Statutory Interpretation- The Literal Approach

Literal, Golden and Mischief rules with some relevant case law

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  • Created on: 06-01-12 09:20
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Literal Golden Mischief
Definition: Judges give words their normal everyday Definition: Modification of literal rule which looks at Definition: Allows judges more discretion than other
meaning, even if the result is not a sensible one. Can the original literal meaning, but the court is allowed to rule, looking into what Parliament was trying to
make nonsense of the law and create both unjust and avoid an interpretation that would lead to an absurd achieve. (The problem that it was intended to solve)
absurd results, but still the main rule applied since the result. (A result that was not intended by Parliament)
early 19th century. 2 approaches: Wide (Traditionalist; word has more
than one meaning)
Narrow (Non-Traditionalist; use to avoid a repugnant
Cases: Whiteley v Chappell [1868]: Charged under Cases: Re: Sigsworth: Murdered his mother for Cases: Smith v Hughes [1960]: Street Offences Act
statue it was an offence to impersonate `any person inheritance. Court ignored normal rule to avoid reward
1959 referred to. Stated it's an offence to solicit and
has the right to vote'. If someone is dead they don't for actions. (Wide) loiter in a public place for purpose of prostitution.
have a right to vote, so defendant found not guilty. R v Allen [1872]: Committed bigamy, selected one of Women had not been in street, but were all attracting
LNER v Berrimen [1946]: Railway worker killed whilst the two meanings of the word `marry' so were able to attention of men. Intention, and original mischief, was
doing maintenance. No look out man provided but convict. (Narrow) clear so they were charged.
when Fatal Accidents Act 1864 was referred to it was Royal College of Nursing v DHSS [1981]: Abortion Act
stated compensation would only be provided for 1967- only to be performed by `registered medical
workers relaying or repairing the track, not practitioner' (only a doctor). Performed by nurses
maintaining. which was against law, but the mischief trying to be
prevented was back street abortions. This widened
grounds on which abortion was obtained.
Advantages: Respects Parliamentary sovereignty, Advantages: Respects the exact words of Parliament Advantages: Promotes purpose of the law by allowing
restricting the role of the courts. except in limited situations. the judges to look at gaps that it intended to cover
-Based on principle that the best way to interpret will -Prevents absurdities and injustices, and helps practice -More likely to find a just result, because there is an
of Parliament is to follow literal meanings and judges what Parliament truly means emphasis on making sure the gap is filled
simply interpret. -Provides an escape route which allows judges to -More satisfactory and flexible
-The law remains certain chose most sensible meaning and avoid problems -Law commission prefers rule, feel should be the only
Disadvantages: Assumes the statue is perfectly Disadvantages: Limited in its use- only used in rare Disadvantages: Contradicts the separation of powers
drafted (Whitley v Chappell- voting in position of the occasions and not possible to predict its use as judges can fill gaps with their own views, which
dead) -No clear meaning of what an absurd result really is remakes a law
-Following precisely can lead to unjust outcome (LNER v -Less explicit form of the Mischief Rule -Impossible to know when rule will be used and the
Berrimen- difference in work doesn't change the -Professor Michael Zander states it's an escape route, judges intention so can lead to uncertainty
degree of danger) but cannot do very much so is like a `feeble parachute'
-Criticised by Professor Michael Zander for being

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