Statutory Interpretation
Definition- How a judge interprets the words written in a statute. Statutory interpretation is carried out by
judges.
When statutes are written they go through the parliamentary process. In the parliamentary process there is
opportunity for problems to arise that havent been picked up during the pre-legislative stage. If the problems
come to light once the law has been made then it becomes the role of the court (more specifically the judge)
to fix these issues. The judge has to decide what the original intention of the statute was and what the words
in the statute meant.
The court cannot change the act but they try to put the best answer to the issue across by declaring what
parliament meant in the original statute. If the court feels that the act conflicts the EU law then they can issue
a declaration under section 24 of the human rights act which indicates to parliament they need to change the
act.
IMPORTANT EXAMPLE
The no vehicles in the park act. This (imaginary) act is not adequate as it is not made clear what is meant by a
vehicle. Does the restriction stop at cars and Lorries or does it stretch to bicycles and push chairs. This act
would need to be interpreted by a judge.
Why is there a lack of clarity in an act of parliament?
Development in society e.g Abortion Act 1967 which allowed for registered medical practitioner to carry out
abortions. However in the 1980s midwives had been trained to do some of the procedures instead of
doctors. The court decided in the Royal College of Nursing vs DHHS 1991 and that the midwives were
authorised to carry out the procedures under the act of parliament as the act did not intend to criminalise
the midwives.
Drafting errors can occur which are typing errors and missing crucial words e.g shall instead of shall not or on
instead of no.
Brood or ambiguous terms are also an issue as their meaning can be misconstrued for example the term gay
is both happy and homosexual
Changes in language are a reason that there is a lack of clarity in old laws. As words change they gain new
meaning which can outdate old law.
The four rules
The literal rule- In the literal rule the courts give the words their plain an ordinary meaning, even if it would
lead to a manifest of absurdity. The previous definition comes from Lord Escher in R vs city of London Judge.
This definition says that a judge should not deviate from the literal meaning of the words even if the outcome
is unjust. If they do they are creating their own version of how the case should turn out and the will of
parliament is contradicted.Older and more traditional judges mostly use the literal rule regardless of the
outcome. This is because judges have no care for the bigger picture. The literal rule is the least effective as it is
mindless and leads to absurdity.
Main advantages of The Literal Rule:
1) No scope for the judges own opinions or prejudices to interfere.
2) Respects parliamentary supremacy and upholds separation of power.
3) Encourages drafting precision, promotes certainty and reduces litigation.
main problem with The Literal Rule - that there can be disagreement over the literal meaning of statutes.
The Literal Rule can create loopholes in law, as shown in the Fisher v Bell (1960) case.
The Literal Rule can also lead to injustice. One example of this is the. In the London and North Eastern Railway
v Berriman (1946) case a rail worker was killed whilst oiling a track; no stopping man had been provided.
Under statute, compensation is provided on death of workers replacing or relaying track. The statute did
not cover oiling and so compensation wasnt given. This can undermine public confidence in the law.
Whitley v Chapel 1968 was the case where it was an offence to impersonate who is entitled to vote. The
defendant had impersonated a dead person (however the dead are not entitled to vote). Therefore the
defendant was found not guilty. This is an example of the literal rule being misapplied.
North Eastern Railways vs Berriman 1946. Berriman was working on the railways without a lookout and was
tragically killed. Is wife sued the rail company for the fatal accident that befell her husband as it was legally
required he had a lookout for the purpose of repairing the track. However as Berriman was only oiling the
track Mrs. Berriman failed in her claim.
Fisher v Bell case (1960). Under the offensive weapons act of 1959, it is an offence to offer certain offensive
weapons for sale. Bristol shopkeeper, James Bell displayed a flick knife in his shop window. When brought to
trial it was concluded that Bell could not be convicted given the literal meaning of the statute. The law of
contract states that having an item in a window is not an intention of sale but is an invitation to treat. Given
the literal meaning of this statute, Bell could not be convicted.
The Golden Rule-The rule was defined by Lord Wensleydale in the Grey v Pearson case (1857) as: The
grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or
some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary
sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther."
So, The Golden Rule is a modification of The Literal Rule to be used to avoid an absurd outcome.
The Golden Rule was used in the R v Allen case (1872). In this the defendant was charged with bigamy (s.57 of
offences against the person act 1861) which, under statutes states: 'whosoever being married shall marry any
other person during the lifetime of the former husband or wife is guilty of an offence'.
If using the literal rule would lead to a manifest absurdity then the golden rule can be used instead. The
golden rule has two approaches and can be used in two ways.
One approach is the narrow approach which is when there are two or more meanings to a word then the
judge can choose which word to follow. This occurred in the R v Allen case 1872 as in the Offence Against a
Person act stated that it was an offence to re-marry while your spouse is still alive if no divorce proceedings
had gone ahead. However there is more than one meaning to the word marry. The court held that the
word marry in the case must refer to the act of marrying to a person in a ceremony rather than being the vicar
that leads the ceremony.
The wider approach relates to where the words have only one meaning but following that meaning can lead
to a repugnant (inadequate) outcome. This occurred in the case of a man named Sigsworth who murdered his
own mother as he stood to inherit all of her belongings as he was her next of kin under the Administration of
Estates act 1925. The judge however could tweak the word under the golden rule so that he would not be
allowed to inherit his mothers possessions.
