Date 31 January 2022 Statutory Interpretation Rules continued

Date: 31 January 2022 Statutory Interpretation – Rules (continued) Learning Objectives Understand the 4 common law approaches to statutory interpretation Specification Link Common law approaches to interpretation: literal, golden and mischief rules; purposive approach Starter: You have 10 minutes to present your research to the rest of your group. Don’t forget to take notes around your handouts.

Check your understanding: • Combine the information in your notes and these slides to complete the sheet

Literal Rule “ordinary, natural meaning even if it leads to an absurdity” “if the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity Lord Esher 1892 ‘In determining the meaning of any words or phrase in a statute, the first question to ask is always what is the natural and ordinary meaning of that word or phrase in its context in the statute. ’ Lord Reid in Pinner v Everett [1969] Whitely v Chappell 1868 Read the facts of the case which interpret the part of the Statute which says “it is an offence to impersonate a person entitled to vote” The defendant was acquitted. 1. Why? 2. Do you think that this interpretation reflects what Parliament’s intentions in passing the act? Why? 3

Whitely v Chappel (1868) LR 4 QB 147 A statute made it an offence 'to impersonate any person entitled to vote. ' The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living in order to be entitled to vote. Held – The literal rule was applied and the defendant was thus acquitted. 4

Literal Rule The general rules of the literal rule This may lead to unexpected results that were not the intention of Parliament. The literal rule of statutory interpretation should be the first rule applied by judges Requires the judge to give the words of the statute their natural, ordinary or dictionary meaning Should be applied without the judge seeking to put a gloss on the words or seek to make sense of the statute. This is the case even if it appears to be contrary to rules of Parliament This may lead to unexpected results that were not the intention of Parliament. Look at the following cases and decide if the results were what Parliament intended: 5

R v Harris (1836) 7 C & P 446 The defendant bit off his victim's nose. Held – The statute made it an offence 'to stab cut or wound' the court held that under the literal rule the act of biting did not come within the meaning of stab cut or wound as these words implied an instrument had to be used. Therefore the defendant's conviction was quashed. 6

Fisher v Bell [1961] 1 QB 394 The defendant had a flick knife displayed in his shop window with a price tag on it. Statute (The Restriction of Offensive Weapons Act 1959) made it a criminal offence to ’sell or offer for sale' such flick knives. Held – The court applied the literal rule of statutory interpretation. His conviction was quashed as in contract law, goods on display in shops are not 'offers' in the technical sense but an invitation to treat. The court found D not guilty even though it was obviously Parliament’s intention to stop the sale of these types of weapons. 7

Golden Rule May be applied where an application of the literal rule would lead to an absurdity. The courts may then apply a secondary meaning. (River Wear Commissioners v Adamson) (1876 -77). This will avoid an absurd result Narrow Approach Broad Approach 1. Applied when the word or phrase is capable of more than one literal meaning. 2. This allows the judge to apply the meaning that avoids an absurdity. 1. Applied when there is only one literal meaning but applying it would cause an absurdity 2. Under Broad approach court will modify the meaning to avoid absurdity. R v Allen (1872) Adler v George (1964) 8

R v Allen (1872) LR 1 CCR 367 The defendant was charged with the offence of bigamy under s. 57 of the Offences Against the Person Act 1861. The statute states 'whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence'. Under a literal interpretation of this section the offence would be impossible to commit since civil law will not recognise a second, any attempt to marry in such circumstances would not be recognised as a valid marriage. Held – The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld. 9

Adler v George [1964] 2 QB 7 Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces 'in the vicinity' of a prohibited palace. The defendant was actually in the prohibited place, rather than 'in the vicinity' of it, at the time of obstruction. Held – The court applied the golden rule. It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. His conviction was therefore upheld. 10

Re Sigsworth [1935] 1 Ch 98 A son murdered his mother. She had not made a will. Under the statute setting the law on intestacy he was her sole issue and stood to inherit her entire estate. Held – The court applied the Golden rule holding that an application of the literal rule would lead to a repugnant result. He was thus entitled to nothing. 11

Golden Rule Consequences of the Golden rule Provides an opportunity for judicial law making Narrow approach allows them to choose between several meanings Broad approach allows modification of the meaning of the words used by Parliament. 12

