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Statutory Interpretation

AS OCR Law- Literal, golden, mischief and purposive rules and evaluation.
by

Helen Isley

on 5 February 2014

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Transcript of Statutory Interpretation

Purposive
LITERAL
GOLDEN
The Golden rule is an extension of the literal rule. If the literal rule would give an absurd result, then the judge should alter the words of the statute in order to produce a satisfactory result
PURPOSIVE
MISCHIEF
Evaluation
Literal
Statutory Interpretation
The rules Of Statutory Interpretation.
Consider the question: Why should judges simply follow the wording of a law made by parliament?
Parliament is the supreme law maker. They are democratically elected and therefore the laws that they make should take precedence over any judge-made law.
Lord Esher said in 1892 ‘The court has nothing to do with the question of whether the legislature has committed an absurdity’.
But what is an absurd result?
Fisher v Bell (1961)
The Restriction of Offensive Weapons Act 1959 was passed to stop the use and sale of flick knives. The defendant had a flick knife displayed in his shop window. The Act stated it was an offence to "sell or offer for sale" flick knives. Under the law of contract, a shop display is not an offer for sale, it is known as an "invitation to treat". Literally, the shop keeper was not offering for sale a flick knife, so he was acquitted on appeal by the Queen's Bench Division of the High Court.

Do you think the judge (Lord Parker) was right in his decision?

Why do you think Lord Parker used the literal rule?

Do you think parliament meant for people like Mr Bell to be convicted?

Have you ever heard of an invitation to treat?

Do you think parliament should have?
In groups of 4:
You will each be given a case where the literal
rule has been used.
Two of you should discuss the merits of using
the literal rule.
Two of you should discuss the negatives.

As a group come to a decision as to who is right.

Be ready to explain your case and your decision to the class.
In pairs discuss:
p5 booklet

Which word had two meanings in the crime of bigamy?

What are the two possible meanings?

Why didn't parliament
spot this mistake?
R v Allen (1872)
The narrow Golden rule
Lord Reid in Jones v DPP (1962):
If they (the words) are capable of more than one meaning then you can choose between those meanings, but beyond this you cannot go. p5 booklet.
The Wider Golden Rule
The judge understands the meaning of the word but does not apply its literal meaning as it would be undesirable or repugnant. p6 of booklet
Re Sigworth (1935)
According to the Administration of Estates Act 1925 if a deceased person has not made a will, the next of kin will inherit their estate. In this case the next of kin was the woman's son. The judge thought it would be repugnant if the son were to inherit her money as he had murdered her.
The statute did not mention what to do in such situations so the judge took a wide interpretation and decided the son should not inherit.

Do you think this is a good decision? p6 of booklet
Lesson 1 : Learning Objective- to understand the different rules that judges use to interpret statutes.

Must be able to define the rules D/E

Should be able to apply the rules to key cases to explain how decisions were found. C

Could evaluate the use of the different rules. A/B
Focus Questions:

Who writes statutes?

What does interpret mean?

Who do you think might have to interpret them?

Why do you think statutes need interpreting?
Adler v George (1964)
It is an offence under section 3 Official Secrets Act 1920 to obstruct a member of the armed forces "in the vicinity of a prohibited place".
Look up the word "vicinity" in the dictionary.
The defendant was found inside the prohibited place.
Using the literal rule, is he guilty?
Why couldn't the judge use the narrow Golden Rule?
Was the defendant found guilty or not guilty?
The mischief Rule was Established in Heydon's Case (1584). When using this rule, a judge should consider what the common law was before the Act was passed, what the problem with that law was, and what the remedy that parliament was trying to provide was.This rule gives judges the most flexibility when deciding what mischief parliament intended to stop . This way they can in fact ignore the wording of the statute in order to reach the desired outcome. p7 booklet
In
Jones v Wrotham Park Settled Estates 1980,
Lord Diplock said, the mischief rule should only be used when the mischief can clearly seen from the Act, Parliament had overlooked the issue that arose in a particular case and the words that needed to be added to the act were obvious.
What is Lord Diplock saying about using the mischief rule?
Smith v Hughes (1960)
Using the literal rule, were the prostitutes guilty?

