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S Sttaattuuttoorryy IInntteerrpprreettaattiioonn
By the end of this unit you will be able to explain (AO1):
What the rules of interpretation are and give a number of examples for each What is meant by the two ‘approaches’ The presumptions that the judges apply And describe the intrinsic and extrinsic aids which a judge may use to interpret an Act. What the effect of EU membership has been on SI
You will also be able to evaluate (AO2): The use of each of the rules and the approaches The use of Hansard as an extrinsic rule.
Homework
Law has no coursework, and as such, the homework is an important assessment tool to evaluate your work in the subject. You are reminded that if a homework is not handed in on time, you will have 24 hours to get it to your teacher; otherwise you will receive a U for your work, which may result in your withdrawal from the examination:
- Revise sentencing for a DRAG and end of Unit, and revise precedent and delegated legislation for your mock exams.
- Write up your response to the pre-planned response on statutory interpretation
End of Unit Test
You will be assessed using a DRAG test and the past question, which will be planned in class time, using your prior knowledge, progress and learning.
Introduction to Statutory Interpretation
We’ve looked at how the Act of Parliament is made, and now we are looking at how the courts interpret
those words. The Judges have to balance the need to give effect to the intentions of Parliament, and potential
injustice or ridiculous situations which may arise because of poor drafting.
Li Linnkkiinngg yyoouurr kknnoowwlleeddggee
Re Remmeemmbbeerr : Parliament is , therefore the job of the judges should be to interpret the law, not create it. As we go through this unit, start to consider whether the judges have too much power – are they interpreting or are they creating the law?
Where else have we met this problem in the law?
So, what is statutory interpretation all about?
Well, words can often have more than one meaning, and judges have to decide which meaning to adopt. Take a look at the following common words below. According to the Oxford English Dictionary, how many meanings does each of them have?
HINT : In total, the 500 most commonly used words have over 14000 meanings between them!
Set Take Run
Why was the word in question to begin with?
On a „strict‟ reading of the Act... what should happen to D?
What were the implications of the Court of Appeal‟s decision in this case?
S Soo wwhhiicchh wwoorrddss sseeeemm ttoo ccaauussee pprroobblleemmss ffoorr tthhee ccoouurrttss??
Student Task: Read the following cases, and decide whether or not the law has been broken and why!
Yo Youurr ddeecciissiioonnss......
Em Emppllooyyeeee VeVehhiiccllee (^) BBuuiillddiinngg ShShiipp
H Howow ddoo wwee wwoorrkk oouutt wwhhaatt tthhee ssttaattuuttee mmeeaannss tthheenn??
The courts have developed two approaches, and three rules to help them decide what a law actually means:
Approach Rules
Literal Literal
Golden
Purposive Mischief
Purposive
Except for EU law, we always start with the literal rule
Rule One:
LLiitteerraall RRuullee
This can be described as the “does-exactly-what-it-says-on-the-tin” rule. More legally, it means that they apply
the ordinary, natural meaning of the word, even if it leads to absurdity.
The judges may use a to help them find the meaning.
Example Case: Whitely v Chappell (1868)
Under the statute, it was an offence to “impersonate a person entitled to vote”
and the defendant was acquitted of the offence.
Why?
Do you think this was the intention of Parliament in passing the Act?
Criticism (AO2)
The Literal Rule works because... The Literal Rule does not work because...
1.
‘irresponsible’ Professor Zander “assumes unattainable perfection in legislatative draftsman” Law Commission “Wrong in principle” Lord Denning
“If the words of an act are clear, you must follow them, even though they lead to a manifest absurdity.”
Lord Esher 1892
The words of a statute must not be overruled by the judges but reform of the law must be left in the hands of Parliament.”
Viscount Dilthorne 1971
RULE THREE:
MMiisscchhiieeff RRuullee
Again, if the literal rule leads to an absurd result, then the judge may chose to look at the mischief
and give effect to it. Ok, so all this relies on you knowing what a mischief is!
If the other two rules are focused on what Parliament is saying, then this is focused on what they meant or intended. It allows the judge to, in effect, ignore the wording of Parliament in order to reach the desired outcome.
AO2: Student Thinking Why might we need the mischief rule?
HOW DOES IT WORK?
It might surprise you to know that this is also the oldest rule! The rules on how it works actually come from an ancient case from 1584
Haydon’s Case (1584) The rules:
- What was the common law before the Act?
- What was the problem or mischief that the statute was trying to remedy?
