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54 Cards in this Set
- Front
- Back
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Unit 4 - A
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Learning outcomes
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Why is it necesary to interpret legislation
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we need to find its meaning
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Problems of interpretation
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being able to define what a legal document refers to specifically
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Key point (1)
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the 'rules' of and aids to interpretation apply to all forms of legal document
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Key point (2)
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the 'rules' are not in fact rules, but guidelines
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Key point (3)
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there are no rules as to when to use one particular 'rule' or aid as opposed to another, or as to order in which to apply them
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Unit 4 - B
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Learning outcomes
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What are the rules of construction
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they distinguish the 'rules' of statutory interpretation from any other rules or aids
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construction (in a legal context)
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interpretation
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Key point (4)
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Different judges use different rules and have no obligation to state which.
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Key point (5)
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You can interpret legislation without reference to any rule.
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Three rules of construction
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The literal rule (plain meaning rule)
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Words must be given their plain, ordinary and literal meaning when making a judgement
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Action of the literal rule
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If words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable
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Key point (6)
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A benefit for judges is that the literal rule avoids the danger of making law through interpretation
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Key point (7)
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A negative is that the literal rule can lead to injustice as it is inflexible in regards to the wording of a statute
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The golden rule
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An adapted of version of the literal rule that seeks to avoid absurd results sometimes created by literal interpretation
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Action of the golden rule
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The grammatical and ordinary sense of the words must be adhered to, unless that results in an absurdity or inconsistency
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Key point (8)
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A benefit of this rule is that it allows common sense to be applied to terms that may otherwise create absurd outcomes
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Forfeiture Act
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Gives courts discretionary powers to ignore the rule of public policy that precludes a person who has unlawfully killed another from acquiring a benefit as a consequence of the killing.
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Key point (9) (Slapper and Kelly pg 97)
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The Forfeiture Act does not apply to outright murder, but can be applied in other cases if circumstances merit this
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Key point (10)
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The general rule of English Law that a person cannot benefit from his own wrong applies even where it is not the criminal but his estate which is benefiting
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The mischief rule (also the rule in Heydon's case)
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Used to to remedy any mischief 'harm or wrong' in any particular law
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Four stage test of mischief rule
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(a) what was the law before the statute (i.e. The common law)
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(b) what was the 'mischief and defect' which was not remedied by the existing law
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(c) what remedy did Parliament propose to put it right
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(d) what is the true reason for thr remedy
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Key point (11)
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this rule is of narrower application than the first two rules, in that it can only be used to interpret a statute and only where the statute was passed to remedy a defect in common law
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Key point (12)
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purposive reading of the law refers to an interpretation of the overall intention of a statute and not always the literal wording
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EU legislation and purposive approach
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EU legislation is drafted in a very different way and requires more interpretation
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Unit 4 - C
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Rules of language
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What are the rules of language
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the rules of language refer to how judges use the language of a statute
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(1) The eiusdem generis (of some kind or nature rule)
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if a general word such as 'other place' follows two or more specific words like 'house, office, room' then the meaning of other place will only apply to the specific words, i.e. Indoor.
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(2) Noscitar a sociis (recognition by associated words)
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a specific word such as 'floor' with words such as 'steps, stairs, passageways and gangways would be concluded to mean a floor that was in use in a passageway and not for instance floor that was used as a storage space
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(3) Expressio unius est exclusio alterius (expressing one thing excludes another)
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in a statement such as 'lands, houses and coal mines' means that other types of mine are excluded from consideration
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Unit 4 -D
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Aids to interpretation
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What are aids to interpretation
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Aids to interpretation are similar to rules of language in interpreting the law
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Key point (13)
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some authors do not seperate aids from rules
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Intrinsic aids
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(1) The use of the statute itself
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The statute must be read as a whole, and the words read in context (note the overlap with rules of language)
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Extrinsic aids
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(2) Aids outside of the statute itself
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Includes the Interpretation Act 1978, dictionaries, other statutes, hansard
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Unit 4 - E
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Presumptions
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What are presumptions
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Presumptions are applied in interpreting legislation. All presumtions are rebuttable
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Types of presumption
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(1) Against alteration of the common law
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(2) Against the retrospective operation of statutes
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(3) Against the criminal liability without guilty intention
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(4) Against deprivation of the liberty of the individual
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(5) Against deprivation of property or interference with private rights
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(6) Against binding the Crown except expressly or by necessary implication of the statute
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(7) Against ousting the jurisdiction of the courts
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strict liability
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refers to an aspect of a statute which declares that mens rea is not necessary in order to prove guilt
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