Statutory Interpretation

  • Literal Rule
  • Golden Rule
  • Mischief Rule
  • Purposive Approach
  • Presumptions
  • Rules of Language
  • Hansard
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  • Created by: oyinlola
  • Created on: 11-03-13 16:52

Literal Rule

The words are given their ordinary and natural meaning.

This rule gives all the words in a statute their ordinary and natural meaning, on the principle that the best way to interpret the will of parliament is to follow the literal meaning of the words it has used. Under this rule, the literal meaning must be followed, even if the result is absurd.

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Examples of the Literal Rule

Fisher v Bell (1961) - After several violent incidents in which the weapon used was a flick-knife, parliament decided that these knives should be banned. The restriction of Offensive Weapons Act 1959 made it an offence to "sell or offer for sale" any flick-knife.

The defendant had flick knives in his shop window and was charged with offering these for sale. The court held that "offers for sale" must be given its ordinary meaning in law and that in contract law this was not an offer for sale but only an invitation to people to make an offer to buy.

The defendant was therefore not guilty of a crime under the Act, despite the fact that this was obviously just the sort of behaviour the act was set up to prevent.

Whiteley v Chappell (1868) - A statute aimed at preventing electoral malpractice made it an offence to impersonate "any person entitiled to vote" at an election. The accused was aquitted because he impersonated a dead person and a dead person was clearly not entitled to vote.

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Golden Rule

If the literal rule gives an absurd result that parliament cannot have intented, then the judge can substitute a reasonable meaning in the light of the statute as a whole.

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Examples of the Golden Rule

Adler v George (1964) - The defendant was charged under s. 3 of the Official Secrets Act 1920, with obstructing a member of the armed forces "in the vicinity of any prohibited place". He argued that the natural meaning of "in the vicinity" meant near to, whereas the obstruction had actually occured in the prohibited place itself, an air force station. The court held that, while in many circumstances "in the vicinity" could indeed only be interpreted as meaning near to, in this context it was resaonable to construe it as including being within the prohibited place.

Inco Europe Ltd v First Choice Distribution (2000) - The House of Lords stated that the words could be added to the added statute by the judge to give effect to parliament's intention where an obvious error had been made in drafting a statute.

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Mischief Rule

This rule was laid down in Heydon's Case in the sixteenth century, and provides that judges should consider three factors:

  • What the law was before the status was passed;
  • What problem, or "mischief", the statute was trying to remedy;
  • What remedy Parliament was trying to provide.

The judge should then interpret the statute in such a way as to put a stop to the problem that parliament was addressing.

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Examples of the Mischief Rule

Smith v Hughes (1960) - The Street Offences Act 1958 made it a criminal offence for a prostitute to solicit potential customers in the street or public place. In this case, the prostitute was not actually in the street, but was sitting in a house, on the first floor, and tapping on the window to attract the attention of the men walking by, The judge decided that the aim of the act was to enable people to walk along the steet without being solicited, and since the soliciting in question was aimed at the people in the street, even though the prostitute was not in the street herself, the act should be interpreted to include this activity.

Elliot v Grey (1960) - The Road Traffic Act 1930 provided that it was an offence for an uninsured car to be "used on the road". The car in this case was not being used on the road, but jacked up, with its battery removed, but the court held that it was nevertheless a hazard of the type which the statute was designed to prevent, it was covered by the phrase "used on the road".

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Purposive Approach

The purposive approach is really just the modern version of the mischief rule, but it takes it further by not just looking at the mischief the Act was designed to put right, but looking for the purpose of the act. The Law Commision has described  it as looking for the "positive social purpose of the legislation" rather than focusing just on any evil that the Act may have been designed to deal with. 

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Examples of the Purposive Approach

In recent years, the English courts have increasingly taken a purposive approach when interpretting legislation. In Pepper v Hart 1993, Lord Griffiths noted:

The days have long passed when the court adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted.

A good example is Jones v Tower Boot Co. 1997, in which the court of appeal decided that racial harassment by fellow workers was in the course of employment, thus making the employer liable. The Court of Appeal said that it was right to give the words a meaning other than their natural meaning so that the purpose of the legislation could be achieved.