- What remedy was Parliament trying to provide?
- What was the true reason for the remedy?
The role of the judge is to: “suppress the mischief and advance the remedy”
Case Example: Smith v Hughes 1960
Under the Street Offences Act 1959 s.1(1) it was an offence to “solicit in a street or public place for the purposes of prostitution.”
DD were in a house and from upstairs were tapping on the window and calling out from balconies to attract attention of men walking by.
The Mischief: “Everybody knows this was an Act to clean up the streets to enable people to walk along the streets without being molested or solicited by common prostitutes.” Parker LJ
The Mischief Rule works because... The Mischief Rule doesn’t work because... “Rather more satisfactory approach” Law Commission
1.
APPROACH TWO:
TThhee PPuurrppoossiivvee AApppprrooaacchh
This is the approach used in most other European countries. This gives the power to the judges to decide what Parliament wanted to achieve and how it is best implemented. It goes even further than the mischief.
The aim is...
TToo pprroodduuccee ddeecciissiioonnss,, wwhhiicchh ppuutt iinnttoo pprraaccttiiccee tthhee ssppiirriitt ooff tthhee llaaww
It has become even more important now, as this is the method used by both the European Court of Human Rights and the European Court of Justice.
Under the European Communities Act 1972, the English courts must give effect to the European law, and
this means using their methods. This was confirmed by Lord Denning (a strong defender of the purposive approach) in Bulmer v Bollinger 1972 where he said that, “[judges] must look at the purpose or intent”
Some argue that as we use it for the European Union, we might as well use it for all decisions!
Case Example: R v Rogers 2007
Under s.31(1)(a) Crime and Disorder Act 1998, it is an offence to use racially aggravated, abusive or insulting words or behaviour with the intent to cause fear or violence. Under s.28, these must be aimed at a specific group.
D had tried to pass three Spanish tourists and got into an altercation with them. He pursued them and called them “bloody foreigners” and said “go back to your own country”
What is the problem?
Would they have had the same problem if he had called them “bloody Spaniards”?
AO2 Criticism
The Purposive approach works because... The Purposive approach does not work because...
1.
Who are they the court for?
W Whhaatt rruullee wwaass aapppplliieedd iinn eeaacchh ooff tthheessee??
R v Bentham 2005
- Bentham broke into his ex-employer’s house, and put his finger in his pocket, to give the impression that he had a gun.
- He was charged with possession of an imitation firearm in the course of a robbery under s.17(2) Firearms Act 1968
- He was found not guilty.
LNER v Berriman 1946
The claimant was the wife of a man who died while cleaning and oiling the railway track.
Under the Railway Employment (Prevention of Accidents) Act 1920, she could claim damages for a breach if he was “repairing or relaying” the line
She was not able to claim
Fisher v Bell 1960
- D had a flick knife displayed in the window of
his shop.
- Under the Restriction of Offensive Weapons
Act 1959, it was an offence to offer for sale a
flick knife.
- He was found not guilty of the offence.
Adler v George
- D entered an RAF base and blocked members of the RAF on the airfield.
- Under Official Secrets Act 1920, it was an offence to “obstruct members of HM forces within the vicinity of any prohibited place”
- He was found guilty of the offence.
Corkery v Carpenter 1951
- D was arrested on a highway on a bike whilst
drunk.
- Under the Licensing Act 1872, it was an
offence to be “drunk in charge of carriage.”
Royal College of Nursing v DHSS 1981
The claimants were nurses, who wanted to know whether they could administer stages of abortion and whether they were a ‘registered medical practicioner’.
Under the Abortion Act 1967, it was only legal for regsisterd medical practioners to give the drugs.
The HL ruled that nurses were ‘RMP’s. (But the CA was a whole different ball game!)
R v Z (2005)
- D was a member of the Real IRA
- Schedule 2 of the Terrorism Act 2000 listed
the IRA as one of the prohibited groups ,
whilst the real IRA is not specifically
mentioned.
- D’s conviction was upheld.
R v Harris 1836
- D bit off a woman’s nose.
- Under the Act, it was an offence to “stab, cut
or wound” someone
DPP v Bull
- D was a male prostitute.
- He was charged under s.1(1) of the Street
Offences Act 1959 which makes it an offence
for a 'common prostitute to loiter or solicit in
a public street or public place for the purposes
of prostitution'.
- Having looked at the Wolfenden report, D was
found not guilty.
R (Ghai) v Newcastle City Council (2009)
- D, a hindu, wanted to be cremated on an open
fire, in line with his religious beliefs.
