LA1-SI

A good definition of statutory interpretation could be: ‘the judicial interpretation of words and phrases in Acts of Parliament, done so as to give effect to the will of Parliament’.

Parliament passes many Acts each year and judges must apply them but sometimes the wording will not be obviously clear and will be the focus of a dispute in court. Sometimes Parliament will include interpretation sections within Acts to help define key terms and the Interpretation Act 1978 makes it clear that unless the contrary appears: singular = plural and he = she. However, when there is still an issue, judges have certain ‘tools’ at their disposal to help them discover what Parliament meant.

Any judicial interpretation/application becomes part of the case law, in just the same way as any other judicial decision, and subject to the rules of precedent. Therefore, a higher court may decide an interpretation is wrong and overrule it.

• A broad term: Some words are designed to cover several possibilities. In the Dangerous Dogs Act 1991 there is a phrase “any dog of the type known as the pit bull terrier”. In Brock v DPP [1993] the court decided that type means more than just actual breed but similar characteristics also (wide interpretation).

• A drafting error: Parliamentary Counsel who drafted the original Bill may have made an error that was not noticed by Parliament which can often happen if several amendments have been made to a Bill during its passage through Parliament.

• New developments: New technology may mean that an old Act does not cover the present day. (See Royal College of Nursing v DHSS [1981] where medical science and methods had changed since the passing of the Abortion Act 1967.)

• Changes in use of language: The meanings of words can change over time.

Following complaints that a man had been exposing himself and masturbating in a public lavatory, undercover police were stationed at the lavatory in order to apprehend the individual. D was caught and charged with “wilfully and indecently exposing his person in a street to the annoyance of passengers” under s.28 Town Police Causes Act 1847 but appealed against his conviction arguing that the 1990 meaning of passenger was different than the 1847 meaning. Today it means ‘foot passenger/passer by’ but in 1847 it covered anyone using the street/public places for its ordinary purposes of passage or travel. Regarding the lavatory, this covered anyone resorting to it for its ordinary purpose i.e. to go to the loo.

The court decided the police were not ‘passengers’ within the meaning of the 1847 Act as they had been stationed in the lavatory to apprehend individual(s) and were not resorting to that public place for the normal purpose, but for this special purpose. The policemen were not ‘passengers’ and therefore Cheeseman was not guilty as he was not technically annoying ‘passengers’.

Judges are free to choose which rule to use to help interpret the meaning of Acts.       Literal Rule Judges give words their ordinary, natural, dictionary definition meaning. This is done even if the result is absurdity or hardship, as it is this approach that is considered to be most respectful of the doctrine of parliamentary sovereignty and is therefore viewed as the traditional approach. However, it can also be said to be ‘mechanical and unrealistic’.

R v Judge of City of London Court [1892]- Lord Esher: “If the words of an Act are clear, you must follow them even though they lead to a manifest absurdity...

Whiteley v Chappell [1868]-This concerned the offence of impersonating “… any person entitled to vote.” D impersonated a dead person and voted. As a dead person is not literally entitled to vote, D was acquitted.

London & NE Railway Co v Berriman [1946]- The claimant’s husband was killed while working on the railway and she tried to claim damages as no safety look-out was provided. The Fatal Accidents Act 1864 stated that the railway company should provide a look-out while someone was “repairing or relaying” the railway and compensation would be due following an accident. The deceased however was maintaining the railway and the HL held that this wasnt repairing relaying and no damages were awarded.

Advantages

• Respects PS (AV Dicey) by giving courts a restricted role and leaving law making to those elected for the job.
• Judges are interpreting law, not making it and thus respecting SOP(Montesquieu). Can also help highlight areas in need of change.
• Laws are more certain as it is interpreted exactly as written which makes it easier to know what the law is and how judges will predictably apply it.

Disadvantages

• Assumes every statute will be perfectly drafted but in reality it is not possible to word an Act to cover all possibilities as in Whiteley v Chappell [1868]. Ingman says it expects too much of words which are an “imperfect means of communication”.
• Following exact words can lead to unjust decisions eg. Berrimen [1946] – a result which can hardly be said to be enacting the will of Parliament.
• Professor Michael Zander has criticised the literal rule as being: “...mechanical and divorced from both the realities of the use of language and from the expectations of human beings concerned.”

