Th English Legal System & Statutory Interpretation Flashcards

1
Q

n the case of Corkery v. Carpenter [1951] 1 KB 102 the court held that under s.12 of the Licensing Act 1872, a person found drunk in charge of a ‘carriage’ on the highway may be arrested without a warrant.

In that case the court took the view that the word ‘carriage’ could include a bicycle for the purpose of construing the Act.

What mischief or mischiefs do you think the Act intended to remedy?

The theft of wheeled vehicles

Injury of pedestrians from drunken road users

Injury of pedestrians

The preservation of public order

A

The Act was aimed at drunken persons in charge of some form of transportation and the exact nature of that transportation was interpreted widely. The mischief the statute intended to remedy was injury to the public from drunken drivers and the preservation of public order.

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2
Q

The case of Smith v. Hughes [1960] 2 All ER 859, considered the meaning of s.1(1) of the Street Offences Act 1959. It is an offence under that Act for a prostitute to solicit in a ‘street or public place’. The women were not actually in the street, but were inside their homes, tapping on their windows and calling to attract the attention of men.

Which of the following reflect the correct consequences of applying the rules? There is more than one correct answer.

Literal Rule: acquittal
Correct answer

Literal Rule: conviction

Mischief Rule: acquittal

Mischief Rule: conviction
Correct answer

Golden Rule: acquittal

Incorrect:
Golden Rule: conviction

Golden Rule: doesn’t apply

A

The literal rule would have resulted in the women being acquitted. The reason is that they were in their own homes and, using the plain, ordinary or literal meaning, ‘a street or public place’ does not include private residences. However, the women were found guilty. Lord Parker used the mischief rule and stated that the aim of the Act was ‘to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes’. It could be argued that the golden rule does not apply here as neither decision would have created an absurd or obnoxious result.

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3
Q

Select from the list below the best definitions for Intrinsic and Extrinsic Aid.

Intrinsic Aid is the use of the statute itself, for instance by use of noscitur a sociis

Intrinsic Aid is the use of the Interpretation Sections within the statute

Extrinsic Aid is the use of the Interpretation Acts

Extrinsic Aid is the use of material from outside the statute

A

Intrinsic Aids are any part of the statute itself which assists interpretation of a section of it. The statute must be read as a whole and the words read in context (note the overlap with rules of language).
Extrinsic Aids are aids to interpretation which lie outside the statute itself, for instances the Interpretation Acts but also dictionaries, other statutes, Hansard and so on.

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4
Q

Let us assume for the purposes of the next three questions, that the legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.

Which of all the ‘rules’ and aids listed are likely to be the most helpful in each case?

Do not try to reach a conclusion as to whether each person has committed the offence.

First, Jack is arrested for standing in a street with an unlit cigarette in his mouth.

Another statute.

The purposive approach.

The mischief rule.

The long title of the Act.

Noscitur a sociis.

The literal rule.

The golden rule.

The presumption against binding the Crown.

The Interpretation Acts.
being found not guilty, as he is not ‘smoking’ a cigarette in the accepted sense.

A

The mischief rule or the purposive approach are the correct answers. We would need to consider why it was an offence to smoke in order to determine whether having an unlit cigarette in Jack’s mouth was included.
The mischief or purpose of the Act is to prevent people from inhaling the smoke from other’s cigarettes. There are health and safety issues which apply. An unlit cigarette would not be included on this basis.
However, if the purpose of the Act was to prevent the public being ‘offended’ by the sight or use of cigarettes, Jack is guilty. This interpretation is, however, unlikely.

We could also use the literal rule. This would also result in Jack being found not guilty, as he is not ‘smoking’ a cigarette in the accepted sense.

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5
Q

The recent legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.

Secondly, Mandy is arrested whilst smoking a cigarette in the street.
Hide answer choices

Another statute.

The purposive approach.

The mischief rule.

The long title of the Act.

Noscitur a sociis.

The golden rule.

The presumption against binding the Crown.

The Interpretation Acts.

A

Section 6 of the Interpretation Act 1978 (an extrinsic aid) states that the masculine includes the feminine and vice versa, therefore Mandy would be guilty.

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6
Q

The recent legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.

Finally, Andrew is found smoking in his university halls of residence - is this a public place?

Another statute.

The purposive approach.

The mischief rule.

The long title of the Act.

