Statutory Interpretation:-
The methods judges use to find out the meaning of words
In an act
You need to know:
o
o
o
What statutory interpretation is
Different approaches judges can take to statutory interpretation
Different aids the judges can use in relation to the different approaches In particular:
Hansard and Rules of Language
You need to be able to comment upon:
o
o
o
o
Similarities and differences between the different approaches
Advantages and disadvantages of statutory interpretation
Link with: separation of powers doctrine / do judges make law - should they?
Impact of joining European Union upon judges use of the approaches
o
Link with topics of legislation, delegated legislation.
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Basic Definition: The role of judges is to apply the law to the facts of the case before them in order to resolve
the dispute (civil or criminal). Statutory interpretation is the approach that the judges have developed over
time, to find the exact meaning of words or phrases in legislation (including delegated legislation and EU law)
— in order to fulfill their role.
Whether an individual can rely upon a right given in legislation, or is guilty of a crime (as stated in legislation)
depends upon whether their action falls within the meaning of the words in the legislation. You will see that
this can often depend upon how the judge interprets that legislation
There are 4 approaches that the judges can use to find the meaning of the words/phrases in legislation — it is their
discretion which to use. Different approaches can lead to different results — hence the outcome of the case
can depend upon the choice of approach the judge takes in interpreting the legislation. Whichever approach
the judge uses, he can use internal and external aids to help him find either the meaning of the word, or the
intention of Parliament.
Approaches



3 approaches (principles) developed by judges, and 1 approach inherited from European Union law.
In effect these are a set of 'rules' that judges follow in order to find the meaning of words/phrases
in legislation It is up to the judge which approach he uses —judge's discretion.
THE FOUR APPROACHES ARE:
o
The Literal Rule
o
The Golden Rule
o
The Mischief Rule
o
The Purposive Approach
Aids – That help a judge
Legislation often needs interpreting because:
understand the meaning of an Act
o
Broad terms are often used: e.g. "vehicles" - does this
These are classified as either:
include skateboards, motorised scooters?
Internal
- within the Act
o
Words are left out in the belief they would be
External
- outside the Act
implied: e.g. "men with beards or moustaches are prohibited from
"Aids" are where the judge can
parks"- does this mean a ban for men with both? - (and/or). Errors
go to gain help in finding the
occur in drafting and printing of legislation
meaning of words or the
o
Legislation cannot foresee all future events / technology.
intention of Parliament in
o
Ambiguity is included due to politically contentious nature of the
creating the Act
legislation.
Approaches (principles) to Statutory Interpretation
Literal Rule
Where judges give the words in the legislation their "ordinary, natural" meaning, as clearly stated in the Sussex
Peerage case in 1844 and as such upholds the separation of powers doctrine —judges clearly interpreting
not making law, which is the role of parliament.
The problem is this rule can lead to absurd (stupid) or unjust results, as seen in the following cases:
Whitley v Chappel (1868) A statute aimed at
preventing electoral malpractice was made a
nonsense of when the accused was found not guilty
of the offence when he impersonated a dead person, to
use his vote. The court held, using the literal rule, a
Fisher v Bell(1961) Is another example of an absurd result.
Here, the intention of Parliament (to reduce the number of
offensive weapons available, including flick knives ) was
rendered ineffective by the literal rule of interpretation when
it was held that placing flick knives on display in a shop
dead person was not "entitled to vote".
window did not fall within the contract law meaning of
"offering for sale" stated within the Act. The defendant
LNER v Berriman (1946) The widow of a
railway worker killed at work, was denied
compensation due to the interpretation of the Fatal
Accidents Act. It was held that the worker who was
maintaining and oiling the track when he was
killed, did not fall within the literal meaning of
"relaying or repairing" in the Act. Parliament
probably wanted people like Berrimen to claim
compensation so unfair.
was therefore found not guilty. [However, Parliament then
changed the wording of the Act to prevent this occurring in
future]
Benefit of the Rule: The judges do not have to use this rule, but
chose to in order to be seen to be applying the law — as seen in
the dicta of Lord Esher R v Judge of City of London (1892:
"If the words of an Act are clear, you must follow them, even
though they lead to a manifest absurdity ... the court has
nothing to do with the question of whether the legislature
has committed an absurdity.
Problems with the Rule:
Law Commission, 1969 stated that the literal rule "assumes unattainable perfection in draftsmanship"
M Zander, a legal writer said the literal rule is, "mechanical and divorced from both realities of the use of language and from the
expectations of human beings concerned ... in that sense it is irresponsible."
Golden Rule Used only If the literal rule creates an absurd or unjust result:
To Modify the ordinary, natural meaning OR
Choose between different meanings
Narrow interpretation of this rule:
R v Allen (1872) the words "shall marry" were
interpreted to mean "shall go through a marriage
ceremony". The court chose between possible meanings
using the Golden rule. If the literal rule had been used the
absurd result would have been that the offence of
bigamy could not be committed!
—
The wide interpretation of this rule
Adler v George (1964) Here the meaning of the words "in the
vicinity of" in the Official Secrets Act 1920 was modified to
mean "within" - in the context of the Act as a whole, in order to
avoid an absurdity of the literal rule. Golden rule enabled
verdict of guilty for obstruction of a member of the armed
forces on an air force base.
Re Sigsworth (1935) A son murdered is mother to claim her
money as the Act said as the only surviving children (issue)
would be entitled to this money. The meaning of "issue" was
modified on the grounds of public policy. The court were
effectively writing into the Act "issue" would not be entitled to
inherit where they had killed the deceased.
Benefits and problems with the Golden Rule
The cases of wider interpretation show that the golden rule is often seen as the mischief rule in disguise —finding and upholding
Parliaments intention in creating the Act, rather than merely applying a modified meaning of the ordinary, natural meaning of the
words used in the Act. However, in using the Golden rule they are still seen to be applying law — upholding the doctrine of
separation of powers.
