topic 4 statutory interpretation topic 4 statutory interpretation

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Statutory interpretationTopic 4

Statutory interpretation

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‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean - neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master - that’s all.’

‘Humpty Dumpty’ in Lewis Carroll, Through the Looking Glass.

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Write down your understanding of the following words:

Ambiguous? What does it mean?

Round? What does it mean?

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Did you know?

• Of the 500 most-used words in the English language, each has, on average, 23 different meanings

• The word ‘round’ has 70 different meanings!

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Introduction to statutory interpretation

Many statutes are passed by Parliament each year. The meaning of the law in these statutes should be clear and explicit but this is not always achieved

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.

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The rules of interpretationThere 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

“The courts must uphold the will of Parliament and not try to usurp its powers, but sometimes it necessary to try and understand what the words used by the parliamentary draftsman mean.”

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TASK:

Cheeseman v Director of Public Prosecutions (1990)

Question 4????

• Was this the correct decision?

• Why? Reasons?

• What else could/should the courts have done?

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Literal Approach versus Purposive Approach

The case of Cheeseman illustrates several of the problems of stautory interpretation. It is an example of the courts taking the words literally.

However, it can be argued that the defendant was ‘wilfully and indecently exposing his person in a street’ and that he was caught doing that. Is it important that the police officers were ‘passengers’?

Some people would argue that the whole purpose of the Act was to prevent this type of behaviour; this is the purposive approach to statutory interpretation – instead at looking at the precise meaning of each word, a broader approach is taken

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This conflict between the literal approach and the purposive approach is one of the major issues in statutory interpretation. Should judges examine each word and take the words literally or should it be accepted that an Act of Parliament cannot cover every situation and that the meanings of words cannot always be exact?

In European law the purposive approach is taken.

In English law the judges have not been able to agree on which approach should be used, but instead, over the years they have developed three different rules of interpretation. These are the:

• Literal rule

• Golden rule

• Mischief rule

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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.’

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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.

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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.

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Smith v Hughes [1960]. Section 1(1) of the Street Offences Act 1959 said "it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purposes of prostitution."

The court considered appeals by six different women who had been on a balcony or at the windows of ground floor rooms. In each case, the women were attracting

men by calling to them or tapping on a window. They argued they were not guilty since they were not in the street.

Re Sigsworth (1935). A son had murdered his mother. The mother had not made a will, but in accord with rules set out in the Administration of Justice Act 1925 her next of kin would inherit (who was the son).

Fisher v Bell [1960]

A shopkeeper displayed a flick-knife in his window. The Restriction of Offensive Weapons Act 1959 made it an offence to offer such a knife for sale. The defendant argued that a display of anything in a show window is simply an offer to treat and this means that, under contract law, it is the customer who makes the offer to buy the knife.

Task – apply each of the rules of statutory interpretation to each of the above cases.

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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.

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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.

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Re Sigsworth (1935)Re Sigsworth (1935) is an example of the broad approach of the golden rule.

A son had murdered his mother. The mother had not made a will, but in accord with rules set out in the Administration of Justice Act 1925 her next of kin would inherit (who was the son).

There was no ambiguity in the wording of the Act, but the court was not prepared to let a murderer benefit from his crime. So it was held that the literal rule should not apply, the golden rule being used to prevent a repugnant situation.

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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’.

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Extra cases……

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Purposive Approach

Royal College of Nursing v DHSS (1980).

The court had to decide if nurses could lawfully continue an abortion started by a “registered medical practitioner” (a doctor). Although Lord Diplock referred to the mischief of illegal abortions, Lord Keith referred to the purpose of the Abortion Act 1967, which was to ensure that socially acceptable abortions were carried out in safe conditions. The House of Lords held that the procedure was lawful.

Jones v Tower Boot Co Ltd (1997).

The complainant suffered racial abuse at work, which he claimed amounted to racial discrimination for which the employers were liable under s32 of the Race Relations Act 1976. The CA applied the purposive approach and held that the acts of discrimination were committed “in the course of employment”. Any other interpretation ran counter to the whole legislative scheme and underlying policy of s32.

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Mischief Rule

Corkery v Carpenter (1951).

A person could be arrested if found drunk in charge of a “carriage” on the highway. The defendant had been arrested for being drunk in charge of a bicycle on the highway. The court held that a bicycle was a “carriage” for the purposes of the Act because the mischief aimed at was drunken persons on the highway in charge of some form of transport, and so the defendant was properly arrested.

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Case examples of the literal rule include:

Whiteley v Chappell (1868).

The defendant pretended to be someone who had recently died in order to use that person’s vote. It was an offence to “personate any person entitled to vote”. As dead people cannot vote, the defendant was held not to have committed an offence.

London & North Eastern Railway v Berriman (1946).

The claimant’s husband was killed while oiling points along a railway line. Compensation was only payable if he had been “relaying or repairing” the line. The House of Lords held oiling points was maintaining the line and not “relaying or repairing”.

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Golden Rule

Adler v George (1964).

It was an offence to obstruct HM Forces “in the vicinity of ” a prohibited place. The defendants had obstructed HM Forces in a prohibited place (an army base) and argued that they were not liable. The court found them guilty as “in the vicinity of” meant near or in the place.

