Statutory Interpretation Revision Possible Exam Questions Knowledge and

Statutory Interpretation Revision

Possible Exam Questions • Knowledge and Understanding • • Describe the literal rule of statutory interpretation Describe the golden rule of statutory interpretation Describe the mischief rule Outline the purposive approach to statutory interpretation Outline the ejusdem generis rule of language (1/2 question – 5 marks) Outline internal (intrinsic) aids to interpretation (1/2 question – 5 marks) Outline External (extrinsic) aids to interpretation (1/2 question – 5 marks) Outline of the rules of language (1/2 question – 5 marks) • Evaluation • • Briefly discuss advantages and disadvantages of the literal rule Briefly discuss advantages and disadvantages of the golden rule Briefly discuss advantages and disadvantages of the mischief rule Briefly discuss advantages and disadvantages of the purposive approach

Describe the literal rule of statutory interpretation • Meaning of Literal Rule • Judge gives words their plain, ordinary, dictionary meaning ( on the day the act was passed) – no matter how unfortunate the circumstances • Even if it appears to be contrary to Parliament’s intentions • Pinner v Everett – Literal rule is “the natural and ordinary meaning of that word or phrase in its context” • Application of Literal Rule – MUST explain how the case illustrates the literal rule • Whitely v Chappell – D charged with the offence of impersonating “any person entitled to vote” at an election. D was acquitted as he impersonated a dead person – applying the literal rule, a dead person is not entitled to vote • Fisher v Bell – D displayed flick knives in shop window and was charged under The Restriction of Offensive Weapons Act 1959 which made it an offence to “sell or offer for sale” an offensive weapon. In Contract law, the display of goods in a shop window is not an offer for sale but an invitation to treat (display invites the customer to make an offer to buy the goods). D found not guilty • London and North Eastern Railway Co. v Berriman – Mrs B unable to claim compensation when her husband was killed while carrying out maintenance work oiling points on the railway line. Statute said that a lookout should be provided to warn rail workers of approaching trains when relaying or repairing the track – did not apply to Mr B as he was maintaining the track • R v Porter – D downloaded child pornography and was charged under S. 160 Criminal Justice Act 1988 of being in possession of indecent photographs of children. However because he had deleted them and could not access them, he was not literally “in possession of them” and therefore found not guilty

Describe the golden rule of statutory interpretation • General • A modification of the Literal Rule • Judges should use the literal rule unless it goes against the intention of the legislature or would produce an absurd result • Narrow Application of Golden Rule • Use the rule only where there is more than one meaning of a word – allows the judge to chose the meaning that avoids an absurdity • Jones v DPP – Lord Reid proposed a narrow application– if a word is ambiguous, a judge may choose between possible meanings of the word in order to avoid an absurd outcome – but they shouldn’t go beyond that • Allen –D remarried but this marriage would have been void because the woman was the niece of his first wife. S. 57 Offences Against the Person Act 1861 – made it an offence to marry if you were already married to someone else. D argued he could not be guilty as his second marriage was void. Court held that being married meant “being validly married” but “shall marry” meant to “go through with a marriage ceremony” – so D guilty • Wide Application of Golden Rule • Use the rule if there is only one meaning but the literal rule would lead to an absurd or repugnant situation, court will modify the meaning of the word/phrase to avoid the absurdity • Adler v George – Official Secrets Act 1920 made it an offence to be found “in the vicinity of a prohibited place”. Accused arrested inside a prohibited place, but court held that “in the vicinity of” could mean “being in or in the vicinity of” the prohibited place in order to avoid an absurd result

