staturoty interpretation- law making

Question 1

what is s interpretation?

Answer 1

. the process when a court looks at a statute+ determines what it means through interpretation

Question 2

why is s interpretation important?

Answer 2

. statutes are not always clear
. can be disputed over the meanings of words
. courts are required to interpret the wording of Acts of Parliament
. helps judiciary+ public to understand law

Question 3

Cheeseman v DPP

Answer 3

. police officers witnessed man masturbating in public lavatory
. Town Police Clauses Act 1847 section 28- ‘passengers’
. Lord Justice Bingham said The Oxford English Dictionary showed in 1847, ‘passenger’ meant ‘passer-by’ or ‘foot-passenger’
. officers stationed in public lavatory> weren’t passengers> defendant found not guilty

Question 4

problems with different rules?

Answer 4

. less continuity+ certainty> inconsistent
: achieves justice- different details> different interpretations

Question 5

literal rule

Answer 5

. a judge will give words their plain, ordinary or literal (dictionary) meaning, even if result is not very sensible
. most respectable in separation+ parliamentary sovereignty
. developed in early 19th century> main ruler applied since- older rule of interpretation

Question 6

literal: Whiteley v Chappell 1868

Answer 6

. defendant used vote of dead man
. charged with impersonating ‘/ person entitled to vote’> found not guiltily
. dead= not entitled to vote

Question 7

literal: London & North Eastern Railway Co. v Berriman 1946

Answer 7

. d was railway worker killed whist oiling track, with no lookout
. court wouldn’t grant Mrs Berriman compensation- Act stated look out points had to be issued for workers ‘relaying’ or ‘repairing’ line> oiling didn’t fall under these categories

Question 8

literal: Fisher v Bell 1960

Answer 8

. d was a shopkeeper- displayed a flick knife, marked with price in shop window; hadn’t sold any
- charged with the restriction of Offensive Weapons Act 1959
- ‘offers for sale…any knife which has a blade…shall be guilty of an offence.’
>Fisher won- offer for sale occurs when you offer to pay, otherwise ‘invitation to treat’
- acceptance occurs when taken money> contract forms

Question 9

literal: pros

Answer 9

. follows words used by parliament
-par sov, democratic, separation
. makes law certain
- clarity, equal, easier for lawyers
. focuses on mind of parliament- forces clear language, prevents ambiguity
. respects parliamentary sovereignty
- elected body over judicial discretion
. respects separation of powers
- judges have no legislative function

Question 10

literal: cons

Answer 10

assumes every act carefully drafted
- uncertainty, confusion, inconsistent
. can’t cover every situation
- not enough detail>unfair
.words have multiple meanings
- can’t take literally- unclear
. unjust or harsh decisions made
- unclear to defendant> no justice
. unrealistic perfection from draftsmen
- act can’t cover every situation

Question 11

golden rule

Answer 11

. modification of literal rule- looks at literal meaning but allowed to avoid interpretation with absurd result

Question 12

golden rule: narrow approach

Answer 12

. choose most sensible meaning to fit context if word has 2 or more meanings

Question 13

narrow approach: Alder v George 1964

Answer 13

. Official Secrets Act 1920> offence to obstruct Her Majesty’s Forces ‘in the vicinity’ of a prohibited place
. d was in prohibited place> found guilty- interpreted phrase narrowly to mean ‘being in or in the vicinity of the prohibited place’

Question 14

golden rule: broad approach

Answer 14

. allows judge to modify meaning of a word if outcome would lead to a repugnant result

Question 15

broad approach: Re Sigsworth 1935

Answer 15

. Administration of Justice Act 1925
. son murdered mother, who didn’t have will> inherited by next of kin (son)
- 1925 act inherited by kin or ‘issue’
. held ‘issue’ was clear but didn’t include those who murdered the person they were inheriting from

Question 16

golden rule: pros

Answer 16

. respects exact words used
- conforms to par sov
. chooses most sensible outcome
- achieves actual justice

Question 17

golden rule: cons

Answer 17

. limited in its use
- controversy, separation, democratic
. judges change meaning of statute
- inconsistent+ weakens power balance
. what is absurd?
- inconsistent/ uncertain>unfair

Question 18

mischief rule

Answer 18

. gives judge more discretion than golden+ literal- fits in more with purposive approach
. definition comes from Heydon’s Case 1584
. what was the common law before making the act?
.what was the mischief/gap for which the common law did not provide?
. what was the remedy Parliament was trying to provide
. what was the reason for the remedy?

