Statutory Interpretation

Approaches to statutory interpretation

Lesson Objectives

• I will be able to explain the 4 approaches to statutory interpretation

• I will be able to use cases to illustrate the rules of statutory interpretation

The need forStatutory

Interpretation

A broad term: “type known as

the pit bull terrier” in

Dangerous Dogs Act 1991. What does this word

mean?

Ambiguity: if a word has two or more meanings which is the one that should be

used?

New developments:

e.g. in technology. In

Royal College of Nursing v DHSS 1981 “medical practitioner” now includes nurses for the purposes of

abortion

Changes in the use of language: the meaning of a word might change, e.g.

the meaning of “passenger” in

Cheeseman v DPP 1990

A drafting error made by the

parliamentary counsel who drafted the

original bill, e.g. as a bill is

amended on its way through Parliament

Introduction to statutory interpretation

Statutory interpretation concerns the role of judges when

trying to apply an Act of Parliament to an actual case.

The wording of the Act may seem to be clear when it is

drafted and checked by Parliament, but it may become

problematic in the future.

75% of cases heard by the house of lords are concerned

with statutory interpretation.

Main presumptions

of the court

1. Presumption against a change in the common law

2. Presumption that mens rea is required in criminal cases

3. Presumption that the Crown is not bound by any statute unless the statute expressly says so

4. Presumption that legislation does not apply retrospectively

Presumptions are beyond the scope of this specification.

The rules of interpretation

There are two approaches to statutory interpretation:

the literal approach and the purposive approach.

There are also three main rules of statutory interpretation

that judges use to decide a case:

• the literal rule

• the golden rule

• the mischief rule

Three rules of interpretation

1. Literal rule – words are given their ordinary grammatical meaning.

Whiteley v Chappell: D was found not guilty of “impersonating [someone] entitled to vote” when he impersonated a dead man, as a dead person is not “entitled to vote”.

2. Golden rule – the best interpretation of ambiguous words can be chosen to avoid an absurd result. The golden rule provides a kind of “escape route” when there is a problem with the literal rule.

Allen: “Marry” = “go through a ceremony of marriage”. Narrow version.

Re Sigsworth: Son not allowed to inherit from mother because he murdered her. Wider version.

3. Mischief rule – looks at the gap in law prior to the Act and interprets words to “suppress the mischief”.

Smith v Hughes: Prostitutes calling from a house to men in the streets were soliciting “in a street”.

NB these three rules are all part of the literal approach: by using them judges are still trying to find/understand

the meaning of the actual words in the statute. Even when using the mischief rule it is primarily the words of the

statute that the judge is most concerned with.

Literal rule

The literal rule respects parliamentary sovereignty.

The judges take the ordinary and natural meaning of the

word and apply it, even if doing so creates an absurd

result.

Lord Esher said in 1892:

‘The court has nothing to do with the question of whether

the legislature has committed an absurdity.’

Literal ApproachThe Literal Approach gives words their ordinary

grammatical meaningR v Judge of the City of London Court: “If the

words of an act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity”

LNER v Berriman: Not “relaying or repairing” track but oiling points (maintenance)

• Leaves law-making to Parliament / respects democracy BUT assumes every Act will be perfectly drafted – Fisher v Bell

• Makes law more certain BUT can lead to “unfair” decisions or absurd results – LNER v Berriman

Pinner v Everett (1969)

Lord Reid – “in determining the meaning of any words or phrase in statute, the first question to ask is always what is the natural and ordinary meaning of that word or phrase in its context of the statute.”

Whiteley v Chappell (1868)

Defendant voted in the name of a deceased person when the law stated that ‘any person is entitled to vote at an election’.

Fisher v Bell (1961)

This case concerned a flick knife displayed in a shop window.

Lord Parker acquitted Bell under the Restriction of Offensive

Weapons Act 1959, even though it was obvious that this was

exactly the sort of behaviour that Parliament intended to stop.

