section a- statutory interpretation

Question 1

what are the 4 rules

Answer 1

literal rule
golden rule
mischief rule
purposive approach

Question 2

the literal rule defenition

Answer 2

this is a victorian approach where the judge reads the statute and gives their words their plain, ordinary meaning even if the result is not very sensible

Question 3

the literal rule features

Answer 3

2 features in exam
-courts make use of a dictionary
-most common l- beleive its not their job to change wording of parliament
-heavily criticised- caused injustice in cases

Question 4

the literal rule cases

Answer 4

whitely v chapel- illegal to impersonate any person entitled to vote- impersonate dead person held- D not guilty as dead person not voting

LNER v berriman- railway worker killed doing maintenence
held- couldnt claim as act: ‘repairing or relaying’ the track not maintenence

Question 5

the golden rule defenition

Answer 5

modification of the liternal approach. the judge will start by following the LR unless this would lead to an absurd or unjust result

Question 6

the golden rule features

Answer 6

where injustice, 2 options:
narrow application (words ambiguous) occurs where a word in the statute is capable of having more than one meaning and can choose and apply meaning (R v allen)

wide application- words clear but leads to injustice- statute may be altered- used sparingly to preserve certainty (sigsworth)

Question 7

the golden rule cases

Answer 7

R v allen- offence to commit crime of bigamy held-court implied marry should be interpreted as marriage ceremony and liable

sigsworth- son murdered mother to inherit estate- state next kin receive assets. held- judge used wide application - not prepared to let murderer benefit from crime

Question 8

the mischief rule defenition

Answer 8

this rule applies where the act before the court reformed a previous peice of law from the common law or an earlier statute i.e theft act replaced the larceny act

Question 9

the mischief rule features

Answer 9

rule created in heydons case and stated a judge must consider:
1.look at common law/old statute before the act
2.discover the mischeif with that law
3.identify the remedy P tried to provide
4. the court should then interpret the act in such a way that the mischeif is covered and remedy provided

the approach is used only for law reform statutes

Question 10

the mischief rule cases

Answer 10

smith v hughes- illegal to solicit on the street and one soliciting from a window
held- guilty as harrasing members of public which P intended to stop

royal college of nursing v DHSS- ‘registered medical practitioner’ should terminate pregancy and questioned whether nurses could
held- mischeif was to get rid of legal abortions and able to peform act

Question 11

the purposive approach defenition

Answer 11

this approach is similar to the mischeif rule but its not limited to reformed acts. the judge will look at the ‘purpose’ of the act and can look forward to see what parliament wanted the act to acheive. they will often look outside the act (EA) to find Ps true intents

Question 12

the purposive approach features

Answer 12

a modern day approach
broader approach than mischeif rule

Question 13

the purposive approach cases

Answer 13

registrar general ex parte smith- D wanted to obtain birth certificate to kill mother and refused access as wouldnt of been p intention to do this

jones v tower boot- racial harrassment from co worker whether it was in the corse on employment but purpose of act to stop racial discrimination

Question 14

whats an intrinsic aid

Answer 14

something within the act of parliament that helps the judge to understand what parliament has written

Question 15

5 intrinsic aids

Answer 15

titles of the statute- long and short titlr give indication to objectives to the act used in royal college of nursing dhss

preamble- older have introductory paras following the title- outlines Ps purpose

the words- judge may use wording in statute to understand

punctuation- must take into account P used can change meaning of sentence

marginal notes- guidelines added by draftsmen after act passed by P- clarity- not written by P so should not be used as intentions of P.

