statutory interpretation

• Background

  .When a case is being decided in court, the judge must apply the relevant law

  .This law may have come from a past cause ( a precedent ), but it is far more likely that the law will have come from an act of parliament

  .It is estimated that 50% of High Court cases and 90% of cases in the supreme court involve interpretation of statutes
• What is statutory interpretation  

  .Statutory interpretation is the name given to the process by which judges decide what a statute (law) means and how it should be applied/interpreted.

  .Judges need to interpret an act because of : 

  .1) Ambiguous words - R V Allen

  .2) Words may change meaning overtime - Flack V Baldry

  .3) Impact of Human Rights - Ghaidan Godin V Mendoza

  .4) Social, medical and technological changes - Royal college of nursing V DHSS
• 4 rules of statutory interpretation

  .There are 4 main approaches or rules developed by judges to be able to interpret an act. A judge can pick and choose which ‘rule’ he wants to use.

  .1) Literal rule

  .2) Golden rule

  .3) Mischief rule

  .4) Purposive rule
• Literal rule

  How it works

  .This rule gives all the words in a statute their original and natural meaning. (dictionary meaning). Under his rule, the literal meaning must be followed, even if the result is absurd.

  Application case for literal rule

  .Whitley V Chappell 1868 - Whitley was impersonating a dead man when voting. The judge decided the word person ,in the act, could only mean living people, not dead people. The court found the defendant not guilty as he impersonated a dead person.

  .Another case - R V Bentham 2005
• Advantages and disadvantages of the literal rule

  Advantages

  .Respects parliamentary sovereignty - judges are clearly following the law parliament made.

  .Gives the courts a restricted role - this keeps the separations of powers as they are

  Disadvantages

  .Zander in the law-making process describes the literal rule as ‘mechanical, divorced from the realities of the use of language and from the aspirations of the human beings concerned …. In that sense it is irresponsible’ (key quote)- this suggests judges are being too robotic

  . Can lead to injustice and absurdity 
• Golden rule

  How it works

  .If the literal rule gives an absurd result which parliament could not have intended, then and only then the judge can substitute reasonable meaning in the light of the statute as a whole.
• Golden narrow rule

  Application case for the golden narrow rule

  .The golden narrow rule is where judges give words a secondary meaning. The case for this rule is R V Allen 1872 where the defendant was found guilty as the judge gave the words ‘shall marry’ a secondary meaning.
• Golden broad rule

  Application case for the golden broad rule

  .The golden broad rule is where the judge finds an alternative interpretation as they know parliament wouldnt intend the verdict. The case for this rule is Re Sigsworth where the son wasn't allowed his mum's inheritance , after murdering her,  due to public policy reasons as parliament wouldn't want such a verdict.
• Advantages and disadvantages of golden rule

  Advantages

  .Can prevent absurdity and injustice caused by the literal rule

  Disadvantages

  .The rule provides no clear meaning of what is an absurd result

  .Absurdity is a subjective concept and the judge may differ where they find the absurdity.
• Mischief rule

  How the rule works

  .Nowadays, the mischief rule is used more to allow the judge to examine the defect in the law that parliament was trying to remedy. Under this rule, the judge is trying to look at what was going wrong in the law that parliament was trying to fix through the act

  Application case for the mischief rule

  .Royal College of Nursing V DHSS- (abortion act 1967)This case focused on women getting abortions safely, regardless of whether they go to a doctor or not. So the court ruled nurses could give abortions as the point of the act was to stop backstreet abortions
• Advantages and disadvantages of the mischief rule

  Advantages

  .Avoids injustice

  .Promotes flexibility

  Disadvantages

  .Outdated, rule may be less appropriate now that the legislative process is different to Heydon's case 1584
• The purposive rule

  How the rule works

  .This rule looks at the intention of Parliament and it is not restricted to the defect in the old common law. Most judges now have stopped using the literal rule and will now use the purposive rule. Most Eu judges prefer to use this rule as it helps to break down any language barriers.

  Application case for the purposive rule

  .Jones V Tower boot - he was discriminated against by other staff members in his breaks However, the purpose of the discrimination act was to protect employees at all times, not only his working hours. 
• Advantages and disadvantages of the purposive rule

  Advantages

  .allows judges to look beyond the strict language of the law and achieve a just and reasonable outcome that upholds the legislative intent.

  Disadvantages

  .It is difficult to discover the intention/purpose of Parliament.
• Presumptions (type of AID) .

  A presumption is something the court will take for granted, believe, understand the law to be this way before the case even comes to court. This is common knowledge between judges.

