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Statutory Interpretation

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Mollie Barrowcliffe

on 28 April 2014

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Transcript of Statutory Interpretation

Literal Rule
Statutory Interpretation
The Literal Approach versus the Purposive Approach
This rule gives judges more discretion than the Literal and Golden rule.The official definition came from Heydon's case (1584), this case stated that there were four points the court should consider.(12)
The Golden rule is where “words are given their literal meaning unless it produces a result which is manifestly absurd”.It is a modification of the literal rule, a ruling would start by looking at its literal meaning , but the golden rule allows the court to avoid the unfair approach. The Golden rule is mainly used to prevent inconsistency and absurdity when interpreting an act literally.(6)
The Golden Rule
The rule dictates that statues are to be interpreted by the ordinary meaning of language unless it is specifically defined otherwise.
Under this rule , Judge's and courts give words their literal meanings and definitions.
Statutory interpretation is the act of process of interpreting and applying legislation. The principles developed by courts for interpreting statutes.(1)
Statutory Interpretation
Literal rule
Golden rule
Mischief rule
Ejusdem Generis
The Purposive Approach
Aids
Rules in Statutory Interpretation
R v Judge of the City of London Court 1982:

"If the words of an act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with question whether the legislature has committed an absurdity."(2)
" It lays down general principles. It expresses its aims and purposes. All in sentences of moderate length and commendable style . But it lacks precision. It uses words and phrases without defining what they mean. An English lawyer would look an interpretation clause , but he would look in vain .There is none. All the way through the Treaty there are gaps and lacunas. These have to be filled in by the judges. " (24)
LORD DENNINGTON - TREATY IN BULMER LTD V BOLLINGER SA (1974).
Advantages of the Literal Rule
Disadvantages of the Literal Rule
Using the Literal rule to interpret Acts of Parliament means that unelected Judges do not make laws.
In theory , using the Literal Rule makes acts more certain , it should be interpreted exactly as it is written.

-The Literal rule assumes every Act will be perfectly drafted , when in practice it is not always possible to word an Act to ensure it covers every situation.
-Following words exactly can lead to unfair/unjust decisions , as seen in the case of R V Harris (1836)(3)
R V HARRIS (1836) (4)
This case shows the disadvantages of the Literal rule ,as the defendant bit off the victim's nose . The ruling made by statue previously , was that it was an 'offence' to stab or cut.Under the Liberal rule , the defendant had neither stab or cut the man's nose off , as that would have implied he had used a weapon. As the defendant had not committed an "offence" against the man , the case was quashed.
PARTRIDGE V CRITTENDEN (1968) (5)
An advantage of the The Literal Rule is that is highlights and laws that need revising. This is demonstrated in the case of Partridge V Crittenden , where the defendant advertised some Bramble Finches for sale. The protection of Birds act 1954 made it an offence to offer the birds for sale . The case was quashed as "the advert was an invitation to treat not an offer" which meant that it did not break any laws.

The problems in this case are also shown in Fisher V Bell (1961) where the defendant was advertising a flick knife for sale in a shop window, the same ruling was made and the case quashed.
Lord Reid's comments on the Golden Rule in the case of Jones V DPP (1962)
"It is a cardinal principle applicable to all kinds of statues that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear.If they are capable of more than one meaning , then you can between those meanings , but beyond this you cannot go.(9)
Internal aids & External aids
http://www.slideshare.net/shummi/golden-rule-and-quick-recap-of-literal-rule

RE SIGWORTH (1935)
The case of Re Sigworth has been widely used to demonstrate the flaws of the literal rule , and how the golden rule prevents situations that are seen as ethically wrong.
In this case , a son had murderd his mother before she made a will. This intitled the son as her 'next of her kin' to inherit all of her attributes , as is stated in the Administration of Justice Act.. The literal rule would have allowed the son to claim his mothers belongings and any money she had .however the courts were unwilling to let a murderer benefit from their crime , the golden rule was applied.(7)

