1
Q
Literal Rule
A
- words plain ordinary grammatical meaning , as in dictionary
- Whitely V Chappell
- LNER V Berriman
2
Q
Whiteley V Chappell
A
D impersonate any person entitled to vote -> aquitted as impersonated dead person who couldnt vote ‘
3
Q
LNER V Berriman
A
- railway worker widow unable to claim compensation for as her husband killed oiling track which counted as maintenance only entitled to lookout if ‘relaying or repairing track’
4
Q
Golden rule - Narrow Use
A
- where a word has two possible meanings one would produce an absurd or unwanted outcome, the court could choose the most sensible meaning
- R v Allen
5
Q
R v Allen
A
- accused bigamy
- offence literally impossible
- judge interpret ‘marry’ as ‘to go through a ceremony of marriage’
6
Q
Golden Rule - wide use
A
- only 1 meaning -> repugnant/unwanted outcome -> golden rule alter meaning of word in order to avoid unwanted outcome + give effect to parliaments intentions
- ie SIgworth
7
Q
sigsworth
A
- son murdered mother prevented from inheriting mothers estate despite (‘next of kin’) -> didn’t want murderer to benefit from his crime
8
Q
Golden rule - KP
A
- Cannot be used indp. -> need failing literal rule
- challenge - identifying repugnant/absurd outcome
9
Q
mischief rule
A
The rule allows the judge to see the law before Act passed to see what gap or ‘mischief’ the act was designed to cover. The court should then interpret the Act in such a way that the gap is covered (provide a remedy)
i.e smith v hughes
- Royal Court of Nursing
10
Q
Smith V Hughes
A
- street offences act 1958
- ‘soliciting in the street’ did it count from window
- Court said that the aim of
Act allow
people to walk along the
streets without being
solicited
11
Q
Royal College Nursing
A
- consider wording Abortion Act 1967 - allowed “registered medical
practitioners” to carry out abortions.
-HL (SC) looked at the
mischief Parliament was
aiming to redress –
illegal, “backstreet”
abortions - that nurses supervising
part of the procedure was
not unlawful.
12
Q
purposive approach
A
It seeks to give effect to Parliament’s intentions when passing a new law. And so the wording should be interpreted in order to achieves those aims and reflects the “spirit” of the statute.
i.e Jones v Tower boot
13
Q
Jones V Tower Boot
A
The Court of Appeal decided that racial
harassment by fellow workers was “in the course
of employment”, making the employer liable.
Parliament’s intention was to eliminate racism in
the workplace
14
Q
intrinsic aids
A
- within act
- Long & short title
- schedules
- explanatory notes
15
Q
extrinsic aids
A
- aids outside of act
- Oxford dictionary from time law passed
- Hansard
- LCR
- Precedent
- HRA 1998
16
Q
Adv of golden rule
A
- escape route to avoid absurdities
- Uphold Parliament’s will
- Respect’s parliament supremacy
- Saves Parliamentary time
17
Q
Adv of golden rule: escape route
A
- escape route to avoid absurdities literal rule creates i.e R v Allen
18
Q
Disadv. Golden Rule
A
- def absurd
- J ttoo much power
- unpredictable
- ltd use -
19
Q
Disadv. Golden Rule: absurdities
A
-> subjective
->different meaning
-> otcome of cae dep. on judge
20
Q
Disadv. Golden Rule: J too much pwr
A
- J too much power
-> lead to accusations judicial law making
-> i.e Re sigworth Word (‘next of kin’) clear and unambiguous
21
Q
Disadv. Golden Rule - unpredictable
A
- unpredictable - No guidance how/when -> hard to advise clients -. ‘an unpredictable safety valve’
22
Q
Disadv. Golden Rule - ltd use
A
- ltd use -. Use situation absurd/repugnant -> rare -> feeble parachute
23
Q
Adv of golden rule: uphold Parliaments will
A
- Uphold Parliament’s will
-> assume Parliament never intends to pass absurd law -
> Re Sigsworth
24
Q
Adv of golden rule: respects Parliament supremacy
A
- Respect’s parliament supremacy
-> only response to failure of literal rule
-> judge not complete freedom
