Unit 1: The English Legal System & Statutory interpretation Flashcards
n the case of Corkery v. Carpenter [1951] 1 KB 102 the court held that under s.12 of the Licensing Act 1872, a person found drunk in charge of a ‘carriage’ on the highway may be arrested without a warrant.
In that case the court took the view that the word ‘carriage’ could include a bicycle for the purpose of construing the Act.
What mischief or mischiefs do you think the Act intended to remedy?
A) The theft of wheeled vehicles
B) Injury of pedestrians from drunken road users
C) Injury of pedestrians
D) The preservation of public order
CORRECT ANWER B & D
The Act was aimed at drunken persons in charge of some form of transportation and the exact nature of that transportation was interpreted widely. The Mischief the statute intended to remedy was injury to the public from drunken drivers and the preservation of public order.
The case of Smith v. Hughes [1960] 2 All ER 859, considered the meaning of s.1(1) of the Street Offences Act 1959. It is an offence under that Act for a prostitute to solicit in a ‘street or public place’. The women were not actually in the street, but were inside their homes, tapping on their windows and calling to attract the attention of men.
Which of the following reflect the correct consequences of applying the rules? There is more than one correct answer.
A) Literal Rule: acquittal
B) Literal Rule: conviction
C) Mischief Rule: acquittal
D) Mischief Rule: conviction
E) Golden Rule: acquittal
F) Golden Rule: conviction
G) Golden Rule: doesn’t apply
CORRECT ANSWERS A, D & G
The literal rule would have resulted in the women being acquitted. The reason is that they were in their own homes and, using the plain, ordinary or literal meaning, ‘a street or public place’ does not include private residences. However, the women were found guilty. Lord Parker used the mischief rule and stated that the aim of the Act was ‘to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes’. It could be argued that the golden rule does not apply here as neither decision would have created an absurd or obnoxious result.
Select from the list below the best definitions for Intrinsic and Extrinsic Aid.
A) Intrinsic Aid is the use of the statute itself, for instance by use of noscitur a sociis
B) Intrinsic Aid is the use of the Interpretation Sections within the statute
C) Extrinsic Aid is the use of the Interpretation Acts
D) Extrinsic Aid is the use of material from outside the statute
CORRECT ANSWERS A & D
Intrinsic Aids are any part of the statute itself which assists interpretation of a section of it. The statute must be read as a whole and the words read in context (note the overlap with rules of language).
Extrinsic Aids are aids to interpretation which lie outside the statute itself, for instances the Interpretation Acts but also dictionaries, other statutes, Hansard and so on.
Let us assume for the purposes of the next three questions, that the legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.
Which of all the ‘rules’ and aids listed are likely to be the most helpful in each case?
Do not try to reach a conclusion as to whether each person has committed the offence.
First, Jack is arrested for standing in a street with an unlit cigarette in his mouth.
A) Another statute.
B) The purposive approach.
C) The mischief rule.
D) The long title of the Act.
E) Noscitur a sociis.
F) The literal rule.
G) The golden rule.
H) The presumption against binding the Crown.
I) The Interpretation Acts.
CORRECT ANSWERS B, C & F
The mischief rule or the purposive approach. We would need to consider why it was an offence to smoke in order to determine whether having an unlit cigarette in Jack’s mouth was included.
The mischief or purpose of the Act is to prevent people from inhaling the smoke from other’s cigarettes. There are health and safety issues which apply. An unlit cigarette would not be included on this basis.
However, if the purpose of the Act was to prevent the public being ‘offended’ by the sight or use of cigarettes, Jack is guilty. This interpretation is, however, unlikely.
We could also use the literal rule. This would also result in Jack being found not guilty, as he is not ‘smoking’ a cigarette in the accepted sense.
The recent legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.
Secondly, Mandy is arrested whilst smoking a cigarette in the street.
A) Another statute.
B) The purposive approach.
C) The mischief rule.
D) The long title of the Act.
E) Noscitur a sociis.
F) The golden rule.
G) The presumption against binding the Crown.
H) The Interpretation Acts.
CORRECT ANSWER H
Section 6 of the Interpretation Act 1978 (an extrinsic aid) states that the masculine includes the feminine and vice versa, therefore Mandy would be guilty.