Could the judge have used the Golden rule?

Where might a judge look for the "mischief" of an act?
Where might a judge look for the ‘mischief’ of an Act?
The Long Title of the Act might
explain why it was passed. If the Act was based on a report or white paper, these might also be useful.
See Dangerous Dogs Act 1991
Royal College of Nursing v DHSS (1981)
The Abortion Act 1967 was written at a time when only
" registered medical practitioners" (doctors) were authorised to carry out abortions. The case questioned the legality of the involvement of nurses in the modern practice of non-surgical abortions.
What was the main reason that Parliament passed the Abortion Act 1967?

Two of the five judges dissented and wanted to use the literal rule, who do you agree with?

If the judges applied the literal rule to this case, what would parliament have to do to allow nurses to be involved in abortion procedures?
A modern approach to statutory interpretation which looks for the purpose of an Act.
In
Pepper v Hart (1993)
, Lord Griffiths said, "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.
What does Lord Griffiths mean by "extraneous material"?
R v Registrar-General, ex parte Smith (1990)
Section 51 of the Adoption Act 1976 states that if an adopted person over the age of 18 years properly applies for a copy of their birth certificate, the Registrar General shall supply them with a copy. This case involved a man who applied for his birth certificate in the correct manner. Using the Literal Rule, he was entitled to a copy because the Act states that the Registrar-General "SHALL...SUPPLY". However, the court refused to supply the information. The application had been made by a convicted murderer with mental health issues. It was thought that he wanted the information so that he could track down his natural mother and be hostile towards her.
In your groups, number yourselves from 1-4.
Read the fictitious door numbers Act (on p11) and consider the following scenarios from the four different perspectives.
1-Literal
2- Golden
3- Mischief
4- Purposive

If your group has 5 people, two people consider the literal approach.
Quick Test- Mini Whiteboards
Must be able to define the rules D/E
write one sentence explaining what the literal rule is.

Should be able to apply the rules to key cases to explain how decisions were found. C

pick one key case from today's lesson and explain how the literal rule was used.

Could evaluate the use of the different rules. A/B
write one criticism of using the literal rule (use a case as evidence for highest mark)
Whiteley v Chappell (1868)
An Act was passed to make it an offence to commit electoral malpractice (vote more than once). The wording stated it was an offence to impersonate ‘any person entitled to vote’. The defendant impersonated a dead person. As dead people are not entitled to vote, he had not literally committed an offence.

London & North Eastern Railway Co v Berriman (1946)
A railway worker’s wife was not allowed to receive compensation from her husband’s death at work because he had been doing maintenance on the train track when he was killed. The Act stated that compensation would only be paid if someone was killed whilst ‘relaying or repairing’ the track.
respects parliamentary sovereignty.

Lord Esher - ‘The court has nothing to do with the question of whether the legislature has committed an absurdity’.

Viscount Dilhorne in 1971 said in support of the literal rule, ‘if the language is clear and explicit the court must give effect to it’. ‘the words of a statute must not be overruled by the judges, but reform of the law must be left in the hands of parliament.’
Advantages of the Literal Rule
Disadvantages of the Literal Rule
Unjust results can be found in the case law

Law Commission 1969 thought using the literal rule ‘assumes unattainable perfection in draftsmanship’.

Lord Denning was also a critic of the literal rule, which he said was popular in the 19th century but wrong in principle.

Lord Steyn argued that the literal rule should be used with caution.
Advantages of the Golden Rule
The Golden rule is an extension of the literal rule. If the literal rule gives an absurd result which was obviously not what parliament intended, then the judge should alter the words in the statute in order to produce a satisfactory result.
The disadvantage of this is that it gives too much power to judges and can lead to inconsistency.

