Law Unit 1 - Topic 2

The Literal Rule

The judge examines the word in dispute and interprets the word literally to give it its plain, ordinary or literal meaning. This is so, even if the result is not very sensible.

Whitely v Chapell (1868)                                                                                                                  Facts: The D had voted in the name of a dead person and was charged with "impersonating a person entitled to vote". Held: The court ruled that because a dead man isn't entitled to vote, D could not be guilty. He was acquitted as the judge used this rule. 

R v Bentham (2005)                                                                                                          Facts: A man broke into a house and demanded money from the occupier while holding his hand inside his jacker in such a way as to give the impression that he had a gun. He was convicted of possessing an imitation firearm contrary to the Firemans Act 1968. He appleaed. Held: His conviction was quashed. The HL said that one cannot "possess" something which is part of oneself. They went on to say that that Parliament could have created an offence of "falsely pretending to have a firearm", but they had not done so: they used the literal rule on this occasion.

London & NE Railway v Berriman (1946)                                                                                                    Facts: A railway worker was killed by a train while oiling signalling appartaus on the line. His widow claimed compensation due to there being no 'lookout' provided in accordance with the relevant statute. The wording in the Act required a lookout to be posted while men were "relaying or repairing the track". Held: The House of Lords (HL) interpreted the phrase literally, an so because the dead man had been maintaining the trac k, his widow was not entitled to compensation.

Fisher v Bell (1960)                                                                                                           Facts: A shopkeeper displayed in his window a flick knife labelled with a price ticker. He was prosecuted under the Restriction of Offensive Weapons Act 1959 as the statute states that it is an offence to "offer for sale" such an item. Held: The court said the phrase "offer for sale" was to be taken literally, in accordance with its meaning in contract law. D's display of the weapon amounted to no more then inviting an offer. The man was acquitted and a new Act had to be passed as a result. 

Advantages

Parliament is our democratic law making body and so the use of the literal rule, respects/upholds this principle. Parliament has the right to make any law, it wishes, no matter how absurd, & a judges roleis is to interpret the law accordingly. this rule upholds Parliaments' will.

• It enables anyone who can read/speak English to understand the law. This rule therefore provieds access to justice to all citizens.
• It provides certainty in the law & enables lawyers to accurately adivise their clients. it also provides fairness in as a much as everyone in similar circumstancesare treated equally.

Disadvantages

• It fails to recognise the complexity of the English language- words can be ambiguous - words may have more than one meaning or different meanings in different contexts. The literal approach may not therefore be appropriate.
• It's use sometimes leads to an absurdity & injustice.
• This rule may not uphold the will of Parliament if the wording in an Act was not expressed in the way Parliament intended. A litreal interpretation could result in an outcome which Parliament did not intend.

The Golden Rule

The golden rule is a modification of the literal rule. It is used only where using the literal rule would otherwise result in a complete absurdity of which Parliament could not have intended. There are two variations of the golden rule:

• the narrow approach
• the broad approach

The Narrow Approach

This is used only when the word/phrase in question is ambiguous and using one of its literal meanings would lead to an absurdity, the judge will use the other literal meaning which does not lead to an absurdity.

Adler v George (1964)

Facts: A protester, D was charged under the Offical Secrets Act 1920 with 'obstructing a member of the armed forces in the vicinity of a prohibited place.

The D argued that in the vicinity meant near to whereas the obstruction had actually occurred inside the prohibitted place itself. Held: The court ruled that while in the vicinity often refers to being near to, in this case in the vicinity also meant in. Parliament could not have intended to create an offence of simply being near to a prohibited place, but there being no offence of actually being in a prohibited place.

R v Allen (1872)

 Facts: It is an offence to marry another while being married. D claimed he couldn't have married another while being married as the second marriage was not legally valid. He argued that he merely went through a marriage ceremony. Held: The court ruled that 'being married' included going through a marriage ceremony. D was guilty. 

The Broad Approach

The broad approach is where the word has only one meaning but its application would be unacceptable. For policy reasons, the court will modify the word in the statute in order to rectify the problem.

