Statutory Interpretation1
.1 The need for Statutory Interpretation1 A Broad Term
These may be words designed to cover several possibilities; this can lead to problems as to how wide this should go.
2 Ambiguity
This is where a word has two or more meanings; it may not be clear which meaning should be used.
3 A Drafting Error
The Parliament Counsel who drafts the original Bill may have made an error may not have been noticed by Parliament; this is particularly likely to occur where the Bill is amended several times while going through Parliament.
4 New Developments
New technology may mean that an old Act of Parliament does not apparently cover present day situation.
5 Changes in the use of Language
The meaning of words can changes over the years. This was one of the problems in the case of Cheeseman v DPP.
1.2 Literal Approach versus purposive Approach
In English Law the judges has not been able to agree on which approach should be used, but instead, over the years they have developed three different rules of interpretation.
1 The Literal Rule
2 The Golden Rule
3 The Mischief Rule
These rules take different approaches to interpretation and some judges prefer to use one rule, while other judges prefer another rule. This means that in English Law the interpretation of a statue may differ according to which judge is hearing the case. However, once an interpretation has been laid down, it may then form a precedent for future case under the normal rule of judicial precedent.
Case: R v Registrar General ex parte Smith
Concerned s.51 of the Adoption Act 1976 which enables a person to obtain details of his birth certificate when reaching 18 years of age.
There were certain conditions to be undertaken, but the applicant had undertaken all of these. On a literal view of the law the Registrar-General had to comply and supply the information. However, in doing so he would put at risk the life of the applicants natural mother because the applicant was in Broad moor Mental Hospital having murdered twice (a psychiatrist confirmed the danger to the natural mother).
The Court - despite the plain language of the Act - applied a purposive approach saying: "Parliament could not have intended to promote serious crime".
Note: When introducing the Adoption Act 1976 there was no such mischief to be resolved - thus the mischief rule could not possibly apply.
A purposive approach is now often applicable as a result of European Law.
1.3 The Literal Approach
Under this rule courts will give words their plain, ordinary or literal meaning, even if the result is not very sensible.
Case 1: R v Judge of the City of London Court
In this case Lord Esher said: "If the words of an Act are clear then you must follow them even if they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity."
The literal rule - developed in the early nineteenth century - has been the main rule applied ever since then. However, there are variations on the golden rule and mischief rule. More recently, following the development of European Law, the Courts have been required to take a purposive approach.
Case 2: Cheeseman v DPP
Section 28 of the Town & Country Planning Act 1847 provided an offence of 'wilfully and indecently exposing his person in a street to the annoyance of passengers'.
Police Officers were stationed in a public lavatory in order to apprehend persons who were committing acts which had given rise to earlier complaints. The police officers were not resorting to that place of public resort in the ordinary way but for a special purpose and thus they were not passengers. Hence the Queen's Bench Divisional - after using the Oxford English Dictionary to establish what passenger’s means - allowed the appeal - by way of case stated - of Cheeseman against the finding of guilt by the Leicester magistrate Court. This is an example of the literal rule to statutory interpretation.
Case 3: Cutter v Eagle Star
As Eagle Star demonstrates, caution must be given when applying a purposive approach.
The defendant insurance company would be liable to pay damages to Cutter if the car in which he was injured was on a road when he was injured. The car was in a car park.
The Court of Appeal decided that a car park was a 'road' for the purposes of the Road Traffic Act because it has been Parliament's intention to provide compensation for those injured in car accidents.
The House of Lords revered this decision. Lord Clyde saying:
"It may be perfectly proper to adopt a stained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to applying unnatural meanings to familiar words or to stretch the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must be particularly so where the language has no evident ambiguity or uncertainty about it."
Case 4: Fisher v Bell
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.
Here the court considered that Parliament knew the technical law, at Common Law, of the term 'offer'.
Case 5: Whiteley v Chappell
It is illegal to impersonate any person entitled to vote.
Held: A dead person is not entitled to vote, so the defendant acquitted.
Case 6: London & North Eastern Railway Co v Berriman
The widow of a railway worker tried to obtain compensation after her husband was killed by a train. He had been routine maintenance and oiling not ‘relaying or repairing’ tracks. So she was not entitled to compensation.
Comment: Viscount Simonds 10 years later in Tool Metal Manufacturing Co, Ltd v Tungsten Electric Co, Ltd HL said he ‘did not detract one jot from what I said in London & North Eastern Ry. Co. v Berriman’.
