W200 Exam Review, Unit 4

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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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interpretation refers to

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being able to define what a legal document refers to specifically

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Activity 33

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problems of interpretation

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What do the rules of interpretation apply to

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the 'rules' of and aids to interpretation apply to all forms of legal document

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Are the rules, rules

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the 'rules' are not in fact rules, but guidelines

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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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What is construction (in a legal context)

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interpretation

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Three rules of construction are

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(i) The literal rule (plain meaning rule)

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(ii) The golden rule

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(iii) the mischief rule

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Sussex Peerage Case (1844) explains the literal rule as

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“If the words of the statute are of themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.”

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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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Positive of literal rule

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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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Negative of literal rule

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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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(1)In the case of Whitely v. Chappell (1868) demonstrated

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(2)the limitation of the literal construction as a defendant was found not guilty of impersonating 'a person entitled to vote'; the person was dead.

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(3)The decision in Whitely v. Chappell (1868) occurred because

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(4)the relevant provison on voting was interpreted under the literal rule which meant a dead person was 'not a person entitled to vote'

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Lord Wensleydale [1843-60] defined the golden rule as

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“the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity…in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity”

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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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Positive of golden rule

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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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(1)R v. Allen (1872) demonstrated avoidance of absurdity

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(2)the interpretation of s. 57 of the Offences against the Person Act which stated: 'Whosoever being married, shall marry any other person during the lifetime of his spouse'. If the word 'marry' had been interpreted literally anyone who had been married once could not be guilty of bigamy if they married again while still married.

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(3)In R v. Allen (1872) If the word 'marry' had been interpreted literally

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(3)anyone who had been married once could not be guilty of bigamy if they married again while still married as a legally married person cannot marry again i.e. It would be impossible for bigamy to take place under a literal interpretation

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(1)In Re Sigsworth [1935] Ch 89 the meaning of s. 46 of the Administration of Estates Act 1925 where a son had murdered his mother

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(2)As there was no will, under the intestacy rules as set out in the Act

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(3)the son would have inherited his mother's resduary estate as her 'issue' child

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(4)the son was convicted of murdering his mother and denied the right of inheriting his mother's estate as it would have led to a obnoxious result contrary to Public policy of a murderer not gaining advantage from his crime

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The Re sigsworth defined

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the son in Re sigswoth [1935] had in fact committed suicide and therefore the case referred to whether members of a defendant's family should benfit from his crime

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In Inco Europe Ltd v. First Choice Distribution [2000] 1 WLR 586 the House of Lords stated

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that words couild be added to a statute to resolve an obvious drafting error regarding s.9 of the Arbitration Act 1996.

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Forfeiture Act 1982 gives

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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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before the Forfeiture Act 1982 a court

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could not make one decision for one case and another for another case

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The Forfeiture Act does not apply to

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outright murder, but can be applied in other cases if circumstances merit this

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The general rule of English Law (regarding a criminal act) is

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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 (1584) 3 Co Rep 7a) is

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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 is

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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 the remedy

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Corkery v. Carpenter [1951] 1 KB 102 demonstrates

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the application of the mischief rule regarding the wording of s. 12 of the Licensing Act 1872

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Royal College of Nursing v. DHSS [1981] AC 800 demonstrates

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the mischief rule being applied in order to avoid an absurdity that would have occurred if the literal rule had been applied of s.1 of the Abortion Act 1967

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Activity 37

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Read paras 3.4.3, section 3 and 3.4.2.1 'regulation of Abortion' and case Royal College of Nursing v. DHSS [1981] AC800

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The mischief rule is

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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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The purposive reading of the law refers

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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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Under the European Communities Act 1972

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National courts must use the purposive approach when implementing EU law

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The purposive approach as expressed in Pickstone v Freemans plc [1988] IRLR 357 states that

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“the words must be construed purposively in order to give effect to the manifest broad intention of the maker of the Regulations and of Parliament.”

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Lister v. Forth Dry Dock and Engineering Co. Ltd [1990] 1 AC 546 demonstrates

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the application of the purposive approach regarding regulation 5 of the Transfer of Undertakings (Protection of Employment) regulations 1981 implementing EU Directive where the House of Lords read words into the regulations in order to comply with the EU Directive

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The purposive approach relates

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to the use of general principles in interpreting statute rather than any strict adherence to the literal meaning of a statutes wording.

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section 3 of the HRA (1998) which states

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‘so far as possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’

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The purposive approach is necessary in order to

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solve legal problems that arise from the literal construction of UK statutes and the need to comply with EU legislation enacted through the purposive civil law systems of the continent.

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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) which

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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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the same kind of nature rule is demonstrated in

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Powell v. Kempton Park Racecourse Co. [1899] AC 143 on the meaning of the wording of s. 1 of the Betting Act 1853

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(2) Noscitar a sociis (recognition by associated words) in which

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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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recognition by associated words rule is demonstrated in

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Pengelly v. Bell Punch Co. Ltd [1964] 1 WLR 1055 in deciding whether floor for storage came under the Factories Act 1961

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(3) Expressio unius est exclusio alterius (expressing one thing excludes another) which

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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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expressing one thing excludes another rule is demonstrated in

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R v. Inhabitants of Sedgley (1831) 2 B & Ald 65 in intepreting the Poor relief Act 1601

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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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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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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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Review Activity 39

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Activity 40

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