The Literal Rule
- "If the words of the Act are clear, you must follow them even though they lead to a manifest absurdity."
- Giving words their ordinary, natural Oxford English dictionary meaning,
- Same meaning throughout the Act,
- Words in an old statute being given their meaning at the time of the Act.
- R v Bentham - Immitation of a firearm = You cannot possess your fingers as they are apart of your body.
- London & North Eastern Railway Co v Berriman - Relaying or Repairing - Oiling is maintaining the line and thus Mr.Berriman did not legally need a lookout.
- Whitely v Chappel - Impersonating someone entitled to vote - Dead people cannot vote and therefore cannot be impersonated literally.
- Cheeseman v Dpp - "Must not willfully and indecently expose ones person in the street to the annoyance of Passengers" - Police officers were stationed to catch Cheeseman and therefore were not officially passengers.
Literal Rule: Advantages
Respects Supremacy of Parliament
It can be seen as democratic as it's directly following Parliament's word rather than those of unelected judges. (Cheeseman is an example of this.)
Upholds Separation of Powers
The British Constitution is firmly based upon the separation of powers: Parliament makes the laws, the judiciary interprets them.
Ensures Certainty in the Law
The literal rule ensures that ordinary citizens are able to take statutes at their face value.
It also makes the law easier to determine and so reduces litigation.
Literal Rule: Disadvantages
Ignores the limitations of drafting
- Can lead to absurdities - Whitely v Chappel, loopholes and injustices - Berriman.
- "Assumes unattainable perfection in draftsmanship."
- Technological advances since the introduction of the Act
- Means there is a need for Parliament to rectify any errors which can be costly and time consuming even when the meaning may be clear already.
Assumes Parliament intended for a literal reading of the Act
- Cheeseman v Dpp
- It also sometimes requires use of another rule or aid to interpretation such as a dictionary or punctutation so it is not simply a literal reading.
The Golden Rule
- Judge follows the literal rule unless this would lead to an absurd result
- There are two variations of this approach, of which one remains very constricted whilst the other allows for a far wider range of interpretation
- Although restrictive, it presents further freedom than the literal approach,
- Can only be used where the word is capeable of more than one meaning,
- Judge selects a meaning to avoid absurdity,
- Jones v DPP: When an Act is 'capeable of one or more meaning, then you can choose between those meanings, but beyond this you cannot go."
R v Allen - 'Being married, shall mary any other person during the life of the former husband or wife.' - Impossible to be guilty using the literal meaning of "marry" since any second marriage is declared void. So the alternative meaning of marry was used, to complete a marriage ceremony. Allen was found guilty of bigamy
- Legislation has one clear meaning,
- To apply the meaning owuld lead to an abhorrent outcome,
- Words of the Act will be modified to avoide the outcome.
Re Sigsworth - "The estate of an intestate shall be transferred to their 'issue'." - Sigsworth killed his mother and then himself and his estate had tried to claim inheritance of the property from the mother. Application of the golden rule as the court held that it would be an obnoxious outcome to allow a muderer to profit from his crim and that the statute could not have been intended to allow murderers to inherit.
Golden Rule: Advantages + Disadvantages
Fewer Absurd & Unjust results
In Re Allen, the literal meaning of marry would have created the absurdity that no one could actually be charged with the offence of bigamy.
Parliament would not have wanted to pass laws that produced unfair results
In Re Sigsworth it is clear that society and their law making representatives would not want a son who murdered his mother to financially gain.
It is up to each individual judge to decide what is an absurdity or repugnant situation.
Can lead to inconsistency
Limited Use and is thus only used on rare occasions
Not always possible to predict when it's going to be used in court. Making it difficult for lawyers and people who are advising their clients
- What was the old law,
- What is the defect of the new law,
- How did Parliament intend to remedy the defect,
Frequently described as the "Spirit of the Law," approach,
This gives the court justification for going behind the literal meanings of statutes in order to remedy a problem
Smith v Hughes Prosituting from windows (technically not in public.) Rule adjusted to state they could be seen by the public.
Corkery v Carpenter - Drunk while in charge of a vehicle... Adjusted to include a bicycle.
Mischief Rule Advantages + Disadvantages
- Fills gaps in legislation to allow just results,
- Allows law to change according to social standings.
- Out of date
- Uncertain - Hard for lawyers to advise clients.
Very similar to that of an updated more widely used Mischief rule. Specifically for deciding on EU matters.
Lord Denning "We sit here and find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis."
Pickstone v Freemans (plc) A woman claimed that she was doing equal amounts of work as that of the warehouse checkers who were being paid £1.22 more than her per week.
Jones v Tower boot Co Due to discrimination in the course of his employment Mr Jones claimed £5000 from his employers.
Purposive Approach Advantages and Disadvantages
- Allows Judges to cope with unforeseen circumstances.
- Allows Judges give direct effect to EU directives.
- Judicial Law Making Lord Simmons "A naked unsurpation of the legislative function under the thin disguise of interpretation." Magor v Mellons he went on to say "if a gap is disclosed, the remedy lies in an amending Act."
- Infringes on the seperation of Powers (Judicual, Executive, Legislative.)
- Using the Hansard is too time consuming.
Presumptions, Aids and Rules of Language pt.1
Courts will make presumptions about the law. If the statute clearly states the opposite then the presumption is void and is therefore rebutted. These are the main presumptions:
- Against a change in the common law.
- A presumption that mens rea is needed in criminal cases,
- A presumption that the Crown is not bound by any statute,
- A presumption that a statue does not apply retrospectively. eg. (Adoption Act 1976,)
Aids and Rules of Language pt.2
Rules of Language
- Ejusdem Generis - If there is a list of specific words that is then followed by general words then the general words MUST be limited to the same group as the specific words. Eg. Powell v Kempton, a racecourse ring does not come under the terms "House, Office, Room or Other place," as all specific items listed are indoors.
- Expressio unius exclusio alterius - If there's a list of specific words that are not followed by general words then the Act will ONLY apply to the specific words listed. Eg, R v Inhabitants of Sedgley "Lands, houses and coalmines," excludes every other type of mine.
- Noscitur a sociis - A word is known by the company it keeps. Eg. Muir v Keay licencing theatrical or musical entertainment did not come under "Public refreshment, resort and entertainment," as 'entertainment' referred to accomodation of the public, refreshment houses and receptions.
These are located within an Act itself to help make the meaning clearer. The court may consider the long title the short title and any premable. For example Animal boarding act section 5 "In this Act animal means any dog or cat."
These help put Acts into context. Examples of this includes previous Acts of Parliament on the same topic and/or earlier case law, dictionaries of the timeperiod and historical setting. In addition to this Hansard can now be used in a limited way as stated in Pepper (Inspector of Taxes.) v Hart.
This is used to make sure that cases are consistant.