Statutory Interpretation

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  • Created on: 10-04-16 13:09

Literal Rule

Word/phrase in dispute is given its ordinary dictionary definition.

Lord Reid - "the natural and ordinary meaning of that word or phrase in its context."

Developed in the 19th century, most favoured rule.

Viscount Simmonds - if errors were found in statutes, its Parliament's job to put them right. If the words are clear, they must be applied even if hardship/absurdity is caused.

Lord Scarman - Parliament makes the law and judges must interpret and apply it accordingly.

Lord Denning in 1978 - "the literal method is now out of date"


Whiteley v Chappell - dead people are not entitled to vote so D was not guilty.

DPP v Cheeseman - lurking policemen were not passengers as they resorted to the place for a special reason so the D was not guilty.

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Golden Rule

Modification of the literal rule. Look at the literal meaning, but an interpretation can be avoided if absurdity would be caused.

Lord Blackburn - "giving words their ordinary signification, unless when so applied they produce and absurdity or inconvenience so great" as to convince the court it could not have been Parliament's intention.

Narrow application - choosing between possible meanings of a word/phrase. Lord Reid argued a judge can choose between these meanings, but not go beyond this. Acts as a safety valve for the literal rule.

R v Allen - "marry" can mean to go through a ceremony of marriage, D guilty of bigamy.

Wider application - where words have one clear meaning but it would lead to an unsatisfactory result. Court has to be persuaded of policty issues in allowing a rewrite of an Act.

Re Sigsworth - used to prevent son from inheriting his mother's estate who he murdered.

Adler v George - "in the vicinity of" can mean ""being in or in the vicinity of" the prohibitive place.

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Mischief Rule

From Heydon's Case (1584).

Look to see the law before the Act was passed to see the mischief intended to cover. Then interpreted in a way that the mischief is covered,

Lord Diplock said it should only be used in certain circumstances - mischief can clearly be seen from the Act, clear Parliament overlooked the problem and words required could be identified with a high degree of certainty.

Smith v Hughes - Street Offences Act 1959 said it was an offence "for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution". Convictions upheld as Lord Parker said Act was designed to clean up the streets. 

Elliot v Gray - conviction appealed against using a car on a road without a valid insurance policy contrary to s35(1) Road Traffic Act 1930. Car had broken down and engine would not work - not using car as it was not drivable. Conviction upheld as mischieg was to ensure people were compensated for hazards on the road (car represented a hazard).

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Purposive Approach

Judges decide what they believe Parliament meant to achieve by legislating. Gives most discretion.

Law Commission - examining the "positive social purpose of the legislation" rather than the evil the Act may have been designed to deal with.

Lord Denning believed it's important for judgesw to fill in gaps in the law by finding out Parliament's intention.

Criticised by other judges - Lord Scarman believes it is not for unelected judges to go against the clear words of the elected Parliament.

Used by most European countries and the CJEU in interpreting EU law. Since joining the EU in 1973, it has been used more in England. Approach has to be used when interpreting domestic legislation brought in by the EU. 

Human Rights Act 1998 likely to cause a shift to this approach.

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Purposive Approach

Tesco v Brent LBC - "18" video sold to a 14 year old. Prosecuted under Video Recordings Act 1984. "seller" should refer to person selling not the company. Judges believed it was Parliament's intention for the company to be liable on the strength of it's employee's knowledge.

Coltman v Bibby Tankers - For the purpose of the Employers' Liability (Defective Equipment) Act 1969 - is a ship considered equipment? House of Lords said the Act was there to protect workers and the provision should be given broad construction.

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Internal Aids

Found in the Act itself.

Long and Short Titles - short is just the Act name but long may explain what the Act is trying to achieve. Cornwall CC v Baker (2003) - court referred to the long tite to confirm the purpose of the Protection of Animals (Amendment) Act 2000.

Preambles - in older Acts. Outlines what the statute covers and its purpose.

Marginal notes - added by draftsperson. Some sections of the Act may have headings to provide guidance. Lord Reid - "crossheading, side notes and punctuation" may be taken into account but should not be given equal weighting to actual words as they are not debated in Parliament - added afterwards. R v Tivnan - marginal note referred to to clarify if it's Parliament's intention to deprive drug deaers of assets equivalent in price to value of proceed of drug dealing. Not necessarily assets purchased directly from drug dealing proceeds.

Schedules - found at the end of an Act and include more detailed clarification. Schedule 2 of The Unfair Contract Terms Act 1977 outlined tests for determining what is reasonable in a contract.

