Statutory Interpretation Flashcards
1
Q
What are the advantages of the purposive approach? (4)
A
- Allows for more situations to be covered than the literal rule
- Leads to justice in many individual cases
- Useful where technology or scientific advancement is made, for otherwise Parliament would have to legislate
- Gives judges more discretion to avoid an absurd result
2
Q
What are the disadvantages of the purposive approach? (4)
A
- Judges refuse to follow Parliament’s clear words (gives too much power to judges)
- Difficult to discover what Parliament’s intentions were
- Unelected judges are making law
- Leads to uncertainty in the law and it is unclear when it will be used, which makes it difficult for lawyers to advise clients
3
Q
What are the advantages of the literal rule? (2)
A
- It prevents non elected judges from making law (restricts their role)
- Makes the law more certain and easier to understand
4
Q
What happened in Smith v Hughes (1960)? (4)
A
- 6 women charged for soliciting in the street
- They were on a balcony
- With the literal rule they would’ve gotten away with it
- To avoid this ‘mischief’ they were found guilty as the Act was interpreted to have been passed in order to clean the streets of common prostitutes
5
Q
How do judges decide which rule/approach is best?
A
- They use aids to interpretation
6
Q
What is the mischief rule? What happens under it? (3)
A
- The mischief rule means that the court has to consider three questions when making a decision
- It is used to avoid a ‘mischief’
- Gives more discretion to judges
7
Q
What happened in Royal College of Nursing v DHSS (1981)? (4)
A
- Law under the Abortion Act 1967 only allowed a ‘registered medical practitioner’ to undertake an abortion
- Advances in medicine meant that now nurses could help
- However, nurses were not ‘registered medical practitioners’
- The House of Lords found it lawful for nurses to perform the procedure
8
Q
What happened in Re Sigsworth (1935)? (4)
A
- The defendant murdered his mother
- She had no will so he stood to inherit her estate
- It was deemed by the judge that letting him inherit the estate would be absurd
- The golden rule was used and the defendant did not inherit his mother’s estate
9
Q
Give an example of a case where there has been a wider application of the golden rule
A
- Re Sigsworth (1935)
10
Q
Give an example of a case where there has been a narrow application of the golden rule
A
- Adler v George (1964)
11
Q
What are the disadvantages of the mischief rule? (5)
A
- Risk of judicial law making
- Judges are filling the gaps in the law with their own views, and not all agree
- Can lead to uncertainty and make it difficult for lawyers to advise
- Not as wide as purposive approach, as it is limited to looking at the gap in the old law
- Outdated - the legislative process is now different to Heydon’s case (1584)
12
Q
What happened in R v Registrar General ex parte Smith (1990)? (3)
A
- Concerned the interpretation of the Adoption Act 1976 which allowed an adopted person over the age of 18 to obtain a record of their birth, providing that they had undertaken counselling
- Charles Smith met this criteria, but had been convicted of 2 murders and had been detained in a mental hospital
- The Courts decided against him accessing his birth records, using the purposive approach to do this
13
Q
What is a good example of when the purposive approach has been used? (2)
A
- R v Registrar General ex parte Smith (1990)
- R (Quintavalle) v Secretary of State (2003)
14
Q
What are the advantages of the golden rule? (3)
A
- Provides an escape route from absurd literal meaning
- Allows the judge to choose the most sensible meaning of words
- Can avoid a repugnant situation
15
Q
What are the disadvantages of the golden rule? (3)
A
- Limited in its use and used rarely
- Not possible to predict when the courts will use it
- The rule provides no clear meaning of what is an absurd result
16
Q
What are the 3 questions asked when using the mischief rule?
A
1) What was the common law before the Act?
2) What was the ‘mischief’ that common law hadn’t fixed?
3) What remedy was Parliament trying to provide?