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TASK:

Which of the three approaches to statutory approach do you think is best?

Why?

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Other aids to interpretation

• intrinsic aids

• extrinsic aids

• presumptions

• Latin rules of language

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Intrinsic aids

Intrinsic aids are sources within the Act (internal aids).

In order to determine the meaning of a section of an Act of Parliament,

the judge may wish to look at other sections in the Act:

INTERNAL AND EXTERNAL AIDS

There is a wide range of material that may be considered by a judge when interpreting statutes. Some of these aids may be found within the statute in question, others are external to the statute.

They are also known as intrinsic and extrinsic aids.

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INTERNAL

1. Other enacting wordsAn examination of the whole of a statute, or relevant Parts, may indicate the overall purpose of the legislation. It may show that a particular interpretation of that provision will lead to absurdity when taken with another section.

2. Long TitleThe long title should be read as part of the context, “as the plainest of all the guides to the general objectives of a statute” (Lord Simon in The Black-Clawson Case). For example, Lord Diplock referred to the long title of the Abortion Act 1967.

3. PreambleWhen there is a preamble it is will generally state the mischief to be remedied and the scope of the Act. It is therefore clearly permissible to use it as an aid to construing the enacting provisions.

4. Headings, side-notes and punctuationHeadings, side-notes and punctuation may be considered as part of the context. However, they may not have been discussed in Parliament.

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Extrinsic aids

Extrinsic aids are sources outside the Act (external aids).

Examples include:

• dictionary

• Hansard

• Human Rights Act 1998

• legal textbooks

• Interpretation Act 1978

• explanatory notes

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Statutory interpretationEXTERNAL

1. Dictionaries and other literary sourcesDictionaries are commonly consulted as a guide to the meaning of statutory words. Textbooks may also be consulted.

2. PracticeThe practice followed in the past may be a guide to interpretation. For example, the practice of eminent conveyancers where the technical meaning of a word or phrase used in conveyancing is in issue.

3. Other Statutes in Pari MateriaRelated statutes dealing with the same subject matter as the provision in question may be considered both as part of the context and to resolve ambiguities. A statute may provide expressly that it should be read as one with an earlier statute(s).

4. Official ReportsLegislation may be preceded by a report of a Royal Commission, the Law Commissions or some other official advisory committee. These reports may be considered as evidence of the pre-existing state of the law and the “mischief” with which the legislation was intended to deal. However, it has been held that the recommendations contained in them may not be regarded as evidence of Parliamentary intention as Parliament may not have accepted the recommendations and acted upon them (The Black-Clawson Case).

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5. Treaties and International ConventionsThere is a presumption that Parliament does not legislate in such a way that the UK would be in breach of its international obligations.

6. Parliamentary Materials/HansardIn Pepper (Inspector of Taxes) v Hart, the House of Lords relaxed the general prohibition (in Davis v Johnson) that a court may not refer to Parliamentary materials, such as reports of debates in the House and in committee (Hansard) and the explanatory memoranda attached to Bills, when interpreting statutes. They may now be used where: (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; and (c) the statements relied on are clear. However, using Hansard results in three problems: the research adds to cost of a case; it may not be of assistance or confirms the view already taken by the court.

7. Explanatory NotesSince 1998, Bills are presented with Explanatory Notes, written in clear and simple English. They are updated as a Bill goes through Parliament and changes its wording and meaning.

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Presumptions

Judges make presumptions about the wording of a statute.

They know that:

• the common law has not been changed unless the Act

clearly states to the contrary

• a criminal offence requires mens rea (a guilty mind)

• the law should not act retrospectively

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Latin rules of language

There are also Latin rules of language that aid

interpretation:

• ejusdem generis (of the same kind: Beswick v Beswick)

• expressio unius est exclusio alterius (known from

associates: Tempest v Kilner)

• noscitur a sociis (the express mention of one thing is the

exclusion of another: Powell v Kempton Park Racecourse)

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(a) Ejusdem generis (of the same kind)

General words following particular words will be interpreted in the light of the particular ones. For example:

Powell v Kempton Park Racecourse (1899).

It was an offence to use a “house, office, room or other place for betting”. The defendant was operating from a place outdoors. The court held that “other place” had to refer to other indoor places because the words in the list were indoor places and so he was not guilty.

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(b) Noscitur a sociis (known from associates)

A word will be interpreted in the context of surrounding words. For example:

Muir v Keay (1875).

All houses kept open at night for “public refreshment, resort and entertainment” had to be licensed. The defendant argued that his café did not need a licence because he did not provide entertainment. The court held that “entertainment” did not mean musical entertainment but the reception and accommodation of people, so the defendant was guilty.

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(c) Expressio unius est exclusio alterius (the express mention of one thing is the exclusion of another)

The express mention of things in a list excludes those things not mentioned. For example:

Tempest v Kilner (1846).

A statute required that contracts for the sale of “goods, wares and merchandise” of £10 or more had to be evidenced in writing. The court had to decide if this applied to a contract for the sale of stocks and shares. The court held that the statute did not apply because stocks and shares were not mentioned.

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