Date Friday September 25 2020 Statutory Interpretation Introduction

Date: Friday, September 25, 2020 Statutory Interpretation - Introduction Lesson Outcomes: Define what is meant by statutory interpretation Specification Link: Common law approaches to interpretation: literal, golden and mischief rules; purposive approach. Explain four different approaches to statutory interpretation Apply examples that are relevant to each approach to statutory interpretation Starter: So what do you expect “statutory interpretation” will mean? 1

MP 4 (Playing music in Public) Act 2013 An Act to create quieter public spaces by the abolishing the use of MP 4 players in all public places and, in consequence of its abolition, to impose a restriction on institutions in certain circumstances of the creation of exemptions to their use. [14 th August 2013] s. 1 This Act applies to all MP 4 players which are sold for the purpose of playing music either with or without headphones. Other Musical Playback Products s. 2(1) If it appears to the Secretary of State for the Environment, Food and Rural Affairs that any other musical playback related products other than those specified in s. 1 are being used outside of the reasonable areas, he may make an order under this section, which will have the effect of bringing that product under the Act. S. 2(2) In making the order, the Secretary of State must have regard to representations from such people as amount to a significant interest group, as well as those having to do with the manufacture of musical playback devices. s. 2(3) No order can be made under this section unless a draft has been laid before and approved by a resolution of both Houses. 1. Note down any words that you think might cause problems 2. Give those words a definition to clear up any confusion 2

Statutory Interpretation is the process by which judges have to decide the meanings of words or phrases in Acts of Parliament or other legislation. Although, when laws are drawn up, the draftsman tries to make them as clear as possible, there are still many problems which can occur so that the meaning is unclear. These are: a broad term: there may be words used to cover several possibilities, and it is difficult to decide exactly what it does cover; ambiguity: some words may have more than one meaning, and it is difficult to decide which is meant in the Act; a drafting error or omission: there may be a mistake which makes the meaning uncertain, or an omission so that a situation which should be included appears not to be; new developments: new technology may mean that an old Act of Parliament does not apparently cover the situation; changes in the use of language: the meanings of words change over the period of time. Judges have different approaches to statutory interpretation. Some will take the literal meaning of the words, others will look beyond the words to try to discover what the law was meant to include.

Key Terms • Statutory interpretation • The literal rule • The golden rule • The mischief rule • The purposive approach 4

What is Statutory Interpretation? 75% of Supreme Court Cases now SI Create Apply/Interpret The problem is WORDS! 1. Often words mean more than one thing 2. Sometimes the context of the Act does not help 3. Try the example problem: Below are three common words in English usage. How many meanings does each have? (They are graded in difficulty). Stamp Patient Season 5

Lets take a look at a real problem… Read the facts of the case notes on your desk and the relevant section of the Sexual Offences Act 2003 s 68(1)(a) and answer the question: Should Basset’s appeal be upheld? Sexual Offences Act 2003 s 67 & 68 67 Voyeurism 1. A person commits an offence if: (a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and (b) he knows that the other person does not consent to being observed for his sexual gratification. 68 Voyeurism: interpretation 1. For the purposes of section 67, a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and— (a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear R v Bassett (2008) Kevin Bassett drilled a hole in the changing room at a swimming pool and filmed men undressing (it was at a height to see their chests). He was convicted at first instance and appealed. What do we mean by breasts? 6

R v Bassett [2008] EWCA Crim 1174 This appellant took a small video camera hidden in a bag with a hole in it into the men's changing room at a public swimming pool. He was spotted watching and plainly either filming or intending to film a man who was taking a shower. The appellant was interested in filming the man. The man had his swimming trunks on. The case raised two issues: (1) whether the man was in a place and circumstances which would reasonably be expected to provide privacy and, if so, (2) whether since he was bare‑chested it was a case in which "breasts" were exposed within the meaning of the statutory definition. Held – The court held that the original judge's direction as to the meaning of breasts in section 68(1)(a) was erroneous. ‘Breasts’ was a term which in this instance was meant to apply to women and not men The conviction accordingly cannot stand must be quashed. This appeal is accordingly allowed. 7

Lets take a practical look at the issue then … Under current taxation law you do not pay VAT on cakes, snacks or normal biscuits. But you do pay VAT on chocolate covered biscuits and potato snacks So what about these two items then? Discuss and consider the position of the ubiquitous Jaffa Cake and Marshmallow Tea Cake. Are these chocolate biscuits or cakes and give explanations for your answers. 8

And Pringles? Under current taxation law you do not pay VAT on most snack food but you do on ‘potato snack’ which are defined as “potato crisps, potato sticks, potato puffs and similar products made from the potato, or from potato flour, or from potato starch” What about the Pringle then? 43% Potato Packaging HMRC v Proctor & Gamble (2009) Shape Click on the images or the case name opposite to take you to the stories 9

And finally how do we interpret these words? What are your opinions about the use of the wording in each of these cases? Employees Can a paper boy sue for unfair dismissal after the time of his paper round was changed and he refused to carry out his round at the new time and was sacked. Is he an employee? Buildings Cremations must take place in a building. Can that include a place without a roof or a place with no walls, but a roof? Vehicles Can a pram be a ‘carriage’ or vehicle under the Licensing Act 1872, and so it is an offence to be drunk in charge of one? Ship Can a wave runner be a ship for the purposes of the Merchant Shipping Act 1995 if it crashes into another seriously injuring them. 10

How do judges make decisions about what words mean? Materials inside the act Materials outside the act Presumptions Rules 11

The Rules of Interpretation Literal Rule Golden Rule Mischief Rule The judges use one of four rules to work out what the Statute means Purposive Approach ALWAYS start with the Literal Rule … except EU law 12

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? 13

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. 14

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: 15

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. 16

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. 17

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) 18

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. 19

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. 20

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. 21

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. 22

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? 23

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. 24

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. 25

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. 26

Purposive Approach Aims to produce the decisions which put into practice the ‘spirit of the law’. What’s the problem with the Roger’s case? 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. 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 Would the same problem exist if he had used the phrase ‘bloody Spaniards. ? ’ 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. ” 27

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. ” 28

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 29

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. 30

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’ Read the facts of the case of R v Register General ex Parte Smith (1990) 1. Is the decision more like LJ Denning’s or LJ Simmond’s view of Statutory Interpretation. 2. Interpret the words in the statute in context – which ones cause the greatest problem? 3. What’s the problem? 4. Why could the Courts not just apply the Literal Rule and give the clear meaning of the law? …the Registrar General shall on an application made in the prescribed manner by an adopted person a record of whose birth is kept by the Registrar General and who has attained the age of 18 years supply to that person on payment of the prescribed fee (if any) such information as is necessary to enable that person to obtain a certified copy of the record of his birth. (s 51 Adoption Act 1976) 31