v Kilner 1846
what is the act of parliament in Tempest v Kilner 1846
statute of frauds 1677
list the words in the statute of Tempest v Kilner 1846
rule = certain contracts must be written to be valid
words to be interpreted in Tempest v Kilner 1846
‘good, wear and merchandise’ to be in writing
the outcome of Tempest v Kilner 1846
‘stocks and shares’ were not applied on the list meaning it was held that contracts for the sale of stocks and shares did not have to be in writing
what are two examples of noscitur a sociis
1) Inland Revenue Commissioners v fere 1965
2) Bromley LBC v Greater London Council 1982
explain Inland Revenue Commissioners v fere 1965
wether defendant appealed against taxes
what did the courts look at in the statute in the case Inland Revenue Commissioners v fere 1965
the Income Tax Act 1952 - which allowed ‘the amount of interest, annuities or, other annual interest’
what did the case involve (Inland Revenue Commissioners v fere 1965)
1) whether interest paid on a short-term loan was tax deductible
the outcome of Inland Revenue Commissioners v fere 1965
-under the noscitur a sociis rule the mention of the amount of interest is related only to annual interest.
-interest payment and the loan was not annual instead interest payment so Mr. F had to pay tax on it
explain Bromley LBC v Greater London Council 1982
whether public transport had to charge more or less tax to the public
what did the courts look at in the statute of Bromley LBC v Greater London Council 1982
The Transport Act said that councils must consider ‘business principles’ when looking at these issues
what did the Bromley LBC v Greater London Council 1982 involve
- whether it was ok for GLC to reduce traffic by raising rates of taxes on London residents to reduce cost of the public = transport
the outcome of Bromley LBC v Greater London Council 1982
-held this policy to be unlawful because the GLC was not allowed to take into consideration social factors
explain a presumption against a change in the common law giving examples
1)assumed that the common will apply unless parliament has made it plain in the act that the common law has been alternated.
e.g leach V R 1912 -could a wife be made to give evidence against her husband under the Criminal Evidence Act 1898
-it was held that the common law rule that a wide couldn’t be compelled to give evidence still applied
explain a presumption that the crown is not bound by any statute
the crown is not bound by any statute unless the statute expressly says so
explain a presumption that mens-rea is required in criminal cases (give an example)
- no one can be convicted of a crime unless it is shown that they had the required intention to commit it.
-e.g. sweet v parsley - owner lased his products and it turns out a customer had smoked cannabis without her knowledge.
The Misuse of Drugs Act did not say there was any need for her knowledge/
the HoL held that she was not guilty as the presumption had been rebutted.
explain a presumption that legislation does not apply retrospectively
1)this means that no act of parliament will apply to past happenings; each act will normally only apply from the date it comes into effect.
what is the effect of the Human right Act 1998 on statutory interpretation
-legislation must be read and given effect in a way that is compatible with the rights in the European convention on Human rights.
when does this rule apply (Human right Act 1998 on statutory interpretation)
only applies when one of the human rights is concerned
a case to illustrate the Human right Act 1998 on statutory interpretation
Mendoza v Ghaiden 2002 which involved the interpretation of the rent act 1977