This states that if use of the literal rule would lead to an absurdity, then the judge is entitled to ‘tweak’ the meaning so as to avoid that absurdity. It is a more flexible version of the literal rule.

Grey v Pearson [1857]-Lord Wensleydale: “…the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”

Jones v DPP [1962]-Lord Reid: “...you may not ... attach to a statutory provision a meaning which the words ... cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond this you cannot go.”

This means that sometimes the reading of a passage might give rise to two possible interpretations or meanings, and the court must select the ‘least absurd’.

Adler v George [1964]

Section 3 Official Secrets Act 1920 states that it is an offence to obstruct a member of the armed forces “in the vicinity of” a “prohibited place”. The defendant had obstructed an officer in an army base (a prohibited place) and argued that the natural and literal meaning of “in the vicinity of” means “in the surrounding area” or “near to” and not directly within. Had the judge applied the literal rule, D would have escaped prosecution but the judge instead used the golden rule to reasonably assume the statute included both within and around a prohibited place.

The golden rule might also be used in order to avoid a ‘repugnant’ situation:

Sigsworth [1935]

A son murdered his mother but she had not made a will. Inheritance laws (Administration of Justice Act 1925) provide that her estate would be inherited by her next of kin. Her next of kin was her (murderous) son and would therefore inherit as her “issue”. There was no ambiguity in the words of the Act itself but judges were not prepared to let D benefit from his crime and so ‘tweaked’ this repugnant situation.

Advantages

• Respects exact words of Parliament, except in limited situations which when used can prevent the absurdity and injustice caused by literal rule.
• Also provides an ‘escape route’ by allowing judges to choose most sensible meaning and avoid the worst problems of literal rule.

Disadvantages

• Only used on rare occasions and Law Commission, in 1969, noted that it is not possible to predict its use.
• No clear meaning what an ‘absurd’ result actually is that will trigger its use and thus Michael Zander described it as a “feeble parachute”, i.e. it is an escape route but it cannot do very much.

This gives judges more freedom as it states that judges should look for the mischief that the Act was created to deal with originally, and interpret accordingly rather than focusing just on the wording. It directs the judge to look for Parliament’s intentions, not simply the words they used. This rule was first defined in Heydon’s Case [1584] where the court stated that four things should be considered.

1. What was the common law before the Act?

2. What was the mischief for which the common law did not provide? (Gap in the law).

3. What remedy did Parliament create to deal with the mischief?

4. The function of the judge is to then use the remedy to suppress the mischief.

Under this rule, courts 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 and then interpret in such a way that covers the gap and puts a stop to the problem.

Smith v Hughes [1960]

The Street Offences Act 1959 made it an offence to solicit “in a public place or street”. D was soliciting from the window of her house and a literal interpretation would result in her acquittal. She was however found guilty through the use of the mischief rule as the courts held that the Act was designed to prevent the mischief of soliciting and D was still attracting the attention of men and soliciting them for business.

Elliott v Grey [1960]

The Road Traffic Act 1930 provided that it was an offence to “use” an uninsured car on the road. The car in question was broken down, parked on the road, but had had its wheels and battery removed (it was jacked up on bricks). Literally it could not be ‘used’ but the judge decided that the Road Traffic Act 1930 was passed to remedy this type of hazard and even though the car could not be ‘used’, it was still a hazard to other road users.

Advantages

• Promotes the purpose of the law by allowing judges to look back at the gap the law was designed to cover.
• The emphasis is filling the gap which is more likely to produce ‘just’ results and help avoid absurdity and injustice, whilst promoting flexibility.
• Preferred approach by the Law Commission (1969).

Disadvantages

• Contradicts separation of powers as judges should not re-write an Act and make law. However, this rule was formulated at a time when Parliamentary sovereignty was not fully established and common law was the primary source of law.
• Filling the gaps with their own views on how the law should remedy the gap is not the will of the elected body.
• May also lead to uncertainty as it is very subjective. law must be certain ECHR.

This is the preferred method of interpretation in the Court of Justice of the European Union, and is gaining popularity in England and Wales (the more judges have to apply EU laws). Whilst our laws are more verbose (wordy) and suit a literal interpretation, European laws are more vaguely written, requiring the judge to construct a meaning that is relevant to their national language.