Mischief Rule The Court's role is to suppress the mischief the Act is aimed at and advance the remedy. Court looks at gap in law that Parliament felt necessary to close. Then interprets the Act to fill that gap and remedy the ‘mischief’ Parliament had been aiming to remedy. Smith v Hughes (1960) Hayden’s Case 1584 Rules 1. What was the common law before making the Act? 2. What was the mischief and defect for which the common law did not provide? 3. What was the remedy Parliament passed to cure the mischief? 4. What was the true reason for the remedy? Q - Why do we need the mischief rule? 13

Heydon's Case [1584] EWHC Exch J 36 In an action determining the validity of a lease the court formulated the mischief rule. Held – 1. What was the common law before making the Act? 2. What was the mischief and defect for which the common law did not provide? 3. What was the remedy Parliament passed to cure the mischief? 4. What was the true reason for the remedy? The role of the judge is to suppress the mischief and advance the remedy. 14

Smith v Hughes [1960] 1 WLR 830 The defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public. Principle – The court applied the mischief rule holding that the activities of the defendants were within the mischief the Act was aimed at even though under a literal interpretation they would be in a private place. 15

Mischief Rule Consequences of the mischief rule Oldest of the rules Provides scope for judicial law making as it allows judges to decide what they think Parliament intended to put right in the previous law. The judges do not focus on the words as stated by Parliament. 16

Purposive Approach Aims to produce the decisions which put into practice the ‘spirit of the law’. Court looks at gap in law that Parliament felt necessary to close. Then interprets the Act to fill that gap and remedy the ‘mischief’ Parliament had been aiming to remedy. What’s the problem with the Roger’s case? Would the same problem exist if he had used the phrase ‘bloody Spaniards. ? ’ European Communities Act 1972 The UK Courts must give effect to European Law so should also use their methods. Q – Should we just use this approach for all decisions? Q – Why don’t we? R v Rogers [2007] UKHL 8 Rogers called a group of young Spaniards ‘Bloody Foreigners. ’ The statute says it is an offence to use ‘racially abusive or insulting words or behaviour with the intent to cause fear or violence aimed at a specific group. ” 17

R v Rogers [2007] UKHL 8 Rogers, who is incapacitated by arthritis, was riding his mobility scooter along the pavement on his way home from a pub. The three women were walking back to the home of one of them after a birthday party in a local restaurant. An altercation took place as Rogers tried to get past them on the pavement. He then pursued them in an aggressive manner into a local kebab house where they had taken refuge, calling them “bloody foreigners” and telling them to “go back to your own country”. Held – The Lords ruled, Rogers had not only committed the offence under the Public Order Act 1986 of using threatening, abusive or insulting words or behaviour intending the victims to fear immediate unlawful violence or to provoke it; he had also committed an aggravated race offence under the Crime and Disorder Act 1998. Responding to the Court of Appeal’s question as to whether those who are not of British origin constituted a racial group under the Crime and Disorder Act 1998, Baroness Hale said: “The answer is "yes", as would it be to the question whether "foreigners" constitute such a group. ” 18

Purposive Approach The general issues of the purposive approach Mischief Rule – looks back at common law before Act was passed to find gap in law that Parliament trying to fill Purposive approach focuses on what Parliament intended. Modern version of Mischief Rule & the distinction between the two a minor technicality Provides scope for judicial law making Judge is allowed to decide what he/she thinks Parliament intended the At to say not what the Act actually says 19

Pepper (Inspector of Taxes) v Hart (1993) 1 All ER 42 This case concerned the tax liability of teachers at a public school where one of the perks of the job was that their sons could be educated at one fifth of the usual cost. This perk was a taxable benefit under s. 61(1) of the Finance Act 1976 as it was a cash equivalent. The question for the House of Lords was how much tax should be levied. Principle – Responses made by the Financial Secretary to the Treasury during the Committee stage of the bill to queries regarding concessions enjoyed by railway men made it clear that tax should be levied at the marginal cost incurred by the employer. Adopting this interpretation, tax should be assessed on the basis of the marginal cost to the employer, not on the average cost of providing education for the employees' sons and the public. 20

How do the Courts do this? Different judges, different rules, different cases Denning LJ: We do not sit here to pull the language of Parliament to pieces & make nonsense of it…we sit here to find out the intention of Parliament & carry to out & we do this better by filling the gaps…than opening it up destructive analysis. ’ Simmonds LJ: Filling in the gaps is a ‘naked usurpation of the judicial function under the guise of interpretation …is a gap is disclosed, the remedy lies in an amending Act’ 21

Date: 31 January 2022 Statutory Interpretation – Aids Learning Objectives Describe the different aids to statutory interpretation and explain how they are used. Specification Link Aids to interpretation: rules of language; internal and external aids If you needed to find out the meaning of a word, what would you do?

