Topic 4
Topic
4
Statutory interpretation
Statutory
interpretation
Topic 4
Statutory interpretation
‘When I use a word,’ Humpty Dumpty
said, in a rather scornful tone, ‘it
means just what I choose it to mean neither more nor less.’ ‘The question
is,’ said Alice, ‘whether you can make
words mean so many different things.’
‘The question is,’ said Humpty Dumpty,
‘which is to be master - that’s all.’
‘Humpty Dumpty’ in Lewis Carroll,
Through the Looking Glass.
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Statutory interpretation
Write down your understanding of the following
words:
Ambiguous?
 What does it mean?
Round?
 What does it mean?
Topic 4
Statutory interpretation
Did you know?
• Of the 500 most-used words in the English
language, each has, on average, 23 different
meanings
• The word ‘round’ has 70 different meanings!
Topic 4
Statutory interpretation
Introduction to
statutory interpretation
Many statutes are passed by Parliament each year. The
meaning of the law in these statutes should be clear and
explicit but this is not always achieved
Statutory interpretation concerns the role of judges when
trying to apply an Act of Parliament to an actual case.
The wording of the Act may seem to be clear when it is
drafted and checked by Parliament, but it may become
problematic in the future.
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Statutory interpretation
“The courts must uphold the will of Parliament and not try
to usurp its powers, but sometimes it necessary to try and
understand what the words used by the parliamentary
draftsman mean.”
The rules of interpretation
There are two approaches to statutory interpretation: the literal
approach and the purposive approach.
There are also three main rules of statutory interpretation that judges
use to decide a case:
• the literal rule
• the golden rule
• the mischief rule
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Statutory interpretation
TASK:
Cheeseman v Director of Public Prosecutions (1990)
Question 4????
• Was this the correct decision?
• Why? Reasons?
• What else could/should the courts have done?
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Statutory interpretation
Literal Approach versus Purposive Approach
The case of Cheeseman illustrates several of the problems of
stautory interpretation. It is an example of the courts taking the
words literally.
However, it can be argued that the defendant was ‘wilfully and
indecently exposing his person in a street’ and that he was
caught doing that. Is it important that the police officers were
‘passengers’?
Some people would argue that the whole purpose of the Act was
to prevent this type of behaviour; this is the purposive approach
to statutory interpretation – instead at looking at the precise
meaning of each word, a broader approach is taken
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Statutory interpretation
This conflict between the literal approach and the purposive
approach is one of the major issues in statutory interpretation.
Should judges examine each word and take the words literally or
should it be accepted that an Act of Parliament cannot cover
every situation and that the meanings of words cannot always be
exact?
In European law the purposive approach is taken.
In English law the judges have not been able to agree on which
approach should be used, but instead, over the years they have
developed three different rules of interpretation. These are the:
• Literal rule
• Golden rule
• Mischief rule
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Statutory interpretation
Literal rule
The literal rule respects parliamentary sovereignty.
The judges take the ordinary and natural meaning of the
word and apply it, even if doing so creates an absurd
result.
Lord Esher said in 1892:
‘The court has nothing to do with the question of whether
the legislature has committed an absurdity.’
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Statutory interpretation
Golden rule
The golden rule is an extension of the literal rule.
If the literal rule gives an absurd result, which is obviously
not what Parliament intended, the judge should alter the
words in the statute in order to produce a satisfactory
result.
Judges may used the narrow approach or the broad
approach.
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Statutory interpretation
Mischief rule
The mischief rule (or purposive approach) gives judges the
most flexibility when deciding what ‘mischief’ Parliament
intended to stop. It was established in Heydon’s Case
(1584).
When using this rule, a judge should consider what the
common law was before the Act was passed, what the
problem was with that law, and what the remedy was that
Parliament was trying to provide.
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Statutory interpretation
Smith v Hughes [1960]. Section 1(1) of the Street Offences Act 1959 said "it shall be an
offence for a common prostitute to loiter or solicit in a street or public place for the
purposes of prostitution."
The court considered appeals by six different women who had been on a balcony or at the
windows of ground floor rooms. In each case, the women were attracting men by calling to
them or tapping on a window. They argued they were not guilty since they were not in the
street.
Re Sigsworth (1935). A son had murdered his mother. The mother had not made a will, but
in accord with rules set out in the Administration of Justice Act 1925 her next of kin would
inherit (who was the son).
Fisher v Bell [1960]
A shopkeeper displayed a flick-knife in his window. The Restriction of Offensive Weapons
Act 1959 made it an offence to offer such a knife for sale. The defendant argued that a
display of anything in a show window is simply an offer to treat and this means that, under
contract law, it is the customer who makes the offer to buy the knife.
