The Rules

[CLARE MARIE ?!]

There are TWO TYPES OF APPROACHES to statutory interpretation. The LITERAL APPROACH and the PURPOSIVE APPROACH

THE LITERAL APPROACH; gives judges less flexibility when they are interpretting Acts, the rule requires Judges to strictly follow the words of an act when they are applying them to causes.

THE PURPOSIVE APPROACH; gives Judges more discretion in understanding acts of parliament. This approach and it's rules allows judges to apply their own understanding of the words rather than strictly following dictionary definations of words in an Act of Parliament.

THE THREE MAIN RULES ARE THE LITERAL, GOLDEN AND MISCHIEF RULE



The literal rule words in an act are given their LITERAL, PLAIN AND ORDINARY MEANING even if it leads to an absurdity.

They use the OXFORD ENGLISH DICTIONARY to make sure they have the correct meaning.

This rule was made by Lord Esher in 1892. He said "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."

This rule has been the main rule used by Judges in the past. An example is:

WHITELEY V CHAPPELL (1868)

The D was charged under a section which made it an offence to impersonate "any person entitled to vote". The D had pretended to be a person whose name was on the voters list, but who had died. The court held that the D was not guilty because a dead person, in the literal meaning of the words, is not entitled to vote.

BERRIMAN (1946)

Berriman was a railway worker who was killed by a train while doing maintenance work, he was iiling points on the railway line Under the FATAL ACCIDENTS ACT a look out should have been provided for men "working on or near the railway line for purpose of relaying or repairing it." His widow sued for compensation as he was not provided with a lookout. Held - he was not relaying or repairing the line, but maintaining it. Therefore she was not entitled to claim and she lost her case.



The advantages and disadvantages for the literal rule.

THE ADVANTAGES ARE;

• THE LITERAL RULE RESPECTS PARLIAMENTARY SOVEREIGNTY, GIVING THE COURTS A RESTRICTIVE ROLE AND LEAVING THE LAW-MAKING TO THOSE ELECTED FOR THE JOB.
  
  
• JUDGES ARE UNELECTED AND SO SHOULD NOT BE ADDING TO THE LAW, BUT SIMPLY INTERPRETING IT. BY INTERPRETING THE LAW STRICTLY IT ALLOWS EVERYONE TO KNOW WHAT THE LAW IS. IT MAKES THE LAW MORE CERTAIN, EVERYONE WILL KNOW HOW THE JUDGES WILL APPLY THE LAW.
  
  
• THE USE OF THIS RULE MAKES IT EASIER FOR PEOPLE TO KNOW WHAT THE LAW IS AND HOW JUDGES WILL APPLY THE LAW.
  

THE DISADVANTAGES;

[/li][li]THE USE OF THIS RULE CAN LEAD TO UNJUSTISTAGE OUTCOMES.

[/li][li] WORDS IN AN ACT CAN HAVE MORE THAN ONE MEANING AND OFTEN DICTONARIES CAN GIVE SEVERAL DIFFERENT MEANINGS TO THE WORD AND CAN LEAD TO CONFUSION.

[/li][li] THE LITERAL RULE ASSUMES THAT EVERY ACT WILL BE PERFECTLY DRAFTED - AND IT'S NOT ALWAYS POSSIBLE. ACTS CANNOT BE WORDED TO COVER EVERY SITUATION.[/COLOR]

PROFESSOR ZANDRER HAS CRITISISED THE LITERAL RULE AS BEING MECHANICAL AND DIVORCED FROM THE REALITIES OF THE USE OF LANGUAGE.[/B][/COLOR][/li][/ul][/blockquote]

[CLARE MARIE ?!]

The golden rule starts by looking at the literal meaning but then the court is allowed to avoid an interpretation which would lead to an absurd result. The golden rule states that "ORDINARY WORDS MUST BE GIVEN THEIR ORDINARY MEANINGS AND TECHNICAL WORDS THEIR TECHNICAL MEANING, UNLESS THIS WOULD RESULT IN AN ABSURDITY."

This gives Judges some flexibility
There are TWO APPROACHES TO THIS RULE



Where words have two meanings the court may choose BETWEEN THE TWO, AND IGNORE THE OTHER ONE. This comes under the LITERAL RULE and only gives Judges limited flexibility.

CASE STUDY;

R V ALLEN (1871)

THE CASE CONCERNED THE CRIME OF BIGAMY. THE DEFENDANT WAS CHARGED WITH BIGAMY, BUT UNDER THE ACT OF PARLIAMENT - THE WORD MARRY HAD TWO MEANINGS. (1) TO BE LEGALLY MARRIED. (2) YOU GO THROUGH THE CEREMONY OF MARRIAGE.

.. IF THE JUDGE CHOSE THE FIRST MEANING, THEN THE CRIME OF BIGAMY NO LONGER APPLY. THIS IS BECAUSE A PERSON CANNOT LEGALLY GET MARRIED TWICE IF THEY ARE ALREADY MARRIED TO SOMEONE ELSE SO THEY COULD NEVER BE CHARGED WITH BIGAMY. THEREFORE, THE JUDGE CHOSE THE SECOND MEANING TO AVOID THE ABSURDITY, AND THE D WAS FOUND GUILTY.