17
Q
What are the advantages of the mischief rule? (4)
A
- Promotes the purpose of the law
- Fills any gaps in the law, usually producing a ‘just result’
- Judges try to interpret the law as Parliament meant it to work
- The Law Commission prefers the mischief rule
18
Q
What happened in R (Quintavalle) v Secretary of State (2003)? (4)
A
- An Act stated that ‘embryo’ means a live human embryo where fertilisation is complete
- When the Act was passed, there was only artificial insemination
- By 2003, CNR was available and used cloning
- The House of Lords used the purposive approach, believing that Parliament’s purpose would not have been to distinguish embryos depending on how they were made
19
Q
What are the internal/instrinsic aids used by judges? (4)
A
- The Act itself
- Schedules
- Explanatory notes
- Rules of language
20
Q
What are the rules of language used in statutory interpretation? (3)
A
- Ejusdem generis rule
- Expressio unius est exclusio alterius
- Noscitur a sociis
21
Q
What does ejusdem generis rule mean? (3)
A
- Applies where a statute contains a list followed by ‘other’
- Judges use the context of the list to determine what is ‘other’
- E.g a statute which states lions, cheetahs, tigers and other would be thought to apply to leopards but not horses
22
Q
What does expression unius est alterius mean? (2)
A
- The express mention of one thing implies the exclusion of another
- E.g if a statute states lions and cheetahs (without stating and other), it would only apply to lions and cheetahs, not tigers
23
Q
What are the presumptions? (In terms of finding Parliament’s intentions) (3)
A
1) Statutes do not change the common law
2) Legislation does not operate retrospectively
3) Laws which create crimes should be interpreted in favour of the defendant
24
Q
What are the external/extrinsic aids used by judges? (6)
A
- The historical setting + dictionaries and textbooks of the time
- Earlier case law
- Hansard
- Law Commission reports
- Treaties
- HRA 1998
25
What happens after statutory interpretation?
- Once the courts have interpreted a statute, that interpretation becomes part of case law, just like any other judicial decision, and is therefore subject to the rules of precedent
26
Why are there different rules of interpretation? (2)
- The law is ambiguous and can be interpreted various ways
- This could be because of the wording in the original legislation, or because Parliament did not foresee circumstances that have arisen due to new developments or technology
27
What happened in Whitley v Chappell (1868)? (3)
- Defendant charges under statute where it was an offence to impersonate 'any person entitled to vote'
- The person the defendant had impersonated had died
- He was found not guilty, since technically he didn't break the law, as a dead person is not entitled to vote
28
What is a good example case of when the literal rule has been used? (2)
- Whitley v Chappell (1868)
| - R v Bassett (2008)
29
What is the purposive approach? What happens under it? (2)
- A rule of interpretation that goes beyond the mischief rule
- Instead of looking at the gap in the law, judges look at what Parliament was trying to achieve with the law
30
What are the three organs of government?
1) The Legislative (Parliament)
2) The Executive (Cabinet)
3) The Judges (Judicial)
31
What happened in London & North Eastern Railway Co v Berriman (1946)? (3)
- Railway worker killed doing maintenance work on a railway line
- Widow sought compensations as a lookout had not been provided
- Claim failed because the Act only made a lookout compulsory for men 'relaying or repairing' the line - he was doing maintenance
32
What is Montesquieu's Theory of Chaos?
- When one branch of the government interferes with the workings of another, there will be chaos
33
What are the four rules of interpretation?
1) The Literal Rule
2) The Golden Rule
3) The Mischief Rule
4) The Purposive Approach
34
What is the literal rule? What happens under it?
- Gives all words in a statute their ordinary and natural meaning
- Under this rule, the literal meaning must be followed, even if the result is absurd
35
What happened in R v Bassett (2008)? (2)
- Peeping Tom drilled a hole in a changing room wall to stare at men
- Got away with it because the 2003 Sexual Offences Act was interpreted to only include women's breasts, and he was looking at men
36
What is the golden rule? What happens under it?
- Starts by looking at the literal rule, but to avoid and interpretation that would be 'absurd', the judge can substitute reasonable meaning in the light of the statute as a whole
- It can be applied through narrow or wider application
37
What is a good example of a case where the mischief rule has been used?
- Smith v Hughes (1960)
38
What happened in Adler v George (1964)? (3)
- The Official Secrets Act 1920 made it an offence to obstruct Her Majesty's forces 'in the vicinity' of a prohibited place
- Defendants did as such IN a prohibited place, then argued that 'in the vicinity' meant 'outside but close'
- The court found them guilty to avoid an absurd result, using the golden rule to do this
39
What are the disadvantages of the literal rule? (4)
- Not every Act is perfectly drafted
- Not every Act covers every situation
- Words may have more than one meaning and the Act may be unclear
- Can lead to an absurd, unfair or unjust decision
40
What is the effect of E.U membership on statutory interpretation? (2)
- Growth of a more purposive approach
- Effect of S2(4) European Communities Act 1972 - all parliamentary legislation must be construed and applied in accordance with Union law
