8 - Law making : Statutory interpretation Flashcards
(28 cards)
When may statutory interpretation be required?
- ambiguous (fisher v bell 1961)
words are too broad
progress in tech may mean that words may need to be reconsidered
drafting error (r v burstow 1997)
Which rule may be used?
there is no requirement for which to use, judges can use what they prefer
bodies such as the judicial studies board may issue guidelines
Literal rule
where judges use the exact wording when interpreting a statute no matter how absurd the outcome is
Case for the literal rule
whitelely v chappel 1868 - a statute made it illegal to impersonate any man able to vote, the D impersonated a dead man who couldn’t vote so not guilty
Advantage of the literal rule
respected parliamentary sovereignty
creates certainty of the outcome
Disadvantages of the literal rule
May lead to an unjust result
Assumes every act was drafted perfectly
The golden rule
an extension to the literal rule, where words are given their literal meaning unless the result is absurd
Case for golden rule
re sigworth 1935 - son murdered mother and she didn’t have a will, the golden rule meant that he was not entitled to anything
Advantages of the golden rule
avoids absurd results while still respecting parliamentary sovereignty
Disadvantages of golden rule
can lead to inconsistency
no definition of what actually is an absurd result
Mischief rule
gives more power to the judges in deciding the gap in the previous law and interprets the act to cover the gap
What is a literal approach
looks at what the statute meant literally
What is a purposive approach
the judge looks at the wider meaning and tries to work out what Parliament meant by creating the Act in the first place
What kind of approach does EU law use
purposive
What is the difference between a narrow approach and a wide approach in the golden rule?
Narrow Approach
Judge can decide between two possible meaning
Wider Approach
It allows judges to interpret to avoid unfair meaning
Heydons law 1584
generated the mischief rule
The law should look at:
Old case law
what the law was before the Act was passed so that it can be discovered what defect or “mischief” was meant to covered.
How Parliament intended on remedying the mischief
The Court should then interpret the Act in such a way that the gap is covered.
case for the mischief rule
Smith v Hughes 1960
Street Offences Act 1959 – an offence for a prostitute to loiter or solicit in a street or public place
6 women were charged but pleaded not guilty on the grounds that they were not on the street or public place but in windows and on a balcony.
Using the Mischief Rule the Judge held them to be guilty as the Act was designed to “clean up the streets”
Advantages of the mischief rule
Promotes the purpose/spirit of the law
Emphasis is that the gap in the law is filled so that it produces a just result
Judges interpret the law in the way Parliament meant it to work The Law Commission prefers judges to use the Mischief rule
Allows judges to take into account the changes in society RCN v DHSS – also saves time as it prevents Parliament having to make constant amendments to law
Disadvantages of the mischief rule
Risk that Judges try and fill the gaps with their own ideas / impose their own morality
Unelected Judges making law
Can lead to uncertainty
It is more limited that the purposive approach and is therefore perhaps outdates
Sometimes difficult to actually work out what the “Mischief” actually is
Purposive approach
Goes beyond the mischief rule – Judges don’t just look for the gap they look at what Parliament meant to achieve generally
Case for purposive approach
R v Registrar General ex Parte Smith 1990
S51 Adoption Act 1976 – must allow someone who has been adopted and 18 acsess to their birth certificate
D – applied however he had been convicted of 2 murders and was in Broadmoor mental hospital Doctors thought he might harm his natural mother if he traced her.
Literal/golden rule Judges would have to allow him access to the information
Purposive approach Judges decided that Parliament could never have wanted to promote a potential crime and thus Mr Smith wasn’t given the information
Advantages of purposive approach
Leads to justice in individual cases
Broad approach which allows the law to cover more situations than applying words literally
Useful where there is new technology / advancements – allows judges to interpret Parliaments wishes in line with changes, stopping the need for Parliament to create another new Act
Allows Judges to use discretion
Disadvantages of purposive approach
Judges don’t follow the clear words of Parliament
How do Judges really know what Parliaments intentions really are?
Allows unelected judges to make law
Leads to uncertainty because lawyers can never be exactly sure on the judges ruling
intrinsic aids to statutory interpretation
inside the act such as
Details contained in the statute itself that help make its meaning clearer
Long and short title
Preamble (detail at the start of an Act)
Headings
Schedules that are attached to the Act
Notes in the margin
