statutory interpritation Flashcards
what is statutory interpretation
where a judge gives meaning to words of an act of parliment
what are the 4 rules
literal
golden
mischief
purposive approach
which rule must a judge start with
literal rule
what is the literal rule
when the judge takes the direct meaning of a word in an act
definition is one from the dictionary of the time
what cases display the literal rule
R V Harris
whitely v chapel
LNER v berriman
R v D
cheeseman v DPP
explain the case of whitley v chapel
D used the vote of a dead man
the statute made it an offence ‘to impersonate any person entailed to a vote’
voting rights ment a person had to be living to vote
D not guilty
explain the case of LNER v berriman
mr b was oiling the track and there was no look out so he died
compensation was available is a person was ‘relaying or repairing’
oiling is none its maintenance
no compensation was granted
what are the advantages of the literal rule
certainty/predictability
respects parliamentary sovereignty
upholds separation of powers
encourages legislation precision
quick
what are the disadvantages of the literal rule
ignores legislative intent
can create absurd/obscure results
limited flexibility
based of technicality
explain the case of cheeseman v dpp
D was wanking in public toilets and police was stationed outside as it had been reported before
part of the charge was being found by a ‘passenger’
as the police were stationed and not travelling they were not technically classed as passengers
D was not guilty
what is the golden rule
if the literal rule give an absurd result the judge can use an alternate meaning to create a more sensible result
what are the two types of golden rule
narrow approach- when a word has two meaning the judge chooses one
broad approach- the judge can change the statute completely but isn’t often used
name some cases that use the golden rule
adler v george -narrow
r v allen- narrow
re sigworth- broad
explain the case of adler v george
D was in a prohibited air base
he was charged where it was an offence to obstruct a member of the armed forces ‘in the vacinity’ of a prohibited place
the golden rule was used to extend the meaning from in the vacinity to in/in the vicinity
so D was guilty
explain the case of R v allen
d charged with bigamy
it was illegal to marry two people but the law doesn’t recognise the second marriage
the golden rule was applied to change the meaning of marriage to the ceremony of marriage
d was guilty
explain the case of re sigworth
a man murdered his mother who had no will (he was set to inherit it all)
the court used the golden rule to stop future murders for will money
d was guilty
what are the advantages of the golden rule
allows sensible decisions
prevents amendments of legislation
narrow approach respects parliamentary authority
avoids injustice
what are the disadvantages of the golden rule
used limetly
unpredictable
wide ap could be undemocratic
too much power to judges
what is the mischief rule
the court should look at the mischief the act was trying to cover and then interpret in a way that the gap is covered
what case payed out the definition of the mischief rule
heydons case 1584
what 4 points from heydons case must the court cover when using the mischief rule
what the common law was before the act
what the mischief was
what remedy the parliament passed to cure the mischief
the true reason for the remedy
name cases that used the mischief rule
smith v hughes
royal collage of nursing v DHSS
explain the case of smith v hughes
Ds were prostitutes soliciting on an open balcony
the were charged with the street offences act where it was a crime to solicit n the street/ public place
the act aimed to stop this soliciting
the judge used the mischief rule to stop the soliciting so Ds were guilty
explain the case of royal college of nursing v DHSS
nurses were giving abortion pills to women under doctors guidelines
of the abortion act only registered practitioners could give abortions
the aim of the act was to stop backstreet abortions
so using the mischief rule they were not guilty of
what are the advantages of the mischief rule
more likely to produce a just result
judges interpret how parliament intends
preferred by law commission
promotes the purpose of the law
what are the disadvantages of the mischief rule
risk of judicial law making
judges don’t always agree
leads to uncertainty
not as wide (only look at the gap)
can be seen as outdated
what is the purposive approach
looks at what parliament ment to achieve by making the act giving judges a large degree of discretion
what are some cases that used the purposive approach
jones v tower boot
R v registrar general, ex parte smith
R(quintavalle) v secretary of state
explain the case of jones v tower boot
jones(a black man) was facing racial abuse from colleagues
if colleagues do this behaviour ‘in the course of employment’ the employer is liable
by using a broad interpretation the abuse was covered as the act intended to stop this abuse in the workplace
so jones was entitled to compensation
explain the case of R v registrar general, ex parte smith
the appellant applied for a copy of his birth certificate to fine his birth mother
he was suffering from psychosis and his therapist believed it could put his mother at risk
literally he could have a copy
due to the risk of his mother it was not granted
explain the case of R(quintavalle) v secretary of state
pro life alliance argued the HFE didn’t have a license to reasuech cloning
an embryo-‘live human embryo when fertilisation is complete’
as embryos were cloned not firtilised this couldn’t apply
the judge said cloned embryos were treated as fertilised ones
so they kept their licence
what are the advantages of the purposive approach
avoids absurd results
justice in individual cases
allows judges to update law
flexible
more consideration of law commission
what are the disadvantages of the purposive approach
power to unelected judges
difficult to find purpose
unpredictable
judges have creative power
what’s an intrinsic aid
aids inside the act itself to help make the meaning clearer
give examples of intrinsic aids
long and short title
preamble
schedules
marginal notes
interpretation section of the act
what’s an extrinsic aid
and aid not in the act itself to make the moaning clearer
give examples of extrinsic aids
previous acts of parliament
case law
dictionary’s of the time
law commission reports
interpretation act 1978
handsard
explain the case of mendoza v gaiden
i’m turms of human rights act
a gay unmarried couple lived together
on was a protected resident and then died
normally the partner of a protected resident got the place
bc they were gay he didn’t
but after looking at the HRA the partner was the tennent