The Golden Rule has been criticised by the Law Commission (in 1969) as the rule provides no clear meaning of an
"absurd result", of when the rule can be used.
Approaches (principles) to Statutory
Interpretation
Mischief Rule
Interpret the words in the statute in the light of the gap / mischief (problem) in the law which Parliament
intended to remedy (solve). [i.e. interpret in way to give effect to "mischief' intended to remedy]
This rule is supposed to be used if the literal and golden rules produce an absurd or silly result.
The golden and literal rules are concerned with finding out what Parliament said, whereas the Mischief rule looks
for what Parliament tried to achieve (the "mischief' intended to remedy).
An old rule based on Heydon's case in 1584. This approach lost favour in the strict Victorian times, and then
regained favour as the need for flexibility was again recognised. The court must consider 4 things:
1. What the common law was before the Act was passed
2. What the mischief (the problem) the Act was trying to remedy (solve).
3. What was the remedy (solution) in the Act.
4. The reason behind the remedy (solution).
As seen in:
Smith v Hughes (1960) in this case a prostitute was calling from the balcony of a private house to men in the street below. If
the offence to solicit "in a street" was interpreted literally the defendant would have been found not guilty. The court
interpreted this phrase in the light of the Act's clear intention to allow men to walk freely down the street without
proposition finding the prostitute's actions to fall within this "mischief' Parliament intended to stop; hence to be guilty of
—
the offence -using the mischief rule.
Royal College of Nursing v DHSS (1981) HL The controversial case in which Lord Wilberforce dissented claiming the House
of Lords was not interpreting but was rewriting legislation. In the ca se the House looked to the mischief that the Act sought to
remedy — namely the uncertain state of the previous law on abortions by widening the grounds upon which legal abortions
could be obtained and hygienically and safely so. Literally interpreted, a nurse is not a "registered medical practitioner"
hence would be guilty of carrying out an illegal abortion. However, it was found to be within the Act using the mischief rule.
Benefits and problems with the Mischief Rule
The Mischief Rule helps avoid absurdity and injustice - overcomes problems with literal and golden rules. It
allows flexibility for the judge, and has been described by the Law Commission in 1969 as "a rather more
satisfactory approach than the other established rules." In Lord Denning’s words, to “fill in the gaps” when
Parliament has left something out and to use common sense and change wording to reflect that the Act was
trying to deal with. The major criticism is that it contradicts the legal doctrine of separation of powers as
judges are re writing the Act making law. Lord Simons felt the disadvantage of the Mischief rule was that
judges should not add words to an Act as it could cause ordinary citizens and their advisers unsure as to
what the law actually was. He felt it should be left to Parliament if the words in an Act need to be amended,
an argument for the literal rule.
-
—
The Purposive Approach
Has been inherited from EU law, and described as a modern descendant of the mischief rule.
This rule is where judges look at the purpose or positive reasons of the legislation and interpret the words to bring
about that purpose. As seen in:
R v Registrar General - Ex parte Smith (1990): Smith, who was criminally insane and had killed twice, had
been adopted as a baby. In spite of the clear and seemingly absolute right to his birth records provided by the
Adoption Act 1976 he was denied access to them on grounds of public policy. It was held that Parliament could
not have intended to put the natural mother at risk. He might well have killed her.
o An approach which Lord Denning was in favour of when interpreting all legislation, as seen in his dicta in Magor
and St Mellons 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." A
broader approach than the mischief rule.
o However, at the time Lord Denning's approach was criticised by the House of Lords: Lord Simonds described
Lord Denning's approach as "a naked usurpation of the legislative function under the thin disguise of interpretation."
Further "if a gap is disclosed the remedy lies in an amending Act"
o Since 1972, England's entry into the European Union, English judges have been interpreting EU law
purposively in English courts. [All EU law is interpreted purposively. The literal rule would be inappropriate due to the
problem of meaning lost in the translation of words in the different member states of the European Union.]
o As the judges become more used to using this approach when interpreting EU law, so they may apply it
more willingly when interpreting English legislation.
o The introduction of the Human Rights Act 1998 is likely to prompt a shift towards more purposive
interpretation as judges take account of the European Court of Human Rights; which itself takes a purposive approach to
interpretation.
Main criticism: how to accurately find intention of Parliament / judges making law.
Advantages and disadvantages of the four approaches of Statutory Interpretation
Type
Advantages
Literal
Rule
1.
Golden
Rule
1.
Mischief
Rule
The main advantage for using the literal rule is that it
respects the sovereignty of parliament ad prevents
unelected judges making law.
2. Viscount Simmonds in Magor & St Mellons v Newport
Corp argued that it was not upto judges to fill in the
gaps because of perceived drafting problems with an
Act. If a gap was found by a judge “the remedy lies in
parliament amending it”.
3. Another advantage of the Literal rule is that it
encourages certainty and because there is less scope for
interpretation there is likely to be less litigation.
4. Lord Simon expressed this argument in Stock v Frank
Jones Ltd, when he claimed that leaving Parliament to
make changes was “far preferable to judicial contortion
of the law to meet apparently hard cases with the result
that ordinary citizens and their advisers hardly know
where they stand”.
An advantage of the Golden rule is that the judge can
alter the wording and make sense of absurd or repugnant
wording in the Act.
2. For example in the case of Re Sigsworth it was
extremely distasteful to society for Sigsworth to benefit
financially from murdering his mother, simply because
he was the “sole heir and successor” of her estate. Using
the Literal rule there was no alternative meaning to the
words “sole heir” so the judge used the Broad approach
to take a wider meaning of the Act so Sigsworth couldn’t
benefit from his terrible actions.
3. Another advantage is that the Golden rule respects the
authority of Parliament because in all other
circumstances the literal rule should be used.