  .All judges will make presumptions about the law

  .If the opposite of that presumptions is presented to the court, then we say the presumption is rebutted
• Presumptions (a type of AID)

  1. S.2 of the Human Rights Act 1998 applies to every act of Parliament. Judges must ensure they don't discriminate and abuse someone's human rights
  2. Legislation does not operate retrospectively. Laws cannot be backdated and applied in the past
  3. Presumptions that all crimes require mens rea. The exception to this is strict liability offences as it does not require mens rea, only actus reus e.g. speeding, parking on a yellow line, littering, pollution
• AIDS to interpretation

  .Intrinsic aids - is something judges will use, found inside the act to help interpret the law

  -interpretation section - R V Bogdal (defining public place) the judge interpreted that a driveway under the dangerous dogs act constituted a private place. 

  -Short title long title - (long) gives the definition of the offence and (short) gives the title of the act
• AIDS to interpretation

  -Rules of language:

  1. Ejusdem generis - words of the same kind : Powell V Kempton Race Course
  2. Expressio Unius Est exclusio Alterius (EXPRESSO) : express mention of one thing implies the exclusion of another
  3. Noscitur a Sociis - a word draws its meaning from those around it
• Ejusdem generis rule

  .Ejusdem generis means ‘of the same generis’ meaning ‘type’ or ‘family’

  .The judge look for a list of specific words followed by a general word. The list must have two or more words in it

  .Example - ‘cats, dogs (specific words) and other such animals’(general world). Under this rule the other animals must be of the same kind as ‘cats,dogs’ arguably domestic animals/pets
• Ejusdem generis case

  Case example

  .Powell V Kempton Park Racecourse

  .Defendant was charged with running an illegal betting stall at a racecourse.

  .Act said it was illegal to gamble in a ‘house, office, room or other place for betting’

  .Held : The court decided that his stall was not an ‘other place’ because it was an outside place on the list. Therefore, he was found not guilty.
• Expressio unius exclusio alterius (expressio)

  .This is latin for ‘the expression of one thing is the exclusion of others’

  .Where there are no general words with a list in the Act. Therefore, the judge must interpret the Act to only include things in the list

  .Example : if the act specifically mentioned ‘Alsatian dogs and Rottweiler dogs’ (specific words and no general words) then under this rule the ACt would not apply to other breeds of dog.
• Expressio unis exclusio alterius case

  .Re Inhabitants of Sedgley 

  .A statute raised taxes on ‘land, houses and coal mines’

  .Judge had to decide whether the tax applied to a limestone mine

  .Held : No the list excluded any other things, it only applied to coal mines not other types of mines
• Noscitur a sociis

  .A man is known by his associates

  .The judge looks at words in the context of the Act as a whole, and interpret accordingly

  .The rule looks at words in same section or in other sections in the Act 

  .Example : If an Act states ‘engines, tyres, brakes, clutches and oil’, the meaning of ‘oil’ is found by looking at the other words in the sentence - hence meaning oil used in a car and not cooking oil.
• Noscitur a sociis

  .Pengelly V Bell Punch

  .The court had to decide whether floors used for storage came under the factories act 1961 ‘floors steps, stairs and passageways’ had to be kept clear from obstruction.

  .Held : all the other words were used to indicate movement, a floor used exclusively for storage did not fall within the act.
• Extrinsic aids

  -Dictionaries : Flack V Baldry - the stun gun was found to be a dangerous weapon under the firearms act as a judge looked up the word discharge

  1. Sometimes dictionaries of the time the Act was passed can be used to help interpret what the words in the Act meant at that time
• Extrinsic aids -law commission report

  -Law commission report : Davis V Johnson - judge felt a mistress should be given the same rights as a wife in a domestic violence situation

  1. Acts of parliament may be ‘based’ on a law commission report, but may not fully ‘implement’ the report's recommendations. Therefore, law commission reports could be looked at to find the intention of parliament. 
• Extrinsic aids - hansard

  -Hansard : Pepper V Hart 

  1. Hansard is a political document that details everything that is said in Parliament. It is the name of the firm who produced the script. The main issue with hansard is that it is a political document and judges must not be influenced by politics. Hansard should be used as a last resort.
• .Extrinsic Aids : 

  Human rights Act 1998- the act incorporates into UK law the European Convention on Human Rights. Section 3 requires that ‘so far as it is possible to do so legislation must be read and given effect in a way which is compatible with the convention rights’. This means judges must ensure law does not discriminate. Case example - Ghaidan Godin V Mendoza : judge in this case added the words his/hers into the rent act 1977 to ensure the law was compatible with human rights.
• Extrinsic aids

  Human rights act 1998 - section 2 requires the courts take into account any relevant judgements from the EU court of human rights, but they are not bound by them. If it is impossible to find an interpretation which is compatible with the Convention the court can issue a declaration of incompatibility (meaning judges are sending that act back to parliament for them to change) under section 4. Case example - Belmarsh case : 9 non-british nationals were detained for terrorist activity, but due to the discrimination taking place the judge felt a 2.4 was neeed
• Types of extrinsic aids

  Dictionaries

  Law commission report

  Hansard

  Human rights act