Chelsea Whyte Block C Statutory Interpretation – Part B c.i) Plan: Intro – What is the literal rule? (R v City of London Court 1982) P1 – Whitley v Chappell 1868 P2 – London v North Eastern Railway Co v Berriman 1946 P3 – Cheesman v Director of Public Prosecutions 1990 P4 – Fisher v Bell 1960 P5 – Source (R (Haw) V Secretary of State for the Home Department and another [2006]) Conclusion – Summarise all points about the literal rule. Answer When attempting to interpret statutes the court can use any one of the four rules; the literal rule, the golden rule, the mischief rule and the purposive approach. The literal rule is used when the courts wish to interpret a statute word for word and take the plain, ordinary meaning of the words and/or phrases of the legislation. In the case of R v City of London Court 1982 Lord Esher said: “If the words of an Act are clear then you must follow them even if they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity." This clearly illustrates the view of many traditional law lords who believe that the law is made by Parliament and that everyone else has to follow it without questioning it. Whiteley v Chappell 1868 In the case of Whiteley v Chappell 1868 the defendant was charged with ‘impersonating any person entitled to vote’. The dispute in this case was over who is entitled to vote, this was because the defendant had been impersonating someone who was dead – although still on the voters’ list. The court in the end ruled that even though the defendant had voted twice, and once as someone else, he couldn’t be found guilty of ‘impersonating any person entitled to vote’ as a dead person isn’t entitled to vote. This decision was made by using the literal to establish who is in fact ‘entitled to vote’, however, this is a prime example of the literal rule being used and having an absurd outcome; the defendant was not charged even though he had voted twice which in our country’s democratic system is not supposedly allowed. London v North Eastern Railway Co v Berriman 1946 In the Fatal Accidents Act it stated that railway workers ‘relaying’ or ‘repairing’ the railway tracks were to be supplied with a lookout, this was designed to protect the workers from any harm that may come to them whilst working on the tracks. In the case of London v North Eastern Railway Co v Berriman 1946 the claimant’s husband had lost his life whilst doing oiling the train tracks, therefore, under the Fatal Accidents Act he did not need to be supplied with a lookout as this only came under maintenance work which was not seen as ‘relaying’ or ‘repairing’. Due to this literal interpretation of the law the claimant (wife of the railway worker) was not granted compensation from the railway company as maintenance work was not specified under the Act. Cheesman v Director of Public Prosecutions 1990 Another case which shows the use of the literal rule is the case of Cheesman v Director of Public Prosecutions 1990 in which Cheesman was charged under section 28 of the Town Police Clauses Act 1847 with ‘wilfully and indecently exposing his person in a street to the annoyance of passengers’. When the court looked at the case more in depth they were made aware of the fact that the police officers couldn’t be classed as ‘passengers’. This was because passengers were defined by the dictionary of the time as ‘anyone resorting in the ordinary way to a place for one of the purposes for which people would normally resort to it’ and it became clear that the police officers were at that public lavatory because they had received prior complaints, and therefore as they were not there to use the facilities but in fact on a ‘stakeout’ the defendant could not be found guilty under the literal rule. Fisher v Bell 1960 In some cases it can be argued that when a person is not found guilty it is going against the intentions of Parliament. A prime example of this is the case of Fisher v Bell 1960 in which the defendant was charged under the Restriction of Offensive Weapons Act 1959 with ‘offering for sale’ a flick knife which he had displayed in his window. However, the defendant rightly argued that the meaning of ‘offer for sale’ in contract law does not include putting an item in a shop window and that in fact to be convicted under this Act he would have to have accepted payment from a customer to which he was selling the flick knife. Therefore, having applied the literal rule in this case meant that the defendant was found not guilty after looking up the legal meaning of ‘offer for sale’. R (Haw) V Secretary of State for the Home Department and another 2006 The source is an example of a case where the defendant would have preferred to court to use the literal rule but instead they took the purposive approach (looked at the why the Act was created and what Parliament set out to achieve). In the case R (Haw) V Secretary of State for the Home Department and another 2006 the