4. Absurdity appears to be based on a judge’s reference to
whether parliament’s policy on the issue was in line with
the interpretation, it appears to be a more subtle form of
the Mischief rule.
1. One advantage of the Mischief rule is that it allows
judges, in Lord Denning’s words, to “fill in the gaps”
when Parliament has left something out and to use
common sense and change wording to reflect that the
Act was trying to deal with.
2. For example, the case of Smith v Hughes could be seen
as sensible decisions reflecting what Parliament would
have done if they had been able to anticipate the
situation.
3. Another advantage is that it also allows judges to
interpret Acts to take into account social, economic and
technological change in society.
4. For example in RCN v DHSS, which recognised that
medical practice had changed since the passing of the
Abortion Act 1967, because of the development of the
new techniques.
Disadvantages
1.
A disadvantage of the Literal rule can lead to unfair
or unjust decisions, for example in the LNER v
Berrimen case, surely parliament did mean to offer
compensation under the Act to people oiling and
maintaining, the purpose of the act was to protect
the families of railway workers who died in pursuit
of their employment.
2. Another disadvantage is that it can also lead to
absurd decisions that clearly were not what
parliament intended. Examples include the case of
Fisher v Bell where the D was found not guilty of
“offering to sell” flick knives but later the
government amended the Act to close this
loophole.
3. This seems to point to the absurdity of the literal
rule in not allowing judges to look further than the
plain ordinary meaning of the word, in this case
using up valuable parliamentary time to amend the
Act.
1. A disadvantage of the golden rule according to
Michael Zander is it is a “feeble parachute”, because
it allows judges to change the wording only when it
is absurd or repugnant. It can therefore only be used
in limited circumstances.
2. A further disadvantage is that the Law Commission
(1969) argued that the rule was of limited value and
noted that the rule provided no clear means to test
the existence of characteristics of absurdity,
inconsistency or inconvenience, or to measure their
quality or extent.
1.
2.
3.
4.
5.
A disadvantage of the Mischief rule is that it is not
easy to find parliaments intention, even if Hansard
is used.
By restricting the use of Hansard to statements by
ministers, there is a danger that it will reveal the
intention of the government, but not necessarily the
intention of Parliament.
Another disadvantage is that the mischief rule could
lead to confusion because judges could change the
meaning of what an Act says.
In Stock v Frank Jones, Lord Simon refused to read
the extra words into an Act on employment to give
it an effect that would have been fair to an
employer, and he emphasised the importance of the
Act in its full context.
Lord Simons felt the disadvantage of the Mischief
rule was that judges should not add words to an Act
as it could cause ordinary citizens and their advisers
unsure as to what the law actually was. He felt it
should be left to Parliament if the words in an Act
need to be amended, an argument for the literal rule.
Advantages and disadvantages of the four approaches of Statutory Interpretation
Type
Advantages
Purposive
1.
Approach
2.
3.
4.
One advantage of the Purposive approach is that it fits
in better with decisions made on European law.
The Renton Committee has suggested that there should
be a move towards including less detail in Acts, as is
done in most European countries; this would then
requires judges to use the Purposive approach.
Another advantage is that seems to be more sensible to
look at the whole purpose of the Act rather than the
problems it was designed to put right.
Lord Denning was one the greatest supporters of the
Purposive approach. He argued in the case of Nothman
v London borough Council with the 1969 Law
commissioner report in mind, that “the literal method is
now completely out of date” and judges should
interpret an Act so that it make good sense, thinking
about what Parliament would have done if they had
thought about the situation in the case.
Disadvantages
1.
A disadvantage of the Purposive Approach is that it
gives too much power to judges.
2. Viscount Simmonds described it as a “naked
usurpation of the legislative function under the thin
disguise of interpretation”. In other words the
disadvantage of the Purposive approach is that judges
might actually make laws that Parliament did not
actually want.
3. Another disadvantage of the purposive approach is
that finding Parliaments intention is not easy, even
with the use of Hansard.
4. For example in R v Deegan an application to consider
Hansard was rejected because what ministers said
was not sufficiently clear.
5. Another disadvantage of the purposive approach is
that finding Parliaments intention is not easy, even
with the use of Hansard.
6. For example in R v Deegan an application to consider
Hansard was rejected because what ministers said
was not sufficiently clear.
Conclusion: It is the judge's discretion which rule to use, which can lead to different results
depending upon the approach used. This in turn leaves the English legal system with an element
of uncertainty and inconsistency.
Aids - to interpretation
Whichever approach the judge takes to interpreting the legislation, he will have at his disposal a
range of material AIDS to help find the exact meaning of the words / phrases in the legislation
OR Parliament's intention - the "mischief' which Parliament intended to remedy.
Aids: Intrinsic [internal] connected with the Act
Extrinsic [external] outside the Act
For EU law the judge can make an Article 234 referral to European Court of Justice (most
important court for European Union law) for clarification of meaning (and validity) of piece of EU
law.
For Literal and Golden rules
To find meaning of words
For Mischief and Purposive
To find gap in law / intention of Parliament
INTERNAL:
INTERNAL:
Definition sections within the Act
[Presumptions ]
Rules of language
Long and short title in the Act
[Presumptions]
Preamble
EXTERNAL:
EXTERNAL:
Dictionary
Textbook
Earlier case law
Historical setting
Hansard
Earlier case law
Royal Commission reports
The Interpretation Act 1978
Is an aid to interpretation: rule that singular includes plural / "he" includes "she"
Royal Commission reports / official reports
In 1975, the House of Lords declared that such reports can be used as external aids to find the
"mischief' that Parliament intends to remedy — in the case of Black-Clawson International Ltd
(1975).
Two Aids to interpretation in detail – Title of Act and law Commission Reports
Title of the
Act
1.
2.
3.
Internal aid
4.
5.
6.
Official
publications
1.
2.
Law
Commission
reports
External
aid
3.