Law Commission 1969 said that there is no clear definition of what will constitute an ‘absurd result'
Disadvantages of the Golden Rule
gives judges more flexibility.
This way they can in fact ignore the wording of the statute in order to reach the desired outcome.

Examples of this rule/approach being put to good use include Smith v. Hughes (1960) and Royal College of Nursing v. DHSS (1981).

Supporters include Prof. Zander, the 1969 Law Commission, and Lord Denning.
Advantages of the Mischief Rule
Disadvantages of the Mischief Rule
It disrespects parliamentary sovereignty.
It gives judges too much power as they can interpret the law how they want it to be.
It looks back to the mischief parliament intended to stop rather than forward to what parliament intended for the future (purposive approach).
Magor and St Mellons v. Newport Corporation (1952) Lord Denning said ‘we sit here to find out the intention of parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment’.

This approach is also more ‘European’ in style and the European Union is becoming more important in many areas of UK law.
Advantages of the purposive approach
This approach does not respect parliament’s sovereignty and may give judges too much power.

The cost of researching the background to a case by looking at things such as Hansard may increase the expense of court cases.
Disadvantages of Purposive Approach
Plenary
In pairs- discuss which of the rules YOU think is best, LITERAL, GOLDEN, MISCHIEF or PURPOSIVE.


Make sure you can explain an advantage of choosing that rule.

If you can use a case as an example. (You can use a case which followed a different rule and explain why using your rule would be better.)
Target Setting

Must be able to define the rules D/E

Should be able to apply the rules to scenarios to explain how decisions could be found and relate to key cases. C

Could evaluate the use of the different rules. A/B
On your piece of paper write your FULL name and a target for this lesson.

R v Allen (1872)

In this case section 57 Offences Against the Person Act 1861 made it an offence to marry while one’s original spouse was still alive and there had been no divorce. In this case a man got married to another woman whilst still married.

Verdict

The defendant was found guilty.

Held

This case is an example of the narrow application of the golden rule. The wording of section 57 Offences Against the Person Act 1861 had to be given a different interpretation for the crime of bigamy, because the way it was written meant that the crime could never be committed. The word marry can mean to become legally married to another person or in a more general way it can mean that a person takes part or goes through the ceremony of marriage. The court decided that in the Offences Against the Person Act 1861 the word had this second meaning of going through a ceremony of marriage. This was because a person who is still married to another person cannot legally marry anyone else so the first meaning when applied in a literal sense, it would lead to an absurd decision as no one could ever be guilty of bigamy.
Define the narrow and wider Golden rule - E

Explain the narrow and wider golden rule with reference to relevant authority - C/D

Evaluate the use of the Golden Rule. A/B
Define the mischief rule E

Explain the mischief rule with reference to key cases C/D


Give one strength and one weakness of the mischief rule A/B
Starter
In Pairs:

Discuss the definition of the literal rule ( DONT USE THE WORD LITERAL)

Discuss ONE CASE which used the literal rule.

Discuss ONE advantage and ONE disadvantage.
Home work- 8th March
2a) DESCRIBE the literal rule using the SOURCE and other cases. (15marks)

2c) With reference to the SOURCE and other CASES
(i) DESCRIBE the Mischief rule (15 marks)
(ii) Discuss the advantages and disadvantages of the mischief rule.(15 marks)
1- Definition of the Purposive Approach
2- Case law for the purposive approach
3-one strength and one weakness of purposive approach.
Discuss in pairs which rule you think is the best.
Explain why, using the strengths we have discussed and any ideas you want to add.
Group 1:
Hal collier
Zoe Jones
Callum Rimmer
James Newbold
Group 2:
Charlotte Mchugh
Eleanor Macintyre
Evan Bantoft
Sanjeet Deb
Group 3:
Ellie McIntosh
Charlotte Mansfield
Gary Heyes
Joseph lawler
Group 4:
Gabriella Morelli
Rachel Mason
Collette Lowe
Oscar Kott
Adam pickup
Group 5:
Abigail Woodcock
Alice Parker
Joseph Barratt
Nazanin Jahanshahi
Full transcript