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Internal Aids

Interpretation Sections - Road Traffic (New Drivers) Act 1995 - section 9(3) said "notice" means written notice. Section 10 of The Theft Act 1968 said that for aggravated burglary "a weapon of offence" is "any article made or adapted for use for causing injury"

Other parts of the Act - R v Bloxham - "another person" in the Theft Act 1968 was established by looking elsewhere in the Act.

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External Aids

Materials found outside the Act.

Dictionaries - find the literal meanings of the words in dispute. DPP v Cheeseman - "passengers" meaning was found in a dictionary from the year the Act was drafted. Useful for golden and literal ruled.

Previous Acts - may be referred to by the judge. Smith v Hughes - looked at old law to see what was being amended by the new law and what the gap in the law was. Act was amending old law of prostitutes soliciting in public.

Explanatory Notes - contained in all new Acts since 1999. Not part of the Act so considered external. Written by a draftsman after it has been debated and given Royal Assent.

International Treaties - when looking at Acts brought in to comply with EU law. Look at objectives of international treaties to make sense of the changes. Fothergill v Monarch Airlines - background papers could be used to ascertain the meaning of an ambiguous/doubtful section of an Act based on international treaty.

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External Aids

Commission Reports - when law needs to be reformed. Law Commission/Royal Commission will look at what needs to be reformed and how. Prepare a report and usually attach a draft bill. Helps government decide what needs to be placed in new Act. Can give context - why Act was drafted and the general purpose.

Hansard - Content of discussion in Parliament over Act. Can help understand why certain phrases/words were used. Pepper v Hart (1993) - judges can use Hansard for interpreting statutes but only under certain circumstances - can only refer to Government minister statements/another promoter of the Bill, Act is ambiguous or obscure/literal interpretation leads to an absurdity, statement must be clear. Wider use is only permitted if legislation has been introduced EU law/interntional convention into English law.

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Rules of Language

Can be used instead of/alongside Aids to help understand situations words/phrases in an Act cover.

Ejusdem Generis

Where general words follow particular words, the general words are interpreted to be of the same kind as the particular words.

"Cats, dogs and other animals". Cats and dogs = particular words (domestic animals). Other animals = general words and would refer to other domestic animals.

Powell v Kempton Park Racecourse - D kept an open air enclosure for bookies. Prohibited to keep a "house, office or other place for betting purposes". Particular words referred to covered places so general words were thought to mean similar places - D not guilty.

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Rules of Language

Expressio Unius est Exclusio Atterius

The expression of one thing implies the exclusion of another. Where particular words are used, and they are not followed by general words, the Act only applies to particular words mentioned.

If an Act specifically referred to Labrador dogs, it would not include other dog breeds.

Tempest v Kilner - Act said "goods, wares and merchandise". Section could not apply to stocks and shares as they weren't included on the list.

Noscitur a sociis

The meaning of a word is gathered for the context in which it is written.

If an Act is talking about pens, crayons and rulers, the context tells us it's talking about stationery.

Inland Revenue Commissioners v Frere - section of the Act referred to "interest, annuities of other annual interest". "other annual inteest" made the court decide that the first use of interest was restricted to annual interest - could not apply to monthly interest.

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Internal Aids Advantages/Disadvantages

More respectful to Parliament to look elsewhere inside the Act.

Quick and easy to look at things like marginal notes (R v Tivnan) and long titles (Cornwall CC v Baker).

Some aids (interpretation sections) are designed to provide definitions and explanations.

Wording problems are not likely to be solved by looking elsewehere in the Act (R v Allen).

On their own, internal aids are not likely to be enough.

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External Aids Advantages/Disadvantages

Using a dictionary is quick and easy (DPP v Cheeseman).

Using Hansard may clarify what Parliament meant. Lord Denning said to not use it would be like "groping around in the dark without putting the lights on".

Europe allows for background papers to be used - sensible for English courts to use the when Acts are based on international rules (Fothergill v Monarch Airlines).

Hansard may not reveal what Parliament as a whole intended - can only consider what Minister's said but Parliament may not have decided to follow through on those views. What Minister said may not have been clear (as in Deegan so court couldn't use Hansard).

Treating materials not part of the Act with the same status as the Act can undermine Parliament's authority.

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Literal Rule Advantages

Respects Parliament's sovereignty - argues if there's mistakes in statutes, Parliament must correct them. Lord Simmonds - it is not open for judges to fill in gaps in the law. If a gap is disclosed then the "remedy lies in an ameding Act". Happened in Fisher v Bell.

Rule encourages certainity and people know where they stand. Lord Simon said it is better to let Parliament make change than having 'judicial contortion' of the law where 'ordinary citizens and their advisers hardly know where they stand'. No uncertainty of trying to work out what Parliament meant - may mean people won't waste time and money bringing cases to court.