A) Another statute.
B) The purposive approach.
C) The mischief rule.
D) The long title of the Act.
E) Noscitur a sociis.
F) The literal rule
G) The golden rule.
H) The presumption against binding the Crown.
I) The Interpretation Acts.
CORRECT ANSWERS A, B & C
We may be able to find another statute in which ‘public place’ is defined, another extrinsic aid (in fact, there is such a definition in s.16 of the Public Order Act 1986), but we would also have to look at the mischief rule again to determine whether there is any similarity of purpose between the two statutes in order to decide whether it should be interpreted in the same way.
The case of R v. Allen (1872) LR 1 CCR 367 required an interpretation of s.57 of the Offences Against the Person Act 1861. This section provided that:
“Whosoever being married, shall marry any other person during the lifetime of his spouse . . . shall commit the offence of bigamy.”
The court concluded that the word ‘marry’ can mean:
(1) to become legally married to a person; or
(2) to go through a marriage ceremony.
If the word ‘marry’ had been given the first interpretation, it would be impossible for anyone ever to commit this offence as one cannot legally marry if one is already married! The court therefore interpreted the word as meaning ‘going through the ceremony’ of marriage.
Which rule of construction was the court using?
A) The golden rule.
B) The mischief rule.
C) The literal rule.
D) The purposive approach.
CORRECT ANSWER A
This is an example of the court using the golden rule to choose between two meanings of a word. In addition, the literal interpretation would lead to the absurd result that no-one could be convicted of bigamy. No mention is made of the reason for, or the purpose of, the legislation, so neither the mischief nor purposive rules are relevant.
In the case of Whiteley v. Chappell (1868) LR 4 QB 147 the defendant pretended to be someone who was on the voters’ list, but who had died. He was charged with impersonating ‘a person entitled to vote’, but was found not guilty.
The reluctant conclusion drawn by the court was that Whiteley could not be convicted of the statutory offence because the person he impersonated was dead, and on a literal construction of the relevant statutory provision, the deceased was not ‘a person entitled to vote’.
TRUE OR FALSE:
“If the mischief rule had been used. The defendant would have been found not guilty.”
FALSE:
The aim of the legislation was clearly to prevent people from voting when they were not entitled to vote or had already voted. Therefore the defendant was clearly in breach of the spirit of the law, although not the strict letter of it.
The effect of the three rules of construction is that different decisions can be reached, depending upon which is used on the given facts.
Can records of speeches by MPs be used to help resolve any ambiguities in statutes?
A) Speeches by MPs cannot be used to help resolve statutory ambiguities. It is up to the court to determine the meaning of a statute.
B) Speeches by MPs can be used to help resolve statutory ambiguities, if they were present during the debates leading to the Bill’s passing.
C) Speeches by MPs can be used to help resolve statutory ambiguities, but only if the particular MP was the sponsor of the Bill, or the relevant minister.
D) Speeches by MPs are not recorded and therefore cannot be used to help resolve statutory ambiguities.
CORRECT ANSWER C
Well done - speeches can be used by MPs to help resolve statutory ambiguities, but only if the particular MP was the sponsor of the Bill, or the relevant minister.
The formal record of proceedings in Parliament is Hansard, so an advocate would refer to a speech by such an MP as reported by Hansard.
If the court was using a speech by an MP to help resolve a statutory ambiguity, which rule of interpretation would it most likely be applying?
A) Literal rule.
B) Golden rule.
C) Mischief rule.
CORRECT ANSWER C
Usually, you would try to use Hansard to work out ‘from the horse’s mouth’ what the mischief was which caused the Act to be passed by Parliament. Indeed, you could, in theory, use Hansard to back up any argument on statutory interpretation. However, be aware when using Hansard as the Minister or promoter of the Bill might have been unsuccessful in getting their unamended Bill through both Houses of Parliament.
A clause in a lease agreement states:
‘The following animals must not be brought into this block of flats: dogs, cats, hamsters and gerbils’.
Using the noscitur a sociis rule, would the list include a leopard?
A) YES
B) NO
CORRECT ANSWER NO
Common sense would suggest that leopards would not be included.