Noscitur a sociis.

The literal rule.

The golden rule.

The presumption against binding the Crown.

The Interpretation Acts.

A

We may be able to find another statute in which ‘public place’ is defined, another extrinsic aid (in fact, there is such a definition in s. 16 of the Public Order Act 1986), but we would also have to look at the mischief rule again to determine whether there is any similarity of purpose between the two statutes in order to decide whether it should be interpreted in the same way.

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7
Q

The case of R v. Allen (1872) LR 1 CCR 367 required an interpretation of s.57 of the Offences Against the Person Act 1861. This section provided that:
“Whosoever being married, shall marry any other person during the lifetime of his spouse . . . shall commit the offence of bigamy.”

The court concluded that the word ‘marry’ can mean:
(1) to become legally married to a person; or
(2) to go through a marriage ceremony.

If the word ‘marry’ had been given the first interpretation, it would be impossible for anyone ever to commit this offence as one cannot legally marry if one is already married! The court therefore interpreted the word as meaning ‘going through the ceremony’ of marriage.

Which rule of construction was the court using?

The golden rule.

The mischief rule.

The literal rule.

The purposive approach.

A

This is an example of the court using the golden rule to choose between two meanings of a word. In addition, the literal interpretation would lead to the absurd result that no-one could be convicted of bigamy. No mention is made of the reason for, or the purpose of, the legislation, so neither the mischief nor purposive rules are relevant.

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8
Q

In the case of Whiteley v. Chappell (1868) LR 4 QB 147 the defendant pretended to be someone who was on the voters’ list, but who had died. He was charged with impersonating ‘a person entitled to vote’, but was found not guilty.
The reluctant conclusion drawn by the court was that Whiteley could not be convicted of the statutory offence because the person he impersonated was dead, and on a literal construction of the relevant statutory provision, the deceased was not ‘a person entitled to vote’.

Is the following statement correct?

“If the mischief rule had been used. The defendant would have been found not guilty.”

True

False

A

The aim of the legislation was clearly to prevent people from voting when they were not entitled to vote or had already voted. Therefore the defendant was clearly in breach of the spirit of the law, although not the strict letter of it.

The effect of the three rules of construction is that different decisions can be reached, depending upon which is used on the given facts.

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9
Q

Can records of speeches by MPs be used to help resolve any ambiguities in statutes?

Incorrect:
Speeches by MPs cannot be used to help resolve statutory ambiguities. It is up to the court to determine the meaning of a statute.

Speeches by MPs can be used to help resolve statutory ambiguities, if they were present during the debates leading to the Bill’s passing.

Speeches by MPs can be used to help resolve statutory ambiguities, but only if the particular MP was the sponsor of the Bill, or the relevant minister.

Speeches by MPs are not recorded and therefore cannot be used to help resolve statutory ambiguities.

A

The court can use speeches by MPs to help resolve statutory ambiguities, but only if the particular MP was the sponsor of the Bill, or the relevant minister.

The formal record of proceedings in Parliament is Hansard, so an advocate would refer to a speech by such an MP as reported by Hansard.

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10
Q

f the court was using a speech by an MP to help resolve a statutory ambiguity, which rule of interpretation would it most likely be applying?

Literal rule.

Golden rule.

Mischief rule.

A

Well done. Usually, you would try to use Hansard to work out ‘from the horse’s mouth’ what the mischief was which caused the Act to be passed by Parliament. Indeed, you could, in theory, use Hansard to back up any argument on statutory interpretation. However, be aware when using Hansard as the Minister or promoter of the Bill might have been unsuccessful in getting their unamended Bill through both Houses of Parliament.

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11
Q

A clause in a lease agreement states:
‘The following animals must not be brought into this block of flats: dogs, cats, hamsters and gerbils’.
Using the noscitur a sociis rule, would the list include a leopard?
Hide answer choices

Yes.

No.

A

Well done. Common sense would suggest that leopards would not be included.
The rule which applies here is that of noscitur a sociis, because the clause contains an exhaustive list of animals. As a consequence, a leopard would not be included because ‘cats’ in this context means ‘domestic cats’.

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12
Q

The Factories Act 1961 required that all ‘floors, steps, stairs, passageways and gangways’ had to be kept free from obstruction.
The question which the court had to decide in Pengelly v. Bell Punch Co. Ltd [1964] 1 WLR 1055 was whether a floor used for storage came under the provisions of the Act. What do you think was the answer to this question?