Describe the mischief rule • General: • Judges should look for the “mischief” the Act was designed to remedy and interpret the Act in such a way that a remedy is achieved • Rule was laid down in Heydon’s Case (1584) – judges should consider 4 factors when using this rule: 1. 2. 3. 4. What was the common law before the Act was passed? What was the mischief that the Act was designed to remedy? What was the remedy that Parliament was trying to provide? What was the reason for the remedy? • Allows for judicial law-making because it allows judges to decide what they think Parliament was trying to put right in the previous law – judges do not focus on the words as stated by Parliament (so even more scope for judicial law-making that the Golden Rule) • Application (MUST make it clear what mischief is being addressed): • Smith v Hughes – “soliciting in the street” in the Street Offences Act 1959 was held to include soliciting from the window of a house – court said the mischief the Act was trying to prevent was people on the street being harassed by prostitutes • Royal College of Nursing v DHSS – court had to consider wording of Abortion Act 1967 which stated that pregnancies had to be terminated by a “registered medical practitioner” – Court looked at the mischief Parliament was aiming to address – illegal “backstreet” abortions – and decided that having nurses (rather than doctors) performing part of the procedure wasn’t unlawful

Outline the purposive approach to statutory interpretation • General: • This approach requires the court to examine the object of the Act and to construe doubtful passages in accordance with that purpose • More use in English courts due to Britain’s membership of EU and Human Rights Act 1998 • Modern day version of Mischief Rule • EU law is drafted in much broader terms than UK statutes • To ensure consistent application of European law throughout all member states, judges in the UK recognise that when applying European legislation or domestic legislation enacted to comply with European law, UK courts need to use a purposive approach • Bulmer Ltd v J Bollinger SA – Lord Denning – UK judges must look at the purpose and intent of EU legislation • European Court of Human Rights adopts a Purposive Approach when interpreting ECHR and this approach is followed by UK judges when interpreting legislation in Human Rights Act cases • Application: • Jones v Tower Boot Company – court decided that racial harassment by fellow workers was “in the course of employment” making the employer liable – this meant the purpose of the legislation (Race Relations Act 1976) could be achieved • R v Registrar General ex parte Smith - court held that although Adoption Act 1976 allowed people who had been adopted to find out the identity of their natural parents, it was clearly not Parliament’s purpose to allow people to obtain this information if they were likely to pose a threat to the parent. D had already committed 2 murders and was mentally ill and posed a risk to his mother, so court felt Parliament would have wanted his mother to be protected

Outline internal (intrinsic) aids to interpretation (1/2 question – 5 marks) • These are found in the Act itself • Would need at least two of the following with an example • The long and/or short title of the Act – Abortion Act 1967 – long title is “An Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners” – referred to by Judges in Royal College of Nursing of the United Kingdom v DHSS • The preamble (if there is one) – older acts have a detailed preamble outlining what the statute covered and its purpose. Newer acts may contain an objectives or purposes section • Marginal Notes and headings – some sections of the Act may have headings and marginal notes, usually added by the person drafting the Act • R v Tivnan – used marginal notes for clarification • Interpretation Sections – most acts now contain these. E. g. – S. 10 Theft Act 1968 – refers to the use of a “weapon of offence” in aggravated burglary, then defines it as “any article made or adapted for use for causing injury”. • Schedules – many acts contain these at the end of an Act and include more detailed clarification. E. g. S. 2(1) Hunting Act 2004 – “Hunting is exempt if it is within a class specified in Schedule 1”. Schedule 1 then specifies the exempt classes of hunting

Outline External (extrinsic) aids to interpretation (1/2 question – 5 marks) • These are found outside the Act • Would need at least two of the following with an example: • Dictionaries of various kinds – e. g. Vaughan v Vaughan - a man had been pestering his ex-wife and Court used a dictionary to define “molest” and concluded the definition was wide enough to cover his behaviour. E. g. – Cheeseman – dictionary from same year as the act was used to decide the meaning of “passengers” • Previous Acts of Parliament and earlier Case Law – Royal Derby Porcelain Co. Ltd. V Raymond Russell – when consider the Rent and Mortgage Act 1933 – court interpreted the words used in the Act by referring to similar words used in an earlier Act and to the way these were interpreted in cases • Reference to Hansard (the official report of the proceedings in Parliament) – until 1990, courts were not allowed to refer to Hansard in order to find out Parliament’s intention. This was overturned in Pepper v Hart, however use is restricted to cases where the words of an Act are ambiguous or obscure or lead to an absurdity. Even then, only where there is a clear statement by the minister introducing the legislation that would resolve the doubt • International Treaties – Fothergill v Monarch Airlines Ltd – confirmed that background working papers could be used to ascertain the meaning of an ambiguous or doubtful section of an Act based on an international treaty