Re Sigsworth (1935)

In this case the court ruled that a son who murdered his mother could not benefit from his crime and so neither could his benificiaries. Despit the law being clear, the court was not prepared to use the literal rule; instead they used the golden rule, broad approach when interpreting the Estates Act 1925, as the use of the literal rule would have resulted in an absurdity.

Advantages & Disadvantages of the Golden Rule

Advantages

• The use of this rule can prevent absudity & the injustice sometimes caused by the use of the literal rule. It promotes a common sense approach to the law.
• Its use enables the courts the put into practive, what Parliament really intended when they passed the Act of Parliament arguable would have wanted to avoid absudities in the law.
• The golden rule saves Parliamentary time. 

• The courts can potentially amend any drafting errors in an Act, thereby avoiding the need for Parliament to alter the Act.

Disadvantages

• The use of the golden rule is undemocratic as it undermines Parliamentary Soverignty. The use of this rule means that judges are deciding on what the law should be rather than Parliament.
• This rule leads to a lack of certainty in the law. As there's no clear definition of how absurd an outcome needs to be when deciding whether or not to use the golden rule, we cannot predict when a judge is likely to use it. This makes it difficult for lawyers to advice their clients on the likely outcome of their case.
• Some judges are reluctanr to use the golden rule as they in effect dont like telling Parliament that they are incompetent.
• The LC 1969 noted that the rule provided no clear definition of an absuridty. Just how absurd does an outcome have to be before judges will decide to depart from using the literal.

The Mischief Rule

The use of this rule requires judges to look for gaps or defects in the law. The mischief rule came from Heydon's case 1584 as it was the first case to use this rule for the interpretation of statutes. Heydon's case said that there are four points a court should consider when interpeting a statute:

• Examine the law before the statute was passed.
• Identify the defect (mischief) in the law.
• Identify the way that Parliament tried to remedy the law.
• Put that into effect.

The judge should look to see what the las was before the Act was passed in order to discover what problem or 'mischief' the Act was intended to address. The court should then interpret the Act in such a way that the mischief is resovled.

Smith v Hughes (1960) 

Facts: A number of prostitutes had been soliciting 'in a street or public place' contrary to s.1 of the Street Offences ACt 1959. One prostitute had been on a balcony above the street, and the others had been sitting behind windows of a house. In each case the women were attracting the attention of men by calling to them or tapping on the windows. They each argued that they hadn't been soliciting 'on a street or public place'. Held: The judge ruled that the aim of the act was to enable citizens to walk down the street free from solicitation & harassment. Since the soliciting was aimed at people in the street, even though the prostitutes weren't in the street, the act was interpreted to include the balcony & windows.

Eastbourne Borough Council v Stirling (2000)

Facts: A taxi driver was charged with 'plying for hire in any street' without a licence. He was parked on a taxi rank on the station forecourt. Although he was on private land, he was likely to get customers from the street & was found guilty. Held: The offer of services was aimed at people in the street. The same princple from Smith v Hughes was applied in this case.

Royal College of Nursing v DHSS (1981)

Facts: The Abortion Act 1967 made it lawful for abortions to be carried out by 'a registered medical practitioner'. At the time the Act was passed, the usual method of termination was via a surgical procedure which could only be carried out only by a doctor. However, later medical advances made it possible to induce termination of the foetus by means of drugs. The court had to decide if 'a registered medical practitioner' included nurses. Held: Five Law Lords heard the case. The majority ruled that it was lawful for nurses to carry out the procedure. The majority applied the mischief rule; the purpose of the Act was clearly meant to  legitmise abortions and to ensure that they were carried out under proper medical conditions. The wording of the Act was therefore given a wide interpretation to include nurses rather than a strictly narrow, literal interpretation. 

Advantages & Disvantages of the Mischief Rule

Advantages

• The use of the mischief rule can prevent an absurdity and injustice sometimes caused by the use of the literal rule.

