Statutory Interpretation - Daw

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Statutory interpretation

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Statutoryinterpretation


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When I use a word, Humpty Dumptysaid, in a rather scornful tone, itmeans just what I choose it to mean -

neither more nor less. The questionis, said Alice, whether you can makewords mean so many different things.

The question is, said Humpty Dumpty,which is to be master - thats all.

Humpty Dumpty in Lewis Carroll,Through the Looking Glass.


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Write down your understanding of the followingwords:

Ambiguous?

What does it mean?

Round?

What does it mean?


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Did you know?

Of the 500 most-used words in the Englishlanguage, each has, on average, 23 differentmeanings

The word round has 70 different meanings!


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Introduction tostatutory interpretation

Many statutes are passed by Parliament each year. Themeaning of the law in these statutes should be clear andexplicit 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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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

The courts must uphold the will of Parliament and not tryto usurp its powers, but sometimes it necessary to try andunderstand what the words used by the parliamentarydraftsman mean.


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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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Literal Approach versus Purposive Approach

The case ofCheeseman illustrates several of the problems ofstautory interpretation. It is an example of the courts taking thewords literally.

However, it can be argued that the defendant was wilfully andindecently exposing his person in a street and that he wascaught doing that. Is it important that the police officers werepassengers?

Some people would argue that the whole purpose of the Act wasto prevent this type of behaviour; this is the purposive approachto statutory interpretation instead at looking at the precisemeaning of each word, a broader approach is taken


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This conflict between the literal approach and the purposiveapproach is one of the major issues in statutory interpretation.Should judges examine each word and take the words literally orshould it be accepted that an Act of Parliament cannot coverevery situation and that the meanings of words cannot always beexact?

In European law the purposive approach is taken.

In English law the judges have not been able to agree on whichapproach 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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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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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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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 Heydons Case

(1584).

When using this rule, a judge should consider what thecommon 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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Smith v Hughes [1960]. Section 1(1) of the Street Offences Act 1959 said "it shall be anoffence 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 thestreet.

Re Sigsworth (1935). A son had murdered his mother. The mother had not made a will, butin 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 WeaponsAct 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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Fisherv 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 inthis case) but failed to include it.To respect Parliaments

sovereignty he had to infer that they had left it out on purpose.


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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 hebelieved that the mischief that Parliament had intended

to stop was people in the street being bothered by

prostitutes.


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Re Sigsworth (1935)Re Sigsworth (1935) is an example of the broad approachof the golden rule.

A son had murdered his mother. The mother had notmade a will, but in accord with rules set out in theAdministration of Justice Act 1925 her next of kin wouldinherit (who was the son).

There was no ambiguity in the wording of the Act, but thecourt was not prepared to let a murderer benefit from hiscrime. So it was held that the literal rule should not apply,the golden rule being used to prevent a repugnantsituation.


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RvAllen (1872)

RvAllen 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 thecrime 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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Extra cases


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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 theAbortion Act1967, 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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Mischief Rule

Corkery v Carpenter(1951).

A person could be arrested if found drunk in charge of a carriage on thehighway. 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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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 thatpersons 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 claimants 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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Golden Rule

Adler v George (1964).

It was an offence to obstruct HM Forces in the vicinity of a prohibited place. Thedefendants 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.


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TASK:

Which of the three approaches to statutoryapproach do you think is best?

Why?


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Other aids to interpretation

intrinsic aids

extrinsic aids

presumptions

Latin rules of language


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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:

INTERNAL AND EXTERNAL AIDS

There is a wide range of material that may be considered by ajudge when interpreting statutes. Some of these aids may befound within the statute in question, others are external to thestatute.

They are also known as intrinsic and extrinsic aids.


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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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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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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 therecommendations and acted upon them (The Black-Clawson Case).


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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 theHouse 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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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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Latin rules of language

There are also Latin rules of language that aid

interpretation:

ejusdem generis (of the same kind: Beswickv Beswick)

expressio unius est exclusio alterius (known from

associates: Tempestv Kilner)

noscitur a sociis (the express mention of one thing is the

exclusion of another: Powellv Kempton ParkRacecourse)


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(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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(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 caf 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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(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.

Statutory Interpretation - Daw

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