(GREEN) Statutory Interpretation

Question 1

How might a Statute be unclear?

Answer 1

• Using broad terms
• Ambiguity
• Drafting errors
• New inventions/technology
• Changes in the use of language

Question 2

What did Lord Esher say the literal rule meant?

Answer 2

If the words of an Act are clear, you must follow them even if they lead to a manifest absurdity.

Question 3

What do judges use to find the literal meaning of statutes?

Answer 3

The dictionary from the date of the Act.

Question 4

LITERAL RULE
Which act was being interpreted in LNER v Berriman?

Answer 4

Fatal Accidents Act 1846.

Question 5

LITERAL RULE
Which phrase in LNER v Berriman was being interpreted?

Answer 5

‘relaying and repairing’

Question 6

LITERAL RULE
What interpretation was given in LNER v Berriman and therefore what was the outcome?

Answer 6

Mr Berriman had been maintaining the track which did not count as relaying or repairing. Therefore the railway company didn’t have to provide a lookout and did not have to pay Mrs Berriman any compensation.

Question 7

LITERAL RULE
Which act was being interpreted in DPP v Cheeseman?

Answer 7

Town and Police Clauses Act 1847.

Question 8

LITERAL RULE
Which phrase in DPP v Cheeseman was being interpreted?

Answer 8

‘passengers’

Question 9

LITERAL RULE
What interpretation was given in DPP v Cheeseman and therefore what was the outcome?

Answer 9

The police did not count as passengers as they were stationed in the bathroom, not passing by it when D was masturbating. Therefore D was found not guilty.

Question 10

What are the advantages of the literal rule?

Answer 10

• Provides certainty within the law as acts will always have the same meaning which keeps the law fair and consistent.
• Saves judges’ time as they simply have to look up the dictionary meaning of the words and don’t need to hear complicated arguments in court- swift justice.
• Respects Parliamentary supremacy as it follows Parliament’s exact words which is good because it is Parliament’s job not a judge’s to make the law.
• Respects separation of powers as judges are merely interpreting the law and therefore doing their constitutional role.
• Makes laws easier to understand so they are more likely to be followed.

Question 11

What are the disadvantages of the literal rule?

Answer 11

• Can lead to absurdity as bad decisions can be made due to technicalities which can prevent justice.
• Doesn’t apply to words with multiple meanings, or ambiguity and judges may disagree on the literal meaning making it difficult to apply the literal rule.
• Assumes perfection in drafting and Parliament’s intention may not be fulfilled due to an error in the Act.
• Doesn’t allow for judicial creativity which means the law may be outdated and Parliament has to spend time updating old laws.
• Changes in the use of language may make it hard for the general public to understand laws if they are outdated as the literal meaning might be unclear so they might not be followed.

Question 12

What is the golden rule?

Answer 12

A modification or extension of the literal rule used to avoid an absurdity if the literal meaning was used.

Question 13

What did Lord Reid say the narrow approach meant?

Answer 13

If there is more than one meaning of a word, the court can choose the word with the most appropriate meaning.

Question 14

How does the broad approach work?

Answer 14

The courts can modify the words of a statute to avoid an absurd result.

Question 15

GOLDEN RULE (NARROW)
Which act was being interpreted in R v Allen?

Answer 15

Offences Against the Person Act 1861.

Question 16

GOLDEN RULE (NARROW)
Which phrase in R v Allen was being interpreted?

Answer 16

‘marry’

Question 17

GOLDEN RULE (NARROW)
What interpretation was given in R v Allen and therefore what was the outcome?

Answer 17

Marry could mean either to legally marry or to go through a marriage ceremony. The court chose the second meaning to find D guilty of bigamy. If they had chosen the first meaning then bigamy would have been impossible as bigamy prevented a person being able to legally marry 2 people which is not what Parliament intended.

Question 18

GOLDEN RULE (BROAD)
Which act was being interpreted in Re Sigsworth?

Answer 18

Administration of Estates Act 1925.

Question 19

GOLDEN RULE (BROAD)
Which phrase in Re Sigsworth was being interpreted?

Answer 19

‘issue’

Question 20

GOLDEN RULE (BROAD)
What interpretation was given in Re Sigsworth and therefore what was the outcome?

Answer 20

Issue was clear but the court modified the Statute by adding ‘but not where the issue has murdered the deceased’ so Re Sigsworth did not get his mother’s inheritance. This was because Parliament clearly did not intend for a murderer to benefit from their crime.

Question 21

What are the advantages of the golden rule?

Answer 21

• Avoids absurdity as judges can change the word of a statute to make the words and meanings make sense in the circumstances.
• Puts Parliament’s intention into practice even when the wording of a statute wasn’t worded in a way that would do so.
• Applies to words with multiple meanings which fixes this problem with the literal rule.
• Allows for judicial creativity which saves Parliament’s time as they don’t have to keep updating old laws.
• Drafting errors or loopholes like in R v Allen can be corrected.

Question 22

What are the disadvantages of the golden rule?