Question 16

what is an extrinsic aid

Answer 16

things outside of the act which help to understand Ps intent

Question 17

5 extrinsic aids

Answer 17

dictionary- the oxford english D may be used to clear up the meaning of a word in a modern statute- used in cheeseman v DPP
previous acts of parliament- may look at previous law related to the act for example larceny for theft act
green and white papers- contain proposals put forward by \p for an act- aims and purpose
law commission reports- investigates areas of law and suggest reforms- understand why P has created the act they have
explanatory notes- notes are published and updated on bills when passing through P through gov departments- summarise main provision of acts and examples on complicated points

Question 18

the effect of EU law

Answer 18

• the Purposive approach is preffered by most european contries when interpreting their own law and preffered by CJEU.
  -EU laws are less specific than the UK style of drafting which means that judges have to adopt a more european style when interpreting EU laws and therefore use the PA
  -lord scarman was concerned that the modern style of drafting laws would cause problems if judges were using the literal rule
• being part of EU affected way which UK interpreted the law in that using PA more preffered
  -european communities act 1972 stated that EU law is to prevail over inconsistent acts of parliament passed or to be passed

Question 19

the effects of the human rights act 1998

Answer 19

s.3 of the human rights act 1998 states that legislation must be read in a way which is compatibke with the rights in the european convention of the human rights (ECHR)
an example how it can effect our law is by looking at the rent act 1977 in that same sex partners did not have the same rights but then forbid discrimination on grounds of gender and allowed same rights of H couples

Question 20

advantages of the literal rule

Answer 20

p- consistent decisions reached for parties in the case dp-most judges agree on plain ordinary meaning of words if use same approach- all decisions consistent wdp-less time and conflicts howev justice isnt always served- whiteley v chapel

p-use dictionary to clarify meanings- easy- law accessible to everyone. dp-no need for lawyers arguing saves legal costs and quick. wdp- forces P to pass new legislation

p-expresses Ps true intention- p.s. dp- taking word as its printed- words of democratically elected used also ROL- certain law used and less confusing for lay

p-makes case predictable for lay people- same meaning applied every time and outcome predictable for everyone inolved
wdp- avoids complications advise clients, widows of men maintaining railway tracks will now know they cant get compensation due to berriman

Question 21

disadvantages of the literal rule

Answer 21

p- judges not using their professional experience to apply- most practicing for decades. dp- injustices made in many cases- berriman. wdp- cannot be said to enact the will of P as would not intent absurdity so doesnt intend P or judges- no common sense approach.

p-outcomes rigid and judges lack flex in decision making, dp- statute doesnt alwaus accomodate or update along with society and judges should be doing this. wdp-judges accused of being too literal and not using a wider context.

p-P are slow to change law which could lead to useless statutes being used. dp-when using plain ordinary meaning of a word the law will not develop so up to P to change ths but they dont have time. wdp- the LC was higly critical

p-requires impossible perfections of the acts dp- due to using words literally P draftsmen need to perfectly word the acts as there may be loopholes in the law where P did not forsee a situation, and no matter what wording there tends to be atleast one misjustuce

Question 22

advantages of the golden rule

Answer 22

avoids injustice of the literal rule to avoid misjustice when a meaning may be ambiguous dp-the court can choose a meaning or alter the statute: provides multiple routes wdp- GR provides flexibility- P wouldnt intend injustice e.g. allen

p-follows Ps intentions- p.s. dp- when P draft they dont intend bad situations so allows judges to enact P. howev conflicts with SOP- judges using own interpretation not P/ JC

p-provides check on the strictness of the LR, LR too rigid and GR provides a check on this by using the meaning that makes the most sense but does not give judges complete freedom so the law can be ammended but not completey changed-fair

p-more democratic as its considering needs of society to serve justice. dp- the GR follows societies wishes as well as Ps- P wont have to worry about loopholes on literal meanings and what makes sense in society can be applied e.g. sigsworth

Question 23

disadvantages of the golden rule

Answer 23

p- not an effective check on the literal ule as its unpredictable. dp- not possible to predict when the rule will be used or whether the broad or narrow option used or if they are stuck between meanings what meaning they will use meaning awyers unable to advise clients.

p-wide range of outcomes and different interpretations of absurdity which goes agaisnt ROL. people may have different veiws on meanings and could inturn increase litigation and mean not all parties are satisfied

p-not Ps intent as judges may misenterpret \Ps wishes dp- as judges decide the meaning of a word/statute they may blame their own JC on what parliament want when thats not the case, judges take a legislative role- against SOP

p-rarely used as judges dont want to be accused of abusing their power. dp- judges prefer certainty over fairness which shouldnt be the case. using the GL can cause contriversy and they want to save their repuation so use the LR which serves injustice like in berriman

