- Created by: AdamPD
- Created on: 15-05-16 16:55
Statutory Interpretation! Unit 1
It is the role of the judge to interpret the wording of statutes which may be unclear. There are certain approaches which a judge may use to help with his or hers interpretation. The judge aims to see the intention of parliament
- Ambiguity -> 2 meanings
- Drafting error -> original bill contains error
- New developments -> Royal College Of Nursing v DHSS(1981)
- changes in language ->
- Words to broad -> Brock v DPP 'Type' Dangerous Dogs Act 1991
Courts give words thier plain, ordinary or literal ( dictionary) meaning even if it results in absurdity.
- Exprssed by Lord Esher in the 19th century R v Judge Of City Of London Court.
Whitley V Chappell(1968)-D was charged as 'illegal to impersonate anyone entitled to vote' D impersonated a dead man on the voter list. Technicaly anyone dead is no longer entitled to vote. Absurd result
LNER v Berriman(1946)-Compensation payable for those 'Realaying or Reparing' track. D husband was oiling clasifying as maitenece
Fisher V Bell(1960)
- Prevents unelected judges from making law which inturn uphold democracy
- No scope for jusges prejudice or opinions
- creates certainty in the law
- Follows the words parliament have enacted
- observes the doctrine of parliamentry supremacy
- Assumes every act has been perfectly drafted.
- creates loopholes
- words can be ambiguos e.g dangerous dogs act 1991
- absurd results(chappell&berriman)
- denounced by Prof Michael Zander as mecanical and divorced from the realities of the use of language
Modification of the literal Rule. Starts by looking at literal but can then avoid absurdities.
Narrow approach- Set out by Lord Reid in Jones V DPP. allows court to chose between meanings however if theres no ambiguity then you must use that meaning,
Narrow case- R v Allen(1872): Cant 'mary' twice legally but 'marry' can mean going through marriage ceremony. charged with bigamy under oapa(1861)
Adler V George(1964): Official Secret Act 1920 offence to obstuct an officer 'in the vicinty of prohibited place' However he was IN said place.
Wider approach-Used when no ambiguos words or meanings but to follow words would lead to a repugnant situation. Judge can the use wider to Modify.
Wider case- Re Sigsworth(1935):Administration Act 1925 killed mum to inherit this was avoided
- prevents absurdity and injust caused by literal rule
- respects parliamenty supremacy as only used in limited situations
- gets to parliaments intention as in estates act son murdered by mum
- Undemocratic as it undermimes parliamentary soverignity
- Use of this rule means that judges are deciding on what the law should be rather than parliament
- Leads to a lack of certainty in the law. As there is 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 advise their clients on the likely outcome of their cause
- Law Commission (1965) noted the rule provided no clear definition of an absurdity. Just how absurd does an outcome have to be before judges will depart from using the literal rule?
Gives judges more discretion than the literal and golden rule.
The judge will look for the wrong or mischief in common law that the statute was trying to correct and interprets the statute in light of this. this was developed in Heydons Case(1584)
- 1. Look at what the common law before the Act was passed;
- 2. Look at what was the mishchief/defect/gap which the common law did not cover;
- 3. Look at what was the remedy that Parliament applied; and
- 4. Interpret the statute in accordance with that remedy.
Mischief Case-Smith v Hughes(1960) Prostitutes soliciting in 'a street or public place' contrary to the street offences act 1959 the prostitutes were attracting the attention of men by calling them or tapping on the window. Royal College Of Nursing V DHSS(1981)
Eastbourne Borough Council v Sterling(2000) Taxi 'plying for hire in any street without a license' was on private ground but would attract people from street same smith v hughes
- Can prevent an absurdity and injustice sometimes caused by the use of the literal rule Rule
- gives judges more flexibility than either the literal rule or golden rule
- Can be used to extend the meaning of an act to accomodate social/technological changes
- In 1969 the LC stated that the mischief rule was 'a more satisfactory approach' than the literal rule and that it should be the only rule judges use
- produces just result
- Risk of judicial law making
- judges are trying to fill the gap in with thier own views on how law should remedy the gap
- can make law uncertain
- limited to looking back at the law prior to the act
first used by Lord Denning The purposive is a modern development of the mischief rule.Goes beyond the mischief rule as court isnt just looking to see what the gap was in the old law.The judges are deciding what they beliave parliament meant to achieve. Favoured by the EU and used in cases involving EU law
Ex Part Smith(1990) Literal view 'shall supply' purposive approach shows parliament could not have wanted to cause harm to the identity of those revealed.
Quintavelle(2003)'a live embryo where fertilization is complet' however new method didnt involve fertilisation meaning parliament could not have intended to distiguish between two embryos
Fitzapatrick v Sterling House Association(1999)->Tenancy can be transfered to a same sex partner as theyre the equivalent to a wife/husband despite not legaly being one.
- allows for new technology
- leads to justice in individual cases
- fills in gaps in the law
- leads to judicial law making
- can make law uncertain
- difficult to discover parliaments intention
Intrinsic aids are matters with a statute that can make the meaning clearer
- Long title - may briefly explain parliaments intention
- Short title- gives an indication as to what the acts about
- Older statutes may contain a preamble which is a statement proceeding the main body of the act, setting out the purpose of the act in detail. Newer acts may contain an objectives or purposes section at the beginning of an act
- Headings-efore a group of sections which give an indication about what it is about
- Schedules-gives guidelines on certain parts of an act
- Mariginal Notes- explain diffrent sections of an act but not generally regarded as parliaments intention as inserted after debate.
Extrinsic Aids are matter outside of the act but are accepted as can help explain meaning of act.
- Previous act on the same topic
- Earlier case law
- Dictionaries of the time
Aids allowed due to reccent changes in attitude
Pepper v Hart(1993):Decided that Hansard can be refferd to in order to find the meaning of parliament
- Explanatory Notes- new extrinsic aid written alongside bills since 1998. They give examples to complicated section of statute
Rules of language
These rules are used to allow Judges to look at other words within the act. in doing so they can understand the meaning of a particular phrase or word that causes un certainty
'Of the same kind' This rule states that where there is a list of words which is followed by general words, then the general words are limited to the same kind of items as the specific words.
Hobbs V CG Robertson Ltd(1970):workman claimed compensation under construction regulation act1961 when brick splinterd in his eye due to lack of goggles. Failed as 'Breaking, cutting, dressing or carving of stone, concrete, **** or similar materials' listed hard materials and brick was not ejusdem generis to 'similar materials'.
Powell v Kempton racecourse (1899) D charged with 'keeping a house, room or other place' for betting Betting at an outdoor racecourse Court decided that the general words 'or other places' had to refer to indoor places since all the other words in the list were indoor
Allen V Emmerson (1944):The court had to interpret the phrase ‘theatres and other places of amusement’ and decide if it applied to a funfair. It was decided that a funfair did come under the general term ‘other places of amusement’ even though it was not the same kind as theatres.
Expressio unius exclusio alterius
'The mention of one thing excludes the other'
Where there is a list of words which is not followed by general words, then the act applies only to items in the list.
Tempest v Kilner(1846)-For example, if an act specifically mentions 'goods, wares and merchandise' then 'stocks and shares' would not apply to this list (Tempest v Kilmer)
Noscitur a sociis
'A word is known by the company it keep'
This means that the words must be looked at in contect and interpreted acordingly
Inland Revenue Commissioners V Frere (1965) Noscitur rule The section set out rules for ‘interests, annuities or other annual interests’. The first use of the word interest on its own could have meant any paid interest, because of the other words ‘other annual interests’ in the section the court decided that ‘interest’ only meant annual interest due to the 'anual'.