Today’s Lesson

Objectives for the lesson to have a thorough understanding of:

What statutory interpretation is The literal rule The golden rule The mischief rule

What is it?

As seen in previous week, 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 the case. In order to help with the understanding of a statute Parliament sometimes includes sections defining certain words use in that statute: such sections are called interpretation sections.

The Theft act 1968In the theft act 1968, for example, the definition of ‘theft’ is given in section one, and then sections two and six define the key words in that definition. To help the judges with general words, parliament has also passed the interpretation act 1978 which makes it clear that, unless the contrary appears, ‘he’ includes ‘she’, and singular includes plural.

Parliament passes statutes and judges must interpret and apply them in court.  Where the meanings of words are unclear, judges will apply one of the various rules of interpretation.  These rules were developed in the following ways:

The literal rule The golden rule The mischief rule The purposive approach

The need for statutory interpretation

Many cases come before the courts because these is a dispute over the meaning of an act of parliament. In such cases the court’s task is to decide the exact meaning of a particular word or phrase. There are many reasons why the meaning may be unclear, these include:

Words are an imperfect means of communication Words very often have more than one meaning i.e. they can be ambiguous A broad term may be used in a statute which can give rise to confusion and

uncertainty There may be errors or omissions when the statute is drafted New developments in society can make the words used in a statute out of date

and they may no longer cover the current situation

Task

The Literal Rule

The literal rule says the intention of Parliament is best found in the ordinary natural meaning of the words used. In R v Judge of the City of London 1892, Lord Esher said that:

‘If the words of the Act are clear, the court 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.’

Task

For each of the cases below, you must research using the textbook and other information given to you and write in what exactly happened in the case and the interpretation that occurred:

Whiteley v Chappell 1868

London & North-Eastern Railway v Berriman 1946

Some other cases using the literal rule are described below, however, the two main ones are above.

Fisher v Bell 1960 A shopkeeper displayed in his window a flick knife with a price ticket, and was prosecuted for "offering for sale" an offensive weapon contrary to the Restriction of Offensive Weapons Act 1959. The High Court said the phrase "offer for sale" was to be taken literally, in accordance with its meaning in contract law, and that D's display of the weapon was no more than an invitation to treat.

R v Reynolds 1981 D was convicted on three counts of theft, by a majority verdict in each case. Section 17(3) of the Juries Act 1974 says that the court "shall not accept a majority verdict unless the foreman has stated in open court the number of jurors who respectively agreed to and dissented from the verdict". In D's case the foreman had said (for each count) that ten jurors agreed, but did not say how many dissented. The Court of Appeal said the Act was to be read literally, and quashed D's convictions. [The decision was subsequently overruled by the House of Lords in R v Pigg [1983] 1 All ER 56.]

Khan v Commissioner of Police 2008 Under s.18 of the Police and Criminal Evidence Act 1984 as amended, the police have power to enter and search without a warrant any premises occupied or controlled by a person under arrest. In this case an arrested suspect falsely gave K's home address as his own, and the police searched K's premises. Upholding the judge's award of £1250 damages to K for trespass to property, the Court of Appeal said there was no reason to depart from the literal meaning of the words in the Act. If Parliament had intended the power to be exercisable on "reasonable belief", they could have said so (as in fact they had done in other sections of the Act).

The literal rule has both advantages and disadvantages. Constitutionally, it respects parliamentary supremacy and the right of Parliament to make any laws it might wish, no matter how absurd they might seem. It also ensures that anyone who can read

English can determine the law, whether or not they have any legal knowledge, and thus promotes certainty and reduces litigation. On the other hand, it fails to recognise that the English language is sometimes ambiguous - words may have different meanings in different contexts - and it does sometimes lead to absurdities and loopholes that can be exploited by wholly unmeritorious litigants.

The Golden Rule

The golden rule says that if the literal rule produces an absurdity, the court should look for another meaning of the words that avoids the absurd result. In River Wear Commissioners v Adamson (1877) LR 2 AC 743 Lord Blackburn said the golden rule is that to take the whole of the statute together, giving the words their ordinary signification, unless when so applied they produce an inconsistency or absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear.

There are two views on how far the golden rule should be used. The first is very narrow and is shown by Lord Reid’s comments in Jones v DPP (1962) when he said:

“It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond this you cannot go.”

So under narrow application of the golden rule the court may only choose between the possible meanings of a word or phrase. If there is only one meaning then that must be taken.

The second and wider application of the golden rule is where the words have only one clear meaning, but that meaning would lead to a repugnant situation (that is a situation in which the court feels that using the clear meaning would produce a result which should not be allowed). In such a case the court will invoke the golden rule to modify the words of the statute in order to avoid the problem.

TaskFor the case below, you must research using the textbook and other information given to you and write in what exactly happened in the case and the interpretation that occurred:

R v Allen 1872

Some other cases using the literal rule are described below, however, the two main ones are above.

Ruther v Harris 1876The Salmon Fishery Act 1861 provided that if salmon poachers were caught then the bailiff could confiscate "all fish taken and any net used in taking the same". In an action based on such a seizure, the judge said this should be taken to allow the confiscation of nets even where the poachers had been apprehended before they had actually caught any fish.