True

False

A

Well done. Noscitur a sociis was used to assist in the interpretation of the Factories Act 1961. The court held that as all the other words were used to indicate passage, a floor used exclusively for storage did not fall within the Act.

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13
Q

The case of Wood v. Commissioner of Police of the Metropolis [1986] 1 WLR 796 highlighted the difficulty in interpreting exactly what is meant by an offensive weapon.

This was defined by s.4 of the Vagrancy Act 1824 as being ‘any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon’.

Mr Wood was charged under this Act after using a piece of broken glass, which had fallen out of his front door, as a weapon.

Which ONE of the following is correct?

Broken glass is not of the same type as it was neither made nor adapted for causing injury to a person - Eiusdem Generis. It is not enough that an item has the potential for such use.

Broken glass can hurt you, so it is an offensive weapon.

Broken glass is not on the list, so it is not caught by the Act - Expressio Unius est Exclusio Alterius.

A

Well done. Here, unlike in the last example, we have general words, which follow specific words. So we need to interpret the general words in the light of the specific words that proceed it.

C cannot be right as it does not acknowledge the deliberate generality of the words, ‘offensive weapon’.

B is not right because it fails to look for a common denominator among the words which precede it. It therefore takes too wide an interpretation of the general words at the end of the list.

Broken glass is not of the same type as it was neither made nor adapted for causing injury to a person. It is not enough that an item has the potential for such use.

If a general word follows two or more specific words, that general word will only apply to items of the same type, as the specific words. Eiusdem (or ejusdem) generis means ‘of the same type’.

To determine whether this rule applies, use the structured approach set out below to Mr Wood’s use of the broken glass:

  1. Here there are general words (‘or other offensive weapon’) following a list of specific words.
  2. The specific words are all of the same type in that they are items made or adapted as weapons. Because they have been designed as weapons, they have a common feature.
  3. Interpretation: broken glass is not of the same type as it was neither made nor adapted for causing injury to a person. It is not enough that an item has the potential for such use.
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14
Q

In R v. Inhabitants of Sedgley (1831) 2 B & Ald 65, the court considered whether the poor rate levied on occupiers of ‘lands, houses and coal mines’ under the Poor Relief Act 1601 could be levied on owners of other types of mine.

Bearing in mind how this list is different to the list of offensive weapons under s.4 of the Vagrancy Act 1824, what do you think the outcome of the case was?

The Poor Rate applied.

The Poor Rate did not apply.

A

Well done - the Poor Rate did not apply. ‘Expressio unius’ was the relevant rule of language.

This rule applies where there is a list of words, which is not followed by general words - hence the difference with the definition of an offensive weapon.

The judges held that the Poor Rate could not be levied on other mines. This makes sense as otherwise there was no explanation for the insertion of the word ‘coal’.

However, care must be taken when using this particular rule, as the omission may be inadvertent.

Note that this rule usually produces the opposite result to the ‘Noscitur’ rule.

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15
Q

Consider the example taken from a decided case.

A statute requires an employer to protect employees from ‘danger from shock, burn or other injury’

Does this include tripping?

If you were a judge hearing the case, which of the following rules would you apply?
Hide answer choices

Noscitur a sociis

Expressio unius est exclusio alterius

Eiusdem generis

There is no appropriate rule listed

A

Feedback
The eiusdem generis rule was applied in the case Lane v London Electricity Board [1955] 1 ER 324 as these are specific words which are followed by the general word ‘or other injury’.
However, as shock and burn were both dangers from electricity, they were regarded as a different type of injury to tripping over the cables, so tripping was excluded.

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16
Q

The Domestic Pets Act 2020 (fictitious) states in its long title that it is ‘An Act to regulate the keeping and use of domestic pets’ and for purposes connected therewith’. Part of its purpose is to put into law a vets’ code of practice (‘the code’) in relation to welfare.

Which of the following statements about the Act is correct?

If the Act is silent on its extent, it applies just to England and Wales.

The code would be contained in various sections of the Act.

It would not be possible for the Act to come into force on the date of Royal Assent, as that would give pet owners no notice of changes to the law.

The code would in all likelihood appear as a schedule to the Act.

The code would in all likelihood appear as a subsequent statutory instrument.

