Statutory Interpretation Flashcards
(38 cards)
What is the need for statutory interpretation P175
The meaning of law in statutes is sometimes not clear. In order to help with understanding an act may include an interpretation section defining the meaning of certain words. Many cases go to court because there is a dispute over the meaning of a word.
The reason meanings may be unclear is: a broad term, ambiguity (a word has two or more meanings), a drafting error, new developments and changes in the use of language.
How have the courts overcome these problems and what are the rules of statutory interpretation W17P1 and page 176
Judges have not been able to agree on which approach should be used so different rules of interpretation have been developed. Therefore, the interpretation of a statute may differ because of the one chosen, however once a word has been interpreted it should form a precedent. The Literal Rule, The Mischief Rule, The Golden Rule and The Purposive Approach
The Literal Rule W17P1 and P176
The Literal Rule was developed in the early 19th century and was the main rule for the first part of the 20th and is still used for a starting point for interpretation get legislation.
Courts give words their plain, ordinary or literal meaning even if the result is not very sensible.
This was shown in the case Whitely V Chappell and LNER V Berriman
Whiteley V Chappell (1868) P176
In this case the defendant was charged under a section which made it an offence to impersonate ‘any person entitled to vote.’ The defendant had pretended to be a person whose name was on the voters list, but who had died. The court held the defendant was not guilty since a dead person is not, in the literal meaning of the words ‘entitled to vote.’
London and North Eastern Railway Co V Berriman (1946) P176
A railway worker was killed while doing maintenance work, oiling points along a railway line. His widow tried to claim compensation because there had not been a look out provided by the railway company in a accordance with a regulation under the Fatal Accidents Act which stated that a look-out should be provided for men working on or near the railway line ‘for the purpose of relaying or repairing it.’ The court took the words relaying and repairing in their literal meaning and said that oiling points was maintaining the lines and not relaying or repairing so that Ms Berriman’s claim failed.
What are the advantages and disadvantages of the Literal Rule P181
Advantages
Follows the words that the democratically elected Parliament has used, prevents unelected judges making law. It should also make the law more certain as the law will be interpreted exactly as it’s written and easier for lawyers to know the law.
Disadvantages
Assumes every act is perfectly drafted, not possible to write an act that covers every situation Parliament meant as seen in Whiteley, words can have more than one meaning so the act may be unclear, can lead to unfair or unjust decisions Berriman
The Mischief Rule W17P1 and page 178 and 179
The rule gives a judge more discretion than the Literal and Golden Rule. The definition of the Mischief Rule comes from the Heydon’s case (1584). 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. The court should then interpret the Act in such a way that the gap is covered (so should provide a remedy). This was shown in the case Smith V Hughes, Corkery V Carpenter and Royal College of Nursing V DHSS (1981).
Smith V Hughes (1960) P178
The court considered appeals against the conviction under S.1(1) of the Street Offences Act 1959 of six different women. In each case the women had not been ‘in a street or public place.’ One had been on the first floor balcony of a house and the others had been at the windows of ground floor rooms, with the window either half open or closed. In each case the women were catching the attention of men by calling to them or tapping on the window. It was argued for them that they weren’t literally ‘in a street or public place.’ The court decided they were guilty. Lord Parker approached the matter by considering the mischief aimed at by this Act. Everyone knows that this was an act to clean up the streets, to enable people to walk along the streets without being molested or solicited by prostitutes. Therefore, it doesn’t matter whether they are in the street or on a balcony.
Cockery V Carpenter W17P1
The defendant was charged with being drunk in charge of a ‘carriage’ on the highway. He was riding a bicycle. Applying the mischief rule.
The mischief was stopping people being a danger on the highway. Parliament overlooked other forms of transport.
Royal College of Nursing V DHSS (1981) P179
In this case the wording of the Abortion Act 1967, which provided that a pregnancy should be ‘terminated by a registered medical practitioner’ was an issue. When the act was passed in 1967 the procedure to carry out an abortion was such that only a doctor (a registered medical practitioner) could do it. From 1972 onwards improvements in medical technique meant that the normal method of terminating a pregnancy was to induce premature labour with drugs. The first part was carried out by a doctor but the second part was carried out by a nurse without a doctor present. The court had to decide whether this was legal under the Abortion Act. It went to the HOL where the majority said it was lawful. Those that thought it was lawful based their decision off the mischief rule. They pointed out that the mischief Parliament was trying to remedy was the unsatisfactory state of the law before 1967 and the number of illegal abortions put women’s lives at risk. The act was to broaden the grounds for an abortion and ensure that they were carried out with proper skills in hospitals.
What are the advantages and disadvantages of the Mischief Rule P182
Advantages
Promotes the purpose of the law as it allows judges to look back at the gap in the law which the Act was designed to cover. More likely to produce a just result, also means judges try and interpret the law in the way that Parliament meant for it to work. In 1969 the Law Commission said that this should be the only statutory interpretation.
Disadvantages
There is a risk of judicial law making (Smith V Hughes), Nursing V DHSS was a 3-2 majority shows that judges do not always agree when to use the rule, it can lead to uncertainty, impossible to know when judges will use it and what it will lead to, which makes it harder for lawyers and not as wide as the Purposive Approach as it’s limited to looking at the gap rather than a more general consideration of the purpose of the law.