4.
The short title is an intrinsic aid that will just be the name of the Act.
The Long title exists for some acts and gives an explanation of what the Act is trying to achieve.
Older Acts have a preamble, which outlines what the Act covers and its purpose. This is also treated as part
of the Act.
For example, the Short Title of the Abortion Act also has a long title, which said it was “An Act to amend
and clarify the law relating to termination of pregnancy by registered medical practitioners”.
In the case of RCN v DHSS the Long title was referred to decide whether or not changes in the way
abortions were carried out were in breach of the Act.
In Cornwall County Council v Baker the court referred to the long title to confirm the purpose of the
Protection of Animals (Amendment) Act 2000.
An extrinsic aid judges can use is any official publication, typically Law Commission and other law
reform reports.
These help explain the background to the act. In the case of Black Clawson it was made clear that judges
can only look at such material in order to understand the “mischief” which the legislation intended to deal
with.
In the case of R v Bloxham the court referred to the report of the Criminal Law Revision Committee on
which the Theft Act 1968 was based.
In R v Davison, a case involving the Public Order Act 1986, the House of Lords referred expressly to the
Law Commission report on which the Act was based.
Further detailed research on the net: External and Internal aids
Aids to statutory Interpretation
Hansard
Hansard is the official record of parliamentary debates.
In 1993, the House of Lords declared that Hansard could be used as an external aid for the
mischief / purposive approach — in Pepper v Hart (1993). [This case is also an example of the House
of Lords using the practice statement to overrule their own previous decision banning the use of Hansard]
However, House of Lords only allowed use of Hansard in limited way:
To clarify ambiguous words/phrases in an Act:
o
Only where words of the Act are ambiguous or obscure or lead to an absurdity
o
And only if there was a clear statement by the Minister introducing the legislation
[objection to overuse being time and cost to research Hansard in every case]
A wider use of Hansard is permitted when judges are interpreting Act or delegated legislation
introduced in order to give effect to EU law or international convention — as held in Three
Rivers District Council and others v Bank of England (No2) (1996 ). Here Hansard was used to
find the purpose of the legislation / intention in enacting.
The House of Lords have since re-iterated the limited use, and emphasising its use to clarify
ambiguity over meaning and intended aim of social policy of the Act — in Wilson v Secretary of
State for Trade and Industry (2003).
Arguments for using Hansard:
Arguments against using Hansard:
Useful aid:
As per Lord Denning: to ignore Hansard would be
to "grope in the dark for the meaning of an Act without
Lack of clarity: debates do not necessarily
clarify the meaning/intention of legislation —even
the speech by minister introducing the legislation.
switching on the light".
Not always helpful: court could have reached
Many foreign jurisdictions use such legislative
same conclusion without using Hansard: as per
study by Vera Sachs in 1982. Time & Expense:
concern that lawyers would spend too much time /
cost considering Hansard
materials as aids to interpretation.
Media: Parliamentary debates are reported in the
media — judges aware so why not be used in court?
Since 1993, Hansard has been used in a number of cases — along with increasing use of
purposive approach to statutory interpretation by judges.
Presumptions:
Unless the Act in question clearly states otherwise, the courts will assume:
Statutes do not alter common law - common law will apply
Mens rea is required in crime - must have required mental element (e.g. intention)
legislation does not apply retrospectively Act applies from date it comes into effect, not to past
-
happenings
The Crown is not bound
Advantages and disadvantages of intrinsic and extrinsic aids
Intrinsic
Aids
Extrinsic
Aids
1.
Long & short titles are of limited use but Long title may remind the court of what
Parliament is trying to achieve particularly when using mischief or purposive approach,
e.g. Christmas Day Trading Act 2004
2.
‘An Act to prohibit the opening of large shops on Xmas day and to restrict the loading &
unloading of goods at such shops on Xmas day.’ Aim is clear…….stop large shops trading
on Xmas day.
3.
2. Schedules (appear as additions to the main body of an Act) are useful and sometimes
essential to refer to e.g. Schedule 1 of the Hunting Act 2004 contains all the exempt
activities.
5.
3. Most acts contain a definition section but these are not always helpful eg Theft Act 1968
S3 defines appropriation but the meaning was the subject of debate in the courts for a
number of years.
Dictionaries are useful when using the Literal Rule but not with other approaches was
particularly useful in case of Cheeseman to find meaning of word ‘passenger’ Not helpful
when produced absurd, unexpected outcomes.
4.
5.
Law Commission(LC) & other Law Reform body reports are useful when applying
mischief /purposive approach. Had the House of Lords taken account of the LC report that
preceded the Criminal Attempts Act 1981 in the case of Anderton v Ryan then her
conviction would not have been quashed. However in the case of DPP V Bull not everyone
agreed with the decision to take the meaning of ‘common prostitute’ from the Wolfenden
Committee Report.
6.
Hansard is useful in that it can be helpful to look at what was said in Parliament when the
Bill was being passed but others would say it does not usually help & only increases the
costs of a case.
7.
Explanatory notes that accompany most modern Acts are useful as they are written in plain
English and may help clarify the meaning of technical & specialist terms used within the
Act.
Rules of language:
Developed by judges over time, these three rules reflect the common sense approach to look at words
in a sentence in the light of other words in the Act.
Expressio Unius –
Expresss wording
Ejusdem generis – of
the same kind
LIST + general words
general words are limited
to kind of items in the list
e.g.
house, barn (specific words)
and other such similar
places (general words)
e.g.
"cats, dogs and other such
animals". Under this rule
the other animals must be of
the same kind as "cats,
dogs", arguably domestic
animals / pets.
As seen in:
Powell v Kempton Park
Racecourse (1899) "house,
office, room or other place
for betting" Held outdoor
tent called "Tattersall's
Ring" did not fall within
meaning of words in the
Act as it was outdoors, and
the specific words in the
Act were limited to indoor
places. Hence defendant
not guilty of offence.