A

Option D is correct - the code would appear as a schedule to the Act. This is because it is conventional for additional documents and extra material, which are too bulky to be contained within the sections of an Act, to appear as schedules instead.

Option A is wrong because where an Act is silent as to its extent it applies to the whole of the UK. Option B is wrong because as explained above, the code would go into a schedule. Option C is wrong because any Act can stipulate that it comes into force on the date of Royal Assent (in this instance it is possible that pet owners would be alerted to any changes to the law through the media and other publicity). Option E is wrong because a statutory instrument would only be required where there is significant extra detail required to supplement the original Act.

17
Q

A man is being prosecuted in the magistrates’ court. The court is considering the Guard Dogs Act 1975, one section of which is particularly unclear.

The following statement is made by the chair of the bench of magistrates when explaining their verdict:

One comes to the rule that a penal statute, where there is an ambiguity, should always be construed in favour of the citizen who may find himself the subject of the penalty’.

Which rule of interpretation has the Court used here?

The mischief rule.

The purposive rule.

The golden rule.

The literal rule.

The presumption against alteration of the common law.

A

Option C is correct. This is an example of the narrow use of the golden rule. The court is choosing what it regards as the correct option between two different possibilities, in order to avoid an absurd result. In this instance, the court is alluding to the idea any statute must be clear as to its impact. It is thus also incorporating the important presumption any ambiguity in criminal legislation should favour the citizen.

Option A is wrong because there is no indication of the issue that the Act is intended to address, i.e. there is no apparent mischief mentioned here. Option B is wrong because the purposive rule requires a broad interpretation that goes beyond the specific meaning of an Act, and this has not happened here. Option D is wrong because a literal interpretation is not possible where, as is the case here, there is ambiguity. Option E is wrong because there is no common law point at issue here.

18
Q

A man is being tried in the magistrates for being drunk in charge of a bicycle. The prosecution say a bicycle is a carriage. He is pleading not guilty on the basis the bike is not a carriage.

The court has referred to a dictionary, which states a ‘carriage’ is an obsolete and archaic term, except in the case of wheeled vehicles or railway carriages.

Which of the following statements about the use of the dictionary is correct?

It is an internal aid.

It is an extrinsic aid.

It is illustrating the purposive rule.

It is being used to apply the rule of eiusdem generis.

The dictionary’s use is illustrating the presumption against deprivation of liberty of the individual.

A

Option B is correct – dictionaries are extrinsic aids, and useful to courts in helping decide the issues.

Option A is wrong because an internal aid means that the court is referring to another part of the same Act that is being discussed as part of the court case. That is not the case here. Option C is wrong because there is no purposive approach in this instance. Option D is wrong because, although there is a reference to wheeled vehicles and railways, there is no specific list influencing a subsequent general category. Option E is wrong as there is no discussion of the applicable presumption here.

19
Q

A solicitor is advising a client who owns mobile caravans on the interpretation of a particular section of the Motor Homes Act (fictional) (‘the Act’), which governs substandard facilities in certain moveable holiday accommodation. The solicitor researches the passage of the Act through Parliament. She discovers a speech from a backbench MP saying the Act is needed to regulate and control low quality hygiene facilities in vehicles used as motor homes, travelling homes and mobile caravans. Further research by the solicitor confirms this is indeed the aim of the Act, which mentions mobile caravans.

Which of the following rules is most likely to apply to the interpretation of the Act?

The rule in Pepper v Hart, because of the speech by the MP.

The mischief rule, because there is an indication of the wrong the Act is intended to correct.

The golden rule, because there is a need to choose between ‘substandard’ and ‘low quality’, i.e. two possible interpretations of the Act.

The literal rule, because the word ‘substandard’ needs no expansion or clarification

The rule in noscitur a sociis, because the MP’s speech mentions a list of vehicles and the client needs to know if mobile caravans are included.

A

Option B is correct. The mischief rule means someone interpreting an Act of Parliament can, or should, assess the reason for the Act’s provisions, to assess the problem that the Act is designed to correct. The mischief rule would be relevant as there is mention of the Act’s aims.