The Golden Rule W17P1 and P177
The Golden Rule is a modification of the Literal Rule. It starts by looking at the literal meanings of the words but the court is then allowed to avoid an interpretation which would lead to an absurd result. There are two views of how the Golden Rule should be used.
Under the narrow application courts may choose between the possible means of a word or phrase. If there is one meaning this must be taken.
The second and wider application is where the words have only one clear meaning but this would lead to a repugnant situation. In such a case the the court will use the Golden Rule to modify the words of the statute in order the avoid this problem. This was shown in the cases Adler V George and R V Allen.
Adler V George (1964) P178
The Official Secrets Act 1920 made it an offence to obstruct Her Majesty’s Forces ‘in the vicinity’ of a prohibited place. The defendant had caused an obstruction in the prohibited place. It was argued that he was not guilty as the literal wording of the Act did apply to anyone in the prohibited place. It only applied to those ‘in the vicinity’ ie outside but close to it. Using the Golden Rule the Divisional Court found the defendant guilty as it would be absurd if those causing an obstruction outside the place was guilty, but anyone inside were not. The words should be read as being ‘in or in the vicinity of’ the prohibited place.
R V Allen W17P1
The defendant was charged with bigamy. It was an offence to marry while already married to someone else.
He claimed that as he was already married, the second marriage was invalid and so not a legal ‘marriage.’
The judge interpreted the word ‘marry’ as to simply go through with the ceremony and so he was found liable.
What are the advantages and disadvantages of the Golden Rule P182
Advantages
Respects the exact words of Parliament except from limited situations. When there is a problem with the Literal Rule it provides an escape route. It’s only used in limited circumstances so stops judges making law to any great extent. Judges can choose the more sensible meaning of a word so it avoids absurd outcomes. Effectively it avoids the worst problems of the Literal Rule.
Disadvantages
Very limited in use, only used on rare occasions, hard to predict when courts are going to use this rule, it’s an escape route but cannot do much, what is absurd is subjective and it may give judges too much discretion.
The Purposive Approach P180
The Purposive Approach goes beyond the mischief rule in that the court is not just looking to see what the gap was in the old law. The judges are deciding what they believe Parliament meant to achieve. They are looking to see what the purpose of the Act was.
This was shown in the case Jones V Tower Boot but can look on page 180 and 181 for other examples.
Jones V Tower Boot W17P1
The Race Relations Act made a company liable for racial abuse carried out by workers in the course of their employment. Course of employment means the things workers are employed to do.
The purpose of the act was to avoid discrimination in the work place, so the company was liable.
What are the advantages and disadvantages of the Purposive Approach P182 and 183
Advantages
Leads to justice in individual cases, more broad approach which allows the law to cover more situations, good for when there is now new technology which wasn’t around when the law was enacted, it gives judges more discretion, avoid absurdities.
Disadvantages
May mean that judges refuse to follow the clear words of Parliament, how do judges know what Parliament’s intentions were, only the words of the statute can show this, allows judges to make law as they are deciding what they think the law should be rather than using the words of the Act and impossible to know when judges will use it and what it will lead to so it’s hard for lawyers to advise clients on the law.
Aids to interpretation: rules of language P183
Even the Literal Rule doesn’t take words in complete isolation. Other words in the Act must be looked at to see if they affect the meaning of the word that has been interpreted. In looking at the other words in the Act the courts have developed a number of minor rules which can help to make the meaning of words and phrases clear. These rules are: the ejusdem generis rule, expressio unius - the express mention of one thing excludes others and noscitur a sociis - a word is known by the company it keeps.
What is the ejusdem generis Rule P183 and 184
Where there is a list of specific words followed by general words, then the general words are interpreted in line with the specific words.
This is shown in the case Hobbs V CG Robertson Ltd (1970).
There must be at least two specific words in a list before the general word or phrase for this rule to operate. This was shown in the case Allen V Emmerson (1944).
Hobbs V CG Robertson Ltd (1970) P184
A workman injured his eye when brickwork that he was removing splintered. He claimed compensation under the Construction (General Provision) Regulations 1961. These regulations made it a duty for employers to provide goggles for workman when ‘breaking, cutting, dressing or carving of stone, concrete,slag’ and the general words ‘or similar material. The court decided that brick did not come within the term ‘a similar material’. Brick was not ejusdem generis with stone, concrete slag. The reason was that the other materials were hard, so that bits would fly off them when hit with a tool, where as brick was a soft material. This meant the workman’s claim for compensation failed.
Allen V Emmerson (1944) P184
The court had to interpret ‘theatres and other places of amusement’ and decide if it applied to a funfair. As there was only one specific word ‘theatres’ it was decided that a funfair did come under the general term ‘other places of amusement’ even though it was not the same kind as theatres.
Expressio unius exclusio alterius P184
The phrase means: the express mention of one thing excludes others.
Where there is a list of words which is not followed by general words, then the Act applies only to the items in the list. This was shown in the case Tempest V Kilner (1846).
Tempest V Kilner (1846) P184
The court had to consider whether the Statute of Frauds 1677 (which required a contract for the sale of goods, wares and merchandise’ of more than £10 to be evidenced in writing) to applied to the contract of stocks and shares. The list ‘goods, wares and merchandise’ was not followed by any general words, so the court held only contracts for these three types of things were affected by the statute; because stocks and shares were not mentioned they were not caught by the statute.