- s.2 Cremation Act 1902 said that a building
was one “filled with appliances for purposes
of burning human remains”
- D won his judicial review.
R v Porter 2006
- D had pictures of child pornography on the
computer which had been deleted.
- possessing indecent photographs of children
contrary to section 160(1) Criminal Justice Act
- D was acquitted on appeal
R v Maginnis 1987
- D was charged with possession of a controlled
substance. The police had found a packet of
cannabis resin in his car which he said his
friend had left in the car for collection later
- Possession with intent to supply under s.5(3)
Misuse of Drugs Act 1971
- Appeal allowed, and conviction quashed.
3. A criminal offence should have a mens rea, even if they forgot to put one in!
Sweet v Parsley 1970
Facts: D was convicted on a charge that she was “concerned in the management of certain premises, which were used for the purpose of smoking cannabis” contrary to section 5(6) of the Dangerous Drugs Act 1965.
B v DPP 2000
Facts:
4. The Law should not apply retrospectively.
Why?
There are a couple of exceptions to this:
Human Rights Act 1998 War Crimes Act 1991
Ru Rulleess ooff LLaanngguuaaggee
These are in Latin, but they are also complete common sense, and are really all about lists and how and what we can add to them!
Student Task : Look at the following situations. Using only your common sense decide whether it covers the situation.
Act Situation Is it covered? Why? Why not? This Act covers jeans, trousers, and other clothes.
Does it include leggings?
This Act covers coffee and tea. Does it include hot chocolate?
The Act is called the Regulation of Air Travel Act The section refers to vehicles.
Does it include a car?
Th Thee AAccttuuaall RRuulleess......
Latin Means Example
Ejusdem Generis General words which follow specific ones are only taken to include only things of the same type.
e.g. dogs, cats and other animals
Powell v Kempton Racecourse 1899 “office, room or other place for betting”
Expressio unius est exclusio alterius
Express mention of one thing excludes all others.
e.g. Alsatian dogs
R v Harris 1836 “stab, cut or wound”
Noscitur a sociis A word draws its meaning from the other words around it.
e.g. kittens, cats and food
Muir v Keay 1878 “public refreshment, resort and entertainment”
AO2: Applying the law.
Legal Textbooks e.g. Smith and Hogans’ Criminal Law
Explanatory Notes (for Acts from 1999)
Dictionaries
Human Rights Act 1998 s.
European Communities Act 1972 s.2(4)
Similar Acts of Parliament, previous Act or the common law
e.g. R v Z 2005
Law Commission or Royal Commission Reports
Only if the Act was based on a published report
e.g. Criminal Attempts Act 1981
Theft Act 1968
Coroners and Justice Act 2009
Interpretation Act 1978
EExxttrriinnssiicc^ AAiiddss
Means:
EExxttrriinnssiicc AAiiddss:: AA PPaarrttiiccuullaarr PPrroobblleemm
H Haannssaarrdd
What is it? This is the record of everything that goes on in Parliament.
What was the problem? For a long time there was a debate over whether judges ought to be able to look at it. Some people argued that if they used it, it was like judges making the law as they would interpret what they thought Parliament was getting at, rather than applying the law. However, a more recent decision decided that they could use Hansard, but only in certain limited circumstances.
Why might it be useful to the judges?
Case: Pepper v Hart 1993 , which overrules the earlier decision of Davis v Johnson 1979
Facts:
Rules:
1. The word must be ambigious 2. They can only look at the statements made by the minister or the promoter of the bill 3. They may only use the statements if they are clear
Student Task : Write a paragraph evaluating the use of Hansard. Should judges be able to use it in court? Why? Why not?
E Enndd ooff UUnniitt RReevviissiioonn QQuueessttiioonnss..
Use these to help you with your revision. If you are confident in this topic, you ought to be able to
answer all of the following (without looking at your notes!)
1. Name the two approaches to the Golden rule
2. What is the main criticism of the Golden rule?
3. Which of the three rules is the European approach most like?
4. What is the difference between the extrinsic and intrinsic aids?
5. When are the judges allowed to use Hansard?
6. What are the main problems with using Hansard?
7. What type of aids does the mischief rule direct judges to use?
8. Which Act of Parliament should all newly written acts be compatiable with?
9. Can the use of the literal rule be justified?
10. What problems of the literal rule does the golden rule overcome?
11. Explain the literal v purposive approaches in interpretation [ paragraph ]