The purposive approach means the courts will consider the purpose of the Act when trying to interpret its contents. Although often described as a modern descendant of the mischief rule, it actually goes beyond it. The mischief rule looks at the gap at the time the law was passed whereas the purposive approach looks at the overall purpose of the whole Act and allows judges the freedom to interpret words in order to bring about that purpose in light of modern day conditions. Therefore, it is very adaptable to future changes in technology etc. Lord Denning was a great supporter of giving judges more discretion; allowing them to look for the ‘spirit of the legislation’.

Magor and St Mellons v Newport Corporation [1950] CA and HL

Lord Denning (CA): “We sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

However, when this case reached the HL, Lord Simonds criticised Denning’s view. He described such an approach as: “a naked usurpation of the legislative function under the thin disguise of interpretation” and pointed out that “if a gap is disclosed the remedy lies in an amending Act.”

Lord Scarman added: “If Parliament says one thing but means another, it is not...for the courts to correct it...We are to be governed not by Parliament’s intentions but by Parliament’s enactments.”

Bulmer Ltd v Bollinger SA [1974] Lord Denning said of the Treaty of Rome 1957 that: “It lays down general principles. It expresses its aims and purposes...but it lacks precision. It uses words and phrases without defining what they mean...All the way through the Treaty there are gaps and lacunas. These have to be filled in by judges.”

Problem: should judges refuse to follow the clear words of Parliament? How do they know what Parliament’s true intentions were? Opponents look to the wording used and nothing more.

Royal College of Nursing v DHSS [1981] HL

The RCN brought this case as they were concerned about their members under the changes brought about by the Abortion Act 1967. It stated that terminations were only legal if performed by “a registered medical practitioner” (doctor) as originally, this procedure was surgical and could only be performed by a doctor. By the 1980s, this procedure became medical and could be carried out by nurses giving pills. The HL had to decide if this practice was lawful and held (3:2) that providing the abortion itself was authorised by a doctor it was lawful. The mischief before the Act was to stop illegal abortions and only allow doctors to perform them. The purpose of the Act was to allow for safe and hygienic abortions. Allowing nurses to lawfully participate promotes this purpose. Lords Wilberforce and Edmund Davies (dissenting) took literal views, saying that words of Act were clear: doctors only. They claimed that the other Law Lords were not interpreting legislation but “redrafting it with a vengeance”.

R (Quintavalle) v S. of State for Health [2003] HL s.1 Human Embryology and Fertilisation Act 1990 states that an “embryo means a live human embryo where fertilisation is complete.” HL had to decide whether embryos created by cell nuclear replacement came within the 1990 definition of ‘embryo’ and thus subject to the same regulations/protection under the Act. The problem is that fertilisation is not used in CNR: so is it an embryo that is to be covered by the Act? Cell nuclear replacement was not possible in 1990 when the Act was created as the technology had not yet been developed, so judges had to decide whether the purpose of the legislation was to cover just fertilised embryos, or all embryos. Lord Bingham: "Parliament could not have intended to distinguish between embryos produced by, or without, fertilisation since it was unaware of the latter possibility.”

Therefore, all embryos were covered. This obviously goes beyond the mischief rule as at the time of the Act, Parliament was considering the mischief of the risk of wrong use of embryos created through fertilisation. The Act was aimed at that. Parliament did not know of any gap in relation to CNR embryos as they had not been ‘invented’ yet, but these could still be subject to the same sort of misuse. So if the purpose is to prevent misuse, CNR embryos must be covered by the Act, whereas it would not be covered by the original ‘mischief’ as this ‘gap’ did not exist in 1990.

Advantage

• Flexible and seeks the purpose or reason why the Act was passed.

Disadvantage

• Described as a “naked usurpation” of the legislative function.

These have been developed by judges over time to ensure words are looked at in context. They are instructions for how to read Acts when they contain ‘lists’. Other words in an Act must be looked at to see if they affect the word or phrase which is in dispute.

1. The“ejusdem generis” rule: “of the same kind”.

If a statute contains a list of specific items or objects, any general terms that follow the list shall be taken as meaning objects of the ‘same kind’. E.g. House, barn (specific words) and other such similar places (general words): this list would also logically include a bungalow or chalet etc. E.g. Cats, dogs and other such animals: this list would also logically include other domestic animals.

Powell [1899]

The Betting Act 1853 prohibited the keeping of a “house, office, room or other place” for betting purposes. D operated a ‘Tattersall’s Ring’ (bookmakers’ pitches outside). Was this within the term ‘other place’? It was held that it wasn’t: the specific words indicated some form of building/inside.