Advantages of the Golden rule
Parliament describes the Golden rule as being an 'escape route'.(8) If the literal rule gets a repugnant or absurd result , then the golden rule can be used to ensure that the fair decision is made.
It prevents judges from using their own interpretation , avoiding possible discrimination or miss-judgment.
Disadvantages of the Golden Rule
Michael Zander described the Golden rule as a 'feeble parachute ' suggesting that it is an escape route , but not a useful one.(10)
The Golden Rule is only used if the Literal Rule is unsuccessful , therefore it is not used very often and the court can't predict when it will have to be used.
Judges have no power to intervene , however they can change the meaning of statues and influence judgments.
London and North Eastern Railway V Berriman (1946)
There was no look out man during work on a railway , which lead to a railway worker being killed whilst oiling the tracks. A statue provided compensation payable on death for those 'relaying or repairing the track'. The Literal was applied , but there was no ambiguity , therefore the widow gained nothing.(11)
The Mischief Rule
Advantages of the Mischief Rule
ROYAL COLLEGE OF NURSING V DHSS (1981)
The Royal College of nursing V DHSS shows the advantages of the Mischief Rule.This case challenged he legality of the assistance of nurses in abortions.The Offences Against the Person Act 1861 , made it illegal for anyone to carry out an abortion , unless they were a medically aimed practitioner ( this was aimed at doctors).The case ruled that the nurses had not broken the law , as their assistant in abortions was under the Contemplate Defence Act (1967).The aim of this law against abortions was to stop back-street abortions , where there was no medical care and the majority of women died.
The advantages of the Mischief Rule can be seen in the case of the Royal College of Nursing V DHSS (1981)
1.What was the common law before the making of the Act?
2.What was the Mischief and defect for which the common law was not provided?
3.What was the remedy that Parliament hath resolved and appointed to cure the disease of the commonwealth?
4.The true reason of the remedy.Then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy (13)
The Law Commission prefers the mischief ,since 1969 it has recommended that it should be the only rule used in statutory interpretation.(14)
Disadvantages of the Mischief Rule
DPP V BULL (1995)
Using the Mischief rule can lead to uncertainties in the law , it is uncertain when and how a judge will use the Mischief rule.(15)

It has been argues that the Mischief rule gives judge's too much power and authority.It can bring judge's own interpretations/prejudices , this links with the "middle aged , middle class and middle minded" argument.(16)

The case of DPP V Bull shows the disadvantages of the Mischief rule as a man was charged with an offence under the Street Offences act 1995 , which makes it an offence 'for a common prostitute to loiter or solicit in a public street or a public place for the purpose of prostitution".



The magistrates found him not guilty on the grounds that "common prostitution" refers only to female prostitutes.The word prostitute was ambiguous and they applied the mischief rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report into homosexuality and prostitution. The Report only referred to female prostitution and did not mention male prostitutes. The QBD therefore held the mischief the Act was aimed at was controlling the behaviour of only female prostitutes. (17)
The Ejusdem Generis Rule
Ejusdem Generis is Latin for 'Of the same kind'.
It states there is a list of words followed by general words , then the general words are limited to the same kind of items as the specific words(18)

For example : cars , vans , motorbikes and other vehicles . Other vehicles would not have involved planes as the other examples were vehicles used for crossing land.
"Cars , vans , motorbikes and other vehicles . In this case other vehicles would not have involved planes or boats ,as the other examples used were vehicles used for crossing land."
"Sheep , goats , cows and other animals. In this case 'other animals' would refer to those animals similar to the ones stated."
EXAMPLES
Advantages of the Ejusdem Generis Rule
Disadvantages of the Ejusdem Generis Rule
There is no requirement for a draftsmen to write an exhaustive list of everything included
The Rule adapts to changes within society (19)

It can not be easily predcted what judges will consider to be of the same category as the specific words
The decision on whether to apply the Ejusdem Generis rule , depends upon the Judge's interpretation of the law broken.
Allows for judicial law making (20)

McBoyle v. United States (1931)
The case of MCBoyle V United States shows the disadavantgaes of the Ejusdem Generis Rule , relating to the Judge's interpretation of the law. McBoyle transported a plane that he knew to be stolen from Oklahoma.
McBoyle was accused of violating the National Motor Vehicle Theft Act. The petitioners claimed that since the act did not specifically mention aircraft, it did not apply to aircraft.

The court held that, since other acts - such as the Tariff Act of 1930 - specifically excluded aircraft in its definition of a vehicle, the law must be interpreted narrowly.