Question 19

mischief rule: Smith v Hughes 1960

Answer 19

. Street Offences Act 1959> offence to solicit ‘in the street or public place’
. d’s appeal= prostitutes weren’t in street or in any public place- own home
. mischief/gap= stop prostitution

Question 20

mischief rule: Royal College of Nursing v DHSS

Answer 20

. Abortion Act 1967> a pregnancy should be terminated by a ‘registered medical practitioner’- doctor
. part of procedure led by doctor, part by nurse without doctor present
. since passing of act, way abortions carried out changed
. 3 judges agreed that procedure was lawful> mischief was to decrease number of illegal abortions, ensure carried out with proper skill
. 2 dissenting judges- literal rule
- wanted terminations to be carried out by doctor- said judges were ‘redrafting it with a vengeance’, not interpreting

Question 21

mischief rule: pros

Answer 21

. promotes purpose of law
- look at gap of law> produce just result
. law commission prefers mischief rule
- recommend only rule used> democratic, approved by par- good was to fill gap+ apply law for specific cases, efficient, consistent, lawyers give clearer results

Question 22

mischief rule: cons

Answer 22

. risk of judicial law making
- undemocratic, against separation
. uncertainty
- legal advice difficult- different judges
. judges don’t always agree
- creates uncertainty, confusion
. not as wide as purposive approach
- limited to gap, not intention

Question 23

purposive approach

Answer 23

. judges decide what they believe parliament meant to achieve+ Gove effect to that purpose
. EU law favours- legislation drafted in broad terms>needs to be applicable to all state members, difficult to take words literally- translation

Question 24

purposive approach: R v (Quintvelle) v Secretary of State 2003

Answer 24

. CNR doesn’t use fertilisation
- issue whether CNR embryos are protected under the Human Embryology and Fertilisation Act 1990
. if literal rule was applied, CNR embryos wouldn’t be protected as they were cloned, not fertilised
.HoL used purposive> par couldn’t have intended to leave embryos unregulated >changed meaning of what embryo is
- looking at purpose of legislation

Question 25

purposive approach: Jones v Tower Boot Co (1997)

Answer 25

. issue if victim can sue employer for racism they experience at work
. outcome= could sue employer- par intention to eliminate discrimination in the workplace> employers were liable

Question 26

purposive approach: pros

Answer 26

. justice is achieved
- suitable for case court is addressing> victim satisfied, fair
. keeps up to date with advancements
- modernises with society, relevant information, saves time
. judges can plug the gap
- produces just outcomes

Question 27

purposive approach: cons

Answer 27

. undemocratic
- undermines par sov
. time consuming
- find what par meant (study hansard+ gov statements), issues remain ongoing
. litigation expense
- expense to take to court, limited legal support (especially for civil cases)>uncertain+ expensive

Question 28

aids to interpretation

Answer 28

. additional resources to help judges interpret a statute
. intrinsic aids
- things within the statute that a judge can use to help them with interpretation of the law
. extrinsic aids
- items outside of the statute that may help a judge find the meaning of the words in the act

Question 29

intrinsic aids

Answer 29

. long title, short title, preamble (longer explanation of purpose in old statutes)- used to work out parliament intention
. headings, schedules (set of reference points for judge) and marginal notes (helpful comments)- eg. schedules attached to Hunting Act 2004> states ‘Hunting is exempt if it is within a class specified in schedule 1’
. interpretation sections- can give extended meaning to certain words- eg. Theft Act 1968> states a building will include ‘inhabited vehicles or vessels’

Question 30

extrinsic aids

Answer 30

. pre-legislative documents- eg. white/ green papers, LC reports
. previous acts of par on same topic
. dictionaries
. academic books- some judges reference own textbooks
. hansard
. explanatory notes
. international treaties+ conventions
. Interpretation Act 1978

Question 31

extrinsic aids: hansard

Answer 31

. official report of what was said in parliament when act was debated
. Pepper v Hart (1993)- HoL accepted courts could look at parliamentary debates> used in limited way
- 7 judges, rather than 5- only Lord Chancellor disagreed- believed it would be too time-consuming+expensive to use in every case
. hansard now used but only when words of an act are ambiguous

Question 32

extrinsic aids: reports of law reform bodies and the Law Commission

Answer 32

. used not to be considered by judges
. rule relaxed in Black Clawson case 1975
. looked at to discover mischief/gap

Question 33

extrinsic aids: The Interpretation Act 1978

Answer 33

. act provides definition of certain words that are frequently used in legislation- eg. month means calendar month

Question 34

extrinsic aids: International Treaties and Conventions

Answer 34

. in Fothergill v Monarch Airlines (1980)
>HoL decided an international convention should be looked at incase true meaning was lost in original translation

Question 35

extrinsic aids: Laroche v Spirit of Adventure (2009)

Answer 35

. c injured by sudden landing of hot air balloon
. Court of Appeal used Pocket Oxford Dictionary- meaning of ‘aircraft’+ Air Navigation Order 2000 (statutory instrument)> both showed air balloon is aircraft> claim failed- not made within 2 years of accident
. Warsaw Convention (international) showed similar idea

Question 36

effect of EU law on statutory interpretation

Answer 36

. purposive approach favoured in Europe- applicable to all members
. made it correct way for dealing with EU law> judges continue to use this
. Factortame case confirmed EU supremacy- UK courts (HoL) said UK fishermen have priority to fish our waters- European Court of Justice disagreed>overruled
. now left EU so par son is returned+ Supreme Court= highest court

Question 37

effect of Human Rights Act 1998 on statutory interpretation

Answer 37

. states legislation must be read+given effect in a way which is compatible with rights in European Convention on Human Rights- applies when one of human rights is concerned
. Godin- Mendoza v Ghaidan (2002)
- question whether same sex couples had right to take over tenancy- Rent Act 1977> CoA held Rent Act must be compatible with European Convention of Human Rights> forbids discrimination on grounds of gender
>interpreted this included same sex couples
. 2004- HoL confirmed decision