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Law Making > Statutory Interpretation > Flashcards

Statutory Interpretation Flashcards

1
Q

Statutory Interpretation

A

How acts of Parliament are interpreted by judges

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2
Q

Literal Rule

A

• The plain, literal, ordinary, dictionary definition from the Oxford english dictionary from the time the act was passed
• Supported by Lord Esher

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3
Q

Literal Rule - Cheeseman v DPP (1990)

A

• s28 Town AND Police Causes Act 1847
• “It is an offence to willingly and indecently expose one’s person in a street to the annoyance of passengers”
- from the dictionary 1847, “passengers” meaning “passers by”
• Mr Cheeseman was caught by 2 police officers carrying out indecent acts upon himself in a public lavatory
• The officers had been stationed there following complaints
• As the police were stationed there, they were not passers by so Mr Cheeseman was found not guilty

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4
Q

Literal Rule - R v Bassett (2008)

A

• D drilled a hole in the changing room at some swimming pools and filmed men undressing (it was at the height to see their chests)
• He was convicted at first instance and appealed

• Sexual offences act 2003 s68(1)(a)
• contains the offence of ‘voyeurism’
• A private act which involved parts of the body which people would normally expect privacy, as defined by s69(1)(a) as ‘The person’s genitals, buttocks or breasts are exposed or covered only with underwear’
• What is meant by the word ‘breasts’?
- deemed to be solely feminine
- acquitted of charges

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5
Q

Literal Rule - Whiteley v Chappell (1868)

A

• The degendant was charged under a section which made it an offence to impersonate “any person entitled to vote”
• The defendant had pretended lo be a person whose name was on the woters list but who had died
• The court held the the defended was not guilty since a dead person is not, in the literal meaning, “entitled to vote”
• Using the lteral rule in this case resulted in an absurd decision as the desendent was impersonating someone else in order to vote when he was not able to do so
- what the law aimed to prevent

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6
Q

Literal Rule - London and North Eastern Railway Company v Berriman (1946)

A

• A railway worker was killed while doing maintenance work
- Oiling points along the railway
• his widow tried to claim compensation because there had not been a look out proveded by the railway company in accordance with regulation under the Fatal Accidents Act
Stating a look out should be provided for men working on or near the railway line “for the purposes of relaying or repairing it”
• The court took the words “relaying” and “repairing” in their literal meaning and that oiling points was maintaining so Mrs Berriman’s claim failed

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7
Q

Golden Rule

A

• The golden rule starts with a literal meaning but if this produces an absurd result which Parliament could not have intended, the court is allowed to ‘avoid’ that result by using the golden rule and substitute a reasonable meaning in the light of the statute as a whole
• There are 2 approaches to the golden rule
- the narrow approach
- the broad approach
• Supported by Lord Wensleydale

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8
Q

Golden Rule - Narrow Approach

A

• Where a word has more than one meaning, the judge selects the most appropriate

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9
Q

Golden Rule - Broad Approach

A

• Where wording is clear but it would lead to a morally repugnant result, the judge ignores the words

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10
Q

Golden Rule - R v Allen (1872)

A

• Narrow Approach
• Charged with bigamy
• Marriage has 2 meanings
- to be legally married
- to go through a marriage ceremony with the intent of being legally married
• The second definition was used and the conviction was upheld

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11
Q

Golden Rule - Re Sigsworth (1935)

A

• Broad Approach
• Kills mother for her estate
• Court says morally wrong so he receives no inheritance as he wouldn’t have had it anyway unless she died of a natural cause

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12
Q

Golden Rule - Adler v George (1964)

A

• Obstructing a member of the armed forces ‘in the vicinity of any prohibited place’
• Court agreed that obstructing took place in the prohibited place itself
• Held that it is reasonable to construe vicinity as including being within a prohibited place

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13
Q

Mischief Rule

A

• Heydons Case (1584)
• What was the true reason for remedy?
• What was the remedy Parliament wanted to provide?
• What was the problem/mischief that the statute was trying to remedy?
• What was common law before the act?

