paper 2 section A: statutory interpretation

Question 1

Why do words in Acts need interpreting?

Answer 1

• Words can have more than one meaning
• The meaning of words changes over time
• Parliament can’t think of every situation in advance

Question 2

What is the The Literal Rule?

Answer 2

Judges will give words their literal or grammatical, ordinary, natural meaning. Lord Esher stated in ‘Judge of the City of London Court’ that “judges should always use this rule if the words used in an Act are clear and unambiguous, even if it leads to absurd results.”

Question 3

DDP v Cheeseman 1990 (literal rule case)

Answer 3

• An offence under the Town Police Clauses Act 1847 to expose yourself to ‘passengers in the street’
• Mr C exposed himself to an officer who had been waiting in the toilets to catch him following prior complaints
• The word ‘passenger’ refers to someone passing through for the ordinary purpose of the place. The officer was not a passenger therefore no offence was committed

Question 4

Whiteley v Chappell 1868 (literal rule case)

Answer 4

• Under the Poor Law Amendment Act 1851 it was an offence to impersonate any person ‘entitled to vote’
• The defendant used a dead person’s vote as their name was still on the voter list
• As a dead person is not literally ‘entitled to vote’ he was not guilty

Question 5

LNER v Berriman 1946 (literal rule case)

Answer 5

• The Railway Employment (Preventions of Accidents) Act 1990 said that compensation would be paid if a railway worker who had no lookout provided, was killed whilst ‘relaying and repairing’ tracks
• Mr Berriman was killed while he was maintaining (oiling the tracks
• His widow lost her claim as her husband was not literally ‘replying or repairing’ the tracks

Question 6

What are the advantages of using the Literal Rule?

Answer 6

1. It respects PARLIAMENTARY SUPREMACY as law-makers, Judges are unelected so they should apply the law exactly as Parliament wrote it rather than creating law themselves
2. It is CLEAR AND CERTAIN as the ordinary meaning will always be used so people known in advance whether they are breaking the law or not
3. It encourages those who write acts to be PRECISE in their wording to make sure that Parliament’s intention will be carried out as the judges will not ‘fill in the gaps’
4. It is OBJECTIVE as the meaning will not depend on the judge’s individual opinion of what the Act ‘should’ve’ said

Question 7

What are the disadvantages of the Literal Rule?

Answer 7

1. The Law Commission said it ‘assumes UNATTAINABLE PERFECTION IN DRAFTSMANSHIP’ - it expects people writing the law to be perfect in their choice of words
2. Lord Denning: “It relies too heavy on LINGUISTICS” - the words used rather than what their true meaning should be
3. It does not account for the AMBIGUITY AND VAGUENESS of language as many words have several ordinary meanings
4. It is extremely rigid and can lead to absurdity and INJUSTICE, particularly in circumstances unforeseen by Parliament (Case examples of Berriman etc)

Question 8

Whats the ‘Golden Rule’?

Answer 8

Words are given the best meaning to avoid injustice or absurdity. There is the NARROW approach where the word is ambiguous so the judge simply chooses the meaning that brings about the best result. And the BROAD approach where the word is not ambiguous but the judge choses not to follow the ordinary meaning but to give the words a new meaning to bring about the best result

Question 9

How does the ‘narrow’ approach respect Parliamentary Supremacy?

Answer 9

Judges stick to the words used in the Act and don’t give them unnatural meanings

Question 10

R v Allen 1872 (Golden Rule Case)

Answer 10

• Mr A attempted to marry the niece of his first wife, to whom he was still married to
• Charged under the Offences Against the Person Act 1861
• The crime of ‘bigamy’ is to ‘marry’ someone when in an existing marriage
• The word ‘marry’ has 2 meanings: to be legally married to someone else whilst being already married or (used meaning) to go through a marriage ceremony to another when already married
• The narrow approach was used because any 2nd marriage is legally impossible. Only the 1st marriage is legally a marriage

Question 11

Adler v George 1964 (Golden Rule Case)

Answer 11

• The Official Secrets Act 1920 made it an offence to obstruct a member of the armed forces ‘in the vicinity’ of a prohibited place
• The defendant was in the prohibited place at the time of obstruction
• ‘In the vicinity’ of a place means outside but close to it - unambiguous but it would absurd for a person to be guilty just outside the base but not inside it so the meaning was interpreted to include ‘inside’ - used the broad approach

Question 12

Re Sigsworth 1935

Answer 12

• A son murdered his mother and as she hadn’t made a will under the Administration of Estates Act 1925 her son would’ve inherited her estate
• The Act stated that a person’s “issue” would inherit if they’d died without leading a valid will
• “Issue” refers to somebody’s next of kin or descendant and this is unambiguous but it would be unjust for a murderer to inherit so the court said “issue” does not include children who killed their parents

Question 13

What are the advantages of the Golden Rule?