There must be at least 2
specific words in order to
create a list — Allen v
Emerson (1944)
LIST (all specific words) + NO general words
Express mention of one thing implies the exclusion of
another
e.g.
if Act specifically mentioned "Persian cats and
Siamese cats" (and no general words) then under this rule the
Act would not apply to other breeds of cat.
As seen in:
Tempest v Kilner (1846) — whether "goods, wares and
Merchandise" listed in Statute of Frauds 1677 applied to sale
of stocks and shares. Held that stocks and shares were not in
the list [ and there were no general words ] hence sale of stocks
and shares not have to comply with requirements of the
Act: i.e. sale not need tobe evidenced in writing.
Inhabitant of Sedgley, R v (1831): A statute raised
taxes on 'lands, houses and coalmines'. The court held that it did
not apply to limestone mines as these were not specifically
mentioned nor did the statute suggest that it would apply to
other types of mines.
Noscitur a Sociis – A word is known
by the company it keeps
NOT USUALLY A LIST
look at words in context of Act as a whole, and
interpret accordingly
[ look at words in same section or in other sections] e.g.
If an Act states "hamster cages, straw and food", the meaning
of "food" is found by looking at the other words in the
sentence — hence meaning hamster food and not dog food.
As seen in:
Inland Revenue Commissioners v Frere (1965)) —"other
annual interest" stated in the same section of the Act led
the court to declare that "interest" only meant annual
interest.
Bromley LBC v GLC (1982) concerned the operation of a
cheap fare scheme which resulted in the GLC running at a
loss. The court held that "economic" meant run on
business lines by looking at another section in the Act
which detailed a duty to make
up any deficit. Hence held the cheap fares policy to be
illegal.
Advantages and disadvantages of the three rules of language
Type
Ejusdem
Generis
Advantages
1.
2.
Disadvantages
No need for draftsman to write an exhaustive list
of everything that is included. So the Act can cover
circumstances not thought of by the draftsman but
which they would have included if they had
thought about it.
Allows the Act to adapt to changes in society.
1.
2.
3.
4.
Noscitur
sociis
1.
No need for draftsman to write an exhaustive list
of everything that is included. So the Act can cover
circumstances not thought of by the draftsman but
which they would have included if they had
thought about it.
Exclusio
alterius
1.
A finite list is provided which makes outcomes of
cases more predictable. So lawyers can advise
clients whether to pursue a case or not.
Respects the sovereignty of Parliament – judges
apply the law as stated by the elected Parliament
2.
5.
1.
2.
7.
Can’t always predict what judges will consider is of
same category as the specific words
Eg ex parte Kihara 4 homeless asylum seekers
claimed they were in priority need for housing due
to their extreme financial hardship caused by the
withdrawal of their benefits. The Housing Act 1985
gave priority to those who were ‘vulnerable as a
result of old age, mental illness or handicap or
physical disability or other special reason.’
Does extreme financial hardship amount to ‘other
special reason’?
Court of Appeal felt it did despite the words
referring to mental and physical needs!
Rule allows for judicial lawmaking.
Allows for judicial law making
Outcome of cases is unpredictable as a result may
cause problems in criminal law where a person’s
liberty is at risk and end up with criminal record
which limit job opportunities in the future (and
university places).
Rigidity – no scope for development of the Act to
suit a new situation which draftsman not foreseen
but may have intended to cover- which may result in
unjust outcomes.
Past Exam Questions
Briefly describe the literal rule and one rule of language (10)
Briefly describe internal aids and external aids (10)
Describe what is meant by any tow of the following: intrinsic aids, extrinsic aids, rules of
language (10)
Briefly describe the literal rule and the internal aids used by judges when interpreting Acts of
Parliament (10)
Briefly describe the golden rule and the external aids used by judges when interpreting Acts of
Parliament (10)
Discuss the advantages and disadvantages of any two of the rules of (approaches to) statutory
interpretation (10)
1(b)Outline the literal rule and mischief rule of statutory interpretation (10)
1(c)Discuss the advantages and disadvantages of each of the two rules of interpretation
described in your answer to question 1(b) (10)
Task A: The four approaches to interpretation. Complete research on the following cases:
1. DPP v Bull - Mischief
2. Re Sigsworth – Broad Golden
3. Adler v George – Narrow golden
4. Fisher v Bell – Literal – Law changed
5. Cheeseman – Literal – Dictionary of time
6. Berriman - Literal
7. Smith - Purposive
8. Allen – Narrow Golden
9. Smith v Hughes - Mischief
10. Whiteley v Chappell - Literal
11. Royal College of Nursing – Mischief text book
Use your notes and the textbooks provided and make notes as follows: You can use spider diagrams,
flashcards or notes.
Name of Case:
Approach to interpretation that this case is an
example of:
Facts of the case:
What was the decision in the case and how was the
approach used?
Task B: In each of the following situations use your knowledge of the rules of statutory
interpretation, to explain whether or not the following people would be guilty of an
offence under Section 57 of the Offences against the Person Act 1861 which states:
‘Whosoever, being married, shall marry any other person during the life of the former
husband or wife…..shall be guilty of bigamy’
(i)
Henry, who is already married, marries a second wife without divorcing the first.
He is a member of a religious group that ‘allows’ men to take more that one wife.
(ii)
Jane married her second husband four years after being told that her first
husband had been ‘killed in action’ whilst serving as a soldier in the Army. It now
transpires that there was a mistake of identity and her first husband is still alive
(iii)
Elizabeth has recently married a very wealthy man. She failed to declare that she
was already married to a man serving a long prison sentence.
