Unit 1 - Statutory interpretation Flashcards
What is the literal rule and what are the cases it was used in?
The literal rule is the starting point for all judges. It gives words their plain, ordinary and dictionary meaning even if it results in an absurdity. Created by Lord Esher.
Whitely v Chappell: it is an offence to impersonate any person entitled to vote. The defendant impersonated a dead person and was therefore found not guilty as dead people can’t vote. This is stupid
LNER v Berriman: a widow is allowed to claim damages if a husband is killed by a train whilst repairing or relaying tracks. The worker was killed whilst maintaining tracks and therefore the widow couldn’t claim damages. This is an example of an unjust outcome.
Fisher v Bell: it is an offence to offer flick knives for sale. The defendant displayed flick knives in a shop window, the courts held that this was not an offer of sale, but an invitation to treat. The defendant was found not guilty.
What is the golden rule and what cases was it used in?
The golden rule is used when the literal rule produces an absurd or unjust outcome. It is a modification of the literal rule.
Narrow approach is for when the act has multiple meanings and the judge chooses between them. The Allen case is an example of this:
- it is an offence to marry without dissolving the prior marriage
- the defendant argued the he didn’t marry, but he went through a ceremony
- judge decided that it meant going through a ceremony
Broad approach is when the act has only one meaning but to apply it would cause an absurdity so the judge modifies the meaning.
Adler v George: it is an offence to be in the vicinity of a prohibited area. The defendant was found inside the prohibited area and argued that he was therefore not committing an offense. The judge decided that vicinity includes inside the area and the defendant was found guilty.
Re Sigsworth: law states that if you die without a will it goes to the next of kin. A son murdered his mother and she didn’t have a will. The law was modified that the next of kin wouldn’t receive the estate if they had killed to get it
What is the mischief rule and what cases was it used in?
The mischief rule is where the judge looks at what the law was before the act was passed to discover the gap or mischief that the law covers - to see why the law was created.
Heydon’s Case:
1. What was the law before the statute?
2. What was wrong with that?
3. How does the new law fix the old one?
4. How does that apply to this case?
Smith v Hughes: it is an offence to solicit in a public place. The defendants were soliciting from a balcony. The judge found that the purpose of the act was to stop soliciting from taking place and the defendants were found guilty.
RCN v DHSS
The abortion act states that abortions had to be carried out by registered practitioners. Nurses began to carry out abortions due to medical advancement. The purpose of the act was to stop backstreet abortions, so nurses are not committing an offence.
What is the purposive approach and what cases was it used in?
The judge decides what parliament meant by the law. This is encouraged by the law commission and used by the EU courts. It relies on external aids.
Ex Parte Smith: people are allowed to find birth parents under the abortion act. Smith applied to find moth but was denied because he was a convicted murderer and she would be in danger.
R v Secretary of State: HoL had to decide whether organisms created through CNR came under the definition of embryo. The court ruled that they do.
Fitzpatrick v SHA: the wording of the rent act didn’t allow homosexual/unmarried couples to claim succession. The courts said that the rent act could extend to those who were in homosexual/civil partnerships.
What are advantages and disadvantages of the literal rule?
Advantages:
- Respects parliament’s words
- Makes the law easier to understand for the general public
- More certain - exactly as it’s written every time it’s used
Disadvantages:
- Assumes every act is written perfectly
- Acts can’t cover every possible situation
- Produces absurd or unjust outcomes
What are advantages and disadvantages of the golden rule?
Advantages:
- Provides an escape route for absurdities produced by the literal rule
- Allows judges to choose the most sensible meanings
- Respects the words of parliament
Disadvantages:
- Limited in its use - only when the literal rule produces an absurdity
- Unpredictable as the law is unclear for the public
- Absurdity may mean different things for different judges
What are advantages and disadvantages of the mischief rule?
Advantages:
- Promotes the purpose of the law rather than literal meanings
- Fills in the gaps that the law was created to cover
- Just outcomes are more likely
Disadvantages:
- Outdates
- Unelected judges impose their own views on the law
- Judges don’t always agree on how to fill the gap
What are advantages and disadvantages of the purposive approach?
Advantages:
- Clarity and adaptability
- Alignment with legislative intent
- Flexibility in interpretation
Disadvantages:
- Inconsistency
- Time consuming
- Unelected judges impose their own views on the law
- Difficult to find intensions
What are the intrinsic aids to interpretation?
Intrinsic = internal (in the act)
Long title - referred to as a guidance - more information about the act
Preamble - under title. Statement setting out the Act’s purpose, judges use this to find the aim of the act. Especially useful for the mischief and purposive approaches
Schedules - back of the act. Additional comments from parliament, referred to to make sense of the act & parliament’s intentions
Interpretation section - found in newer acts at the back. This is a glossary, used for the literal rule.
Explanatory notes/Individual section- additional comments. Basically the same as the schedule but it’s in the margins
Objective section - sets the outcome of the act. Same as the preamble
What are extrinsic aids?
Extrinsic - external (outside the act)
Dictionary - literal & golden rule. used for older acts, which don’t have an interpretation section. The dictionary must be from the same year as the act.
Textbooks - guidance in relation to particular points of law
Previous acts - mischief rule to understand developments in the law
International Treaties - refer to the European convention on human rights to ensure laws do not conflict
Hansard - parliamentary database with parliamentary debate records. Pepper v Hart outlined the cases where this can be used:
- act is ambiguous or obscure
- literal interpretation would lead to an obscurity
- judges may only look at statements made by a minister if it is clear (if it helps them)
What was the impact of the Human Rights Act 1998 on interpretation?
s3 HRA 1998 - legislation must be interpreted in a way which is compatible with the European convention on Human Rights
Mendoza v Ghaidan - rent act was discriminatory against same sex & unmarried couples so had to be changed (basically Fitzpatrick v SHA)
What is the long title? 😵👺😮👿😬🤢
Long title - referred to as a guidance - more information about the act
What is the preamble 📞📞💽🧭
Preamble - under title. Statement setting out the Act’s purpose, judges use this to find the aim of the act. Especially useful for the mischief and purposive approaches
What is the schedule 🕯️
Schedules - gyatt of the act. Additional comments from parliament, referred to to make sense of the act & parliament’s intentions
What is the interpretation section
Interpretation section - found in newer acts at the back. This is a glossary, used for the literal rule.