Key Terms • Presumptions • Intrinsic Aids • Extrinsic Aids • The ejusdem generis rule • Expressio unius est exclusio alterius • Noscitur a sociis 23

Aid One: Presumptions Meaning: Things we assume to be true Common law is not changed unless the act expressly say so R v Leach Criminal Attempts Act 1981 s. 1(3) Queen is not bound Human Rights Act 1998 Criminal Offences require mens rea B v DPP 2000 Sweet v Parsley 1970 The law should not act retrospectively Human Rights Act 1998 War Crimes Act 1991 24

Aid Two: Intrinsic Aids Meaning: Things that are internal to the Act itself Definition sections Headings Long (& short) titles Schedules Other sections of the Act Draftsmen/side notes 25 25

Lets try it for ourselves… Look at your Human Organ Transplant Act 1989 again. Using the Act answer the following questions. 1. Look at the following scenarios: Dan texts all his friends asking them if they want to make some money by donating an eye. Mark is given a new liver by Nat, he hands over the keys to his house in return. Ian’s grandfather donates his kidney to Ian, who pays for his medical expenses for the donation. a. Have they broken the law? b. What other sections of the Act did you find useful in working out the answers? c. Link the different sorts of law together – can you find the delegated legislation element of the Act? 26

Intrinsic Aids – Long and Short Title May be used as guidance Abortion Act 1967 Fully entitled ‘An Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners. 1. Read your copy of the Act. 2. Does the short and long title help you answer the following question: a. Is it OK for nurses to carry out abortions? Royal College of Nursing of the United Kingdom v DHSS (1981) 27

Royal College of Nursing of the UK v DHSS (1981) 1 All ER 545 Use of nurses to carry out abortions who used drugs and procedures not thought of when the Act was passed in 1967. The Act required abortions to be carried out by a ‘registered medical practitioner’. Principle – The Act was intended to provide for safe abortions and nurses could do this. Lord Wilberforce and Lord Edmund Davies claimed that judges were not interpreting legislation but re-writing it. 28

Intrinsic Aids – Other sections Older statutes may have a preamble serving as a purpose statement Newer acts may have objectives or purposes section - E. g. Climate Change and Sustainable Energy Act 2006 Look at your copy of the purpose section of the Act: 1. How might this extra section help judges make decisions? 2. What does the purposes section tell you about the intention of the drafters? 3. What are the main objectives of the Act? 29

Intrinsic Aids – Schedules appear as additions to main body of Act Look at your copy of the Hunting Act 2004 1. What are the exemptions to hunting contained in the Schedule? 2. I ask my neighbour to bring his Jack Russell around to dig out some rats I have found in my garden – does the schedule exempt my neighbour from prosecution? 3. Make a list of five other exemptions 30

Intrinsic Aids – Schedules Most new Acts contain a special interpretation definition section Look at your copy of the Law Reform (Year and a Day Rule) Act 1996: 1. How does the Act define a fatal offence? 2. Which section is this contained in? 3. How do you think this might specifically help a judge in interpreting the Act? 31

Intrinsic Aids – Punctuation is now seen to have an effect `in Hanlon v Law Society (1981) Lord Lowry commented; “To ignore punctuation disregards the reality that literate people, such as parliamentary draftsmen, do punctuate what they write. ” In your groups come up with two sentences which use the same words but which have two different possible meanings because of the way you have punctuated it. 32

Aid Two: Extrinsic Aids Meaning: Things that are external to the Act itself Dictionaries Vaughan v Vaughan (1973) Previous Acts The Interpretation Act 1978 Reports of the Law Commission International Treaties Hansard Explanatory Notes Textbooks 1. Before you read the facts of the case what do you think the word molest means? 2. Now check your meaning against a dictionary definition. 3. Are they the same, close or different? 4. If I pester my wife to take me back after a marital split does that merit molestation? 33 33