Task C: Match the case names to the clues
Killed his mum ,then committed suicide, his estate would have received mum’s money
Under Administration of Estates Act. Wording very clear but felt to be wrong by judges if inherit from
wrong doing so read into the Act “unless you kill your mother”
Caught masturbating in toilets by 2 police officers lying in wait. Police officers were not “passengers”
under the Act according to the meaning in a dictionary of the time.
Bigamy – word “marry had 2 meanings – to become legally married or to go through a ceremony of
marriage again. If the 1st meaning used then no one would be convicted.
Prostitutes were soliciting from a balcony and from behind a window inside a house overlooking the
street. Was an offence to solicit passers by on the street.
An offence to impersonate someone entitled to vote.The Defendant used another person’s name from the
Electoral Register to vote. This person turned out to be dead but his name hadn’t been removed. Held –
a dead person can not be entitled to vote do he was acquitted.
Supposed to hire a lookout man if employees were engaged “repairing or re laying the track” for their
safety. A man was killed whilst he was oiling the points which the courts said was “maintaining “the
track so his widow did not receive any compensation.
Official Secrets Act said it was an offence for any unauthorised person to be “ in the vicinity of” a
military establishment. The Defendant was on the airforce base so he claimed he was not in the vicinity
of…..
Had flick knives on display in shop window with price tags attached – it was an offence to sell flick
knives – whilst to the man in the street this is selling flick knives, under Contract Law what the
shopkeeper was doing is technically what is known as “an invitation to treat” which is not the same.
Abortions had to be carried out by a medical practitioner according to the wording of the act. Due to
medical advancement abortions could be induced without the need for a medical procedure and could be
administered by a nurse. The nurses were charged with carrying out illegal abortions.
It was decided by the court that a man charged with soliciting as a prostitute did not fall within the act
because the Act was passed to remedy a mischief caused by women.
Under the Adoption Act a person was entitled (if they complied with the formalities) to see a copy of
their birth certificate. This man had, but due to the fact he had already killed it was feared he might kill
his mother if he had access to this information. It was felt that that could not have been Parliaments
intention to put such people at risk when allowing access.
DPP v Bull - Mischief
Re Sigsworth – Broad Golden
Adler v George – Narrow golden
Fisher v Bell – Literal – Law changed
Cheeseman – Literal – Dictionary of time
Berriman - Literal
Smith - Purposive
Allen – Narrow Golden
Smith v Hughes - Mischief
Whiteley v Chappell - Literal
Royal College of Nursing – Mischief text book
Task D: The Mischief Rule
An old rule based on Heydon's case in 1584. This approach lost favour in the strict Victorian times, and then
regained favour as the need for flexibility was again recognised. The court must consider 4 things:
1.
2.
3.
4.
What the law was before the Act was passed
What the mischief (the problem) the Act was trying to remedy (solve).
What was the remedy (solution) in the Act.
The reason behind the remedy (solution).
Below are the four Heydon’s case questions answered for Smith v Hughes but jumbled up. Rewrite them
in the correct order to answer the four questions.
Questions answered
There was no criminal offence for
prostitutes soliciting men in the
street and this didn’t allow men
their right to move freely.
Men being solicited by prostitutes
in the street. Could "public place"
include balcony?
By including balcony in "public
place" it solves the problem of men
being solicited in the street. It
doesn’t matter where the prostitute
is doing the soliciting from as long
as the men are in the public place.
Prostitutes could legally
solicit/trade on streets by stopping
men.
Street Offences Act 1959 made it a
criminal offence for prostitutes to
solicit men "in a street or public
place".
Questions answered in the correct order
Task E: Complete the table below
Literal Rule
Definition
Case one
Include facts/the
problem phrase/how
the rule resolved the
problem
Case two
Include facts/the
problem phrase/how
the rule resolved the
problem
Internal aids used
External aids used
Advantages
Disadvantages
Golden Rule
Mischief Rule
Definition
Case one
Include facts/the
problem phrase/how
the rule resolved the
problem
Case two
Include facts/the
problem phrase/how
the rule resolved the
problem
Internal aids used
External aids used
Advantages
Disadvantages
Purposive Approach
Task F: Read the article and then answer the questions
Task F: Questions about Royal College of Nursing v DHSS
1.
What Act needs interpreting to resolve the case
2.
Why was the phrase “registered medical practitioner” important for nurses?
3.
What is a majority decision?
4.
Give a reason why the majority of the House of Lords included nurses in the phrase “registered
medical practitioner”? What rule of interpretation did they use?
5.
What was the minority view about “registered medical practitioners”? Which rule of interpretation
did the minority use?
6.
Give one advantage of the majority decision in the House of Lords?
7.
Give one disadvantage of the majority decision in the House of Lords?
Task G: Understanding the Advantages and disadvantages of the Four rules.
Using page four and five of your notes answer the following questions
1. Highlight all mention of judges, cases and law reform organizations in the advantages and
disadvantages
Number of judges:
Number of Cases:
Number of Law reform organizations:
2. Was Viscount Simmonds for or against the Literal rule
3. Explain what he said in your own words
4. What is the advantage of the literal rule to lawyers and their client (see the Lord Simon quote)
5. What is a disadvantage of the literal rule in case of Fisher v Bell
6. What is the main advantage of the Golden rule according to Re Sigsworth
7. What is Michael Zander saying when he says a disadvantage of the Golden rule is that it is a “feeble
parachute”?
8. Explain in your own words how the Mischief rule allowed the judge to “fill in the gaps” that
parliament didn’t anticipate in Smith v Hughes
9. For a disadvantage of the Mischief rule explain the difference between the intention of Parliament
and the intention of the government. Thinking about the definition of statutory interpretation why
shouldn’t a judge interpret an Act to fit in with the intentions of the Government?
10. According to Lord Simons what is the disadvantage to lawyers and their clients of the Mischief rule
11. Why is the Mischief rule “out of date” according to the point 3 of the purposive approach
advantages?