This rule comes under the PURPOSIVE APPROACH. It gives more flexibility when they interpret the law.
RULE - when ou give the words in the act a literal meaning, and they lead to an absurdity, then the judge can change the meaning of the words to avoid the absurd outcome.

CASE STUDY;

SIGSWORTH (1935)

THE DEFENDANT KILLED HIS MOTHER, BUT UNDER INHERITANCE LAWS AS HE WAS HER CLOSEST SURVIVING RELATIVE, HE WOULD INHERIT HER PROPERTY. TO ALLOW THIS WOULD BE AN ABSURDITY, THEREFORE THE JUDGE CHANGED THE MEANING OF THE WORDS IN THE ACT TO STOP HIM INHERITING THE PROPERTY. [/blockquo



ADVANTAGES;

• IT HELPS TO PREVENT THE ABSURDITY AND INJUSTICE THAT IS CAUSED BY THE LITERAL RULE.
  
• IT CAN HELP THE COURTS DO WHAT PARLIAMENT INITIALLY INTENDED.
  
• THE NARROW RULE RESPECTS PARLIAMENTARY SOVEREIGNTY, IT MAKES SURE THAT JUDGES DON'T ADD TO THE LAW.
  
• IT ALLOWS JUDGES TO CHOICE SENSIBLELY, GETTING THE BEST OUTCOME.

DISADVANTAGES;

[/li][li] THE NARROW RULE IS STILL VERY RESTRICTED AND CAN ONLY BE USED ON RARE OCCASIONS.
[/li][li] THE RULE APPLIES WHEN THERE IS AN ABSURDITY BUT NO CLEAR MEANING OR DEFINITION OF WHAT AN ABURD RESULT IS.
[/li][li] THE JUDGE CAN END UP GIVING AN ACT A MEANING THAT PARLIAMENT NEVER INTENDED IT TO HAVE.
[/li][li] THE RULE HAS BEEN DISCRIBED AS A "FEEBLE PARACHUTE" BY PROFESSOR ZANDER[/b][/blockquote][/color][/li][/ul]

[CLARE MARIE ?!]

The mischief rule is part of the purposive approach. It has more flexability. Judges can interpret the law according to what they think the parliament meant.

RULE -> EVERY ACT WAS PASSED IN ORDER TO SOLVE A MISCHIEF. JUDGES LOOK AT WHAT THAT MISCHIEF IS, AND THEN THEY WILL INTERPRET THAT LAW IN ORDER TO SOLVE OR CURE THE MISCHIEF.

[/b][/blockquote][/blockquote]
[/color]

CASE;
HEYDON'S CASE [1584]
THIS CASE SETS OUT HOW THE MISCHIEF RULE IS SUPPOSED TO BE USED.
THREE THINGS JUDGES HAVE TO CONSIDER;

• what was the law before the act was passed?
  
• what problem or mischief was the act trying to solve?
  
• what solution was parliament trying to provide?
  

SMITH V HUGHES

PARLIAMENT DIDN'T WANT PEOPLE TO BE HARRASSED BY PROSTITUTES ON THE STREETS, SO THEY PASSED THE STREET OFFENSES ACT FOR PROSTITUTES TO SOLICITE THEMSELVES ON THE 'STREETS'.

in this case - PROSTITUES WERE SOLICITING FROM A PRIVATE HOUSE BY STANDING ON THE BALCONIES AND LEANING THROUGH THE WINDOWS. UNDER THE LITERAL RULE, THEY WOULD HAVE BEEN FOUND NOT GUILTY. HOWEVER, THE JUDGE USED THE MISCHIEF RULE AND THE MISCHIEF THAT PARLIAMENT WAS TRYING TO SOLVE WAS THE PROBLEM OF PEOPLE BEING HARASSED BY PROSTITUTES. THEY WERE FOUND GUILTY.

• IT HELPS TO AVOID ABSURDITIES IN CASES.
  
• IT GIVES JUDGES MORE FLEXIBILITY SO THEY CAN FIX WHAT PARLIAMENT INTENDED TO BE FIXED
  
• HELPS TO AVOID THE PROBLEMS THAT THE LITERAL LAW CAUSES. [E.G - CHEESEMAN WOULD HAVE BEEBN FOUND GUILTY]
  
• THE LAW COMMISSION DISCRIBED THE MISCHIEF RULE AS A "RATHER MORE SATISFYING APPROACH" AND PREFERED THIS RULE.
  

DISADVANTAGES;
[/li][li]IT DOESN'T RESPECT PARLIAMENT SUPREMACY.
[/li][li] JUDGES MAY END UP GIVING A MEANING TO THE ACT THAT PARLIAMENT DIDN'T INTEND, WHICH COULD LEAD TO JUDICIAL LAW MAKING.
[/li][li] THE MISCHIEF RULE MAKES THE LAW UNCERTAIN BECAUSE DIFFERENT JUDGES COULD INTERPRET THE LAW DIFFERENTLY AND IT COULD BECOME IMPOSSIBLE TO KNOW WHAT THE RESULT MIGHT LEAD TOO.
[/li][li]THE MISCHIEF RULE WAS CREATED AT A TIME WHEN ACTS WERE NOT AS CLEAR AS THEY ARE TODAY AND THIS APPROACH MAY BE LESS APPROPRIATE TODAY[/li][/ul][/color][/B]



[/blockquote]

[CLARE MARIE ?!]