Vaughan v Vaughan (1973) 1 WLR 1159 In this case the court had to interpret the word ‘molest’. D had been subject to injunctions in respect of previous violence towards his ex-wife who was afraid of him. D argued that pestering his ex-wife to resume their relationship by going to her home early in the morning and late at night and also calling on her at work, did not amount to molesting her. Principle – The judges consulted the dictionary, which defined molest as ‘to cause trouble, vex, annoy or , to put to inconvenience’ and held that the defendant's behaviour did amount to molestation. 34

Extrinsic Aids – Previous Acts Wheatley (1979) Explosives Substances Act 1883 amending the Explosives Act 1875 How can the judge use the 1883 short title to justify applying the previous 1875 Act when he defined the term explosive in Wheatley? 35

R v Wheatley [1979] 1 All ER 954 A man D was found in possession of a metal pipe filled with sodium chlorate and sugar, and was charged with possessing an explosive substance contrary to s. 4 of the Explosive Substances Act 1883. He argued that its effects would be pyrotechnic rather than explosive, but the court referred to the Explosives Act 1875, in which "explosive" was defined as including "pyrotechnic". Principle – Since the long title of the 1883 Act referred expressly to the 1875 Act, the definition from the earlier statute could be imported into the later. 36

Extrinsic Aids – The Interpretation Act 1978 1. How does section 6 assist the Judge when making a decision? 2. How many other idiosyncrasies of the English language need clearing up to make things easier to interpret? 3. Can you find 3 more in your groups? 4. Can you think of any occasion when this may still not make things clear? Extrinsic aids also includes Reports of the Law Commission (e. g. when they highlight what is wrong with old Act) and International Treaties (such as the EU Law) 37

Extrinsic Aids – Hansard Click here or on the image opposite to access the Parliamentary Hansard Page 1. Take a look around the Hansard web site 2. When do you think Judges might want to consult Hansard as an extrinsic aid? 3. What might be the problems using Hansard? Hansard (the Official Report) is the edited verbatim report of proceedings of both the House of Commons and the House of Lords. Davis v Johnson (1979) To Pepper v Hart (1993) 38

Extrinsic Aids – Hansard Davis v Johnson (1979) To Pepper v Hart (1993) Research Task – Take a look at the decisions in the two cases above. What was Lord Denning’s position about the use of Hansard in Davis? What did the House of Lords say? When did the rules change? What do the rules say now? 39

Davis v Johnson [1978] 2 WLR 553 House of Lords This case concerned the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976. At the Court of Appeal Lord Denning referred to Hansard stating, that not to do so would be like 'groping in the dark without switching on the light'. On appeal to the House of Lords the Lords reprimanded Denning for referring to Hansard and restated the rule that Hansard must not be referred to. Lord Kilbrandon - "It has always been a well established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose. ” Viscount Dilhorne: - "While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment. ” 40

Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42 The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard. The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and that the teacher was not required to pay tax on the perk he received. The rules were however: 1. The wording in the Act must be ambiguous or obscure, or a literal interpretation would lead to an absurdity. 2. Judges may look only at the statement as made by a minister or other promoter of the bill. 3. The statements must be clear in order for them to be relied upon. 41

Extrinsic Aids – Texts and Notes Explanatory notes are not part of Act so not an internal aid Re Castioni (1891) – J. F. Stephen referred to his own book History of the Criminal Law of England to define ‘political crime’ Task You have 200 words. Explain the difference between intrinsic and extrinsic aids to statutory interpretation using examples. You have a +/- 10% margin on your word count. 42

The Rules of Language These are all about lists – often referred to as subsidiary rules The courts may also choose to look at other words in the statute to ascertain the meaning of specific words. To enable them to do this they have developed a number of rules of language to help make the meaning of words and phrases clear. There are three main rules of language. The first is Ejusdem generis. There is also Expressio unius est exclusio alterius -where there is a list of words which is not followed by general words, then the Act applies only to the items in the list and Noscitur a sociis which means the words must be looked at in the context and interpreted accordingly. This involves considering other words in the same section of the Act. 43

The Rules of Language - ejusdem generis Where general words follow particular words the general words are interpreted to be of the same kind as the particular words: Dogs cats and other animals Particular words General words Under this rule ‘other animals’ interpreted like ‘cats and dogs. ’ They are domestic animals so this means other domestic animals 44