– respect words parliament chose
25
Adv of golden rule: save Parliament time
e
- Saves Parliamentary time
-> no minor change in amending Act i.e Adler V George ('vicinity' inc. being inside prohibited place)
26
Adv of Literal rule
- Respects PS
-SofP
- Legal certainty & predictability
- precision -
27
Adv of Literal rule: respect PS
-> folllow words by Parliament
-> democratic elected
28
Adv of Literal rule: Separation of Powers
-> P law making body
-> right J apply law exactly as written -> J unelected
29
Adv of literal rule: Legal certainty & predictability
-> interpreted as written
-> lawyers advise clients confidently - reduce litigation
30
Adv of literal Rule: Precision
encourage accurcy of P
-> clar, precise & plain meaning
_> understood + interpreted by anyone
-> fairness + same application
31
Dis. of Literal Rule
- absurd results
- undermines parliament's intention
- unrealistic
32
Dis of literal rule: absurd results
-> harsh Berriman
-> absurd whiteley v chappell
33
Dis literal rule: undermines Parliaments intention
> Fisher V Bell and cheesman not achieve what parliament wanted
-> required to interpret in way consistent w/ HRA which favours more purposive approach
34
Dis literal rule: unrealistic
-> expects impossible level of perfection
-> literal meaning of word w/out due weight of context
-> Zander 'mechanical & divorced from realities of the use of language'
35
Adv Mischief rule
- promotes purpose of law
- Avoids absurd & unjust outcomes -
- Flexibility -
- mischief filled
36
Adv Mischief rule: promote purpose of law
-> remedy parliament chose
-> save PT
-> smith V Hughes
-> reform & improve each law to tackle 'mischief '
37
Adv Mischief rule: avoid absurd + unjust outcomes
- blackstone said 'the fairest and most rational method of interpretation'
38
Adv Mischief rule: flexibility
-> change social + Tech conditions
i.e RCOfN
39
Adv Mischief rule: mischief filled
-> respectful of Parliamentary sovereignty than purposive
-> looks for defect in law and use remedy parliament chose
40
disadv. Mischief rule
-judicial law making
- uncertianty
- Difficult identify Parliaments intention
- ltd. than purposive approach
41
disadv. Mischief rule: judicial law making
- RCofN -> ignore words act -> undermine PS + SepofPwrs
42
disadv. Mischief rule: uncertainty
> dif. conclusions & own predjudices
-> difficult for lawyerss to advise clients
-> smith V hughes
43
disadv. Mischief rule: difficult to identify parliament's intention
-> 'mischief' difficukt to estab
+ judge hampered by extrinsic aid inavailability i.e hansard
44
disadv. Mischief rule:: more ltd. than purposive approach
-> cnnot general cosideration of the purpose of the law -> purpose is more appropriate to modern acts -> make mischief rule redundant
45
adv Purposive approach
- Justice in individual cases
- Flexibility
- Allows discretion
- more approapriate to Modern AofP
46
adv Purposive approach: justice in indv cases
-> law covers more sit. than literal int. i.e Jones V Tower Boot
47
adv Purposive approach: flexibility
law adapt changing social + tech. adv. (Quintavelle cloning not possible when Gov. passed Act)
48
adv Purposive approach: allows discretion
avoid harsh + destructive analysis of lang. and absurdities + injusticices
49
adv Purposive approach: more apropriate to Modern AofP
-> further, more generalised consideration than Michief rule
50
Dis Purposive approach
- Judicial law making
- Difficult to judge intention
- uncertainty
51
Dis Purposive approach: Judicial Law making
purpose of act
-> J too much power
-> ignore clear words of Parliament & against d of PS + SP i.e ex parte smith (deny applicant right to birth certificate)
52
Dis Purposive approach: Difficult to Judge intention
-> can only be applied if found
-> rely on extrinsic aids in particular hansard
-> delays + cost
53
Dis Purposive approach: uncertainty
diff. to advise clients
