How a judge interprets the words written in a statute. Statutory Interpretation is carried out by judges.
When statutes are written they go through the stages of passafe of a bill (e.g white paper and green paper) and then they go through the parliamentary proecss. In the parliamentary process there is oppurtunity for problems to arise that haven't been picked up during the pre-legislative stage. If the problems come to light once the law has been made then it becomes the role of the court (more specifically the judge) to fix the issues. The judge has to decide what the original intention of parliament was when the act was written.
The court cannot change the act but they try to put forward the best answer by declaring what parliament meant in its original statute. If the court feels the act conflicts with the EU decision then they can issue a declaration under section 24 of the human rights act which indicates to parliament they must change the act.
Why is there a lack of clarity in acts of parliame
Development in society- The abortion act 1967 which allowed for medical practitioners to perform abortions. However in the early 80's midwives were trained to perform abortions but they weren't registered practitioners. The court decided that in the Royal College of Nursing vs DHHS 1991 that midwives were allowed to carry out the procedures under the act of parliament as the act did not intend to 'criminalise midwives'.
Drafting errors- Typing errors and crucial words missing are issues.
Broad or ambiguous terms- Are issues as their meaning could be misunderstood, for example the term gay can be happy and homosexual
Changes in language- The reason for a lack of clarity in old laws is because how language changes. As language adapts laws can gain new meanings.
The literal rule
The literal rule is a rule that the judge can use to solve a case. The literal rule means to take the plain and ordinary meaning of the words in the act even if they lead to a manifest absurdity. The previous definition of the literal rule comes from Lord Escher in the R vs City of London Judge. Older and more traditiional mostly use the traditional rule regardless of the outcome. This is because traditional judges have no care for the bigger picture. The literal rule is least effective as it is mindless and leads to a manifest absurdity.
DPP v Cheeseman was a case that lead to manifest absurdity as Cheesman indecently exposed himself to two plain clothes police man in a toilet. He was not charged as the act stated you couldn't indecently expose yourself to passengers though technically the police were not passengers.
North East Railways vs Berriman. Berriman was working on railways when he was killed, he had no lookout. His wife was given no compensation as he only had to have a lookout for repairing the track and what Berriman was doing was general maintainance. This case lead to an unjust result.
If using the literl rule would lead to a manifest absurdity then the golden rule can be used instead. The golden rule has two approaches and can be used in two ways.
The Narrow Approach- Is an approach where there are two or more meanings to a word then the judge can choose which word he wants to use for the case. This occured in the R v Allen case 1872 where it was stated that it was an offence to re-marry whilst your wife is still alife if no divorce proceedings had gone ahead. How ever ther is more than one meaning to the word marry and therefore the court held the word marry in this case must have reffered to the act of marrying a person in the ceremony rather than being the vicar in the ceremony,
Wider approach- Relates to where the words have only one meaning but following that meaning can lead to a repugnant outcome. This occured in the cases of a man named Sigsworth who murdered his mother to gain her wealth. There was no ambiguity in the words of the act so the act was effectively changed to mean that next of kin or issue could not be a murderer.
The judges cannot change the law when they use the wider approach even though it looks like they are trying to when they tweak the definitions of the words. In 2000 the House of Lords held that a judge could add words to an act of parliament to give effect to parliaments true intention though he could not change it.
The rule in Haydon's case (the mischief rule) gives much more choice to the judge as it is a much wider approach than the literal rule and the golden rule. The judge in the case of the mischeif rule can physically look for the intention of parliament when the act was written. A judge must ask themselves four main questions.
-What was the common law before the act started?
-What is the issue that resulted from the common law?
-What is the remedy for the issue and did parliament state it in the statute?
-What is the intention of the remedy?
In the case of Smith v Hughes 1960 prostitutes were soliciting themselves under the Streets Offences act which was illegal on a street in a public place. The women claimed they couldn't be guilty as they were in a building on balconies looking over the street. Therefore the judge used the mischief rule and found that the intention was to stop innocent men being taunted by the prostitutes and therefore they were still guilty of soliciting themselves on the streets.
This approach is not unlike the mischief rule takes an even wider approach to finding the true meaning that parliament intended. The approach originates from Europe and the judge has to apply to the case what he feels parliament intended. The judges can use any aids they feel are necessary to finding the true intention of parliament. Denning felt that the purposive approach would fill in the gaps to the law rather than merely brushing over them like the literal rule does.
Rules of Language
There are three rules of language that are tools the judge can use alongside the four rules. The tools are...
-The ejusdem generis rule
-The expressio rule
-Noscitur a sociis
Ejusdem generis- Means words of the same kind e.g cats, dogs and other animals. The ejusdem generis rule was used in the Powell vs Kempton Park race course 1899.
Expressio rule-Means the mention of one excludes the other. When a specific word is mentioned the other words don't count. E.g if an act says no cats and dogs it is only cats and dogs that aren't allowed.
Noscitur a sociis- Means that words must be looked at in context. E.g if an act uses the word 'gay' then the context of 'gay' must be analysed. The case of Frere v Inland Revenue referred to noscitur a sociis as the case was about interest, annuities and other annual payments.
Judges have certain presumptions they can use when analysing words in a statute. There is a presumption that 'mens rea' is required in all criminal offences unless parliament declared otherwise. This happened in the Sweet v Parsley case when the defendant was charges with having a tenant who took drugs. However, on appeal it was found the defendant wasn't gulity as the Dangerous Drugs act stated that mens rea was required which the defendant didn't have.
There is a presumption that states that the crown is not bound to statutes and cannot be chargeed with going against the laws in a statute unless the act says so. This is only for the crown.
There is a presumption against ousting the jurisdiction of the court. Nobody can be disallowed to go to court.
Instrinsic aids are aids that the judge can used that are found inside the act that aim to make the act clearer. Intrinsic aids include...
-The short title of the act
-The long title of the act
-The pre amble of the act
-The interpretation section of the act
-Marginal notes and headings
Extrinsic aids that the judge can use are aids that aren't found in the act but are helpful to finding what parliament meant when the act was written. Examples of extrinsic aids are...
-The historical setting of the act
-Previous similar acts
-Law commission reports
-The Hansard report (a report of parliamentary debates in the two houses. Hansard is a relatively new aid which came from the Pepper v Hart case. There are three guidelines for when Hansard is applicable to use. The guidelines are if the act is ambiguous and the use of the literal rule would lead to a manifest absurdity, if the information being used is said by a minister or promoter of the bill, if the statement in question is clear and easy to understand so it is not exposed to subjective interpretation.
Problems with Statutory Interpretation
Academics and judges alike have been critical of statutory interpretation over the years because statutes aren't always easy to read and the language used can be inadequate. The judges themselves are people too and are open to misinterpretation. Therefore as the judges have different opinions they could cause uncertainty in the law.