The rule which applies here is that of noscitur a sociis, because the clause contains an exhaustive list of animals. As a consequence, a leopard would not be included because ‘cats’ in this context means ‘domestic cats’.
The Factories Act 1961 required that all ‘floors, steps, stairs, passageways and gangways’ had to be kept free from obstruction.
The question which the court had to decide in Pengelly v. Bell Punch Co. Ltd [1964] 1 WLR 1055 was whether a floor used for storage came under the provisions of the Act.
What do you think was the answer to this question?
A) TRUE
B) FALSE
FALSE
Noscitur a sociis was used to assist in the interpretation of the Factories Act 1961. The court held that as all the other words were used to indicate passage, a floor used exclusively for storage did not fall within the Act.
The case of Wood v. Commissioner of Police of the Metropolis [1986] 1 WLR 796 highlighted the difficulty in interpreting exactly what is meant by an offensive weapon.
This was defined by s.4 of the Vagrancy Act 1824 as being ‘any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon’.
Mr Wood was charged under this Act after using a piece of broken glass, which had fallen out of his front door, as a weapon.
Which ONE of the following is correct?
A) Broken glass is not of the same type as it was neither made nor adapted for causing injury to a person - Eiusdem Generis. It is not enough that an item has the potential for such use.
B) Broken glass can hurt you, so it is an offensive weapon.
C) Broken glass is not on the list, so it is not caught by the Act - Expressio Unius est Exclusio Alterius.
CORRECT ANSWER A
Here, unlike in the last example, we have general words, which follow specific words. So we need to interpret the general words in the light of
C cannot be right as it does not acknowledge the deliberate generality of the words, ‘offensive weapon’.
B is not right because it fails to look for a common denominator among the words which precede it. It therefore takes too wide an interpretation of the general words at the end of the list.
Broken glass is not of the same type as it was neither made nor adapted for causing injury to a person. It is not enough that an item has the potential for such use.
If a general word follows two or more specific words, that general word will only apply to items of the same type, as the specific words. Eiusdem (or ejusdem) generis means ‘of the same type’.
To determine whether this rule applies, use the structured approach set out below to Mr Wood’s use of the broken glass:
Here there are general words (‘or other offensive weapon’) following a list of specific words.
The specific words are all of the same type in that they are items made or adapted as weapons. Because they have been designed as weapons, they have a common feature.
Interpretation: broken glass is not of the same type as it was neither made nor adapted for causing injury to a person. It is not enough that an item has the potential for such use. the specific words that proceed it.
In R v. Inhabitants of Sedgley (1831) 2 B & Ald 65, the court considered whether the poor rate levied on occupiers of ‘lands, houses and coal mines’ under the Poor Relief Act 1601 could be levied on owners of other types of mine.
Bearing in mind how this list is different to the list of offensive weapons under s.4 of the Vagrancy Act 1824, what do you think the outcome of the case was?
A) The Poor Rate applied.
B) The Poor Rate did not apply.
CORRECT ANSWER B
the Poor Rate did not apply. ‘Expressio unius’ was the relevant rule of language.
This rule applies where there is a list of words, which is not followed by general words - hence the difference with the definition of an offensive weapon.
The judges held that the Poor Rate could not be levied on other mines. This makes sense as otherwise there was no explanation for the insertion of the word ‘coal’.
However, care must be taken when using this particular rule, as the omission may be inadvertent.
Note that this rule usually produces the opposite result to the ‘Noscitur’ rule.
Consider the example taken from a decided case.
A statute requires an employer to protect employees from ‘danger from shock, burn or other injury’
Does this include tripping?
If you were a judge hearing the case, which of the following rules would you apply?
A) Noscitur a sociis
B) Expressio unius est exclusio alterius
C) Eiusdem generis
D) There is no appropriate rule listed
CORRECT ANSWER C
The eiusdem generis rule was applied in the case Lane v London Electricity Board [1955] 1 ER 324 as these are specific words which are followed by the general word ‘or other injury’.
However, as shock and burn were both dangers from electricity, they were regarded as a different type of injury to tripping over the cables, so tripping was excluded.