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14
Q

Mischief Rule - Smith v Hughes (1960)

A

• A prostitute offered her services from the balcony of a house
• Held that she was guilty of the offence of soliciting ‘in a street of public place’

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15
Q

Mischief Rule - Eastbourne BC v Stirling (2000)

A

• A taxi driver parked his vehicle on a taxi rank on the station forecourt, not on a street, but was likely to get customers from the street
• Held that he was guilty of ‘plying for hire on any street’
• Court referred to Smith v Hughes

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16
Q

Mischief Rule - Elliot v Grey (1960)

A

• A car left on a road but jacked up with no battery
• Court claimed it as a hazard and designed as a mischief of the statute

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17
Q

Purposive Approach

A

• Magor and St Mellons v Newport Corporation (1950)
• Lord Denning
- “We sit here to find out the intention of Parliament and to carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis”
• Judges decide what they believe Parliament meant to achieve
- Looks beyond mischief rule

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18
Q

Purposive Approach - R v Registrar General, ex parte Smith (1991)

A

• Smith is a murderer who wants to see his birth mother who he has never met
• Psychiatrist worries he might be hostile towards his mother so request denied

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19
Q

Purposive Approach - Fitzpatrick v Sterling Housing Association (1999)

A

• Homosexual couple (before civil partnerships) lived together
- tenant died leaving a younger tenant
• House of Lords interpreted rent act 1977 meaning they were classed as family thus affording security to claimants

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20
Q

Purposive Approach - Ghaidan v Godin-Mendoza (2004)

A

• Similar to Fitzpatrick
• House of Lords uses human rights act 1998
• No longer family but now surviving spouse

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21
Q

Disadvantages of Literal Rule - Assumes unattainable perfection

A

• If a draftsperson includes incorrect terms, it can alter the focus of the law
• This would not be a concern if the courts used the mischief and purposive approaches as they ignore the wording

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22
Q

Disadvantages of Literal Rule - It was popular but now it’s less popular

A

• The law is more focussed on the right result for the claimants and defendants
• It would be morally wrong to use the rules just to punish Parliament when it’s the defendants and claimants that bear the brunt of the rule

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23
Q

Disadvantages of Literal Rule - Can lead to an absurd result

A

• Case study
• Why it was wrong and what should have been used

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24
Q

Disadvantages of Literal Rule - Words meaning shifts over time

A

• The courts will spend more time trying to decider key terms from the 1800s rather than applying the law
• If we focus on the meaning of the act the result would be more just

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25
Q

Disadvantages of Literal Rule - Creates loopholes

A

• Why this is a problem
• Case study

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26
Q

Disadvantages of Literal Rule - Words can have more than one meaning

A

• Leading to the rule not being suitable and the courts having to decider the meaning
• Case study

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27
Q

Disadvantages of Literal Rule - Creates awkward precedent

A

• Precedents should be followed as per the rules of judicial precedent and this can lead to poor precedents being followed rather than corrected
• Parliament have minimal time to correct issues and resolve problems therefore they are often overlooked and this leads to bad law

28
Q

Advantages of Literal Rule - Provides no scope for judicial opinion

A

• This prevents decisions being made on a personal level
• Therefore avoids bias in favour of against defendant

29
Q

Advantages of Literal Rule - Creates certainty

A

• It allows lawyers to advise clients accurately and fairly
• It avoids judicial opinion being used in deciding a case

30
Q

Advantages of Literal Rule - Encourages draftsmen to be accurate

A

• Forced to use literal meaning of words from the dictionary
• Should then link to the consultation in the flow of a bill

31
Q

Advantages of Literal Rule - Reduces litigation

A

• If the law is clear and applied correctly then there are fewer grounds for appeals
• Less time in court saves money

32
Q

Disadvantages of Golden Rule - No clear definition of when it should be used

A

• It’s up to judicial interpretation as to when it should be used
- This can lead to inconsistencies
• Inconsistencies can lead to further grounds for appeal and an increase in cost

33
Q

Disadvantages of Golden Rule - Excessive power to judges

A

• Their job is to interpret the law, not create it
• The broad approach allows them to decide cases on opinions and that can lead to inconsistencies