Task – apply each of the rules of statutory interpretation to each of
the above cases.
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Statutory interpretation
Fisher v Bell (1961)
This case concerned a flick knife displayed in a shop window.
Lord Parker acquitted Bell under the Restriction of Offensive
Weapons Act 1959, even though it was obvious that this was
exactly the sort of behaviour that Parliament intended to stop.
He justified his decision because the draftsmen knew the legal
term ‘invitation to treat’ (which would have been applicable in
this case) but failed to include it.To respect Parliament’s
sovereignty he had to infer that they had left it out on purpose.
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Statutory interpretation
Smith v Hughes (1960)
The defendants were charged with ‘soliciting in a street or
public place for the purposes of prostitution’ contrary to
the Street Offences Act 1959. They were soliciting from
upstairs windows.
Lord Parker used the mischief rule to convict, as he
believed that the ‘mischief’ that Parliament had intended
to stop was people in the street being bothered by
prostitutes.
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Statutory interpretation
Re Sigsworth (1935)
Re Sigsworth (1935) is an example of the broad approach
of the golden rule.
A son had murdered his mother. The mother had not
made a will, but in accord with rules set out in the
Administration of Justice Act 1925 her next of kin would
inherit (who was the son).
There was no ambiguity in the wording of the Act, but the
court was not prepared to let a murderer benefit from his
crime. So it was held that the literal rule should not apply,
the golden rule being used to prevent a repugnant
situation.
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Statutory interpretation
R v Allen (1872)
R v Allen is an example of the narrow approach of the
golden rule.
The wording of the Offences Against the Person Act 1861
had to be given a different interpretation for the crime of
bigamy, because the way it was written meant that the
crime could never be committed.
The court used the golden rule and held that ‘marry’
meant ‘to go through a marriage ceremony’.
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Statutory interpretation
Extra cases……
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Statutory interpretation
Purposive Approach
Royal College of Nursing v DHSS (1980).
The court had to decide if nurses could lawfully continue an abortion started by a
“registered medical practitioner” (a doctor). Although Lord Diplock referred to the
mischief of illegal abortions, Lord Keith referred to the purpose of the Abortion Act
1967, which was to ensure that socially acceptable abortions were carried out in
safe conditions. The House of Lords held that the procedure was lawful.
Jones v Tower Boot Co Ltd (1997).
The complainant suffered racial abuse at work, which he claimed amounted to
racial discrimination for which the employers were liable under s32 of the Race
Relations Act 1976. The CA applied the purposive approach and held that the acts
of discrimination were committed “in the course of employment”. Any other
interpretation ran counter to the whole legislative scheme and underlying policy of
s32.
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Statutory interpretation
Mischief Rule
Corkery v Carpenter (1951).
A person could be arrested if found drunk in charge of a “carriage” on the
highway. The defendant had been arrested for being drunk in charge of a
bicycle on the highway. The court held that a bicycle was a “carriage” for the
purposes of the Act because the mischief aimed at was drunken persons on
the highway in charge of some form of transport, and so the defendant was
properly arrested.
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Statutory interpretation
Case examples of the literal rule include:
Whiteley v Chappell (1868).
The defendant pretended to be someone who had recently died in order to use that
person’s vote. It was an offence to “personate any person entitled to vote”. As
dead people cannot vote, the defendant was held not to have committed an
offence.
London & North Eastern Railway v Berriman (1946).
The claimant’s husband was killed while oiling points along a railway
line. Compensation was only payable if he had been “relaying or repairing” the
line. The House of Lords held oiling points was maintaining the line and not
“relaying or repairing”.
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Statutory interpretation
Golden Rule
Adler v George (1964).
It was an offence to obstruct HM Forces “in the vicinity of ” a prohibited place. The
defendants had obstructed HM Forces in a prohibited place (an army base) and
argued that they were not liable. The court found them guilty as “in the vicinity of”
meant near or in the place.
Topic 4
Statutory interpretation
TASK:
 Which of the three approaches to statutory
approach do you think is best?
 Why?
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Statutory interpretation
Other aids to interpretation
• intrinsic aids
• extrinsic aids
• presumptions
• Latin rules of language
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Statutory interpretation
INTERNAL AND EXTERNAL AIDS
There is a wide range of material that may be considered by a
judge when interpreting statutes. Some of these aids may be
found within the statute in question, others are external to the
statute.
They are also known as intrinsic and extrinsic aids.
Intrinsic aids
Intrinsic aids are sources within the Act (internal aids).
In order to determine the meaning of a section of an Act of Parliament,
the judge may wish to look at other sections in the Act:
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Statutory interpretation
INTERNAL
1. Other enacting words
An examination of the whole of a statute, or relevant Parts, may indicate the overall purpose
of the legislation. It may show that a particular interpretation of that provision will lead to
absurdity when taken with another section.
