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25 Cards in this Set
- Front
- Back
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What is statutory interpretation? |
How courts interpret and apply words for a statute to particular case. |
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Why is there a need for statutory interpretation? |
- A broad term - where words are used to cover several possibilities. - Ambiguity - where a word has more than one Meaning. - A drafting error - unnoticed in Scrutiny. - New developments - new technologies so up to Date. ~ Royal College of Nursing v DVDS 1981... Abortions allowed due to higher training received. - Changes in Language - meanings of words can change over time. |
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What are four difficulties with fining parliaments intentions when interpreting an act. |
1) finding intention relies on extrinsic aids, in particular Hansard, and that this can cause delays and add to the case's cost. 2) difficult finding intention. 3) may prevent cases ending in absurdity or injustice. 4) different judicial attitudes of trying to find parliamentary intent - Lord Denning vs Lord Scarman. |
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What are the rules/approaches to interpretation? |
Approach -> Rule Literal -> •literal •Golden Purposive -> •Mischief •Purposive |
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What is the literal rule? |
- Judges have to take ordinary and natural meaning of word and apply it. - Law Commission's report of 1969 was critical of rule. - Respects Parliamentary Sovereignty - From 19th Century when Lee dominant, now more purposive. - Lord Esher (1892) : 'The Court has nothing to do with the question of whether the legislative has committed absurdity. - Rule can rely on the use of a dictionary. - Rule respects parliamentary supremacy. |
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4 cases illustrating the literal rule |
- Whithley v Chappell (1868) - A statute Ade it an offence 'to impersonate any person living entitles to vote.' The defendant used the vote of a dead man thus he was acquitted. - London & NEW Railway Cobb Berman (1946) - A railway worker was killed whilst killing the track. No lookout men were provided. A statute provided compensation payable on death for those ' relaying or repairing ' the track. The widow was entitled to nothing. - Fisher v Bell (1961) - It became illegal to ' sell ' flick knives bug the d got away with it as was said he was inviting offers not selling. - R v Harris (1836) - trend bit off victims nose. Statute was to ' stab, cut or wound ' meaning no conviction. |
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Advantages of literal rule. |
- allows lawyers to advise clients confidently as it provides predictability, so reduce legislation. - Rule respects doctrine of Parliamentary Sovereignty- Judges follow the words father then interpreting Parliament intent. - Makes sure judges apply law rather than making it. - Alternative approaches may result in uncertainty in the law. - Encourages Parliamnetary draftsman to be precise - legislation which is clear, precise & plainly written can be read, understood and determined by anyone who can read English. - provides no scope for judges to use their own opinions or prejudices. |
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6 Disadvantages of the literal rule. |
- Created loopholes in the law ~ R v Harris ~ nose bite - Leads to injustice: LNER v Berriman (1946) AC278 ~ railway worker - The rule leads to blatantly absurd results (whitely v chappel) - the rule expects an impossible level of perfection in parliamentary draftsmanship. - Disagreement to what is ordinary or natural meaning. - Rule ignores the limitations of language and is of limited value when interpretation of framework laws requires a judge to look beyond the language. |
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What is the golden rule? And example. |
-Fairness when literal approach. -> are Sigsworth (1935) ~ killed mum for inheritance and instigated that he would get money even when arrested .. golden rule forbade this. • extension to literal rule when absurd result.. narrow approach (choose between meanings of words) or Broad approach (modify words in the statute to avoid absurdity) - May rely on extrinsic aids (wide version) above and beyond a dictionary. |
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Cases illustrating the golden rule. |
-Narrow approach - words that have two or more meanings can be interpreted in different ways. —> Rv Allen 1872 - golden rule used where bigamist would have got away with crime. —> Jones v DPP 1962 - narrow rule. •broad approach - add a word to make it just and fair. —> Re Sigsworth 1935 - avoid taking mother’s inheritance when murdered her. |
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6 Advantages of golden rule |
- Errors in drafting can be corrected immediately. - RvAllen - Decisions are generally more in line with parliament intention - RvSigsworth - closes loopholes - prevent problems of literal rule - brings common sense to the law when more than one meaning - respects parliamentary supremacy still, as not complete freedom to judges. |
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6 disadvantages of golden rule |
- unpredictable in terms of when it is used, making hard for lawyers to advise - rule limited in use, only used on rare occasions - Hasn’t been an effective check on literal rule - may give judge too much description and lead to accusations of judicial law-making - zander’s criticisms of the golden rule may be justified - ‘an unpredictable safety value’ - an absurdity may mean different things to different judges and there is no guidance on how and when the golden rule is to be used. |
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What is the mischief rule? |
- Rule states Judge should look at gap or mischief act was set to cover. •established in Haydon’s case (1564) - should consider ... - what common law was before passed - what problem was with that law - what the remedy was that Parliament was trying to provide - what was the true reason for remedy |
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3 cases illustrating mischief rule |