12. What is the main disadvantage of the Purposive approach?
13. Why can Hansard be a disadvantage of using the purposive approach according to R v Deegan?
Task H: Researching more Internal and External Aids
Use the link in these notes at the bottom of page six to complete the following:
1. Use research on Long and short title and one other internal aid to answer the following question:
Briefly describe the literal rule and the internal aids used by judges when interpreting
Acts of Parliament (10)
2. Use research on white paper and one explanatory notes as external aids to answer the following
question:
Briefly describe the golden rule and the external aids used by judges when interpreting
Acts of Parliament. (10 marks)
3. Once completed write your answer on the internal and external part of the question only on a
PowerPoint and e-mail to me.
TASK I: Place the correct words and cases in this model answer using your notes and the links.
How many marks do you think this answer should be given out of 10?
Briefly describe two external aids which judges can use to interpret Acts of Parliament. (10)
External aids are those outside the Act itself.
Dictionaries of various kinds are the most obvious external aid and they are used frequently as a means
of discovering what words mean. For example, in Vaughan v Vaughan (1973), where a man had been
pestering his ex-wife, the Court of Appeal used a dictionary in order to define _________and concluded
that the definition was wide enough to cover his behaviour. However, the use of dictionaries does not
always produce unanimity. In Coltman v Bibby Tankers (1987) reference to dictionaries did not result in
unanimous views on whether the word ____________ could include a ship. The majority in the Court
of Appeal, referring to the Oxford English Dictionary, said that it could not, whereas Lord Oliver in the
House of Lords said that there was nothing in the OED definition which prevented a ship being
included.
A second external aid is_________, the official report of what is said in Parliament. In Davis v Johnson,
Lord Denning argued that not to refer to Hansard was like groping around in the dark without putting
the light on. The House of Lords rejected this view, but Lord Denning’s view was eventually accepted,
subject to strict conditions, by the House of Lords ________________. _____________ overruled Davis
v Johnson and allowed reference to Hansard when wording in a statute is ambiguous, obscure or leads to
an __________; the material relied upon consists of one or more statements by a minister or other
promoter of the bill, together if necessary with such other parliamentary material as is required to
understand such statements and their effect; and the statements relied upon are clear.
Recent cases have suggested that the courts may limit the use of Pepper v Hart to those cases against the
government. Lord Hope said in R v A (2001) that essentially reference to Hansard ‘is available for the
purpose only of preventing the executive from placing a different meaning on words used in legislation
from that which they attributed to those words when promoting the legislation in Parliament’.
When dealing with cases involving Acts that have introduced into English law an international
convention or European directive, a wider use of Hansard is permitted. It was held in
________________________ that the Pepper v Hart principle did not have to be applied so narrowly
because it was important to construe the statute purposively and consistently with any European
materials like directives.
Missing cases and words
Pepper v Hart (1993)
Absurdity
Coltman v Bibby Tankers (1987) Give brief facts of this case:
Hansard
Pepper v Hart (1993)
Three Rivers DC v Bank of England (1996)
Vaughan v Vaughan 1973 (bullet point 11)
What important issue was R v A (2001) about:
ANSWER
Briefly describe two external aids which judges can use to interpret Acts of Parliament. (10)
External aids are those outside the Act itself.
Dictionaries of various kinds are the most obvious external aid and they are used frequently as a means
of discovering what words mean. For example, in Vaughan v Vaughan (1973), where a man had been
pestering his ex-wife, the Court of Appeal used a dictionary in order to define _________and concluded
that the definition was wide enough to cover his behaviour. However, the use of dictionaries does not
always produce unanimity. In Coltman v Bibby Tankers (1987) reference to dictionaries did not result in
unanimous views on whether the word ____________ could include a ship. The majority in the Court
of Appeal, referring to the Oxford English Dictionary, said that it could not, whereas Lord Oliver in the
House of Lords said that there was nothing in the OED definition which prevented a ship being
included.
A second external aid is_________, the official report of what is said in Parliament. In Davis v Johnson,
Lord Denning argued that not to refer to Hansard was like groping around in the dark without putting
the light on. The House of Lords rejected this view, but Lord Denning’s view was eventually accepted,
subject to strict conditions, by the House of Lords ________________. _____________ overruled Davis
v Johnson and allowed reference to Hansard when wording in a statute is ambiguous, obscure or leads to
an __________; the material relied upon consists of one or more statements by a minister or other
promoter of the bill, together if necessary with such other parliamentary material as is required to
understand such statements and their effect; and the statements relied upon are clear.
Recent cases have suggested that the courts may limit the use of Pepper v Hart to those cases against the
government. Lord Hope said in R v A (2001) that essentially reference to Hansard ‘is available for the
purpose only of preventing the executive from placing a different meaning on words used in legislation
from that which they attributed to those words when promoting the legislation in Parliament’.
When dealing with cases involving Acts that have introduced into English law an international
convention or European directive, a wider use of Hansard is permitted. It was held in
________________________ that the Pepper v Hart principle did not have to be applied so narrowly
because it was important to construe the statute purposively and consistently with any European
materials like directives.
Correct order
‘molest’ Vaughan v Vaughan 1973 (bullet point 11)
‘equipment’ Coltman v Bibby Tankers (1987) Give brief facts of this case
Hansard
Pepper v Hart (1993)
Pepper v Hart (1993)
Absurdity
Three Rivers DC v Bank of England (1996)
TASK J: External Aids in the Act – Explanatory notes Task
Use the link in the e-mail sent to you to research Explanatory notes and answer the following questions.
Send me your answers in a Word document 15 minutes before the end of the lesson:
1.
2.
3.
4.
Define what an explanatory note is?
Which case was the first to use Explanatory notes to interpret wording in an Act?
Briefly explain the facts of this case (point 18 made by Lord Steyn) – Click on the case name
What evidence did the D want to submit to the court through cross-examination of the Victim
(see point 20 made by Lord Steyn)?