Powell v Kempton Park Race Course (1899) AC 143 D’s company kept an open-air enclosure used by bookmakers and racegoers who wished to place bets. Under a Regulation it was prohibited to keep a ‘house, office, room or other place’ for betting purposes. Held – The court applied the ejusdem generis rule and held the defendant was not guilty because the enclosure was not a relevant place. The general words of ‘or other place’ following the specific words ‘house, ’ ‘office, ’ and ‘room’ referred to any defined spaces used for betting which their enclosure was not. 45

The Rules of Language - Expressio unius est exclusio alterius Expression of one thing implies the exclusion of another. Where ‘particular’ words are used and not followed by ‘general words’ the Act applies only to the particular words Inhabitants of Sedgley (1837) Rates were charged on ‘land, titles and coal mines’ – therefore rates could not charged on any mine other than coal mines. Q - So what if I bite off your nose and the Act says its an offence to ‘stab, cut or wound. ’ 46

R v Harris (1836) 7 C & P 446 The defendant bit off his victim's nose. The statute made it an offence 'to stab cut or wound'. Held – under the literal rule the act of biting does not mean that it comes within the act of stabbing, cutting or wounding as these words implied an instrument had to be used. Therefore the defendant's conviction was made void. 47

The Rules of Language - Noscitur a sociis Meaning of word is to be gathered from the context in which it is written. Refreshment Houses Act 1860 – all houses, rooms, shops or buildings kept open for ‘entertainment’ during certain hours of the night must be licensed. Using the definition above if a café stays open during the night without a licence do they break the law under the Refreshment House Act? If so why? 48

Muir v Keay (1875) QBD D ran premises called The Café; it was found open during the night, and seventeen women and twenty men were there. They had been supplied with cigars, coffee, and ginger beer, which they consumed. . Held – The Court applied noscitur a sociis rule and implied that ‘entertainment’ did not only mean music and theatre, but meant other form of entertainment including drinking coffee. e house was kept open for public refreshment, resort, and entertainment, and required a licence. 49

Apply the Rules of Language Consider all three rules of language and explain (using case examples) which rule is likely to be applied to each situation Decision Reason Case example 1. An Act uses the phrase ‘hamsters, dogs, cats and other animals’ and the animal in question is a pig. 2. An Act states that it specifically applied to ‘hamsters, dogs and cats’ and the animal in question is a pig. 3. An Act mentions tigers, cages and food’ and the food in question is domestic cat food. 50

Consolidate your understanding of Statutory Interpretation Question Consider whether the current approach to Statutory Interpretation gives too much power to the judges Describe the impact of membership of the EU on statutory interpretation Choose a question appropriate to your level of understanding – try and push yourself. Describe the difference between the broad and narrow approaches in the golden rule Prepare an answer that you will have to explain to other members of the class Identify one word which has caused problems for the court and explain why. Explain what is meant by the literal rule 51

Can you apply all you have learnt? The Christmas Day Act 2010 This is an act to encourage the celebration of Christmas as a national holiday and time of charity This Act provides that: 1. 2. 3. 4. 5. 6. Apply the law to the following scenarios, using the rules or aids to interpretation 1. 2. 3. Christmas shall only be celebrated in Christmas the month of December Every household shall buy a tree, wreath or other greenery. Every household shall display a wreath at the entrance to their house All deer shall be given a red nose for the occasion. All adults shall be entitled to a free mince pie, Christmas cake or food in celebration Breach of the sections will result in a summary conviction punishable by a maximum of £ 200 fine 4. 5. 6. Bob owns a very large house with a long, windy drive. He has placed a wreath at the gate at the top of the drive. The Smiths decide to purchase a holly bush to celebrate Louise has decided to paint the noses of the deer in the local park red for Christmas Carol does some research and discovers that Jesus was born in March. She decides to celebrate Christmas then. James does not like mince pies and takes a in turkey as his free food. Pick two words from the act which you think will cause problems, and come up with a better definition! 52

Objectives • State the different intrinsic aids to interpretation • State the different extrinsic aids to interpretation • State the different rules of language Look at each of the objectives and then colour code yourself for each of them. Red – I don’t get it. I need some help understanding Amber – I think I understand but I need a little support Green – I understand can try to help others who are not so clear 53