He justified his decision because the draftsmen knew the legal

term ‘invitation to treat’ (which would have been applicable in

this case) but failed to include it.To respect Parliament’s

sovereignty he had to infer that they had left it out on purpose.

Golden rule

The golden rule is an extension of the literal rule.

If the literal rule gives an absurd result, which is obviously

not what Parliament intended, the judge should alter the

words in the statute in order to produce a satisfactory

result.

Judges may used the narrow approach or the broad

approach.

R v Allen (1872)

R v Allen is an example of the narrow approach of the

golden rule.

The wording of the Offences Against the Person Act 1861

had to be given a different interpretation for the crime of

bigamy, because the way it was written meant that the

crime could never be committed.

The court used the golden rule and held that ‘marry’

meant ‘to go through a marriage ceremony’.

Adler v George (1964)

Where there is only one literal meaning of a word or phrase, but to apply it would cause an absurdity, then under the broad approach the court will modify this meaning to avoid absurdity.

Defendant charged under the Official Secrets Act 1920 which made it an offence to obstruct a member of the armed forces in the vicinity of a prohibited place. Defendant claimed he was ‘in’ not ‘in the vicinity of’.

Court applied broad approach and applied the word ‘in’ to mean in the vicinity of and changed the meaning of the word.

Mischief rule

The mischief rule (or purposive approach) gives judges the

most flexibility when deciding what ‘mischief’ Parliament

intended to stop. It was established in Heydon’s Case

(1584).

When using this rule, a judge should consider what the

common law was before the Act was passed, what the

problem was with that law, and what the remedy was that

Parliament was trying to provide.

Fill in the gaps left by the Act.

The mischief rule: Heydon’s

case 1584

1. What was the common law before the making of the Act?

2. What was the mischief and defect for which the common law did not provide?

3. What was the remedy the Parliament hath resolved to cure the disease of the commonwealth?

4. The true reason of the remedy

The court then interprets the Act in such a way as to cure the “mischief”

Smith v Hughes (1960)

The defendants were charged with ‘soliciting in a street or

public place for the purposes of prostitution’ contrary to

the Street Offences Act 1959. They were soliciting from

upstairs windows.

Lord Parker used the mischief rule to convict, as he

believed that the ‘mischief’ that Parliament had intended

to stop was people in the street being bothered by

prostitutes.

The Purposive Approach

The mischief rule involves the court looking back to the common law position before the Act was passed to find the gap in the law that Parliament was trying to fill.

The purposive approach focuses on what Parliament intended when passing the new law.

It is a modern version of the mischief approach. The purposive approach has been used in:

Pepper (Inspector of Taxes) v Hart (1993) – taxable benefits at private schoolJones v Tower Boot Co. (1997) – racial abuse at work

Purposive ApproachThe Purposive Approach looks for the purpose

of Parliament and interprets words accordingly.

Jones v Tower Boot Co: “In the course of employment” included racial harassment that happened at work even though it was not part of the work

• Leads to justice in individual cases BUT makes law less certain

• Fills in the gaps in the law BUT leads to judicial law-making as opposed to democratic law-making

• Broad approach covers more situations BUT it is difficult to discover the intention of Parliament

Trends towards the purposive approach

• The literal approach is easily the more usual approach used by English courts

• But use of the purposive approach is increasing:Most European countries use itThe ECJ uses it in interpreting European Law

(Marleasing), and therefore so must English courts

The Human Rights Act 1998 says that legislation must be interpreted as far as possible to be compatible with the European Convention on Human Rights. This will involve “inserting words” in effect into Acts to comply with this purpose: Offen; Mendoza v Ghiadan

Bulmer Ltd v J Bollinger SA (1974)

Lord Denning compared the different approaches of UK and EU law.

When UK was bound by EU law, it is necessary to use the purposive approach. Denning stated “No longer must they examine the words in meticulous detail. No longer must they argue about the precise grammatical sense. They must look to the purpose or intent.”

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