5. Why might not allowing the introduction of this evidence about the V breach the D’s Human
Rights according Lord Steyn (Point 21)?
6. What was the D trying to prove about the V on the night of the alleged rape? (Point 23 Lord
Steyn).
7. Why did S41 of the Youth Justice and Criminal Evidence Act 1999 stop D’s raising evidence of
previous sexual activity of the V except in exceptional circumstances (see point 27)?
8. What were the key words that needed interpreted in the Act if D’s evidence of previous sexual
activity could be used? (See Lord Hope’s judgment and point 82).
9. Why were explanatory notes needed to be used in this case (See point made by Lord Hope, Point
82 in his judgment)?
10. How did explanatory notes help Lord Hope interpret what the key words in the Act meant? (See
Lord Hope Point 82).
11. Why couldn’t D use his previous sexual activity as evidence in this case on this interpretation of
the Act? (See Lord Hope Point 82)
12. Did this breach D’s Human Rights? Explain your answer.
Task J Answers
1. Define what an explanatory note is? An attachment to the act which an internal aid to
interpretation. The notes are normally written by the department of the minister who is
introducing the Act.
2. Which case was the first to use Explanatory notes to interpret wording in an Act? R v A 2000
S41 The Youth Justice and Criminal Evidence Act 1999
3. Briefly explain the facts of this case (point 18 made by Lord Steyn) – Click on the case Name.
The Crown's case is that the complainant first met the defendant together with a friend on
or about 26 May 2000. The complainant and the defendant's friend formed a sexual
relationship. The complainant visited the friend at the flat which he was then sharing with
the defendant. At about 9 pm on 13 June 2000 the complainant and the friend had sexual
intercourse at the flat when the defendant was not there. Later, when the defendant
returned, the complainant, the friend and the defendant went for a picnic on the riverbank
of the Thames. The friend and the defendant drank whisky and beer. When they got back
to the flat the friend collapsed. An ambulance was called and the friend was taken to
hospital. Later, in the early hours of 14 June 2000, the defendant and the complainant left
the flat intending to walk to the hospital. The defendant led the way and chose a route
which took them close to the river. As they walked along the towpath the defendant fell
down. The complainant's account is that she tried to help him to his feet, whereupon he
pulled her to the ground and had sexual intercourse with her. Later that day the
complainant made a complaint of rape to the police. The police interviewed the defendant.
Following the advice of his solicitor he declined to answer questions. He read a prepared
statement in which he asserted in very general terms that "she was never against this
sexual relationship that we were having".
4. What evidence did the D want to submit to the court through cross-examination of the Victim
(see point 20 made by Lord Steyn)? Evidence of consent to sex based on relations in the past
with the D.
5. Why might not allowing the introduction of this evidence about the V breach the D’s Human
Rights according Lord Steyn (Point 21)?
A right to a fair trial
6. What was the D trying to prove about the V on the night of the alleged rape? (point 23 Lord
Steyn).
That the V had actually given consent, implied.
7. Why did S41 of the Youth Justice and Criminal Evidence Act 1999 stop D’s raising evidence of
previous sexual activity of the V except in exceptional circumstances (see point 27)? As V’s of
rape were unfairly questioned by the defence on the issue of previous sexual history which
lead to juries applying their own moral code to this activity and whether or not V
consented in the current case.
8. What were the key words that needed interpreted in the Act if D’s evidence of previous sexual
activity could be used? (See Lord Hope’s judgment and point 82).
at or about the same time as the event
9. Why were explanatory notes needed to be used in this case (See point made by Lord Hope, Point
82 in his judgment)? S41(4)(b) at or about the same time – evidence can be raised
exceptionally if the trial will be unfair to the D because of the sexual behaviour of the V
within a week of the alleged incident showed V either consented or operated in a morally
unacceptable way morally.
10. How did explanatory notes help Lord Hope interpret what the key words in the Act meant?
According to the explanatory note (point 82 Lord Hope)
The Home office in the explanatory notes to the Act said that “at or about the same time
will” “generally be interpreted no more widely than 24 hours before or after the offence.”
11. Why couldn’t D use his previous sexual activity as evidence in this case on this interpretation of
the Act?
D’s alleged sexual behavior with the V was one week before the alleged rape.
12. Did this breach D’s Human Rights? Explain your answer.
Yes: As long as the evidence was relevant to deciding whether the V consented to sex should be
allowed, therefore D would be able to have a fair trial without this.
No: Previous sexual relations even with the D have no bearing on whether V consented in this
cases and would should bear no relation to whether D is guilty, so will not affect the fairness of
the case.
Task K: Moral Dilemma questionnaire on Rape – tick the statement that you most agree with.
1. Rape can only take place if the D is a male and it is a female V?
Yes
No
2. Rape can only take place where the V doesn’t give consent?
Yes
No
3. Rape can only take place where the D penetrates the Vagina?
Yes
No
4. Rape cannot take place between a husband and Wife?
No
Yes
5. If a male student under age 18 has consensual sex with a female school teacher, is he the "Victim" of
a crime?
No
Yes
No. It's ridiculous to say the guy is a "Victim"
Yes, but not as serious as for female victims.
I'm not sure.
6. Would your answer to question 5 make any difference if it was a female under the age of 18?
Yes
No
7. If a woman has had a number of sexual relationships it is much more likely she gave consent to the
D in alleged rape case?
Yes
No
8. D, a man charged with Rape of V, should be allowed to question the V in court about her past sexual
relationships, through his lawyer?
Yes
No
Task L: Advantages and disadvantages of the Rules of Interpretation
Rule:
Advantage/disadvantage
Case used to emphasise the advantage/disadvantage:
Quote from judge explained on advantage/disadvantage:
Rule:
Advantage/disadvantage
Case used to emphasise the advantage/disadvantage:
Quote from judge explained on advantage/disadvantage: