Statutory Interpretation


Statutory Interpretation

  • The meaning of law and words and phrases contained in acts should be clear and unambiguous but this is not always achieved
  • Many cases reach the courts due to a dispute over the meaning of a word or phrase contained within an act or section of the act. In such cases, the courts task is to decide on the exact meaning of a particular word or phrase
  • Statutory interpretation is the process whereby judges are called upon to interpret (give meaning) to the words or phrases contained in an act
  • There are a variety of reasons why the meaning of words or phrases may be unclear. They may be due to:
  • Broad term
  • Ambiguous
  • Badly drafted
  • New term (technological development) 
  • Change in the use of language
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The Literal Rule

  • Under this rule, the judge examines the word in dispute and interprets the word literally to give its plain, ordinary or literal meaning. This is so, even if the result is not very sensible
  • Rule developed in early 19th century where judge in the Sussex Peerage Case (1844) stated "where the words of a statute are clear and unambiguous they are to be given their literal and grammatical meaning" 
  • Main rule applied ever since and used in many cases even though the result has sometimes made an absurdity of the law
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The Literal Rule- Whitely v Chapell (1868)

  • D voted in the name of a dead person and charged with "impersonating a person entitled to vote"
  • Held: Court ruled that because a dead man is not entitled to vote, D could not be guilty. He was acquitted as judge used the literal rule
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The Literal Rule- London & NE Railway v Berriman (

  • Railway worker killed by a train while oilling signalling apparatus on the line. Widow claimed compensation due to there being no 'lookout' provided in accordance with the relevant statute
  • Wording in the act required a lookout to be present while men were 'relaying or repairing' the track
  • Held: HoL interpreted the phrase literally because the dead man had been maintaining the track, his widow was not entitled to compensation
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The Literal Rule- Fisher v Bell (1960)

  • Shopkeeper displayed a flick knife in his window labelled with a price ticket
  • Prosecuted under the restriction of offensive weapons act (1959) as the statute states that it is an offence to 'offer for sale' such an item
  • Held: The court said that the phrase 'offer for sale' was to be taken literally, in accordance with its meaning in contract law. D's display of the weapon amounted to no more than inviting an offer. The man was acquitted and a new act had to be passed as a result 
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Advantages of the Literal Rule

  • Under this rule, parliamentary soverignity is respected. Parliament is our democratic law making body and so the use of this rule respects/upholds this principle. Parliament has the right to make any law it wishes, no matter how absurd, a judges role is to interpret the law accordingly
  • Upholds parliaments will
  • Enables anyone who can read/speak English to understand the law- provides access to justice to all citizens
  • Provides certainty in the law and enables lawyers to accurately advise their clients- provides fairness in as much as everyone in similar circumstances are treated equally
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Disadvantages of the Literal Rule

  • Fails to recognise the complexity of the English language- words can be ambiguous- words may have more than one meaning or different meanings in different contexts. The literal approach may therefore not be appropiate
  • Its use sometimes leads to an absurdity and injustice (as seen in Berriman) 
  • May not uphold the will of parliament if the wording in an act was not expressed in the way which parliament intended- literal interpretation could result in an outcome which parliament did not intend (as seen in Whitely v Chappell)
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The Golden Rule

  • Modification of the literal rule- used only where using the literal rule would otherwise result in a complete absurdity of which parliament could not have intended
  • 2 variations:
  • Broad approach
  • Narrow approach
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Golden Rule- Narrow Approach

  • Used only where word/phrase in question is ambiguous and using one of its literal meanings would lead to an absurdity, the judge will use the other literal meaning which does not lead to an absurdity
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Golden Rule- Narrow Approach- Adler v George (1960

  • D charged under the official secrets act 1920 with 'obstructing a member of the armed forces in the vicinity of a prohibited place'
  • D argued 'in the vicinity' meant 'near to' whereas the obstruction had actually occured inside the prohibited place
  • Held: The court ruled that while 'in the vicinity' often refers to being near to, in this case it also meant 'in' 
  • Parliament could not have intended to create an offence of simply being near to a prohibited place but there being no offence of actually being in one
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Golden Rule- Narrow Approach- R v Allen (1872)

  • Offence to marry another whilst being married
  • D claimed he could not have married another while being married as the second marriage was not legally valid
  • Argued that he merely went through a marriage ceremony
  • Held: Court ruled that being married included going through a marriage ceremony and so D was guilty
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Golden Rule-Broad approach

  • Where the word only has one meaning but its application would be unnacceptable
  • For policy reasons, the court will modify the word(s) in the statute in order to rectify the problem
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Golden Rule- Broad Approach- Re Sigsworth (1935)

  • In this case, the court ruled that a son who murdered his mother could not benefit from his crime
  • Despite the law being clear, the court was not prepared to use the literal rule 
  • They used the broad approach instead when interpreting the estates act 1925 as the use of the literal rule would have resulted in an absurdity 
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Advantages of the Golden Rule

  • Use of this rule can prevent an absurdity and injustice sometimes caused by the use of the literal rule. It promotes a common sense approach to the new law
  • Enables the courts to put into practice what parliament really intended when they passed the act. Parliament, arguably, would have wanted to avoid absurdities in the law, for example it is inconcievable that when drafting the estates act, parliament would have wanted a murdering son to benefit from his crime (Sigsworth)
  • Saves parliamentary time. The courts can potentially amend any drafting errors in an act, thereby avoiding the need for parliament to alter the act
  • Provides flexibility in the law
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Disadvantages of the Golden Rule

  • Undemocratic as it undermimes parliamentary soverignity 
  • Use of this rule means that judges are deciding on what the law should be rather than parliament
  • Leads to a lack of certainty in the law. As there is no clear definition of how absurd an outcome needs to be when deciding whether or not to use the golden rule, we cannot predict when a judge is likely to use it. This makes it difficult for lawyers to advise their clients on the likely outcome of their cause
  • Some judges reluctant to use this rule as they in effect, do not like telling parliament that they are incompetent
  • Law Commission (1965) noted that the rule provided no clear definition of an absurdity. Just how absurd does an outcome have to be before judges will decide to depart from using the literal rule?
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The Mischief Rule

  • Use of this rule requires judges to look for gaps or defects in the law
  • Came from Heydon's case (1584) as it was the first case to use this rule for the interpretation of statutes
  • Heydon's case said that there are 4 points a court should consider when interpreting a statute:
  • Examine law before statute was passed
  • Identify defect in law
  • Identify the way that parliament tried to remedy the law
  • Put that into effect
  • Under this rule therefore, the judge should look to see what the law was before the act was passed in order to discover what the problem or mischief the act intended to address. Court should then interpret the act in such a way that the mischief is resolved
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Mischief Rule- Smith v Hughes (1960)

  • Prostitutes soliciting in 'a street or public place' contrary to the street offences act 1959
  • One prostitute was on a balcony above the street and the others were sitting behind windows of a house
  • In each case, the women were attracting the attention of men by calling them or tapping on the windows
  • Argued that they had not been soliciting in a street or public place
  • Held: Judge ruled that the aim of the act was to enable citizens to walk down the street free from solicitation or harrassment. Since the soliciting was aimed at people in the street, even though the prostitutes were not in the street, the act was interpreted to include the balcony and windows
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Mischief Rule- Eastbourne Borough Council v Stirli

  • Taxi driver charged with 'plying for hire in any street' without a license to do so
  • Vehicle parked on a taxi rank on the station forecourt
  • Found guilty as although on private land, he was likely to get customers from the street
  • Court referred to Smith v Hughes and said it was the same point
  • A driver would be plying for hire in the street when his vehicle was positioned so that the offer of services was aimed at people in the street
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Mischief Rule- Royal College of Nursing v DHSS (19

  • Abortion act 1967 made it lawful for abortions to be carried out by 'a registered medical practitioner' 
  • At the time the act was passed, the usual method of termination was via a surgical procedure which could only be passed out by a doctor
  • Later medical advances made it possible to induce termination of a foetus by means of drugs
  • Court had to decide if a 'registered medical practitioner' included nurses
  • Held: Mischief rule applied. The purpose of the act was clearly meant to legitimise abortions and ensure that they were carried out under proper medical conditions. Wording of the act given a wide interpretation to include nurses rather than strictly narrow, literal interpretation
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Advantages of the Mischief Rule

  • Can prevent an absurdity and injustice sometimes caused by the use of the literal rule 
  • Rule gives judges more flexibility than either the literal rule or golden rule
  • Goes a step further than the golden rule in that it allows judges to look at the law before the act in question came into force and put into effect parliaments intention. In this respect, the use of the mischief rule upholds the will of parliament and as such closes defects in the law
  • Allows the law to develop without the need for parliamentary intervention and so saves parliament time
  • Can be used to extend the meaning of an act to accomodate social/technological changes
  • In 1969 the LC stated that the mischief rule was 'a more satisfactory approach' than the literal rule
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Disadvantages of the Mischief Rule

  • Undemocratic
  • Unpredictable
  • Undermimes parliamentary soverignity
  • Use of this rule effectively creates a crime after the event has taken place (as seen as Smith v Hughes) In this respect, the mischief rule has retrospective effect and is therefore arguably unjust
  • In the 16th century, acts of parliament contained a preamble which sets out the defect/mischief that the act aimed to resolve. This means that judges back then were better able to apply the mischief rule. Modern statutes rarely contain preambles which means that judges may not be able to apply the rule as effectively
  • May need to use extrinsic aids such as hansard reports which can be time consuming and expensive
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The Purposive Approach

  • When using this rule, judges are making decisions as to what they believe parliament intended when it created the act (similar to the mischief rule but slightly wider in that the court is not just looking to see what the mischief was in the old law)
  • Aims to discover and put into effect the intended purpose of the act- what parliament was aiming to achieve in passing the legislation
  • Approach prefered by most European countries when interpreting their own legislation. Approach used by the European Court of Justice
  • Where the law to be interpreted is based on european law, the english courts must use the purposive approach. This is because the Treaty of Rome which sets out the duties of member states, requires the courts to 'interpret national law in every way possible in the light of the aim of european law'
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Purposive Approach- Bulmer v Bollinger (1974)

  • Dispute over the labelling of 'Babycham' which included the description 'champagne' contrary to a european directive
  • Held: Lord Denning said that when interpreting European legislation, English courts must use the purposive approach otherwise there would be a difference in interpretation between the different european member states 'and that would never do'
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Purposive Approach- Wallwork v Giles (1970)

  • D charged with failing to give a sample of breath when required to do so by 'a constable in uniform' 
  • Acquitted at first instance as the PC had not been wearing his helmet at the time and so was not 'in uniform' 
  • Appeal heard
  • Held: Judge ruled that in passing the act, parliament had clearly intended only that a PC needs to be recognisable and as such in uniform should be interpreted to include this situation
  • D convicted
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Purposive Approach- R v Bentham (2005)

  • Man broke into a house and demanded money from the occupier while holding his hand in his jacket in such a way as to give the impression that he had a gun
  • Convicted of possessing an imitation firearm contrary to the firearms act
  • He appealed
  • Conviction quashed
  • HoL said that one cannot 'possess' something which is part of onself. They went on to say that parliament could have created an offence of 'falsely pretending to have a firearm' but they had not done so, literal rule used on this occassion
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Advantages of the Purposive Approach

  • Lord Denning favoured this approach and was at the forefront or more to establish the use of the purposive approach. In magol (1951) he stated 'we do not sit here to pull the language of parliament to pieces and make a nonsence out of it, we sit here to find out the intention of parliament and carry it out' 
  • Since the UK became a member of the EU, the purposive approach for EU law means that judges are becoming more accustomed to it and so the approach has gradually become more intergrated into english law
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Disadvantages of the Purposive Approach

  • This approach may require the use of hansard in order to discover parliaments intentions. However there could be a number of conflicting speeches given in the house when the act in question was going through the legislative process. The use of hansard therefore does not always reveal parliaments intention
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Intrinsic Aids

  • Found within the act itself 
  • Judge may use other parts of the act to understand the meaning of the word or phrase in question
  • The long and/or short title may be referred to as guidance
  • Older statutes may contain a preamble which is a statement proceeding the main body of the act, setting out the purpose of the act in detail. Newer acts may contain an objectives or purposes section at the beginning of an act
  • Schedules appear as additions to the main body of the act. These can be referred to in order to make some sense of the main text. In some cases it is necessary to refer to schedules to understand the act
  • Most modern acts contain an interpretation defintion section which explains the meaning of key words used in the act
  • Punctuation is now recognised to have effect on the meaning of words and can be taken into account in deciding the meaning of statutory provisions
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Extrinsic Aids

  • Materials found outside the act that may be referred to by the judge
  • Dictionaries can be used to find the literal meaning of words
  • Previous acts may be referred to 
  • Interpretation act 1978 provides a definition of certain words that are often used in acts
  • The court may look at reports of the law commission, royal commissions and other official law reform bodies. A LC report can highlight what is wrong with the old law and suggest draft options
  • International treaties may be referred to in order to ascertain the overriding objective of the treaty with which the act is intended to comply. This will often arise when judges are interpreting EU law
  • Since Pepper v Hart (1993) the courts have been able to refer to the parliamentary debates recorded in hansard however in this case, the HoL held that hansard could only be referred to in certain circumstances:
  • Wording must be ambiguous or obscure or a literal interpretation woul lead to an absurdity
  • Judges may look only at statements made by a minister or other promoter of the bill
  • Statements must be clear in order for them to be relied upon
  • Since 1999, acts have been issued with explanatory notes 
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Language Roles- Ejusdem Generis

  • 'of the same type' 
  • Where a statute specifies a list of words followed by a general term, then the general term must be of the same type as the words specified in the list
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Ejusdem Generis- Wood v Metropolitan Police Commis

  • D charged under the vagrancy act 1824 with being in possesion of 'any gun, pistol, cutlass, bludgeon or other offensive weapon' 
  • D had a piece of broken glass
  • Held: Court ruled that the broken glass was not included in the list as it clearly related to objects which had been made for the purpose of causing injury
  • D not guilty
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Ejusdem Generis- Powell v Kempton racecourse (1899

  • D charged with 'keeping a house, room or other place' for betting
  • Betting at an outdoor racecourse
  • Court decided that the general words 'or other places' had to refer to indoor places since all the other words in the list were indoor
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Language Rules- Expressio unius est exclusion alte

  • Express mention of one thing implies the exclusion of another
  • Rule relates to a list of things
  • Where there is a list of words which are not followed by a general term, then the act only applies to those particular words and nothing else
  • For example, if an act specifically mentions 'goods, wares and merchandise' then 'stocks and shares' would not apply to this list (Tempest v Kilmer)
  • Inhabitants of sedgley (1837) rates were charged on 'land, titles and coal mines' therefore rates could not be charged on any mine other than coal mines
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