Statutory Interpretation Rules Explained

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  • Created on: 24-12-12 18:32

Mischief Rule

The MISCHIEF RULE was developed in 1584 in Heydon's caseIn order for the judge to use the Mischief Rule the courts must look at 4 conditions:

  • What was the Common Law before the act was made?
  • What was the mischief the Act was trying to deal with?
  • What was the remedy Parliament introduced for this?
  • What is the true reason of the remedy?

This means the court look at what the problem was before the Act was passed, and try and interpret the Act to support the “remedy” that Parliament has suggested to deal with that problem. An example of a case where the Mischief Rule was used is the case of: Smith v Hughes , it was an offence to “solicit in a street for the purposes of prostitution". The defendants were getting the attention of passers by windows and the balconies of a house so technically there were not in the street.However the courts decided that they were guilty of the offence as the courts interpreted the act as designed to deal with the “mischief” of prostitution.

Another example of a case which uses the Mischiwf Rule is: Eastbourne Borough Council v Sterling,   A Taxi driver was charged for ‘plying for hire in any street’ without a license to do so. He was parked on a taxi rank on the station forecourt.  Although he was on private property he was found guilty as he was likely to get customers from the street. 

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Advantages and Disadvantages of the Mischief Rule

One advantage of this rule is that it is more  flexible and it allows judges to look beyond the original meaning of the words. This means that words can be seen in context and they can avoid problems caused by drafting errors. However, it does mean that in effect judges have more power to make law and this is unconstitutional and undemocratic.

The flexibility also means that judges can interpret an Act in the light of changes in society and technology. This means that new social problems can be dealt with, without needing a new Act of Parliament. However, it is not always easy to discover what the “mischief” was, particularly with modern Acts with a short preamble or just a short one.

Another disadvantage is the need to use aids to interpretation, especially Hansard. This can mean it is a difficult rule for judges to use and can mean that cases take longer and cost more. In addition, there are limits on the use of Hansard and it can only be used in certain circumstances.

Judges in the UK have traditionally been reluctant to use the mischief rule, so many are unfamiliar with it. They have preferred to use the more simple literal rule or golden rule. However, many judges are becoming more comfortable with this way of interpreting an Act as they have to use the similar purposive approach to interpret European Union law. 

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Literal Rule

Under this rule the courts will give words their plain, ordinary or literal meaning even if the result is not sensible or absurd. This has been the traditional method of Statutory Interpretation in English Courts. It is inflexible and can mean that the decision in the case is unjust.

It is used because it respects the principle of parliamentary sovereignty , where judges must apply the Act of Parliament as passed by parliament.

Whitley v Chappell (1868)- (Impersonating – by voting for a dead person),  Defendant charged under section stating it was ‘illegal to impersonate anyone entitled to vote’. D impersonated someone who was on the voters’ list but had died. Court held that the defendant was not guilty as technically someone dead was no longer entitled to vote. This was an absurd outcome as this behaviour is what the Act tried to stop.

LNER v Berriman (1946),  o   Railway worker killed whilst doing maintenance work on a railway line. Widow tried to claim compensation as no look out man had been provided as stated under the Fatal Accidents Act.The Act stated a look out is needed for ‘relaying or repairing’ and oiling the line, as the worker had been doing, was not under either of these so the claim was unsuccessful. This was an unjust outcome.

Fisher v Bell (1960), o   Under a statute it stated it was illegal to sell flick knifes. The defendant was a shop keeper who displayed a flick knife in the shop window but had not sold any. In the end the court decided that putting them in a window with a price was not ’offering for sale’. Under Contract Law displaying an item for sale is not an offer but an invitation to treat.

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Advantages and Disadvantages of the Literal Rule

One advantage of the literal rule is that judges apply the wishes of Parliament (maintains Parliamentary Soverienghty) as written in the Act. This is an advantage because it is more democratic, as Members of Parliament are elected by the public to make laws and judges are not. This is especially beneficial as judges are also less representative of the public that Parliament.

The literal rule also means judges follow their constitutional role, to apply the law rather than make it. It does this because it gives judges limited choice as to what the law should actually be – they follow the law as written by Parliament and use the plain, ordinary definition of words. However, this can mean that the judge is not able to use a broader sense of fairness or justice when interpreting the law and their job can be quite mechanical.

One disadvantage of the literal rule is that absurd and harsh decisions are inevitably made, for example in Whiteley v Chappell where a man was found not guilty despite attempting to vote more than once in an election. Lord Esher in R v Judge of the City of London Court said that this was an inevitable part of the literal rule. This is a disadvantage because this is unfair for the parties in the case and means that fewer people have faith in the law.

Using the literal rule also means that Parliament has to deal with any errors in phrasing in an Act of Parliament, rather than them being dealt with by judges. This is unrealistic as drafting errors will always happen. Parliament also has very limited time to pass Acts of Parliament and if judges could deal with minor errors themselves, it would allow Parliament to concentrate on more important issues. 