Option A is wrong because the rule in Pepper v Hart applies to statements made by ministers responsible for guiding legislation through Parliament, not statements by backbench MPs. Option C is wrong because there is no suggestion a choice needs to be made between two alternative interpretations of the Act or a section of it. Option D is wrong because the word ‘substandard’ is not clear and thus is unlikely to be subject to the literal rule. Option E is wrong because the noscitur rule applies to words that are not specifically stated, and here ‘mobile caravans’ are mentioned by the Act.

20
Q

Which ONE of the following is an example of the court applying the literal rule?

In employment law, a court interprets ‘employed’ as including people recently dismissed for the purposes of the applicability of certain pension rules.

In land law, in a dispute about a lease, a court applies the dictionary definition of ‘premises’.

In company law, a court looks at Parliamentary debates to decide what reason the government had for introducing a law on shareholder rights.

In charity law, a court looks at an EU Directive upon which a UK law on charitable trusts is based, in order to help it interpret the UK law.

A

Well done. The correct answer is option B. Using a dictionary is a clue that the court wants to know what the literal meaning of the word is.

A is wrong as a literal meaning of ‘employed’ cannot included ‘recently dismissed’ - it would appear to be use of the golden rule. Looking at background documentation, as in options C and D, is not taking a literal approach but looks like the mischief rule for option C and purposive approach for option D, so both those are the wrong answer.

21
Q

A judge is hearing a case in which he has to resolve a difficulty in the drafting of section 9 of the Arbitration Act 1996. [Note that you do not need sight of the section to answer this question.]

Which ONE of the following judicial statements would be an example of the judge using the golden rule?

“Reading the section literally, no appeal lies to the Court of Appeal”.

“The starting point to consider is why the Arbitration Act 1996 was passed as that will help us to determine the meaning of section 9”.

“I am left in no doubt that, for once, the draftsman slipped up. Given the intended object of the section is plain, it should be read in a manner which gives effect to parliamentary intention.”

“The starting point to consider is, what was the purpose of the Act?”

A

The answer is Option C as this statement demonstrates the use of the golden rule to avoid an absurd result.

Options A, B and D are wrong as they are not applications of the golden rule. Option A is a clear example of use of the literal rule. Option B appears to be the application of the mischief rule as it is looking back at the reason why the Act was passed. Option D looks at the purpose of the Act, which is the purposive approach. The golden rule does not look at the purpose of the statute.

22
Q

If a term has been defined in an earlier statute and a judge is interpreting a later statute on a similar area of law, which ONE of the following statements is CORRECT?

The judge must apply that earlier definition even if there is no ambiguity in the later statute.

The judge must apply that earlier definition if there is ambiguity in the later statute.

The judge may apply that earlier definition if there is ambiguity in the later statute.

The judge must apply that earlier definition irrespective of whether there is any ambiguity in the later statute.

A

Feedback
The correct answer is Option C.

Interpretation is discretionary so Option B is wrong. If there is no ambiguity then the judge cannot interpret the statute in any other way than how it is written so Option A is wrong, as is Option D – the judge would only consider using an earlier definition if there was ambiguity; if there is no ambiguity, there is no need for interpretation.

23
Q

Imagine a case where the Court of Appeal had to consider the meaning of section 1(1) of the Street Offences Act 1959 which states that it is an offence under that Act for a prostitute to solicit in a ‘street or public place’. The women concerned were not actually in the street, but were inside their homes, tapping on their windows and calling to attract the attention of men.

Which ONE statement do you consider is CORRECT?

If the court applied the literal rule, it was bound to find that the women were guilty of the offence.

The court would have to apply the purposive rule and, if the purpose of the 1959 Act was to keep prostitutes off the streets, the women could not be guilty of an offence.

If the court decided that the 1959 Act was passed in order to clean up the streets and to enable people to walk along the streets without being molested or solicited by prostitutes, the women would be found guilty of the offence.

The court would have to refer it to the European Court of Justice to decide.

A

That’s right - the correct answer is Option C.

Option A is wrong because the literal rule would have resulted in the women being acquitted as, using the plain meaning of the 1959 Act, being in a ‘street or public place’ would not include being inside a house.
Option B is wrong because the UK courts were not using the purposive approach until after the UK joined the European Community and, in any event, if the purposive approach were to be used it would be likely to have the same result as using the mischief rule - the women would be likely to be found guilty even though they were soliciting from inside a house.
Option D is wrong as the ECJ had no jurisdiction in UK cases at that time and, in any event, the 1959 Act was clearly not EU related legislation.