Answer 22

• Creates uncertainty in the law as judges may disagree on when or how to change the words in an act.
• Goes against Parliamentary supremacy and separation of powers as it shouldn’t be judges who are changing the laws.
• Narrow approach is inflexible so judges may not be able to avoid the absurdity.
• Only works when the outcome from literal rule would be absurd- unfair outcomes can’t use the golden rule.

Question 23

How does the mischief rule work?

Answer 23

It allows judges to consider what mischief Parliament was trying to stop when it passed the Statute rather than simply concentrating on the word of the Statute.

Question 24

What are 2 of the 4 rules that Heydon’s case decided must be asked when using the mischief rule?

Answer 24

What was the common law before the Act was made?
What was the mischief for which the common law did not provide?

Question 25

MISCHIEF RULE Which act was being interpreted in Smith v Hughes?

Answer 25

Street Offences Act 1959.

Question 26

MISCHIEF RULE Which phrase in Smith v Hughes was being interpreted?

Answer 26

'in a street or public place'

Question 27

MISCHIEF RULE What interpretation was given in Smith v Hughes and therefore what was the outcome?

Answer 27

It did not matter that D's (prostitutes) were on balconies and in doorways, they were doing the mischief that the Act was trying to prevent, harassing passers by, and were therefore found guilty.

Question 28

MISCHIEF RULE Which act was being interpreted in RCN v DHSS?

Answer 28

Abortion Act 1967.

Question 29

MISCHIEF RULE Which phrase in RCN v DHSS was being interpreted?

Answer 29

'registered medical practitioner'

Question 30

MISCHIEF RULE What interpretation was given in RCN v DHSS and therefore what was the outcome?

Answer 30

There had been medical developments so nurses could reasonably help with procedures. Even though nurses were not classified as registered medical practitioners, it was decided that they could assist in abortions as the Act was trying to prevent dangerous backstreet abortions and allowing nurses to assist would result in more safe abortions taking place.

Question 31

What are the advantages of the mischief rule?

Answer 31

- Avoids absurdity as judges can ignore strict wording which means justice will be served. - Puts Parliament's intention into practice as judges are fixing the problem Parliament wanted to solve so it ensures the law works as intended. - Creates flexibility in the law so judges can consider the circumstances and changes in society when coming to a decision. - Allows for judicial creativity which saves Parliament's time. - Allows for drafting errors and unintended loopholes so a fair outcome can be reached.

Question 32

What are the disadvantages of the mischief rule?

Answer 32

- Creates uncertainty in the law as judges may disagree what mischief it was that Parliament wanted to stop. - Goes against Parliamentary supremacy and separation of powers as judges aren't simply interpreting the law. - Limited in fixing one problem at a time as they can only use to law to fill the gap in the old law rather than actually fulfill Parliament's intention. - Judges may apply their own prejudices and opinions to a case when they haven't been elected democratically so shouldn't be able to do this.

Question 33

How does the purposive approach work?

Answer 33

Looks at what Parliament intended/aimed to achieve when passing the Statute. Judges then interpret the Act to achieve this aim.

Question 34

What did Viscount Simonds say the purposive approach was?

Answer 34

'A naked usurpation of the legislative function under the thin guide of interpretation'. (A usurpation of Parliament's power and role as law makers).

Question 35

What did Lord Denning say about the purposive approach?

Answer 35

'We sit here to find out the intention of Parliament, and we do that better by filling in the gaps than by making a nonsense out of literal meanings'.

Question 36

PURPOSIVE APPROACH Which act was being interpreted in Jones v Tower Boot Co?

Answer 36

Race Relations Act 1976.

Question 37

PURPOSIVE APPROACH Which phrase in Jones v Tower Boot Co was being interpreted?

Answer 37

'in the course of employment'

Question 38

PURPOSIVE APPROACH What interpretation was given in Jones v Tower Boot Co and therefore what was the outcome?

Answer 38

Even though the racist abuse by the employees were technically not in the course of employment, the employer was found liable as Parliament intended to prevent discrimination, promote racial equality and to educate people. Finding a big company like TBC liable would achieve this aim as other employers would educate their employees.

Question 39

PURPOSIVE APPROACH Which act was being interpreted in R v RG ex parte Smith?

Answer 39

Adoption Act 1976.

Question 40

PURPOSIVE APPROACH Which phrase in R v RG ex parte Smith was being interpreted?

Answer 40

'shall supply'

Question 41

PURPOSIVE APPROACH What interpretation was given in R v RG ex parte Smith and therefore what was the outcome?

Answer 41

Even though the literal meaning gave no discretion, the court decided that Parliament would never have intended to promote serious crime like murder or to put someone at risk and so they decided that RG didn't have to give D his birth certificate as he had previously murdered 2 people, 1 of whom he thought was his mother.

Question 42

What are the advantages of the purposive approach?