2. Long Title
The long title should be read as part of the context, “as the plainest of all the guides to the
general objectives of a statute” (Lord Simon in The Black-Clawson Case). For example,
Lord Diplock referred to the long title of the Abortion Act 1967.
3. Preamble
When there is a preamble it is will generally state the mischief to be remedied and the scope
of the Act. It is therefore clearly permissible to use it as an aid to construing the enacting
provisions.
4. Headings, side-notes and punctuation
Headings, side-notes and punctuation may be considered as part of the context. However,
they may not have been discussed in Parliament.
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Statutory interpretation
Extrinsic aids
Extrinsic aids are sources outside the Act (external aids).
Examples include:
• dictionary
• Hansard
• Human Rights Act 1998
• legal textbooks
• Interpretation Act 1978
• explanatory notes
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Statutory interpretation
EXTERNAL
1. Dictionaries and other literary sources
Dictionaries are commonly consulted as a guide to the meaning of statutory words. Textbooks
may also be consulted.
2. Practice
The practice followed in the past may be a guide to interpretation. For example, the practice of
eminent conveyancers where the technical meaning of a word or phrase used in conveyancing
is in issue.
3. Other Statutes in Pari Materia
Related statutes dealing with the same subject matter as the provision in question may be
considered both as part of the context and to resolve ambiguities. A statute may provide
expressly that it should be read as one with an earlier statute(s).
4. Official Reports
Legislation may be preceded by a report of a Royal Commission, the Law Commissions or
some other official advisory committee. These reports may be considered as evidence of the
pre-existing state of the law and the “mischief” with which the legislation was intended to
deal. However, it has been held that the recommendations contained in them may not be
regarded as evidence of Parliamentary intention as Parliament may not have accepted the
recommendations and acted upon them (The Black-Clawson Case).
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Statutory interpretation
5. Treaties and International Conventions
There is a presumption that Parliament does not legislate in such a way that the UK would be in
breach of its international obligations.
6. Parliamentary Materials/Hansard
In Pepper (Inspector of Taxes) v Hart, the House of Lords relaxed the general prohibition (in Davis v
Johnson) that a court may not refer to Parliamentary materials, such as reports of debates in the
House and in committee (Hansard) and the explanatory memoranda attached to Bills, when
interpreting statutes. They may now be used where: (a) legislation is ambiguous or obscure, or
leads to an absurdity; (b) the material relied on 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
necessary to understand such statements and their effect; and (c) the statements relied on are
clear. However, using Hansard results in three problems: the research adds to cost of a case; it
may not be of assistance or confirms the view already taken by the court.
7. Explanatory Notes
Since 1998, Bills are presented with Explanatory Notes, written in clear and simple English. They
are updated as a Bill goes through Parliament and changes its wording and meaning.
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Statutory interpretation
Presumptions
Judges make presumptions about the wording of a statute.
They know that:
• the common law has not been changed unless the Act
clearly states to the contrary
• a criminal offence requires mens rea (a guilty mind)
• the law should not act retrospectively
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Statutory interpretation
Latin rules of language
There are also Latin rules of language that aid
interpretation:
• ejusdem generis (of the same kind: Beswick v Beswick)
• expressio unius est exclusio alterius (known from
associates:
Tempest v Kilner)
• noscitur a sociis (the express mention of one thing is the
exclusion of another:
Powell v Kempton Park Racecourse)
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Statutory interpretation
(a) Ejusdem generis (of the same kind)
General words following particular words will be interpreted in the light of the
particular ones. For example:
Powell v Kempton Park Racecourse (1899).
It was an offence to use a “house, office, room or other place for betting”. The
defendant was operating from a place outdoors. The court held that “other place”
had to refer to other indoor places because the words in the list were indoor places
and so he was not guilty.
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Statutory interpretation
(b) Noscitur a sociis (known from associates)
A word will be interpreted in the context of surrounding words. For example:
Muir v Keay (1875).
All houses kept open at night for “public refreshment, resort and entertainment”
had to be licensed. The defendant argued that his café did not need a licence
because he did not provide entertainment. The court held that “entertainment”
did not mean musical entertainment but the reception and accommodation of
people, so the defendant was guilty.
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Statutory interpretation
(c) Expressio unius est exclusio alterius (the express mention of one
thing is the exclusion of another)
The express mention of things in a list excludes those things not
mentioned. For example:
Tempest v Kilner (1846).
A statute required that contracts for the sale of “goods, wares and
merchandise” of £10 or more had to be evidenced in writing. The court had to
decide if this applied to a contract for the sale of stocks and shares. The court
held that the statute did not apply because stocks and shares were not
mentioned.