defendant was charged under the Serious Organised Crime and Police Act 2005 of having ‘organised, took part in or carried on’ a demonstration that ‘when the demonstration started’ had not been given authorisation. The defendant claimed that the words of the Act were fairly plain and easy to understand and that he should not be found guilty as the demonstration he had took part in had started before the Act came into force and therefore it couldn’t be applied to him. However, the court decided to look at the case from a purposive approach and decided that as Parliament’s intentions were to control any demonstrations/protests within their close area the Act still applied to any protests that took place before it came into effect. As a result, the defendant was found guilty by use of the purposive approach. As can be seen there are many cases where the judge/court wishes to use the literal rule to their advantage, but there can also be cases where the defendant tries to use it as a way to get the result their way. The literal rule is generally used by law lords who wish to follow what Parliament have said but in some cases this can lead to Absurd results as was seen in the case of London v North Eastern Railway Co v Berriman 1946. c.ii) Plan: Intro – Purposive approach; difficulties interpreting parliament’s intentions P1 – Intrinsic aids P2 – Hansard P3 – Law Reform Reports/International conventions P4 – Dictionaries P5 – Explanatory notes P6 – Rules of language Conclusion – summarise all points Answer When courts use the purposive approach to interpret statutes, they have to find out what Parliament’s intentions were when they created the Act, however, this can be tricky due to the broadness of some statutes and the limited amount of aids that the courts are allowed to use. To help the courts find out what Parliament’s intentions were, there are things such as Intrinsic and Extrinsic aids. Intrinsic aids Intrinsic aids are things within the statute itself which may help the court to determine Parliament’s aims in creating the legislation, this consists of things such as the short title, the long title and the preamble (explains what Parliament set out to achieve in creating the Act), although not many statutes these days include a preamble. For example, in the Theft Act 1968 the preamble states that it is an Act to modernise the law of theft. There are a few other intrinsic aids which can also be considered, these are; subheadings to sections and any schedules attached to the Act. These have been used for a long time as an aid to statutory interpretation and have proved useful for clearing up any misunderstandings around Parliament’s intentions, however, as these do tend to be quite brief they are limited in what they do contain. Hansard The opposite of an intrinsic aid is an extrinsic aid (materials outside the act); this is the category of aid that Hansard falls under. Hansard is the record taken of the Parliamentary debate when an Act is in the process of being made. Over the years there have been many disputes over whether or not Hansard should be a permitted aid for statutory interpretation; this was because many judges believed that it could create confusion when interpreting the statutes and deciding the outcome of cases. Lord Scarman himself said in Davis v Johnson 1979 that looking at Hansard is ‘not always conductive to a clear and unbiased explanation of the meaning of statutory language.’ However, it was in 1993 in the case of Pepper v Hart where the House of Lords decided that Hansard should be permitted when interpreting the law, but only when the words of the Act are ambiguous or obscure or lead to an absurdity. Even then Hansard can only be used if in the debate the Minister initiating the legislation has specifically said something which will resolve any problems. Although, it is worth remembering that it was not until 2005 in the case of Jackson and others v Her Majesty’s Attorney General that the Law Lords formally approved of the use of Hansard as an extrinsic aid. Since then it has been much easier to find the intentions of Parliament as Hansard is a good record of debates over the statute in Parliament. Law Reform Reports/International conventions Another extrinsic aid is the reports made by law reform agencies such as the Law Reform Committee and the Law Commission. As with Hansard, for a long time this was not fully accepted as a method of extrinsic aid, but in 1975 in the case of Black Cawson the Law Lords decided that these reports should be allowed to be consulted as the explain the gap that an Act was supposed to fill when it was created. In the case of Fothergill v Monarch Airlines Ltd (1980) the house of Lords decided that when dealing with legislation that was derived from European laws that the international conventions could be treated as an extrinsic aid which the courts could look at to establish the purpose of an Act, this is because when legislation is translated from another language some of the original meaning may be lost. They also decided that English courts could consult the preparatory materials or explanatory notes published with the original piece of legislation; this is because in Europe the courts are allowed this in the form of travaux préparatoires. Dictionaries One extrinsic aid that there has never been any dispute over was using dictionaries of the time, this is to define the meaning of words and when using certain rules to establish if there is more than one meaning to a word. A case which shows this is DPP v Bull 1994 in which a male prostitute was charged with the offence of ‘loitering or soliciting in a public street or public place for the purposes of prostitution’, initially the magistrates court dismissed the case believing that the statute referred only to female prostitutes. But when the prosecution appealed the case was taken to the Queen’s Bench Divisional Court where they had to decide if the legislation included male prostitutes. To do this they used the Oxford English Dictionary (1989) to look up the meaning of ‘prostitute’; the definition they wished to use was ‘a man who undertakes male homosexual acts for payment’. As it so happens there were other things within this case that rendered him not guilty, but the dictionary did prove useful in enlightening the court of the multiple meanings of the word ‘prostitute’. Explanatory notes In 1998 Parliament started publishing explanatory notes with new Bills; they are produced by the Government Department introducing the Bill, therefore, it is a very useful thing to include as an aid to statutory interpretation as it gives an insight directly from the heart of the people creating the Act. The explanatory notes include background notes and summarises the main provisions of a new law, and where a point of the new legislation is complicated give worked examples to resolve any problems in the future. These have not yet been confirmed as extrinsic aids, but if they were to be they could be seen as a great help when using the purposive approach, this is because they would provide another source of evidence which may refer to why an Act was created in the first place. However, this could cause disputes amongst the Law Lords, some of whom would claim that the explanatory notes are not created to be looked at in courts and may create confusion in courts by saying two different things about what the Act was created to achieve. Rules of Language There are three rules of language that are followed when interpreting statutes, they are: • The ejusdem generis rule • Expressio unius exclusion alterius • Noscitur a sociis Although, these rules can each help to find Parliament’s intentions sometimes they may create more confusion or complications. The ejusdem generis rule means that when there is a list of specific words, followed by a general word/phrase the general word/phrase is to be defined by the specific words that came before. An example of this is the case of Powell v Kempton Park Racecourse (1899) there was dispute over the list ‘house, office, room or other place for betting’; in the end the ‘other’ was said to have to be inside as all the other rooms listed were inside. Therefore, in this case the defendant was not found guilty as he was holding betting in a Tattersall’s Ring which is outdoors. Expressio unius exclusion alterius means that the express mention of one thing excludes others; this is generally applied when there is a list of specific words not followed by any general words. This can be seen in Tempest v Kilner 1846 when there was a dispute over whether a contract of sale was needed for stocks and shares, but as the statute said ‘goods, wares and merchandise’ it was reached that stocks and shares weren’t included in this as there were no general words after the list. The third rule – Noscitur a sociis – means that a word is known by the company it keeps. In the case of Inland Revenue Commissioners v Frere 1965 the statute in dispute made regulations about ‘interest, annuities or other annual interest’ and when the initial use of ‘interest’ was looked at in context with the rest of the words around it the court decided that it meant only annual interest as this was later mentioned. All three of these rules have their advantages, but mainly they make the lives of the courts much easier as they set out boundaries which the courts should initially follow when they are interpreting the statutes. There will always be a certain degree of difficulty for the courts when they are trying to interpret the law, but in recent years this has become less difficult with the introduction of new intrinsic and extrinsic aids and also the rules of language. Bibliography The English Legal System – Jaqueline Martin British Constitution Made Simple – Colin F. Padfield AS Law – Catherine Elliott & Francis Quinn