Answer 13

1. Permits flexibility, particularly where words are ambiguous
2. Enables avoidance of absurdity by literal rule
3. Allows for imperfections in written language and for unforeseen circumstances
4. Drafting errors in statutes can be corrected immediately. This is seen in the R v Allen (1872) case where the loopholes were closed, the decision was in line with parliament’s intentions and it gave a more just outcome

Question 14

What are the disadvantages of the Golden Rule?

Answer 14

1. Lord Diplock said it was not for judges to invent ambiguities because they consider the result immoral or unjust, but to give effect to clear unambiguous intentions
2. There is no clear objective definition of an unjust or absurd result so this is left to the subjective opinion of the judge
3. As the ordinary meaning is not always given it makes the law less predictable and clear
4. It doesn’t respect parliament as law-makers as judges manipulate the words in the Act

Question 15

What’s the ‘Mischief Rule’?

Answer 15

This approach was explained in Heydon’s Case. The Judge should consider: the position of the law prior to the Act, the mischief it was designed to remedy, the remedy Parliament intended, the true reason for the remedy and the words are then interpreted to best suppress the mischief

Question 16

Smith v Hughes 1960

Answer 16

• Prostitutes weren’t allowed to solicit in the street under the Street Offences Act 1959, so they began to solicit from the windows and balconies of private properties
• “in the street”
• Court held that the activities were within the mischief the Act was aimed at stopping

Question 17

Elliot v Grey 1959

Answer 17

• The Road Traffic Act 1930 made it an offence to have an uninsured car “used on the road” to prevent the mischief of lack of compensation of victims of injury/damage
• D’s uninsured car was jacked up
• Held that it was being “used on the road” as it represented a hazard and therefore insurance would be required as the statute was aimed at ensuring people were compensated when injured due to the hazards created by others

Question 18

Corkery v Carpenter 1951

Answer 18

• The defendant was riding his bike under the influence of alcohol
• The Licensing Act 1872 made it an offence to be drunk in charge of a “carriage” on the highway
• “Carriage” normally doesn’t include bicycle
• The defendant was found guilty as the court applied that riding a bicycle was within the mischief of the Act as he represented a danger to himself/other road users

Question 19

What are the advantages of the Mischief Rule?

Answer 19

1. The Law Commission prefers the mischief rule and called it a “rather more satisfactory approach” than literal or golden rule. Since 1969 they recommend that it should be the only rule used in SI
2. Provides flexibility as Parliament can’t think of everything in advance
3. It stops the mischief Parliament intended
4. Allows for the judge to focus on the case/remedying the mischief instead of the meaning of the words used in the Act like the literal rule does

Question 20

What are the disadvantages of the Mischief Rule?

Answer 20

1. The risk of judicial law-making when the rule is used, Lord Parker said “For my part I approach the matter by considering what is the mischief aimed at by this Act”
2. The rule is unpredictable compared to others. Defendants don’t know in advance which interpretation will be applied - unaware of committing a crime (Retrospective Liability)
3. Parliamentary sovereignty is not respected as the judge is effectively creating rather than interpreting law
4. It’s difficult to find out what the mischief or defect in the law was

Question 21

What is the ‘Purposive Approach’?

Answer 21

Basically an extension of the mischief rule. The interpretation is given that will bring about that purposes of the Act but there is no need to consider the Heydon steps that are required for the mischief rule so it can be used even where there is no previous law to refer to.

Question 22

Jones v Tower

Answer 22

• Jones was racially abused by his colleagues on his break. The employer argued that this was not “in the course of employment” - they weren’t doing their job by making the remarks
• Race Relations Act 1976 made an employer responsible for ensuring racial discrimination did not take place in the workplace
• The phrase was held to include behaviour in the workplace as the purpose of the Act was to provide a remedy for racial discrimination

Question 23

RCN v DHSS 1981

Answer 23

• The Abortion Act 1967 stated that only “medical practitioners” could perform lawful abortions. New methods enabled nurses to carry out abortions
• “MP” literally means a doctor
• “MP” was interpreted to include nurses as the purpose of the Act was to stop “backstreet” abortions

Question 24

Cutter v Eagle Star Insurance 1998

Answer 24

• A man was injured due to an accident involving leaked lighter fuel, in a car, parked in a car. He tried to claim damages for this under the Road Traffic Act
• Allowed compensation for those injured by uninsured drivers “on the road”
• The Supreme Court said it would stretch the meaning of “road” to include a car park, even though the purpose of the Act was to allow compensation for victims

Question 25

What are the advantages of the Purposive Approach?

Answer 25

1. Judges can take into account social, technological and cultural changes after the passing of the Act
2. It allows for imperfect draftsmanship and ensures Parliament’s intentions are met
3. Useful for interpretation broadly worded EU legislation
4. Since the Heydon’s steps do not have to be followed it can be used where there is no existing legislation

Question 26

What are the disadvantages of the Purposive Approach?

