Date: Tuesday, 07 April 2015
Statutory Interpretation - Introduction
Lesson Outcomes:
Specification Link: Common law
Define what is meant by
statutory interpretation
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
MP4 (Playing music in Public) Act 2013
An Act to create quieter public spaces by the abolishing the use of MP4 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.
[14th August 2013]
s.1 This Act applies to all MP4 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 s68(1)(a) and answer the question:
Should Basset’s appeal be upheld?
Sexual Offences Act 2003 s67 & 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 and
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
HMRC v Proctor &
Gamble (2009)
Packaging
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 J36
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. (s51 Adoption Act 1976)
31