This is a rule which is used when judges are dealing with European Law, it is the rule which gives Judges maximum flexibility.

• JUDGES LOOK AT THE OVERALL PURPOSE OF THE LAW AND DECIDE CASES IN ORDER TO ACHIEVE THAT PURPOSE. JUDGES ARE THEREFORE DECIDING WHAT THEY BELIEVE PARLIAMENT INTENDED TO ACHIEVE.

[/b][/li][/ul]

Difference between the mischief rule and the purposive rule. ;; THE MISCHIEF RULE LOOKS AT THE GAP OR PROBLEM THAT THE ACT WAS TRYING TO SOLVE AND THE PURPOSIVE RULE LOOKS AT THE OVERALL PURPOSE OF THE LAW.[/color]

rule; HAS BEEN CRITIZIZED BY SOME JUDGES BUT PREFERED OVER ALL BY THE OTHER JUDGES.

Lord Denning prefered the purposive rule because he put in to practice the spirit of the law. However, Lord Searman critisised it, "IF PARLIAMENT SAYS ONE THING BUT MEANS ANOTHER, IT'S NOT FOR THE COURTS TO CORRECT IT."

CASE;
R v SMITH

D WAS CONVICTED OF 2 MURDERS AND SENT TO A MENTAL INSTITUION; HE WAS SUFFERING FROM A PSYCHOTIC ILLNESS AND EVIDENCE SHOWED THAT HE MAY HURT HIS BIOLOGICAL MOTHER. HE APPLIED FOR HIS BIRTH CERTIFICATE IN ORDER TO TRACK HER DOWN. UNDER THE LITERAL RULE, HE WOULD HAVE BEEN GIVEN THIS INFORMATION. THE JUDGE USED THE PURPOSIVE RULE AND REFUSED THIS. AND THE PURPOSE OF THE LAW WOULD NOT HAVE BEEN TO PROMOTE A SERIOUS CRIME.

• THE RULE IS USED WHEN DEALING WITH EUROPEAN LAW.
  
• THE RULE IS USEFUL WHEN DEALING WITH OLDER ACTS, ESPECIALLY WHEN NEW TECHNOLOGY EMERGES.
  
• THE PURPOSIVE RULE ALLOWS JUDGES TO ADAPT THE LAW TO DEAL WITH RELEVANT ISSUES.
  
• BY USING A BROADER APPROACH, YOU CAN ALLOW THE LAW TO COVER MORE SITUATIONS THAN IF YOU APPLIED THE WORDS LITERALLY.
  
• THIS RULE CAN LEAD TO JUSTICE.
  

DISADVANTAGES;
[/li][li] MAKES THE LAW LESS CERTAIN.
[/li][li] JUDGES MAY GIVE A MEANING TO THE LAW THAT PARLIAMENT DID NOT INTEND.
[/li][li] JUDGES AREN'T ELECTED, THEREFORE WHY SHOULD THEY ADD TO LAWS?
[/li][li] MAKES IT DIFFICULT FOR LAWYERS TO ADVISE THEIR CLIENTS AS THEY DON'T KNOW WHAT MEANING THE LAW IS GOING TO HAVE.[/COLOR][/b][/li][/ul]
[/blockquote]

[CLARE MARIE ?!]

If you don't understand a word, then you can read the rest of the words on the act and take the word in the context that fits in with the rest of the act.

CASE ;
BROMLEY COUNCIL

THE COUNCIL WERE RUNNING A REDUCED RATE BUS SERVICE, BUT THE ISSUE WAS WHETHER THIS WAS LEGAL OR NOT. THE CASE REVOLVED AROUND THE MEANING OF THE WORD ECONOMIC, AND WHETHER THE COUNCIL HAD TO MAKE A PROFIT. ANOTHER PART OF THE ACT MADE IT VERY CLEAR THAT THE COUNCIL COULD NOT MAKE A LOSS. AND THEREFORE THE COURT DECIDED THAT THEIR REDUCED RATE WAS ILLEGAL.

[CLARE MARIE ?!]

Presumptions are things that judges are allowed to assume about the law. However if a statue stately clears the opposite, then their presumption will not count.

The most important presumptions are;

• STATUTES DO NOT CHANGE THE COMMON LAW.

it is assumed that the common law will still aply, unless it is made clear by the statute that it has altered the common law.

[/li][li] A PRESUMPTION THAT MENS REA IS REQUIRED IN CRIMINAL CASES

the basic common law rule states that no one can be convicted of a crime unless it can be shown that they had the required intention to commit it.

A PRESUMPTION THAT LEGLISATION DOES NOT APPLY RETROSPECTIVELY.

this means that the act of paraliament will not apply to any crimes commited before the date it was brought in to effect.[/li][/ul]

[/blockquote][/color]

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