The judges are not at liberty to change the law even though it looks like they are when they tweak the
definitions of the words. In 2000 the House of Lords held that a judge could add words to an act of parliament
to give effect to parliaments true intention though he could not change it.
The Mischief Rule- The rule in Haydons case (the mischief rule) gives much more choice to the judge as it
is a much wider approach than the literal or the golden rule. The judge in the case of the mischief rule can
physically look for the intention of parliament when the act was written. A judge must ask themselves four
main questions
-What was the common law before the act started?
-What is the issue that resulted from the common law?
-What remedy for the issue did parliament state in the statute?
-What is the real reason for the remedy?
In the case of Smith vs Hughes 1960 prostitutes were soliciting themselves and under the Streets Offences act
this was illegal on a street or in a public place. The women claimed they could not be guilty of breaking the
law under the Streets Offences act as they were on balconies overlooking the street and not actually on the
street.
herefore my using the mischief rule the judge asked
-What was the common law at the time before the act had been made? Nothing
-What was the issue that had arrived from the common law? There was no common law
-What was the remedy for the offence? The remedy in the Street Offences act
-What was parliaments true intention? To stop innocent men being taunted and approach on the streets by
prostitutes soliciting themselves for sex.
The court found that the prostitutes were guilty by using the mischief rule as the prostitutes had gone against
the intention set out by parliament. The court stated that intention of the act was to stop uninterested men
being harassed by the promiscuity of the prostitutes, therefore it did not matter where the prostitutes were
soliciting from.
The Purposive approach- This approach is not unlike the mischief rule. The approach that looks at the
purpose of the legislation when deciding how to interpret it. It was adopted by Lord Denning. The purposive
approach takes an even wider approach to finding the true meaning that parliament intended. The approach
originates from Europe and the judge has to apply to that case, what he felt parliament intended. The judges
are able to use any aids available to achieve the finding of the correct intention of parliament. The judges now
have to take into account the European view of interpreting statutes. Lord Denning was a believer of the
purposive approach. Davies vs Johnson and Major and St. Melons vs Newport Corp. Denning was ahead of his
time as he talked about how it would be better to fill in the gaps of an act and make sense of it rather than
using the literal rule. He was criticised by the House of Lords who stated that if a problem was found it
parliaments duty to amend the issue.
Rules of LanguageThe rules of language are tools which a judge can use with a case alongside the four rules.
The tools are
-The ejusdem generis rule
-Expressio unius est exclusio alterius rule
-Noscitur asociis
The ejusdem generis rule means words of the same kind. Where specific words are followed by general words.
The general words are limited to the same kind of item. The ejusdem generis rule was arisen in Powell vs
Kempton Park race course 1899.
Expressio unius est exclusio alterius means the mention of one excludes the other. Where there is a list of
specific words that is not followed by general words then the act only applies to the specific words. If the act
said no cats, tigers or lions then every other animal is permitted. However if the act says no cats, lions,
tigers or other felines then it is obvious that the act refers to the exclusion of felines. R vs the inhabitants of
Sedgley 1831 with a case about coal mines.
Noscitur asociis means that the words must be look at in context. E.g if an act uses the word gay then the
context of the usage of gay must be analysed. The case of Frere v Inland Revenue referred to noscitur
asociis as the case was about types of interest, annuities and other annual payments.
Do judges have any other aids?
Judges also use certain presumptions. There is a presumption that mens rea is required in all criminal
offences unless parliament have decreed otherwise. Sweet vs Parsley 1970. Mens rea means the intention
to commit a crime.
There is a presumption that states that the judge makes that states that the crown is not bound to statutes
made by parliament however the rest of civilians in the nation are.
There is a presumption against ousting the jurisdiction of the court. Nobody can be disallowed to go to court.
Intrinsic and Extrinsic aids
Intrinsic aids are aids that are found in the act to help make the meaning clear. Extrinsic aids are aids that are
external to the act that help to find the true meaning.
Intrinsic aids can include
-The short title of the act
-The long title of the act
-The pre amble of the act
-The section of the act defining certain words. This section is called the interpretation section.
Extrinsic aids are the aids outside the act that are available to the judge to help him find the correct meaning
of the words in question.
Extrinsic aids include
-A dictionary is available for a judge to use to get the basic definition of the word. This aid is often used in
cases that the literal rule is used on.
-Previous si-The historical setting of the act as it can give the act context.
milar acts are also used as extrinsic acts as they can create a context for that issue.
-Intonation conventions e.g European convention on human rights
-Law commission reports are also extrinsic aids as they provide details such as what were issues raised in their
investigation and the views of the affected parties. E.g the Black Clawson report.
-The Hansard report is also an official report of parliamentary debates of the bill in question at the two houses
stage. Hansard is a new aid which came about in 1993 in the Pepper vs Hart case. There are guidelines for
when the Hansard report can be used. If the acts is ambiguous or if using the literal rule would lead to a
manifest absurdity then the Hansard report can be used. The report can only be used if the points being used
are made by a minister or other promoter of the bill. The statement in question must be clear in order for the
Hansard report to be used.
Problems with Statutory Interpretation
Academics and judges alike have been critical of statutory interpretation of the years because statutes arent
always easy to read and the language used can be inadequate. The judges themselves are people too and are
open to misinterpretation. Therefore as the judges have different opinions they could cause uncertainty in the
law.