• This rule gives judges more flexibility than either the literal rule or the golden rule. The mischief rule goes a step further as it allows judge to took at the law before the Act in question came into force, and to put into effect Parliaments intention. 
• It allows the law to develop without the need for Parliamentary intervention and so saves Parliamentary time.
• It can also be used to extend the meaning of an Act to accomodate social/technology changes.

Disadvantages

• The use of the mischief rule effectively creates a crime after the event has taken place as seen in Smith v Hughes. In this respect the mischief has retrospective effect and is therefore arguably unjust. 
• In the 16th century Acts of Parliament contained a preamble which set out the mischief that the ACt aimed to resolve. This means that judges back then were better able to apply the mischief rule. Modern statutes rarely contain preambles which means that judges may not be able to apply the rule so effectively. 

The Purposive Approach (the European influence)

The judges are making decisions as to what they believe Parliament intended when it created an Act.

This rule aims to discover and put into effect the intended purpose of the Act.

Interpreting European Law in the English Courts

Where the law to be interpreted is based in European law, the English courts must use the purposive approach. This is because the Treaty of Rome, which sets out the duties of member states, requires the courts to 'interpret national law in every way possible in the light of the...aim of the European law'.

Bulmer v Bollinger (1974)

Facts: The dispute was over the labelling of 'babycham' which included the description 'champagne' contrary to a European law. Held: Lord Denning said that when interpreting European legislation English courts must use the purporse of approach otherwise there would be a difference in interpretation between the different European member states.

Wallwork v Giles (1970)

In an early case under the 'new breathalyser' law, D was charged with failing to give a sample of breath when required to do so by 'a constable in uniform'. He was acquitted at first instance as the PC had not been wearing his helmet at the time and so was not 'in uniform'. An appeal was heard. Held: The judge ruled that in passing the Act, Parliament had clearly intended only that a PC needs to be recogniseable and as such, 'in uniform' should be interpreted widelt to include this situation. D was convicted. The purpose of the Act was to reduce instances of drink driving/improve road safety. 

R v Registrar-General, ex parte Smith (1990)

The court had to consider a section of the Adoption Act 1976 which essentially stated that provided an adopted person meets certain conditions, the Registrar 'shall provide' a copy of the birth certificate to the person. This case concerned Mr Smith who made an apllication to obtain a cop of his birth certificate. Mr Smith met all the conditions and made his apllication in the correct manner. The problem was, Mr Smith was a doubole murderer with a history of psychatric metal illness and was in a secure mental hospital prison for the criminally insane. A psychiatrist determined that Mr Smith could pose a threat to his birth mother.

The CA used the purposive approach, saying that despite the plain & unambiguous wording. Parliament couldn't have intended to enable potentially dangerous people gaining access to their birth parents (if there was a risk a murder). The CA ruled that the Registrar didn't have to provide he birth certificate.

Advantages & Disadvantages of the Purposive Approach

Advantages

• Lord Denning favoured this approach and was t the forefront of tmore to establish the use of the purposive approach. In Magor (1951) he stated 'we do not sit here to pull the language of Parliament to pieces & make a nonsense of it...we sit here to find out the intention of Parliament and carry it out'.
• Since the UK became a meber of the Eu, the purposive approach for EU means that judges as becoming more accustomed to it and so the approach has gradually become more intergratd into English law.

Disadvantages

• This approach may require the use of Hansard in order to discover Parliaments intention. However, there could be a number of conflicting speeches given in the House when the Act in question was going through the legislative process. The use of Hansard therefore does not always reveal Parliaments intention.

Aids to interpretation - Finding Parliament's Intention

Some of there aids are found within the piece of legislationiself - there are called intrinsic (internal) aids. Others, outside the piece of legislation are called extrinsic (external) aids.

Intrinsic Aids

There are things within the statute itself that may help to make its meaning clearer. These can include: 

• The long title - can be referred to as guidance. The long title of the Abortion Act 1967 is 'An Act to amend & clarify  the law relating to termination of pregnancy by registered medical prctiontioners.
• Headings - before a group of sections & any schedules attached to the Act. Help to clarify the section.
• Marginal notes - explaining different sections, often inserted after Parliaments intention but may not be helpful.