Justice Holmes stated:
Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. (21)

Case list statutory interpretation
http://sixthformlaw.info/02_cases/mod2/
cases_stat_interp.htm#A v Hoare [2008] HL



An example of the disadvantages of the Ejusdem Generis rule can be seen in the case of Powell V Kempton Park.The Betting Act 1853 made it an offence to keep a house, office, room or other place for the purposes of betting. The House of Lords had to decide if the statute applied to Tattersall's enclosure at Kempton Park Racecourse

The court applied the Ejusdem Generis rule and held that the other items mentioned in the statute related to places indoors whereas Tattersall's enclosure was outside. The House of Lords ruled that there was no offence committed ,, Tattersall was not charged .This case shows the disadvantages of the Ejusdem Generis rule , relating to a specific Judge's interpretation of the law.
Powell v Kempton Park [1897]
Cheeseman V DPP
The case of Cheeseman illustrates several problems of statutory interpretation. It is used as an example of how the courts can take the words literally.
However , it can be argued that the defendant was 'willfully and indecently exposing his person in the street' and that he was caught doing that. Some people question the importance of whether the police officers were 'passengers'? Because they were there due to previous complaints about this type of behaviour and how presumably, the defendant thought they were ordinary members of the public. People argue the purpose of the Act was to prevent this type of behaviour to begin with.(22)
It can be argued that the Purposive approach was created to stop the outcome of the Cheeseman case , to stop judge's looking at the precise meaning of each word and offer a broader approach.
The conflict between the Literal approach and the Purposive approach is one of the major issues surrounding statutory interpretation.
In European Law the Purposive approach is taken, this is demonstrated in the Treaty of Rome , which sets out general principles but without explicit details.(23)


Because European treaties have to be translated into many different languages , it can make applying the literal rule difficult. As translating a whole extract to a number of different languages , would be difficult , and to then get a specific word would be nearly impossible . This is one of the arguments against the use o the literal rule.
Purposive Approach
Through the Purposive Approach judges are deciding what they believe Parliament wanted to achieve through the Act of law. The use of the Purposive Approach is best described by Lord Dennington;
However many other judges criticized his attitude towards the Purposive Approach.
The Purposive approach was used in the case of R V Registration General , ex parte Smith (1990) , where the court had to consider section 51 of the Adoption Act 1976

The case gave the court a lot of difficulty , to whether they should apply the literal rule or use the purposive approach. In the end the court decided to apply the Purposive Approach and Lord Dennington proved he was right about using the Purposive Approach
LORD DENNINGTON - CASE OF MAGOR AND ST MELLOWS V NEWPORT CORPORATION (1950)
"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 than by opening it up to destructive analysis". (25)
Intrinsic Aids
Extrinsic Aids
Intrinsic aids are matters within a statue , which are put there to make it easier to understand. The court can use short titles , long titles and any preamble.Internal aids can include headings before a group of sections and any schedules attached to the statue.
Often, there are marginal notes explaining different sections. However, these are not regarded as giving Parliament's intention ,as they will have been inserted after parliamentary debates and are only helpful comments put in by the printer. ( 26)
An example of Intrinsic Aids , is the The Act 1986 - this Act was made in order to modernize the law on theft.
Extrinsic Aids , are found outside the statue , to help make the statue's meaning clearer.These can come from :
Hansard
Reports from Law Bodies
Internal Converntions
The Following forms of Extrinsic Aids , are disputed depending on their reliability , but are still used.
Dictionaries
Previous Acts of Parliament
Previous Cases

Acts passed since 1999 have been accompanied by explanatory notes. These notes summarize the main provisions of the Act and explain the background to it. The government department responsible for the legislation writes them after the Act has been passed (27)
HANSARD
Until 1992 , there was a firm rule that the courts could not look at what was said in the debates in Parliament . Years later Lord Dennington tried to have this band removed in relation to Davis V Johnson (1979) .
Hansard is the official report of what was said in Parliament when an Act was debated
DAVIS V JOHNSON (1979)
The case of Davis V Johnson involved the interpretation of the Domestic Violence Act and the Matrimonial Proceedings Act 1976 . He admitted that he had indeed read Hansard before making his decision.
" Some may say... that Judges should not pay attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light . I do not accede to this view. "
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