Adler v George 1964 A protester A was convicted by magistrates of obstructing a sentry "in the vicinity of a prohibited place", contrary to s.3 of the Official Secrets Act 1920. He appealed on the grounds that since he was actually inside the prohibited place at the time he could not be in its vicinity. The High Court dismissed his appeal: it would be extraordinary, said Lord Parker CJ, if the statute created a serious offence when obstruction occurred just outside a RAF station but no offence at all when it occurred inside. The words "in the vicinity of" should be construed as meaning "in or in the vicinity of".

R v Samuel [1988] 2 All ER 135, DC A man D was charged with robbery, and his solicitors challenged the admissibility of a statement he had made before being allowed access to a solicitor. Annex B.1 to Code C (issued by the Home Secretary under s.66 of the Police and Criminal Evidence Act 1984) provides that the right to consult a solicitor may be delayed under certain circumstances if the prisoner has not yet been charged with an offence: D had been charged with burglary, but not with the robbery to which the statement related. The Crown argued that the Code should be interpreted as meaning only this offence, otherwise a person held on a serious charge could secure access to a solicitor by confessing to a minor one. Hodgson J dismissed this argument, saying that the golden rule can be invoked only where a literal interpretation leads to a clear absurdity, not where (as here) it merely causes inconvenience to those having to apply the provisions.

Advantages to the golden rule

It respects the exact words of parliament except in limited situations. It allows the judge to choose the most sensible meaning where there is more htan one meaning. It can also provide sensible decisions in cases where the literal rule would lea to a repugnant situation.

Disadvntages to the golden rule

It is very limited in its use and can only be used in certain cases. Another problem is that it is not always possible to predcit when courts will use the golden rule. It is often described as an escape route for judges.The Mischief rule

This rule gives the judge more discretion than the other two rules. The definition of the rule comes from Heydon’s case (1584), where it was said that there were four points the court chould consider. These, in the original language of that old case, were:

1. what was the common law before the making of the act?2. what was the mischief and defect for which common law did not provide?3. what was the remedy the Parliament hath resolved and appointed to cure

disease of the commonwealth4. the true reason of the remedy. Then the office of all judges is always to make

sure construction a shall surpress the mischief and advance the remedy.

In other words:

1. What was the law before Statute?

2. What’s wrong with the Law?3. How does Parliament intend to correct it?4. Apply the Statute in context to the case?

The mischief rule requires the court to take into account the gap in the law that the statute was intended to fill, and interpret it to "suppress the mischief" Parliament intended to remedy.

Task

For the case below, you must research using the textbook and other information given to you and write in what exactly happened in the case and the interpretation that occurred:

Smith v Hughes 1960

Other cases include:

Elliott v Grey 1959A man A appealed against his conviction for using a motor car on a road without a valid insurance policy, contrary to s.35(1) of the Road Traffic Act 1930. The car was parked outside A's house; it had broken down some months before, the engine would not work, and there was no petrol in the tank. A had therefore cancelled his insurance, but said (and this was accepted) that he would have renewed it before driving the car again. The High Court affirmed his conviction: Lord Parker CJ said the mischief was the protection of third parties, so "use" should be taken to mean "have the use of". Quite apart from the fact that another vehicle had collided with the stationary car, it was on a hill and could have rolled away if someone had let the brake off.

Alphacell v Woodward 1972 A company AA were convicted under s.2(1)(a) of the Rivers (Prevention of Pollution) Act 1951 of polluting a river. AA were unaware causing this pollution, and there was no evidence of negligence on their part, but their conviction was upheld by the House of Lords. Where a penal statute is capable of two or more meanings. said Lord Salmon, the meaning most favourable to the subject should be adopted, but this did not mean that the word "knowingly" or "negligently" should be implied before "causes". It is of the utmost importance that rivers should not be polluted, and if no conviction could be secured unless the prosecution could discharge the often impossible burden of proving the pollution had been caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred, and rivers would become even filthier.

Whittaker v Campbell 1983 Two brothers hired a van by producing a driving licence belonging to another; in fact neither of them held a full licence. They were convicted of taking a conveyance without the consent of the owner, and appealed by way of case stated. Allowing the appeal, Robert Goff LJ applied the "mischief rule" and said s.12 of the Theft Act 1968 was clearly directed against joyriding, not against fraud.

Advanatges and Disadvantages to the mischief rule

The mischief rule is regarded by most modern commentators as the best of the three rules, giving effect as it does to the true intention of Parliament. Its disadvantages are that there is really no such thing as "the intention of Parliament", that determining Parliament's supposed intention requires the use of a wide range of aids and presumptions, and that the uncertainty of this approach tends to promote litigation between parties contending for opposite intentions. It allows Judges to put into effect Parliament wishes and avoids Parliament rewriting laws. It was developed when Statutes were a minor source of Law; Drafting was not precise and Parliamentary Supremacy was established. However, it means that judges can rewrite Statute Law, which only Parliament is allowed to do and it must be possible to discover the mischief in order for the rule to be used.

Question

Key Facts