34
Q

Disadvantages of Golden Rule - Mischief in disguise

A

• The golden rule allows judges to select the meaning they want of certain words and that is not the aim of the rule
- it is purely to avoid absurdity
• The power afforded to judges is too broad and does not address the issue in the law

35
Q

Disadvantages of Golden Rule - Different judges will identify different absurdities

A

• This is open to too much judicial discretion
- What one judge will view as absurd the next will not
• This leads to the law being applied differently

36
Q

Disadvantages of Golden Rule - Judges have no power to intervene for pure injustice where there is no absurdity

A

• This can lead to injustice and incorrect decisions being made at the time as they are restricted under golden rule narrow
• Judicial decision should be fair and accurate so that good law is consistently made and followed

37
Q

Advantages of Golden Rule - Allows the judge to avoid absurdities

A

• Allows judges to create correct decisions
• Case study

38
Q

Advantages of Golden Rule - Not as extreme as the other rules and still tries to respect the supremacy of Parliament

A

• Doesn’t go as far as mischief or purposive
• Golden rule narrow still focused on wording
• Focuses on more of a balance than judicial opinion
- Other rules go beyond and guess what Parliament meant

39
Q

Advantages of Golden Rule - Errors in drafting can be corrected immediately

A

• Allows corrections to be made and establishes good precedent to follow
• Case study

40
Q

Advantages of Golden Rule - Closes loopholes

A

• Loopholes are created by the literal rule and the golden rule avoids bad precedent being created
• Allows errors to be corrected meaning bad precedents are not created and followed under precedent rules

41
Q

Advantages of Golden Rule - Decisions are generally more in line with Parliament’s intentions

A

• Sigsworth
• Correct decisions to be followed allows fair and accurate laws to be used

42
Q

Advantages of Golden Rule - Often gives a more just result

A

• Why this is a benefit
• How this can help the courts and the system of precedent

43
Q

Disadvantages of Mischief Rule - Creates a crime after the event

A

• Unfair to defendants to create an offence after it’s been committed to suit society
• The law should be accurate and offence should not be developed bit by bit

44
Q

Disadvantages of Mischief Rule - Gives judges a law making role infringing on the separation of powers

A

• Gives judges too much power to create law when they deem it may have been what Parliament intended
• Eastbourne v Stirling

45
Q

Disadvantages of Mischief Rule - Judges can bring their own views, sense of morality and prejudices to a case

A

• Judges should not impose their views as they aren’t democratically elected
- It is the role of Parliament to reflect laws that reflect the will of the people
• Elliot v Grey

46
Q

Disadvantages of Mischief Rule - Goes against Parliamentary supremacy

A

• Judges should apply the wording of Parliament and not seek to change the law based on their thoughts or what they think Parliament might have meant
• It is the job of Parliament to create law and judges should follow the law to avoid issues with the separation of powers

47
Q

Advantages of Mischief Rule - It is the most flexible of the rules

A

• It allows the law to change to suit more modern times and issues as they arise
• Avoids having to legislate repeatedly to correct errors

48
Q

Advantages of Mischief Rule - Helps avoid absurdity and injustice

A

• Smith v Hughes
• Why the outcome would be absurd if decided another way

49
Q

Advantages of Mischief Rule - Law commission 1969 “A rather more satisfactory approach than the other two.”

A

• More just decisions are made that allows convictions to be achieved and keeps society safer in the long run
• Elliot v Grey

50
Q

Advantages of Mischief Rule - Nearer to the European model of interpretation

A

• Allows the law to be more progressive and focus less on wording and more on intention
• This may diminish in its approach post brexit as we are moving away from the European approaches

51
Q

Advantages of Mischief Rule - Allows judges to use their professional training

A

• They are experts with many years of training
- Their professional judgement is key to allowing the law to develop
• Judges allow the law to develop in a wide range of criminal areas and are more than capable of setting clear guidance
- often clearer than Parliament’s approach

52
Q

Advantages of Mischief Rule - Allows the law to develop and adapt to changing needs

A

• The law needs to evolve and change with society
• Allows law to catch up with society’s shifting views
- Also allows the law to catch up with changes in technology

