statutory interpretation Flashcards
(22 cards)
1
Q
statute
A
- an act of parliament (a law made by Parliament which is written down),
- SI = interpreting Acts of Parliament (statutes),
2
Q
why do judges have to interpret statutes?
A
- law only exists in words,
- discovering the meaning of these words can be a very complicated process,
3
Q
problems with statutes
A
- language is often complex,
- sentence construction is often over elaborate - lawyers draft the bills,
- if is difficult to cover every eventuality - unforeseen circumstances will arise which the Act does not cover precisely,
4
Q
problems with the language used
A
- words can have more than one meaning,
- meaning of word can change overtime,
5
Q
royal college of nursing v DHSS
A
- the abortion act 1967 stated only registered medical practitioners could carry out abortions,
- due to advances in technology nurses were carrying out abortions,
- royal college of nursing took a test case to see whether their nurses were legally allowed to carry them out, the court said they could,
6
Q
dangerous dogs act 1991
A
- contains the phrase,
- ‘any dog of the type known as the type known as the pit bull terrier’
- what is meant by ‘type’, does it mean ‘breed’?
- in Brook v DPP court decided it could cover dogs who weren’t pedigree pit bulls, but had a substantial number of the characteristics of such a dog,
7
Q
Brock v DPP 1991
A
- the Dangerous Dogs Act 1991 stated all dogs of the type pit bull should wear a muzzle in public,
- Dempsey the dog was out with his owner in public wearing a muzzle,
- he got sick and owner removed muzzle so he wouldn’t choke,
- policeman saw and charged the owner - punishment was that Dempsey would be destroyed,
- owner took case to court - Judge realised the Act of Parliament was flawed and it didn’t cover all eventualities,
- Judge allowed Dempsey to live,
8
Q
Bates v DPP 1993
A
- Otis the dog was out with his owner in the car driving on a public highway through south London,
- He was not wearing muzzle or leash,
- policeman stopped car to do a routine check and charged the owner,
- Judge decided Otis was in a public place and he was put down,
9
Q
when are they used?
A
- used by judges when there is a dispute or uncertainty over the meaning of a word or a phrase in an Act of Parliament,
10
Q
literal rule advantages
A
- follows exact words parliament enacted, and as we elect the MPs in the Commons, it keeps it democratic,
- it’s predictable, certain and clear,
- prevents judges (who are unelected) from having too much power and shaping/making the law,
11
Q
literal rule disadvantages
A
- not always possible to word an Act to cover every situation, so the act may not have the effect Parliament intended (Whiteley V Chappell),
- can lead to unfair or unjust decisions (Berriman),
- words can have more than one meaning - so often the Act is confusing and unclear,
- it cannot be used if words are not in the Act,
- assumes all acts are worded prefectly,
- if judges didn’t use discretion parliament would have to change the law when there was a problem,
12
Q
golden rule advantages
A
- can avoid absurd result being passed (R v Allen),
- still has literal approach as starting point - so Judge isn’t given too much freedom,
- allow judge to opt for the more sensible meaning of a word,
- parliament would not have intended to pass laws that produced unfair results,
- it’s still democratic,
- deals with the unfairness of the literal rule,
13
Q
golden rule disadvantage
A
- has limited use - where the most sensible of two or three meanings is taken,
- depends on what a judge considers absurd,
- professor Michael Zander - ‘feeble parachute’ (escape route but can’t do much),
- gives to much powers to judge,
- undemocratic in nature,
14
Q
mischief rule advantages
A
- flexible - it allows the judge to look at the gap in the law or ‘mischief’ - the Act was designed to cover ; Smith v Hughes,
- it recognizes that to look only at the words of a statute is inadequate,
- rule avoids absurd and unjust outcomes - Berriman,
- judges can fill in the gaps in the legislation to get the right answers,
- saves parliament having to change laws,
- allows judges to update the law when society changes - RCN v DHSS (encourage flexibility),
- avoids issues with previous rules,
15
Q
mischief rule disadvantages
A
- risk of judicial law making - judges are not elected,
- emphasis is on trying to follow parliament’s intentions which can be difficult to do,
- it’s seen as a backwards looking approach - it looks at what parliament were doing at the time even though it may be years in the future,
- can cause inconsistency as different judges may have different opinions on what mischief parliament were attempting to deal with,
16
Q
purposive approach advantages
A
- much wider than the other three rules,
- gives judges more discretion in their decision,
- judge looks at context in which law was created,
- approach should avoid absurd or unjust decisions,
- allows law to develop with society and technology,
- allows judges to deal with issues that may have been unforeseen when the law was written,
17
Q
purposive approach disadvantages
A
- approach can lead to judicial law making,
- should judges refuse to follow the clear words of parliament?
- it is difficult to discover parliaments intention,
- may be judicial bias when interpreting parliament’s intention,
18
Q
the three rules of interpretation
A
- golden rule,
- the literal rule,
- the mischief rule,
19
Q
the literal rule
A
- the word or phrase is given its ordinary dictionary meaning,
- developed in nineteenth century,
- the main rules applied and favoured by judges,
- where judges give the words in a statute their “plain, ordinary, natural” meaning - as clearly stated in the Sussex Peerage case,
- it holds up the separation of powers doctrine - judges clearly interpretating not making law, which is the role of parliament,
- Lord Esher in the case of R v Judge of City of London stated:
“if the words of an act are clear, you must follow them, even though they lead to a manifest absurdity … the court has nothing to do with the question of whether the legislature has committed an absurdity”, - giving words their plain ordinary meaning can sometimes made a nonsense of the law : Whiteley v Chappell ; the defendant was charged under a section which made it an offence to impersonate ‘any person entitled to vote’,
- d had pretended to be a person who was on the voters list, but who had died,
- the court held the d was not guilty as the dead person is not ‘entitled to vote’,
20
Q
the golden rule
A
- modification of the literal rule,
- golden rule starts by looking at the literal meaning, the court is then allowed to avoid an interpretation which would lead to an absurd result,
- the rule has a narrow application where the court may choose between the possible meanings of a word or phrase or modify the ordinary, natural meaning, known as the broad approach,
- R v Allen - Narrow Approach;
- offences against the person act 1861 s.57 made it illegal to ‘marry’ whilst your original spouse was still alive (and there was no divorce),
- but surely you cannot ‘marry’ if you are already married? if you could there would be no offence of ‘bigamy’,
- the court decided, using the golden rule that the word ‘marry’ meant to go through a ceremony of marriage, and Mr Allen was found guilty,
- the rule can also be used where the words have only one clear meaning, but that meaning would lead to an unsatisfactory situation,
- Re Sigsworth - son murdered his mother who did not have a will, the estate would normally go to her next of kin, the murderer son would have inherited as her ‘issue’, the court used the golden rule to prevent her son inheriting,
21
Q
the mischief rule
A
- the rule gives a judge more discretion than the other two rules,
- the definition of the rule comes from Heydon’s case1584 (very old),
- the court should look to see what the law was before the act was passed in order to discover what gap or ‘mischief’ the Act was intended to cover,
- Heydon’s car, the judge will consider 4 points:
. what the common law was before the act was made,
. what was the mischief that was not covered by the common law,
. in what way did parliament intent to improve the law through the act in question,
. the court will apply these findings to the case in question, - the court interprets the act in such a way that the ‘gap’ or ‘mischief’ is covered,
- smith v hughes:
- street offences act said “it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution”,
- the case appeals from six woman, who had each not been in “a street”,
22
Q
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