2. “Expressio unius exclusion alterius”: the express mention of one thing excludes others.

Where there is a list of words not followed by general words, the Act applies only to the items in the list. Therefore, if an Act specifically mentioned “Persian cats and Siamese cats” the Act would not apply to other breeds of cat.

Sedgley Inhabitants [1832] Rates were imposed on occupiers of “lands, houses…and coalmines” under the terms of the Poor Relief Act 1601. It was held that this excluded other types of mines.

3. “Noscitur a sociis” – a word is known by the company it keeps.

Words must be looked at in context which involves looking at other words in the same section or other sections of the Act. If an Act states “hamster cages, straw and food”, the meaning of “food” is found by looking at the other words in the sentence, i.e. hamster food, not dog food.

Harris [1836] D was charged with having “stabbed, cut or wounded another” when he bit the end off a prostitute’s nose. He was acquitted as the courts held that words of the Act implied that an implement was to be used.

R v Bassett [2008] Dtook covert pictures of another man in his trunks in the shower at a public swimming pool and was convicted of voyeurism (s.67 Sexual Offences Act 2003). In quashing the conviction, Hughes LJ said that when the Act referred to “a private act”, it was defined as situations where “the person’s genitals, buttocks or breasts are exposed”. Parliament could not have intended this to include the male torso as in 21st century, men very commonly expose their chests in public and additionally, ‘breasts’ is not normally used in relation to men.

The court will also make certain presumptions about the law, but these are only a starting point. If a statute clearly states the opposite the presumption will not apply and it is said that the presumption is rebutted.

1. A PRESUMPTION THAT STATUTES DO NOT CHANGE THE COMMON LAW:

For example: A common law rule stated that a wife could not be compelled to give evidence against her husband. When the Criminal Evidence Act 1898 was introduced, it did not mention this rule and therefore the common law still applied. (The position has now been changed by s.80 PACE 1984 which states that in a crime of violence; one spouse can be made to give evidence against the other.)

2. A PRESUMPTION THAT MENS REA IS REQUIRED IN CRIMINAL CASES:

It is a basic common law rule that no-one can be convicted of a crime unless it is shown that they had the required guilty mind.

Sweet v Parsley [1970]

D was charged with being concerned in the management of premises which were used for the purposes of smoking cannabis. She was the owner of a property that she leased out to tenants who had been smoking cannabis without her knowledge. She was clearly ‘concerned in the management of property’ and cannabis was being smoked there, but she had no knowledge, meaning she had no MR. After some debate, the HL finally quashed her conviction.

3. A PRESUMPTION THAT THE CROWN IS NOT BOUND:

The Crown is not bound by any statute unless the statute expressly says so. (See s.12 Hunting Act 2004 and s.22(5) Human Rights Act 1998.)

4. A PRESUMPTION THAT LEGISLATION DOES NOT APPLY RETROSPECTIVELY:

Acts should be prospective and not apply to past happenings. However, the War Crimes Act 1991 allows courts to try people for crimes committed in Nazi Germany during WWII by people who have since become British citizens. Under UK law, such conduct during WWII was not a crime at the time, but this statute applied retrospectively now making it a crime. Anthony Sawoniuk was the first and only person to have been convicted under this Act. He was sentenced to life imprisonment for the murder of 18 Jews and died in prison in 2005.

The Human Rights Act 1998 is also retrospective and applies to legislation (both primary and secondary) enacted before and after the HRA 1998.

INTRINSIC AIDS:

These are within the statute itself.

• The short title.
• The long title: it outlines the aims of an Act and can be useful in the mischief or purposive approach.
• The preamble (if there is one): similar to long title for older statutes.
• Definition sections: the meanings of words/phrases can often be found within the statute. E.g. Theft Act 1968 – s.1 provides the definition of theft, **.2 – 6 explain each element of the offence.
• Marginal notes.

DPP v Schildkamp [1971]

Lord Reid stated that: “…cro**-headings, side-notes and punctuation…may be taken into account provided that they cannot have equal weight with the words of the Act.”

These are outside the Act.