53
Q

Disadvantages of the Purposive Approach - Runs against the principles of Parliamentary sovereignty and the separation of powers

A

• Judges roles are to apply the law not create it
• If Parliament do not produce effective legislation, they should resolve it

54
Q

Disadvantages of the Purposive Approach - The wording of UK laws does not encourage the purposive approach

A

• The words are clear and the aim of the act should be reflected in the words, if they are not, it should not be a judges job to resolve this issue
• Judges are not elected and therefore they are overstepping their role if they create law using the purposive approach

55
Q

Disadvantages of the Purposive Approach - Time consuming

A

• Use of extrinsic aids can take more time and therefore this costs more
• If the information in the extrinsic aids are used it may not be suitable if not intrinsic

56
Q

Disadvantages of the Purposive Approach - Appeals are more likely as legal professionals are unable to advise clients effectively

A

• Appeals are time consuming and cost more
• There is no guarantee of success in appeals

57
Q

Advantages of the Purposive Approach - Judges try to decide what the purpose of the statute was

A

• What was Parliament trying to achieve
• Allows the law to achieve its original aim and adapt to societal changes
• R v Registrar

58
Q

Advantages of the Purposive Approach - Preferred by creative judges

A

• Allows judges to develop their knowledge rather than pure application
• Ensures judges continuously update their knowledge in the law and allows the law to shift with societies moral views

59
Q

Advantages of the Purposive Approach - Can lead to fairer results in comparison to the literal rule

A

• Follows the aim of Parliament rather than the words
• Case study where purposive should have been used

60
Q

Advantages of the Purposive Approach - Europeans prefer purposive

A

• Ghaidan v Gidon-Mendoza
• Fairer than Fitzpatrick

61
Q

Advantages of the Purposive Approach - No reliance on the wording of an act

A

• Uses extrinsic aids including Hansard and law commission reports to focus on why the law was brought in and what it was needed for
• Extrinsic aids may not be the best source of information as they are not in the act

62
Q

Impact of EU law

A

• European counties prefer purposive approach
- Adopted by court of justice of EU to interpret EU law
• Purposive became accepted by english judges as the correct one when dealing with EU law
• Judges became more accustomed to purposive
- More likely to apply it to UK law
• Confirmed supremacy of EU law over UK law
- Factortame (1990)
• House of Lords disapplied the merchant shipping act (1988)
- affect rights of Spanish fishermen in UK waters
- court decided this was acting by European communities act
- EU to prevail over inconsistent acts of Parliament

63
Q

Intrinsic Aids

A

• Judges use certain items within the statute to make the meaning of some words clearer
• Long Title
- Summary briefly explaining Parliament’s intentions
• Short Title
- Theft Act
- Criminal Justice Act
• Preamble
- Paragraph explanation of what is in the act
- In older statues to set out Parliament’s purpose
• Headings
• Schedules
- Glossary
• Marginal Notes
- Explain what was meant at the time
- Generally done by draftsperson
- Not generally regarded as giving Parliament’s intention
- Inserted after Parliamentary debates
• Interpretive Section
- Set out principles of the act
- Arbitration Act 1996

64
Q

Extrinsic Aids

A

• Items outside an act which help a judge find the meaning of the words in an act
• Pre-legislative documents
- travaux préparatoires, green paper, white paper, law commission reports or reports of law reform bodies
• Previous acts of Parliament on the same topic
• Dictionaries from the time the act was passed
- Cheeseman v DPP
• Academic books and publications
• Hansard
- official report of Parliamentary debate
- What was said at second reading (minutes)
- Davis v Johnson
Lord Denning said Hansard should have been used
- Pepper v Hart
Allowed to use Hansard only under certain circumstances for understanding or absurdity
• Explanatory notes
- travaux préparatoires for act based on treaty or convention
- Used for consistent in international interpretation
• Interpretation act 1978
- Definition of words frequently used in legislation

65
Q

The Human Rights Act

A

• Relates to Ghaidan v Gidon-Mendoza
• s3 of human rights act states that all legislation should be read and be given effect in a way which is compatible with the European convention of human rights

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