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Golden Rule- Narrow Approach

This is a modification of the literal rule, where if by using the literal meaning an absurdity would be committed, the courts can avoid interpreting it in this way. There are two views on how the Golden rule should be used, the Narrow Approach and the Broad Approach.

Narrow Approach

If there is more than one meaning for a word that courts can choose between the possible meanings of a word or phrase. If there is one meaning then only that must be taken.

Lord Reid in Jones v DPP (1962) - ‘If they (the words) are capable of more than one meaning then you can choose between those meanings, but beyond this you cannot go.’

R v Allen (1872) - Bigamy,  s.57 of the Offences Against the Person Act 1861 made it illegal to ‘marry’ whilst one’s original spouse is alive. The phrase marry could mean legally married or to go through the ceremony of marriage.The second interpretation was used, as it impossible to become legally married twice, so if this interpretation was used no one would ever be convicted. 

Adler v George (1964) - Vicinity George entered an army base and obstructed the soldiers. He was charged under the Official Secrets Act for ‘obstructing soldiers in the vicinity of a prohibited place.   Technically G wasn’t in the vicinity, however if the literal rule was used this would lead to an absurdity. Therefore words changed to ‘in or in the vicinity’.

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Golden Rule- Broad Approach

Broad Approach

When there is only one meaning for the words but this will lead to a situation which the court feels that the clear meaning would produce a result which should not be allowed. In these cases the court will use the Golden Rule to modify the words of a statute.

Case Example which used the Broad Approach

Re Sigsworth (1935) – Son killing MotherA son had murdered his mother. Under the Aministration of Estates Act her estate would have gone to her “issue” (meaning her son). The court used the Golden Rule to AVIOD this outcome.

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Advantages and Disadvantages of the Golden Rule

One advantage of the literal rule is that judges apply the wishes of Parliament as written in the Act. This is an advantage because it is more democratic, as Members of Parliament are elected by the public to make laws and judges are not. This is especially beneficial as judges are also less representative of the public that Parliament.       It can be more effective than the literal rule as it gives judges greater flexibility when interpreting an Act. This allows judges to avoid harsh or absurd decisions. They can also do this in a range of different ways, by using either the narrow approach or the broad approach depending on the situation.

The greater degree of flexibility means that judges can deal with minor errors of drafting, for example the confusion over the word “marry” in R v Allen. These errors are inevitable when passing Acts of Parliament. This means that Parliament can use it limited time to deal with more important issues.

However, even though it is limited, the golden rule does mean that judges could be said to be making the law. This is seen as undemocratic and means that they are going beyond their constitutional role of applying the law as passed by Parliament. This is especially true when the judges uses the broad approach of the golden rule to depart completely from the wording of the Act, as in Re Sigsworth

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Purposive Approach

This goes beyond the Mischief Rule in that the court is not looking to see what the gap was in the old law. The judges are deciding what they believe Parliament meant to achieve.

First used and chamioned by Lord Denning in Magor and St Mellon’s RDC v Newport Corporation à ‘We sit here to find the intention of Parliament and we do this better by filling in the gaps.’

  • Judges are required to consider the context of the law created and what the concerns of the Parliament were at that time.
  • This approach is favoured by the EU and is used in cases involving EU law, it is slowly becoming more popular in the UK.
  • Extrinsic aids such as Hansard and law reports can be used to find the intention of Parliament.

 Fitzpatrick v Sterling House Association (1999) Using the purposive approach, the House of Lords ruled that a tenancy could be transferred to a same sex partner as they are the equivalent of a wife or husband, despite this not legally being the case.

R (Quintavelle) v Secretary of State for Health (2003) Act stated that embryo meant ‘a live human embryo when fertilization is complete. However a new method was introduced (CNR) where no fertilization occurs. At the time of the Act this method was not created, so Parliament could not have intended to distinguish between the two embryos. 

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Advantages and Disadvantages of the Purposive Appr

One advantage of this rule is that it is more flexible and it allows judges to look beyond the original meaning of the words. This means that words can be seen in context and they can avoid problems caused by drafting errors. However, it does mean that in effect judges have more power to make law and this is unconstitutional and undemocratic.

The flexibility also means that judges can interpret an Act in the light of changes in society and technology. This means that new social problems can be dealt with, without needing a new Act of Parliament. However, it is not always easy to discover what the purpose of an Act actually is, especially as this may not be stated in modern Acts if they have no preamble or only a short one.

Another disadvantage is the need to use aids to interpretation, especially Hansard. This can mean it is a difficult rule for judges to use and can mean that cases take longer and cost more. In addition, there are limits on the use of Hansard and it can only be used in certain circumstances.

Over recent years, judges are becoming more used to using the purposive approach as they get used to using it to interpret European Union law. The purposive approach has been used to promote the aims of the European Union and has allowed this area of law to develop more quickly. However, the fact that judges in the UK traditionally like to use the literal rule and European law requires them to use the purposive approach means that a judge’s role in interpreting legislation becomes more complex. 

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