- Created by: Charlotte
- Created on: 20-12-11 21:03
Why we need interpretation
1) We need interpretation to help us define a broad term - e.g. Dangerous Dogs Act 1991, used the work 'type', in Brock V DPP, had to interpret the word 'type'.
2) To help us deal with ambiguity - when a word has 2 or more meanings.
3) If there is a drafting error (mistake, typo, wrong word used), to help us interpret was was meant.
4) It also helps to deal with new developments e.g. Royal College of Nursing V DHSS - Abortion Act 1968; 'registered medical practioner'. Abortion can be performed by drugs, and nurses should be allowed to give them as well as doctors.
5) It helps people to interpret words when the use of language has changed e.g. Cheeseman - courts had to decided what the words 'street' included, and who was considered a 'passenger'.
3 Rules - Literal
1) Literal Rule - judges give words their plain, ordinary, literal meaning even if the result is going to be poor or unjust e.g:
Whiteley V Chappel - defendant wanted to vote twice so impersonated a dead person whose name was on the list. Found not guilty as he hadn't actually commited the crime even though he intended to. - ABSURD decision.
LNER V Berriman - railway worker was killed whilst doing maintenance, his widow tried to claim compensation as no lookout was provided, BUT under the Fatal Accidents Act, it stated a lookout is only needed for those working on or near the railway, relaying or repairing but he was only maintaining so wasn't provided a lookout. - HARSH decision.
Advantages of the Literal Rule
1) Judges are obeying the words of Parliament.
2) Makes law certain (predictible).
3) Keeps law making in Parliament.
Disadvantages of the Literal Rule
1) It can lead to absurd or harsh decisions.
2) It assumes the act has been precisely written.
3) It assumes words only have one meaning.
4) Can lead to injustice - Cheeseman
The Golden Rule is split into two sections- Narrow Approach and Wider Approach.
Narrow Approach - should start with the literal rule, but if theres an ambiguous word can choose the one that fits best, e.g. -
R V Allen - bigamy; married one person, and then tried to marry another person. Offences Against the Person Act 1861 decided 'marry' meant going through a cremony of marriage as a married person cannot legally marry someone else. This made the word 'marry', an ambiguous word.
Wider Approach - to avoid a repugnant decision e.g. -
Re : Sigsworth - killed his mum to inherit the money (murder), she didn't have a will so it went straight to the son (issue). Judge decided it would be a repugnant decision to allow the son to inherit. Administration of Justice Act 1925, was not ambiguous so judge substituted words to get a just decision - so the issue couldn't inherit.
Advantages of the Golden Rule
1) Allows judges some freedom to achieve justice.
2) Generally respects the words of Parliament except in limited situations.
3) Enables judges to avoid problems with the literal rule.
Disadvantages of the Golden Rule
1) Can allow judges to change the law.
2) Very limited as to what they can do.
3) Michael Zander said the golden rule is like a 'feeble parachute'.
- Allows judges more discretion.
Heydons Case 1584
1) What was the common law before the Act?
2) What was the mischief or defect for which the common law did not provide?
3) What was parliaments solution?
4) What was the true remedy?
So the judge must identify what the problem was with the law before the Act was passed and then, interpret the Act to cover mischief. E.g. -
1) Smith V Hughes - Street Offences Act 1959, aim to clean up streets - no loitering or soliciting on streets.
- Prostitutes were loitering and soliciting on the streets offering businesses, so they brought in the Street Offences Act 1959, so 6 prostitutes moved into a house to comply with the law, so the judge used the mischief rule to find them guilty.
2) Royal College of Nursing V DHSS - Abortion Act 1967; abortions must be carried out by a 'registered medical practitioner'. The mischief was backstreet abortions, so judges changed the law so nurses could also give the drug.
Advantages of the Mischief Rule
1) Fills in gaps within the law to make the Act effective.
2) Results in 'just' decisions.
3) Promotes the purpose of the law.
Disadvantages of the Mischief Rule
1) Relies on the judges opinion.
2) Risks judge made law.
3) Limits judges to just looking back to why the law was introduced.
4) Can make the law uncertain (unpredictable).
- Goes beyond the mischief rule and allows judges more discretion/freedom. Judges must use this rule when interpreting EU law.
This rule looks at the purpose of the Act and makes the decision to make the Act effective - wider than the mischief rule.
R (Quintavalle) V Secretary of State - Human Fertilisation and Embriology Act 1990 - defined the word 'embryo' as an egg that has been fertilised. A cloned baby before 1990 wasn't called an embryo but this case changed the law so they are called embryo's. The House of Lords ruled that an embryo produced by CNR (Cell Nuclear Replacement), was covered by the Act. - Purpose was to protect embryo's.
R V Registrar General Ex Parte Smith - Adoption Act 1976 - Allows those 18 or over accesses to information on their birth certificate. Smith was a double murderer held in Broadmor Psychiatric Hospital, and there was evidence he wanted to kill his mother. Court of Appeal ruled that despite the plain wording of the Act, Parliament didn't intend to encourage serious crime, so information didn't have to be supplied.
Advantages of the Purposive Approach
1) Leads to justice in individual cases.
2) Means the law can be effective in unforeseen situations.
3) Useful if there is new technology.
4) Allows judges discretion.
5) Fits in with the European approach.
Disadvantages of the Purposive Approach
1) Can lead to judicial law making (judges making law), because judges are deciding what they believe the law should be rather than using the words of Parliament.
2) Can be difficult to establish the purpose of the Act (can look in Hansard).
3) Can lead to uncertainty in the law.
If Parliament has passed an Act which is unclear, they should amend the Act.