|
Advantages
- One advantage of the golden rule is that it avoids absurdity or repugnant outcomes and
therefore leads to sensible and ‘just’ decisions. This is because the golden rule is only
used when the outcome under the literal rule would be absurd. In Re Sigsworth, the golden
rule prevented the absurd or repugnant situation of a murderer profiting from his crime under
the Administration of Estates Act 1925 as the judges read into the Act that the next of kin
could not get inheritance if they had killed the deceased.
- Another advantage of the golden rule is that it still respects the words of Parliament as it
requires the judge to apply the literal rule first and the golden rule is only used if these
produce an absurd result. With the narrow approach judges may only choose between
dictionary meanings of a word in a statute. So judges are still sticking to the exact
words of Parliament. This preserves parliamentary sovereignty and the narrow
approach, therefore does not really allow for judicial law making. Lord Scarman and Lord
Simmonds believe that law making should be left to Parliament and judges should just
apply the law.
- Another advantage is that unlike the literal rule, morally guilty defendant’s can actually be
convicted. In R v Allen, the defendant would have been acquitted had the literal rule been
used as you cannot LEGALLY marry a person twice. The court, however, used the narrow
approach and used the other definition of the word “marry” (going through a marriage
ceremony) which meant they were able to convict a morally guilty defendant.
- Another advantage of the golden rule – broad approach, is that it doesn’t assume that every
Act is perfectly worded. For example, in Adler v George, the court took into account that
when Parliament created the Official Secrets Act (1920), they would have not wanted an
obstruction of a member of the armed forces to occur in the prohibited place itself, even
though the Act just stated the vicinity of a prohibited place.
|
Disadvantages
- The main disadvantage of the golden rule is that it is very subjective. This is because it is
up to each judge to decide what an “absurd” outcome is and each judge will decide
differently. Some judges might use the golden rule but other judges might use the literal
rule. It depends if the judge thinks using the literal rule will lead to an absurd decision. This
can be seen if we compare R v Allen with DPP v Cheeseman. In both cases the defendant
should have been found guilty of a crime but in R v Allen they were convicted by using the
golden rule, while in Cheeseman the defendant was acquitted because of the literal rule.
- Another disadvantage is that as the broad approach allows judges to read words to a
statute, it can be argued this is giving the judge too much power. Therefore there is a
risk of judicial law making under the broad approach. They are not elected and so should not
be empowered in this way. It is undemocratic and so goes against Parliamentary
sovereignty and the separation of powers theory. Judges such as Lord Simmonds and
Lord Scarman argue that it is the judge’s role to just apply the law and not create it.
- Another disadvantage is that it is not clear when the golden rule will be used and so it makes
the law unpredictable. This means it is difficult for lawyers to advise their clients on
what the outcome of a case is likely to be. Academic commentator Michael Zander
describes this rule as a “feeble parachute”. Although it can be an escape from the unfair
decisions caused by the literal rule it is not clear when it will be used so it is of limited
effectiveness.
- DO NOT DISCUSS THIS IF Q IS ADV. & DIS. Another disadvantage is that the broad approach doesn’t highlight problems to Parliament.
Parliament will not be forced to amend Acts - like they had to do to the Restriction of
Offensive Weapons Act 1959 after the decision in Fisher v Bell as judges read into the Act
themselves.
|
Comments
No comments have yet been made