What causes uncertainty in a statute?
In Bennion 1990 it claims several factors cause uncertainty in an act:
- Parliament has presumed that certain words will be automatically assumed and therefore didnt write them down.
- Broad terms are used: Certain things mean different things to different people.
- Ambiguous Purpose.
- Circumstances have changed.
- General mistakes were made.
When interpreting a statute what approach do the judges follow?
- Parliament is sovereign and therefore the exact words they used should be followed.
What does the judge use to help interpret statute?
- 3 Common Law Rules
- Must be used first
- Gives a word is plain, ordinary, grammatical meaning
- if a word is ambiguous in the statute the golden rule gives the word a meaning
- if there is a gap in the law or the purpose of the law is uncertain use the mischief to fill the gap
Explain Literal Rule
The literal rule must be used first and the judges give words in the statue their plain ordinary grammatical meaning.
Fisher v Bell 1960
-Illegal to advertise bladed articles for sale but under contract law wasnt offering for sale it was classed as inviting to treat.
- Frustrates Parliament
Whitelely v Chappell 1869
-Man stole dead mans vote but wasnt classed as stealing as the man was dead so wasnt there to steal from.
Explain Golden Rule
When literal rule fails because of an ambiguous word that leads to an absurd or repugnant outcome the Golden rule is used.
R v Allen 1879
-Bigamy: Man technically only married once as everytime he got married again the previous marriages became void.
-Judge claimed ambiguous word was Marriage so changed to ceremony.
When is the Golden Rule used?
Meant to only be when an ambigous word is in the act however it has been used to stop a repugnant outcome.
Re Sigsworth 1935
-Killed mother for money and as the law was that the issue was to get money, no doubt issue meant offspring so he should get the money.
-Judge ruled this was to absurd so changed it to if they killed the parent they couldnt receive the money.
Explain the mischief rule.
Mischief rule is used when there is a gap in the law or they are unsure of the purpose of the law.
Rules outlined in Heydons Case 1584
- Must look at previous common law
- Look at what the mischief was the act failed to provide for
- What parliament did to remedy the problem
- What was the reason for the remedy
When should the mischief rule be used?
Only when there is a gap in the law.
However not always used for that.
Gardiner v Sevenoaks RDC 1950
-Smugglers held stolen goods in a cave but couldnt be convicted because a cave wasnt classed as property.
-Judge changed it to include caves.
Outline the grammar rules
Grammar rules are used to help interpret statutes:
- If words in statute are specific they exclude all other words
- Statute only applies to specific words
- If general words follow specific words, the specific words are used to help give the general words a definition
Noscitur a Sociis:
- Ambigous or doubtful words are defined by the context they are written in
What are the common law presumptions?
- Mens Rea is needed
- The jurisdiction of the courts will not be ousted
- The crown will not be bound by state
- It will not alter common law
- It will not infringe on international law
- It will not have a retrospective effect
Explain Hansard and how the judges use it.
Hansard is a document that shows everything that has ever been said in Parliament (Beneficial to see the intention of parliament)
Davis v Johnson 1978
-Judges werent allowed to look in Hansard
Pepper v Hart 1992
-Overuled DvJ and was allowed to look in Hansard
Explain extrinsic aids
- Historical setting that the act was made in
- Dictionaries to define words
- Law reports