Outline the ejusdem generis rule of language (1/2 question – 5 marks) • “In a list, general words that follow specific words are limited to the same type as the specific ones”. • E. g. – if an Act uses the phrase “dogs, cats and other animals” – this would include other domestic animals, but not wild animals • Powell v Kempton Park Racecourse – court concluded that “house, office or other place for betting” could not include open-air betting on the racecourse itself, because places specified in the list were all indoors

Outline of the rules of language (1/2 question – 5 marks) • Ejusdem generis rule (Previous slide) • Expressio unius est exclusio alterius: • “Express mention of one thing implies the exclusion of another” • If an Act specifically referred to Labrador dogs, it would not include any other breeds of dog • R v Inhabitants of Sedgeley – Act referred in a list to coal mines therefore it could not apply to other types of mines • Noscitur a sociis: • “A word draws meaning from other words around it” • Inland Revenue Commissioners v Frere – a section of an Act referred to “interest, annuities or other annual interest”. Because it referred to “other annual interest”, the court decided that the first use of “interest” must be restricted to annual interest (not daily or monthly)

Briefly discuss advantages and disadvantages of the literal rule • Advantages: • Respects the sovereignty of Parliament – Parliament is the supreme law-maker and unelected judges should not change what the elected Parliament has written – not democratic for judges to be involved in creation or modification of the law. Magor and St Mellons v Newport Corporation – Lord Simonds argued that if a problem was found with the wording of an Act, “the remedy lies in an amending Act”. This is what happened following the decision in Fisher v Bell – Parliament amended the law • Rule encourages certainty – people know where they stand. Better to know judges are going to take the words literally rather than have the uncertainty of them trying to work out what Parliament may have meant – this may mean people will not waste time bringing cases to court • Quick decisions – Cheeseman – word “passenger” quickly found in dictionary. In Berriman it was easy to see that maintaining was not the same as repairing and this would be much quicker than having to work out whether Parliament intended this • Disadvantages: • Can lead to absurd results - Whitely v Chappell – unfair that someone guilty if they cheated by impersonating a live person but not if they impersonated a dead person – outcome clearly does not reflect Parliament’s intention which was to stop all kinds of electoral fraud • Can lead to unjust results - London and North Eastern Railway Co. v Berriman • Inflexible – doesn’t allow judges to use common sense. Michael Zander (an academic and critic of this rule) says that it is mechanical and divorced from the realities of the use of language • Can result in cases being decided on technicalities – Cheeseman and Porter – both escaped conviction – Cheeseman because policemen were not passengers and Porter because images on his computer could no longer be accessed • Assumes the Parliamentary draftsman will always do their job perfectly - Law Commission’s Report on the Interpretation of Statutes (1969) – virtually impossible as they will sometimes be careless as is human nature and language has its limitations.

Briefly discuss advantages and disadvantages of the golden rule • Advantages • Allows court to make sensible decisions – under narrow application it can choose the most sensible meaning (R v Allen) and under wider application it can alter the wording to achieve a sensible outcome (Adler v George). In both cases the use of Golden Rule prevented an absurd outcome. In R v Sigsworth using the rule prevented a repugnant outcome (a murderer inheriting from his victim) • Prevents Parliament from having to pass amending legislation – court can often make a correction easily by altering just a couple of words (e. g. as in Adler v George) • Respects the authority of Parliament – only allows wording to be altered in very limited situations where outcome would be absurd or repugnant – in all other cases, literal rule would apply • Disadvantages • Not much use - Michael Zander describes it as “a feeble parachute” because it is not much use - it could not be used in cases like Berriman because although the situation could be considered unfair it was not absurd or repugnant • Unpredictable and lacks guidelines – Michael Zander describes it as “an unpredictable safety valve” due to lack of guidelines as to when it should be used. The Law Commission (1969) argued that the rule was of limited value and noted that the rule provided no clear means to test what the idea of absurdity meant • Undemocratic - Because the rule does allow judges to change the wording of a statute, it could be argued that it is undemocratic because unelected judges are changing what Parliament has written