• Schedules - appear as additions to the main body of the Act. There can referred to in order to make some sense of the main text.
  
• Preamble - a statement preceding the main body of the Act, setting out the purpose of the Act in detail.
• Objectives & Purposes section - at the beginning of the Act. Modern Acts.
• Interpretation definition section - which explains the meaning of key words used in the Act. 

Extrinsic Aids

These are things which are outside the Act. They include:

• Explanatory notes - acts passed since the beginning of 1999 are provided with explanatory notes. These are produced by the Government department responsible for the Act and usually explain the background, summary and worked examples. The notes aren't intended to have legal effect although judges who use the purposive approach are likely to use them as an aid to statutory interpretation.

• Law Commission Reports - Legislation may be preceded by reports by the Law Commission. A Law Commission report can highlight what is wrong with the old law and suggest options.
• Dictionaries of the time - dictionaries can be used to find the literal meaning of words. D was caught masturbating in a public loo. Judge used the Oxford English Dictionary from 1847 to see what 'passenger' meant from that year (chessman).
• Previous Acts of Parliament - are sometimes referred in order to make sense of the current Act in question.
• Interpretation Act 1978 - provides a definition of certain words that are often used in Acts.
• International Treaties - if the case & Act in question relates to EU law, then international treaties relevant to the Act may be referred to help determing the purpose of the Act.
• Hansard - it's the official daily report of Parliamentary debates, and therefore a complete record of what was said during the legislative process.

Pepper v Hart (1993)

Facts: this case was about whether of not teachers should pay tax on having their children at the private school for a reduced fee. Tax was passing through the legislative process, a minister actually discused the situation similary to the case. After some deliberation, it was agreed that Hansard could be used as an extrinsic aid.

Limitations as to its use:

• Hansard should only be used if there was a clear statement by the Minister introducing the legislation.
• The words of the ACt must be ambiguous or obseuce & would lead to an absurdity if a literal interpretation were used.

The Three Language Rules

The courts have developed three minor rules which can help to make the meaning of words clear. These language rules mainly relate to when an Act contains a list of words. They are: 

• Ejusdem generis
• Expressio unius est exclusion alterius
• Noscitur a sociis

Ejusdem generis

• 'Of the same type' - where a statute specifies a lost of words followed by general term, them then general term must be of the same type as the words specified in the list.

Wood v Metropolitan Police Commissioner (1986) 

Facts: following an argument with police officers, D was charged under the Vagrancy Act 1824 with being in possession of 'any gun, pistol, cutlass, bludgeon or other offensive weapon'.

In fact, D had in his possession a piece of broken glass that had fallen out of a nearby door. Held: The court ruled that the broken glass was not included in the lise as it clearly related to objetcs whichhhad been made for the purpose of causing injury. D was not guilty,

Powell v Kempton Park Racecourse

D was charged with keeping a 'house, office, room or other place for betting'. Betting was outside. List was indoors, D was not guilty.

For this rule to operate, there must be at least two specific words in the list precding the general term.Court had to interpret 'theatres & other places of amusement' & decide if it apllied to a funfair. There was only one word in the list.

Expressio unius est exclusion alterius

Express mention of one thing implies the exclusion of another.

This relates to lists of things. Where there is a list of words which are not followed by a general term, then the Act only applies to those particular words & nothing else.

If an Act specifically mentions, 'goods, waves and merchandise'. Then 'stocks & shares' would not apply to thise list.

Inhabitants of Sedgley (1837)

• Rates were charged on 'land, titles & coal mines'. Therefore rates could not be charged on any mine other than coal mines. D had a limestone mine.

Noscitur a sociis

A word is known by the company it keeps.

A word draws meaning from other words around it. Word must be looked at in their context & interpreted accordingly. It involves looking at other words in the same or other relevant sections of the act.

Inland Revenue Commissioners v Frere (1965)

This case concerned 'interest, annuitues & other annual interests'. Applying this rule meant that monthly or weekly interest was not included.