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Advantages of the Literal Rule

  • Respects Parliamentary sovereignty.
  • Prevents unelected judges making law. 
  • Encourages certainty and there is likely to be less litigation. 
  • Leads to quick decisions in cases where the words are clear and unambiguous.
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Disadvantages of the Literal Rule

  • It can lead to unfair or unjust decisions. London and North Eastern Railway Co. v Berriman (1946)
  • It can lead to absurd decisions that were clearly not what parliament intented. Fisher v Bell (1961)
  • Words may have more than one meaning, making it difficult to apply a dictionary definition.
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Advantages of the Golden Rule

  • The golden rule can prevent the absurdity and injustice caused by the literal rule.
  • The courts can alter the wording and make sense of absurd or repugnant wording.
  • It respects the authority of Parliament because in all other circumstances the literal rule should be used.
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Disadvantages of the Golden Rule

  • Michael Zander says ir's a feeble parachute. It can only be used in limited circumstances.
  • He also said it is an unpredictable safety valve, because there are no real guidelines on when it should be used.
  • The Law Commission argued that the rule was of limited value.
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Advantages of the Mischief Rule

  • Helps to avoid absurdity and injustes and encourages flexibility. Law commission said it was more satisfactory than the Literal and Golden rule.
  • Allows the judges to look at Hansard, which prints transcripts of House of Common debates.
  • Allows he judges to "fill in the gap" when parliament has left something out.
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Disadvantages of the Mischief Rule

  • Finding Parliaments intention is not always easy even when hansard was used.
  • Gives too much power to judges. Parliament should make the changes.
  • It could lead to confusion because each judge could change the meaning of the act in their own way.
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Advantages of the Purposive Approach

  • It fits better with what is done in europe. 
  • Its more wider than the other rules and looks at the whole purpose of the act rather than just the "evil" behind it.
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Disadvantages of the Purposive Approach

  • It gives too much power to judges.
  • Finding the intention of parliament is not always easy, even with Hansard.
  • Using the approach could lead to confusion because the judges could change the meaning of what an Act says.
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Internal and External Aids

Internal aids give giudance as to the meaning of words or phrases used in an Act. (Literal and Golden Rule)

  • Titles
  • Marginal Notes and Headings
  • Schedules
  • Interpretation sections
  • Other parts of the acts

External aids are documents that judges refer to that help interpret the act. (Mischief Rule and Purposive Approach)

  • Historical setting
  • Dictionaries and legal textbooks
  • Explanatory notes
  • Reports
  • Human rights Act 1998
  • Hansard
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Rules Of Language

Developed by lawyers over time, theses rules are really more than common sense, despite their intimidating names. As with the rules of interpretation, they are not always precisely applied.

  • Ejusdem generic (The "same kind" rule) - General words which follow specific ones are taken to include only things of the same kind. For example, if an Act used the phrase "dogs, cats and other animals". the phrase "and other animals" would probably include other domestic animals, but not wild ones.
  • Expressio unius est exclusio alterius (The "express words exclude others" rule) - Express mention of one thing implies the exclusion of another. If an act specifically mentioned "Persian cats", the term would not include other breeds of cats.
  • Noscitur a sociis (The "read words in context" rule) - A word draws meaning from the other words around it. If a statute mentioned "cats, kittens and food", it would be resonable to assume that "food" meant cat food, and dog food was not covered by the relevant provision. 
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Presumptions

The courts assume that certain points are implied in all legislation. These presumptions include the following:

  • Statutes do not change the common law;
  • The legislature does not intend to remove any matters from the jurisdiction of the courts;
  • Existing rights are not to be interfered with;
  • Laws which create crimes should be interpreted in favour of citizen where there is ambiguity;
  • Legislation does not operate retrospectively; its provisions operate from the day it comes into force, and are not backdated.

It is always open to Parliament to go against these presumptions if it sees fit - for example, the European Communities Act 1972 makes it clear that some of its provisions are to be apllied retrospectively. But unless the wording of a statute makes it absolutely clear that Parliament has chosen to go against one or more of the presumptions, the courts can assume that the presumption apply.

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Arguments for and against the use of Hansard

For

  • Usefulness
  • Media Reports

Against

  • Lack of clarity
  • Time and expence
  • Parliamentary intention
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The European Union

The purposive approach has become increasingly popular among English judges, particularly since the UK joined the European Community, now known as the European union. In many countries the law is stated in general principles that can be applied to a broad range of circumstances. This necessitates a purposive approach to legislation. EU law is also drafted in such terms and it is important that English judges take a purposive approach to interpreting Acts of Parliament that have been passed to comply with European obligations.

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