Briefly discuss advantages and disadvantages of the mischief rule • Advantages: • Flexible - It gives effect to Parliament’s intentions – in Smith v Hughes it was clearly Parliament’s intention to stop prostitutes from being a nuisance to others whether they were literally in the street or not. Law Commission (1969) described it as “a rather more satisfactory approach” than the Literal or Golden Rules and suggested it should be the only rule used • Allows judges to use their common sense and save Parliament from having to pass an amending Act – Magor and St Mellon’s v Newport Corporation – Lord Denning said it allowed judges to “fill in the gaps” when Parliament had left something out. Nothman v London Borough of Barnet – Lord Denning said judges should use their good sense to do what Parliament would have done if it had the situation in mind • Allows judges to consider social and technological changes – RCN v DHSS – court recognised that medical practice had changed since the passing of the Abortion Act • Allows judges to look at external aids like Hansard as in Pepper v Hart - if this helps judges to see what Parliament intended then it is sensible to use them • Disadvantages: • Finding the intention of Parliament can be difficult – referring to what a minister has said in Parliament, as in Pepper v Hart, may not reflect what Parliament as a whole intended • Reasonable to argue that what Parliament intended can only be seen in what is actually written in an Act and that Smith v Hughes is wrongly decided because if Parliament had intended the Street Offences Act to apply to prostitutes in houses it would have said so • Undemocratic – too much power for unelected judges – Magor and St Mellons v Newport Corporation – Lord Simmons described its use as “a naked usurpation of the legislative function under the thin guise of interpretation” – said that judges should be guided by Parliament’s enactments not by their intentions - the democratic solution would be for Parliament to pass an amending Act • Rule is out of date and does not reflect modern needs – role of judges has changed as they no longer draft statues for the monarch as they did in the 16 th Century when Heydon’s Case was passed. Also in 16 th Century, common law was main source of law (not so now) • Uncertainty – if judge changes the meaning of a statutes – Stock v Frank Jones – Lord Simmons refused to alter the words of a statute because it would have the result that “ordinary citizens and their advisers hardly know where they stand”

Briefly discuss advantages and disadvantages of the purposive approach • Advantages: • Brings UK courts in line with European courts – purposive approach is used in courts in other EU countries and since joining EU, UK courts have increasingly used the approach • Gives effect to Parliament’s intentions – in the Employer’s Liability (Defective Equipment) Act 1969 Parliament clearly intended to protect workers in the workplace and therefore it was reasonable in Coltman v Bibby Tankers to include ships as equipment even though Parliament had not specifically done so • Allows judges to use common sense – Magor and St Mellons V Newport Corporation – Lord Denning said it allowed judges to “fill in the gaps” when Parliament had left something out • Allows judges to consider social and technological changes – decision in Royal College of Nursing v DHSS recognised that medical practice had changed since the passing of the Abortion Act 1967 • Disadvantages: • Finding the intention of Parliament can be difficult – referring to what a minister said in Parliament by using Hansard, as Pepper v Hart allows, may not reflect what Parliament as a whole intended. In Deegan an application to consider Hansard was rejected because what ministers had said was not sufficiently clear • Undemocratic – gives too much power to unelected judges. In Magor and St Mellons v Newport Corporation – Lord Simmonds described its use as a “naked usurpation of the legislative function under the thin guise of interpretation” and he said judges were to be guided by Parliament’s enactments and not by their intentions. The democratic solution would be for Parliament to pass an amending Act • Might cause uncertainty – if a judge changes the meaning of a statute. In Stock v Frank Jones Lord Simonds refused to alter the words of a statute because it would have the result that “ordinary citizens and their advisers hardly know where they stand”