Question 24

advantages of the mischeif rule

Answer 24

p- even more flexible the literal and golden rule- use estrinsic aids. dp-judges are able to avoid injustice and absurdity and correct errors that arise from the more literal approaches, judge can use his discresion. wdp-howev some may be fearful- JC

p-acheives Ps intent- whole point involves taking steps to discover the intent of P at the time of creating the act- looking at why they reformed and the whole point P reformed was to serve justice so the judges are applying that- P.S

p-able to identify when to use- direct as follows same procedure so satisfied parties. dp-there are clear guidlines in place for applying this approach under the heydons case. wdp-creates certainty (ROL) also judges are able to overcome errors by adding to the act- avoids P need to relegislate

p-allows the law to develop- remains ascertainable- keeps up to date with needs of society. dp-allowing judges to ensure there are no gaps in the law , the MR allows the law to develop and adapt to social/economic change. wdp-royal college nursing- allowed to get rid of illegal abortions

Question 25

disadvantages of the mischeif rule

Answer 25

p- too much reliance on extrinsic aids which aernt provided by P. dp-in order to use the rule effectively judges rely on the use of extrinsic aids outside the act like green and white papers/law commision reports. they may use the wrong thing- uncertain. furthermore if using dictionary, have to use one at the time of the act- time consuming p-judicial creativity of the law- judges are attempting to work out Ps intent which may not be accurate. dp-judges fall out their constitutional role and increases the power of judges at the expense of the legislative power. wdp- however allowing flexibility tp adapt the law whilst considering ps intent should lead to fairer outcomes p-judges reluctant to use-want to keep law literal and certain. dp- using could cause tension as judges have different veiws and using literal prevents the veiw of judge being portrayed in the verdict- accused of J.C. wdp- royal college nursing there was 3-2 majority showing they dont always agree. p-not modernised and an out of date process- useless and especially now with the purposive approach- seems like a better method and used more widely as doesnt have to be used for only reformed acts so justice can be served for every case. P should reveiw this area to ensure the law can be applied effectively or should be removed all together to avoid confusion

Question 26

advantages of the purposive approach

Answer 26

p-express ps intent- judges decsions are based on their purpose of the act. judges use extrinsic aids to investigate Ps intent and resolve any issues with the statute to avoids loopholes of Ps wording that may serve injustice- complies with P.S p-enhances judges role- using their decades of skills and expertise. the rule allows a judge to be an activist in his role i.e lord denning was in strong favour as it follows ps intent. also jugely favoured as is relitavely modern and now known as most appropriate p-goes further than the other rules- allows judge to not have to follow any steps e.g. heydons case and narrow and wide application and soley use extrinsic aids to find out Ps intent. judges mor up to date with society and so by giving them discretion, produces outcomes society would agree with e.g. jones v tower boot- stop racial discrimination p-copes with unforseen situations by P and deals with them in the right way. in the world many strange and unforseen situations can happen, its impossible for P to adress all issues in one statute so allows a judge to deal with a sitution they didnt forsee which provides flexibility in the law e.g. ex parte smith- birth certificate to kill mother.

Question 27

disadvantages of the purposive approach

Answer 27

p- gives judges more power/allows to decide- they fall out their consitutional role and creates a conflict with the three principles of the legal system especially SOP- JC p-use of extrinsic aids is time consuming- usually need to find documents from the time the law was written and some are very old . dp- there is lots of outside information so may increase costs for the party as lawyers paid per hour- lenthy. wdp- result in judges and lawyers looking at irrelevant material such as veiws of MPs who disagreed with the law also could mean judges end up re-writig the act p-judicial attitude is inconsistent- some disagree on use of this rule that it is too broad and tension is caused bevause of JC accused so ROL isnt upheld- uncertainty on whether this is correct to use. lord denning was in favour but other judges werent and felt it was Ps job to make ammendments p-hard and complex and hard for judges to figure out, literal rule is easy. dp-judges blamed for incorrect decisions when trying to reach the best outcome- hard to reach a perfect outcome unless P ammends it instead. wdp- can be hard when complex matters are involved like veiws on specific developments and should be job of democratically elected body.