1) Smith v Hughes 1960 - offends to solicit in a public place but prostitutes were soliciting from private premises. The court applied the mischief rule to allow conviction. 2) Elliot v Grey 1960 - the mischief rule was used to convict a man who failed to pay car insurance. 3) Roayl College of Nursing 1981 - allows abortion by nurse from high training. |
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4 Advantages of mischief rule |
1) Repaired bad law quickly and avoids absurdity and injustice - close loopholes 2) The rule promotes ‘flexibility’ and allows judges to put into effect parliaments true intention, thus also saving Parliament time in not having to legislate a fresh. 3) The law commission likes the mischief rule : the fairest and most rational method to interpret the will of legislation 4) allows the law to redevelop and adapt to changing needs of society. Eg Royal college of Nursing v DHSS. |
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5 disadvantages to mischief rule |
1) gives judges a law making rule infringing the separation of powers which is unconstitutional 2) judges can bring their own views, sense of partiality and prejudices to a case. Eg smith v Hughes. 3) The rule relies on extrinsic aids. - there are some problems with these. 4) The rule relies on a preamble which most modern acts no longer use. 5) can create an offence ‘ after the event ‘ (eg smith v Hughes) which underdetermines the certainty and predictability of law. |
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What is the purposive rule? |
- Parliament's intentions, not meanings. - Maunsell v Ollins 1975 ~ Lord Simon's suggested a two time test. Look at purpose of legislation and look at words & interpret them. - Broader allowance than mischief rule.., so just not looking for gap in old law, judges deciding what they believe Parliament was trying to achieve. - broader approach -> what concerns parliament & government at time of bill act. - method uses external aids - rule has been increasingly used. - The rule links to a more European approach to interpretation. - The method takes an unconstitutional approach to interpretation (I.e. Judges don't just apply law) |
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Cases illustrating the purposive rule |
-R v Rogers 2007 ~ D passed three Spanish tourists and called them "bloody foreigners" .. Was found guilty of insulting or racially aggravating words at a specific group. - Fitzpatrick v Sterling house Association 1999 ~ HOL allowed a gay partner to constitute a family for legal purposes when his partner had died. after living with him for 18 years he was allowed his dead partners tenancy. |
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5 Advantages of the purposive rule |
1) literal rule (through the destructive analysis of language) produces harsh (Berriman), absurd (Whitely) and unjust (Fisher) results which the purposive approach would avoid. 2) useful when there are changes with times/ new innovations etc. 3) the approach avoids harsh and destructive analysis of language 4) gives effect to parliaments intentions 5) judges are not required to identify a ' mischief ' which the Act was intended to remedy, like the mischief rule. |
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5 disadvantages of purposive rule. |
1) this approach makes law less certain. 2) extrinsic aids, particularly Hansard's, can cause delays & add to case costs, when proving intention. 3) difficult to discover intention. 4) too much power for judges. Goes against parliament supremacy. Lord scarman argues only way to find intention is to use words. 5) allow for judicial law making which goes against doctrines of parliamentary sovereignty & serrations of powers & allows non-elected judges far too much judicial creativity. |
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What is the general rule (ejusdem generis) ? And example. |
- where a list of words followed by another thing, relate and are limited to a specific thing. Eg. Butter,milk,cream "and other foods" ... Other foods could be cheese not flour, as cheese is dairy too like butter milk and cream. - The betting Act 1853 - and Power v Kempton Park Racecourse. ~ "offense to keep a house, office, room or other place for purpose of betting" ... HOL decided Tattersall's enclosure at Kempton Park Racecourse was outside so not in list.. No conviction. |
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What is the specific rule (expressio unius exclusio alterius) ? |
- mention of one thing excludes other, shed there's a list of words not followed by a general word (like "other foods") so act only applies to items in list. - Tempest v Killer 1846 ~ list "goods, wares, and merchandise" not followed by general rule .. So only affects words listed and nothing else. |
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What is the context rule (noscitur a sociis) ? And case example |
- where a word is known by other words with it. Words are looked at in context and interpreted accordingly . •eg, "scales, mixing bowls, spoons and whisks" ... The word "scales" obviously means kitchen scales as others are in a kitchen too, and so bathroom scales wouldn't count. - Muir v Keay 1875 ~ the word 'entertainment' did not refer exclusively to theatrical entertainment, music & dancing but included the boarder meaning & context of being entertained. |
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What is an intrinsic aid? |
- matters within the statute itself that may help to make its meaning clearer. The court can consider : 1) the long title 2) the shirt title 3) preamble - with older statutes (sets out parli' purpose) Eg. Theft Act 1968 states that it is an Act to modernize the law of theft. • interpretation section - same acts will have an interpretation section in them. Eg. Theft Act 1968 s4(1) states that 'property includes money & all other property real or personal, including things in action & other intangible property' •headings •schedules •marginal notes |
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What is an Extrinsic aid? |
- things outside the Act which can help explain the meanings of words in an Act. - dictionaries OF THE TIME of Act passing - Hansard - Official report of what was said in parliament when the act was debated. Like in 1992. However, Pepper v Hart 1993, HOL relaxed the rule & accepted that Hansard could be used by judges in a limited way. Only used when words of Act are ambiguous or obscure or could lead to an absurdity. Even then, only should be used if a clear statement by the Minister who introduced the legislation. |