Answer 42

- Avoids absurdity as judges can look past strict literal meanings to achieve justice. - Puts Parliament's intention into practice which is good as Parliament's intentions should reflect what society wants. - Promotes flexibility in the law so judges aren't forced into bad decisions and can consider the circumstances of the case. - Allows for judicial creativity which saves Parliament's time so more important laws can be passed quickly by Parliament. - Used commonly in the EU so laws made by ECHR can be used in the UK as literal meanings won't work for different courts speaking different languages.

Question 43

What are the disadvantages of the purposive approach?

Answer 43

- Creates uncertainty in the law as judges may come to different conclusions when deciding Parliament's purpose. - Goes against Parliamentary supremacy and separation of powers as judges are changing the law which is not their job. - Makes judges too powerful which is a problem as they are not elected so don't necessarily reflect what society wants. - Can be time consuming to find out Parliament's intention- may have to use Hansard which means court backlogs get worse and justice is slow.

Question 44

What is one of the main reasons why the purposive approach is used in the UK?

Answer 44

Because it is used by the EU due to language barriers meaning the literal rule would be ineffective when using EU or ECHR law.

Question 45

What are intrinsic aids?

Answer 45

Help that is found inside the statute which the judge is interpreting. e.g. short title, definition sections, marginal notes.

Question 46

What are extrinsic aids?

Answer 46

Help that is found outside the statute which the judge is interpreting. e.g. Oxford English dictionary from the date of the statute, Hansard, law reform reports, Interpretation Act.

Question 47

Why is the date included in a short title?

Answer 47

So judges can look up definitions of words in the Act in the Oxford English dictionary from the date of the Act.

Question 48

What are definition sections?

Answer 48

A section that contains specific literal meanings of the words in a statute, often where they would otherwise be ambiguous. The definitions are clear, relevant and specific to the Act.

Question 49

What are marginal notes and who adds them?

Answer 49

Guidance and summaries to help judges interpret Acts effectively written by the Parliamentary Counsel. They don't have to be followed but generally the guidance provided is useful for judges.

Question 50

What is Hansard and why is it useful?

Answer 50

A word for word record of everything that was said in Parliament when debating new statutes. Useful for mischief rule and purposive approach as judges can understand what it was that Parliament wanted to prevent or achieve.

Question 51

What did Lord Denning say when the HoL didn't allow the use of Hansard in Davis v Johnson?

Answer 51

It meant judges must 'grope about in the dark for a meaning of an Act without switching on the light'.

Question 52

What were the 3 circumstances in which the use of Hansard was allowed in Pepper v Hart?

Answer 52

- The words of an Act are ambiguous and are likely to lead to an absurdity. - There is a statement in Hansard relating to the issue in question. - The statement would clear up the ambiguity.

Question 53

Why was Lord Mackay against using Hansard?

Answer 53

It would cost a lot of money and time to use Hansard.

Question 54

What was Lord Bridge's compromise on the use of Hansard and why was it silly?

Answer 54

Judges could only use Hansard if it will help them on a particular issue but they won’t know if Hansard will help until they look at it.

Question 55

Which case said that official reports from the Law Commission could be used to discover the mischief that Parliament wanted to stop?

Answer 55

Black-Clawson International Ltd v Papierwerke.

Question 56

Which case used law reform reports to find male prostitutes not guilty under the Street Offences Act?

Answer 56

DPP v Bull.

Question 57

What does the Interpretation Act 1978 say?

Answer 57

The act contains meanings of words which will be used in many statutes. Section 6 says that unless otherwise stated, all words in the singular form will also include the plural and use of the word 'he' will also refer to and include she or they.

Question 58

Which case said that 'land' includes buildings as D glued himself to a door where his feet were not touching the ground?

Answer 58

DPP v Chivers.

Question 59

What did the Marleasing case show?

Answer 59

While the UK was in the EU, UK judges must interpret UK Acts so they respect the wording and purpose of EU laws- made clear by the European Court of Justice.

Question 60

What does section 3 of the Human Rights Act 1998 say?

Answer 60

UK judges have to interpret and give effect to legislation so that is compatible with the ECHR, as far as it is possible to do so.

Question 61

What happened in the Mendoza v Ghaidan case?

Answer 61

The Rent Act said that tenancies could go to unmarried spouses if they were living ‘as husband or wife’. Due to same sex marriage not being legal at the time, Mendoza was not included in the Act when his male partner died. He claimed this was decimating against him based on his gender. The court decided that it would breach human rights (as set out by the ECHR) to not allow Mendoza to become the tenant, and so interpreted the Act to allow it to apply to same sex couples as well.

Question 62

What does section 4 of the Human Rights Act 1998 say?

Answer 62

When it is not possible to interpret UK law to comply with EHCR law, judges must make a ‘declaration of incompatibility’. This asks Parliament to review the Act but doesn’t do anything to the Act itself. Parliament can then choose whether they want to change the law or not.

Question 63

How was a definition section used in Oxford v Moss?

Answer 63

Section 4 of the Theft Act 1968 was used to give a definition of property and so it was determined that information was not able to be stolen.

Question 64

What case said that marginal notes don’t have to be used when interpreting an Act (although they are generally reliable)?

Answer 64

Montilla