• Earlier statutes: these might help judges to see a pattern in what the law is intended to achieve.
• Historical setting.
• Interpretation Act 1978: provides standard definitions of common provisions, such as “he” and “she”.
• Dictionaries: the relevant Oxford English Dictionary at the time the Act was passed.
• Government publications and official reports: it was held in The Black-Clawson Case [1975] that recommendations contained in Law Commission reports and other similar advisory reports may not be regarded as evidence of Parliament’s intention, as Parliament may not have accepted the recommendations. Nevertheless, such reports remain useful indicators.
• Hansard: a record of parliamentary debate and in this instance the debates that took place during the passage of an Act through Parliament can be helpful.

Originally Hansard could not be consulted as it is seen as a political document (separation of powers); although there were those who believed that this should change.

Davis v Johnson [1979] CA and HL Lord Denning, in admitting he had consulted Hansard, attacked the ban and said: “Some may say...that judges should not pay any attention to what is said in Parliament. They should ***** about in the dark for the meaning of an Act without switching on the light.”

On appeal, the HL disapproved of Denning’s behaviour. Lord Scarman: “Such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility...are not always conducive to a clear and unbiased explanation of the meaning of statutory language.”

However, this rule was later relaxed and it was decided that Hansard can be consulted if:

• an Act is ambiguous, obscure or leads to an absurdity and
• only if the material being consulted contains a clear statement made by the Minister/promoter of the Bill.

Pepper v Hart [1993] HL

HL accepted that Hansard can be used in a limited way and overruled the decision in Davis v Johnson [1979] (using the Practice Statement 1966). However, Lord Chancellor opposed Hansard on practical grounds, pointing out the time and cost it would take to research Hansard in every case.

Since 1993 Hansard has been referred to in a number of cases, even sometimes where there did not appear to be any ambiguity. The Lord Chancellor’s prediction about costs has been confirmed by some solicitors, estimating it adds 25% to bill. On some occasions, Hansard has not been helpful or that the court would have reached the same conclusion in any event.

Jackson & Others [2005] HL

“The Pepper v Hart [1993] ruling is sound in principle, removing as it did a self-created judicial anomaly. There are occasions when ministerial statements are useful in practice as an interpretive aid, perhaps especially as a confirmatory aid.”

For

• It is a useful aid: As per Lord Denning, to ignore Hansard would be to “***** in the dark for the meaning of an Act without switching on the light.”
• Many foreign jurisdictions use such legislative materials to aid interpretation.
• Media: Parliamentary debates are reported in the media – judges are aware of this so why can they not be used in court.

Against

• Lack of clarity: debates do not necessarily clarify the meaning / intention of legislation. Even the speech of the introducing minister may not help greatly.
• Not always helpful: court could have reached the same conclusion without using Hansard.
• Time and expense: concern that too much time and cost is spent considering Hansard.

1. EUROPEAN UNION:

Under the provisions of the European Communities Act 1972, UK law must be interpreted so as to comply with our obligations as members of the European Union. This is also a result of the supremacy of EU law over UK law. The courts in Europe tend towards a purposive approach to interpretation and that is what the courts here should also use.

2. HUMAN RIGHTS ACTS 1998: s.3 So far as it is possible to do so, primary legislation and secondary legislation must be read and given effect in a way which is compatible with Convention rights. s.3(2) This section-

• (a) applies to primary and subordinate legislation whenever enacted;
• (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation.

R v A [2001] D was charged with **** and his barrister wanted to cross examine V about her previous sexual relationship with D and argued that his client’s right to a fair trial (Article 6 ECHR) would be denied if this could not happen. However, the Youth Justice and Criminal Evidence Act 1999 ordinarily forbids the defence cross examining alleged Vs about a previous sexual relationships with the person they are accusing as hearing such evidence can result in a loss of credibility with the jury. S.3 obligation or P.Sov.? The judge adhered to his s.3 HRA 1998 obligation by allowing the cross examination to take place in such circumstances. Some argue that this judicial creativity went too far and the judge should have issued a s.4 HRA 1998 DOI to give Parliament the opportunity to change the law to bring it in line with human rights obligations.

The rules of statutory interpretation were analysed by Professor John Willis in “Statutory Interpretation in a Nutshell” (1938) and he suggested that:

'a court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another.'

Thus, on some occasions the literal rule would be preferred to the mischief rule: on others the reverse would be the case. It was impossible to predict with certainty which approach would be adopted in a particular case. More recently, attitudes are changing as the legal system move towards the European purposive approach and the increasing acceptance of extrinsic aids, particularly Hansard.