Answer 26

1. Unnatural meanings may be given to words or words can be entirely missed out or added if necessary to meet the purpose if the Act so this avoids consistency and certainty
2. Subjective view of judges - unaware of what the purpose of the Act actually was and it doesn’t encourage Parliament to keep its Acts up to date and amended
3. Many senior judges think it is not the judges job to create than interpret law
4. Litigation is notoriously uncertain and expensive. Legal advice is difficult as lawyers will not know until the final judgement whether the judges are prepared to use this approach

Question 27

Why do judges use rules of language?

Answer 27

Judges use these rules to read lists of words. This is to make sure the Act is interpreted in a way that is relevant and suitable to the situation in a case, creates uniformity with the reading of statutes

Question 28

Ejusdem genesis rule

Answer 28

This is applied when a statute contains a list of items that are followed by ‘other’. Judges look at the context of the other words included in this list.

Question 29

Expressio unius est exclusif alterius

Answer 29

‘The express mention of one thing excludes others’ this means that if there is a closed list with no ‘other’ on the end, then it can only include these certain words and no others

Question 30

Noscitur a sociis

Answer 30

‘A word is known by the company it keeps’ this rule applies when there is a list of items within the statute and the item in question is included in the list, but the context of the items in this list does not match the words in question, suggesting it should not be there

Question 31

Intrinsic aids (within the Act)

Answer 31

Titles & subtitles
Punctuation
Context
Schedules
Margin notes
Interpretation section
(The PussyCat Stole My iPhone)

Question 32

Titles & subtitles

Answer 32

1. Long Titles: included in certain acts to provide a general description of the objective, provides a broad understanding of the Acts subject matter (The Protection of Animals Act 2000 helped the judge in CCC v Baker to select a meaning that would best give protection to animals)
2. Short Title: Serves as a concise name given to the legislation for easy reference and identification. It is a convenient way to refer to the Act without mentioning its full name and details (The Theft Act and Data Protection Act)

Question 33

Punctuations

Answer 33

Lord Lowry (in Hanlon v Law Society) “To ignore punctuation is to disregard the reality that literate people, such as parliamentary draftsmen, do punctuate what they write”. When punctuation is correctly place it acts as a valuable aid as it can pinpoint the intended meaning of a phrase within the Act. Incorrectly placed, it may have the opposite effect.

Question 34

Context

Answer 34

The surroundings words will often help to clarify ambiguity. For example, the context of the phrase “no other person” in the Abortion Act helped the court to decide in RCN v DHSS that it was not mean to exclude nurses from performing abortions. The context of the Act made it clear that nurses would be allowed to perform abortions.

Question 35

Schedules

Answer 35

Schedules are useful for outlining key concepts, such as in the Unfair Contract Terms Act 1977 which outlines the test for reasonableness in contracts

Question 36

Margin notes

Answer 36

These are included by the publisher to assist the reader of the Act. These can give useful information such as cross referencing to other Acts or cases which overlap. In R v Tivan, margin notes assisted the judge by outlining the assets that could be seized from those committing drugs offences.

Question 37

Interpretation Section

Answer 37

Some legislation contains an interpretation section which defines the meaning of certain words. For example, the Animal Boarding Act states: ‘In this Act animal means any dog or cat’.

Question 38

Extrinsic aids (Outside the Act)

Answer 38

Texts of authority
Hansard
EU treaties

Interpretation Acts
Dictionary (Oxford English)
Other Acts or cases
Law Commission reports
(THE IDOL)

Question 39

Texts of authority

Answer 39

Texts by respected academics or legal professionals may sometimes be referred to during interpretation, especially if they have written articles which criticise the current law and other suggestions. In Hunter v Canary Wharf, Prof Newark’s article was used to confirm the meaning of nuisance

Question 40

Hansard

Answer 40

They are official reports of Parliamentary debates. Judges can only use the debates held when the Bill was being passed as an aid to interpret the Act if the words in an Act are ambiguous. Could be helpful in interpretation what Parliament intended when the Act was being created

Question 41

EU treaties

Answer 41

If a UK law is based on an EU law then the judge will refer to that EU law to gain understanding of the general principles and aims on which the law is based
- In Fothergill v Monarch Airlines, the Warsaw Convention was used in an insurance case

Question 42

Interpretation Acts

Answer 42

Exist to give definitions and clarification to key phrases used in Acts of Parliament. In the Interpretation Act 1978 it says that female includes males and vice versa and singular includes plural, unless stated otherwise.

Question 43

Dictionaries

Answer 43

Dictionaries from the time the Act was created are useful. This would give the judge the ordinary grammatical meaning of the ambiguous words, at the time the Act was written.

Question 44

Other statutes or cases

Answer 44

They can provide assistance in interpreting certain words that are regularly used. In DPP v Cheeseman, the court referred to a previous Act to describe the meaning of ‘street’

Question 45

Law Commission reports

Answer 45

LC reports are useful if an Act has been passed following a report, as ti would include the reason for changes that were needed in the law. However, this aid has its limitations as not everything on the report may be taken into account by Parliament.