Quick decisions can be made. In DPP v Cheeseman the definition of 'passengers' was quickly found in a 1847 dictionary. 

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Literal Rule Disadvantages

Can lead to unfair decisions (LNER v Berriman) or absurd decisions which were clearly not Parliament's intention (Fisher v Bell, Whiteley v Chappell).

Law Commission in 1969 - "to place undue emphasis on the literal meaning of words is to assume an unattainable perfecttion in draftsmanship". Not always possible to word an Act to cover every situation and circumstances may occur that were not anticipated by Parliament (RCN v DHSS).

Michael Zander - the rule is mechanical and divorce from the realities of the use of language. Rule gives judges little discretion to adapt the law to changing times.

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Golden Rule Advantages

All of the literal rule apply.

Courts can alter wording to ake sense of absurd/repugnant wording (R v Allen)

Can avoid absurd results (R v Allen)

Judges can choose a more sensible meaning of a word

Respects Parliament's authority as in all other circumstances, the literal rule should be used.

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Golden Rule Disadvantages

Law Commission (1969) argued the rule was of limited value and provided no clear means to test the existence of the characteristics of absurdity/inconsitency/inconvenience or to measure their quality or extent.

Michael Zander described it as a "feeble parachute" as it allows judges to change the wording only when it is absurd or repugnant. Can only be used in limited circumstances.

Michael Zander describes it as "an unpredictable safety valve" as there's no real guidelines on when it should be used - what seems absurd to one judge may not be absurd to another.

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Mischief Rule Advantages

Gives effect to Parliament's intentions - in Smith v Hughes it was clearly Parliament's intention to stop prostitutes being a nuisance to others and in Elliott v Gray, Parliament wanted all vehicles on the road to be insured.

Allows judges to use their common sense and saves Parliament having to pass an amending Act. Lord Denning said it allows judges to "fill in the gaps" when Parliament had left something out, and that judges should use their good sense to do what Parliament would have done had it had the situation in mind.

Allows judges to consider social and technological changes - in RCN v DHSS, the House of Lords recognised medical practice had changed since the passing of the Abortion Act.

It allows judges to look at external aids like Hansard (Pepper v Hart) or internation treaties (Fothergill v Monarch Airlines) to see what Parliament intended.

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Mischief Rule Disadvantages

Finding Parliament's intention can be difficult. Referring to what a minister has said may not reflect what Parliament as a whole intended. Reasonable to argue that what Parliament intended can only be seen in what is wrote in an Act and Smith v Hughes was wrongly decided as if Parliament wanted the Street Offences Act to apply to prostitutes in houses, it would have said so.

Undemocratic as it gives too much power to unelected judges. Lord Simonds described its use as "a naked usurpation of the legislative function under the thin disguise of interpretation". Added judges were to be guided by Parliament's enactments, not its intentions. Democratic solution would be to pass an amending Act.

Out of date and does not reflect modern needs.. Role of judges has changed as they no longer draft statutes for the monarch as they did in the 16th century. 

Might cause confusion is a judge changes the meaning of a statute. Lod Simons refused to alter the wording of a statute as it would have the result that 'ordinary citizens and their advisers hardly know where they stand'.

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Purposive Approach Advantages

Fits in with what is done in Europe. As members of the EU, there's an increasing amount of EU law so it's more relevant than the rules set out in Heydon's case.

More sensible to look at the whole purpose of the Act rather than just the mischief it was designed to put right.

Approach is wider so allows judges to look at all the cricumstances and evidence to find out Parliament's intention. Parliament clearly intended in the Employers' Liability (Defective Equipment) Act 1969 to protect workers in the workplace so it's reasonable in Coltman v Bibby Tankers to include ships as equipment even though Parliament had not specifically done so.

It allows judges to use their common sense. Lord Denning said it allowed judges to "fill in the gaps" when Parliament had left something out. He also said that judges should use their good sense to do what Parliament would have done if it had the situation in mind.

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Purposive Approach Disadvantages

Finding Parliament's intention is not always easy even if Hansard is used. In Deegan, an application to use Hansard was rejected as what ministers had said was not sufficiently clear. Reasonable to assume what Parliament intended can only be seen by what is written in an Act, and Coltman v Bibby Tankers was wrongly decided as if Parliament intended the Act to apply to ships, it would have said so.

Can lead to confusion as judges could change the meaning of what an Act says. Lord Simon refuse to change the words in a statute as it would mean 'ordinary citizens and thier advisers hardly know where they stand'..

It's undemocratic. It gives too much power to unelected judges. Lord Simonds described its use as a 'naked usurption of the legislative function under the thin disguise of interpretation'. Added judges are to be guided by Parliament's enactments and not their intentions. Democratic solution is to pass an amending Act.

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