1.4 The Golden Rule
This is a modification of the Literal Rule. The Golden Rule Starts by looking at the literal meaning but the court is then allowed to avoid a result. There are two views on how far the Golden Rule should be used. The first one is very narrow and is shown by Jones v DPP. The second and wider application of Golden Rule is where the words have only one clear meaning.
Case 1: Jones v DPP
In this case, Lord Reid argues for a narrow application of the golden rule.
Lord Reid 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 statute cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond that you cannot go.’
This means, if there is only one meaning then that must apply.
Case 2: R v Allen – narrow approach
Section 57 of the Offences against the Person Act 1861 made it an offence to 'marry' whilst one's original spouse was still alive (and there had been no divorce). The word 'marry' can mean to become legally married or to 'go through a ceremony of marriage'. The Court decided that in the Offences against the Persons Act the word had the second meaning. To do otherwise would have produced an absurd result.
Case 3: Re Sigworth – wider approach
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.
Case 4: River Wear Commissioners v Adamson
Lord Blackburn described the golden rule, stating:‘ It is to be borne in mind that the office of the judge is not to legislate, but to declare the expressed intention of the legislature even if that expressed intention appeared to the court to be injudicious; and I believe that it is not disputed that what Lord Wensleydale used to call the Golden rule is right viz. that we are to take the whole statute together and construe it all together, giving the words their ordinary significance unless when so applied they produce an inconsistency or an 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 significance which though less proper is one which the court thinks the words will bear.’
Therefore, the golden rule requires that the literal rule should be applied to the statute in the first instance, but that if the literal rule results in an ambiguity or absurdity the court should try to interpret it in another manner so as to avoid the ambiguity or absurdity.
1.5 The Mischief Rule
This rule gives judge discretion than the other two rules. Under this rule, the court should look to what the law was before the Act was passed in order to discover what gap or ‘mischief’ the Act was intended to cover. The court should then interpret the Act in such a way that the gap is covered.
Case: Heydon’s Case
This established the Mischief Rule and gives a Judge more discretion than the Literal or Golden Rule.
In Heydon's Case it was said there were four points a court should consider (these are paraphrased).
(1) What was the common law before the making of the Act?
(2) What was the mischief and defect for which the common law did not provide?
(3) What is the remedy Parliament hath resolved?
(4) The true reason of the remedy.
Then the Judges should suppress the mischief and advance the remedy.
Common Law-A body of legal rules and principles contained in the decisions of the judges, particularly judges in the higher courts in the hierarchy. Judges develop rules and principles in cases coming before them, therefore these are practical in nature and not hypothetical rulings. Common Law can be identified by legal precedents some dating back hundreds of years. Common law is so called because of the gradual change, during the Middle Ages, from separate systems of local customary law in various regions to a uniform legal code common the entire country. What developed were powerful central courts spreading their tentacles to all the regions. Common law is to be contrasted with Parliamentary law which is produced by politicians and civil servants through Parliament and by delegated powers. Where Parliamentary law and common law conflict Parliamentary law prevails. Common law is to be contrasted with civil Law or Roman law which are typified by written codes. Common law is to be contrasted with Equity which developed to soften the rigid judgments of medieval common law judges. The rise of Equity was spurred by the need to obtain a writ (claim form) 500 years ago which was accompanied by bureaucratic complications and cases were lost because of minor technical defects. Furthermore, the only remedy at common law was damages and there was no remedy for breach of contract. Furthermore, the only remedy at common law was damages and there was no remedy for breach of contract. A further development of Equity was to allow the transfer of property through trusts. For several hundred years, there were separate courts for common law and for equity. Where Equity and Law conflict Equity prevails.
1.5.1 Cases using the Mischief Rule
Case1: Smith v Hughes
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. The court decided they were guilty:
Lord Parker saying:
"For my part I approach the matter by considering what the mischief is aimed at by this Act. Everybody knows this was an Act to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in this way it can matter little whether the prostitute is standing in the street or in the doorway or on the balcony, or at a window, or whether the window is shut or open or half open."
Case 2: Royal Collage of Nursing v DHSS
Use of nurses to carry out abortions who used drugs and procedures not thought of when the Act was passed in 1967. The Act required abortions to be carried out by a ‘registered medical practitioner’.
Held: the Act was intended to provide for safe abortions and nurses could do this. Lord Wilberforce and Lord Edmund Davies claimed that judges were not interpreting legislation but re-writing it.
Case 3：Fisher v Bell-presumptions, common law remains unchanged
D displayed a flick knife in a shop contrary to offensive weapons legislation
Held: The knife was not ‘offered for sale’. It is presumed the draftsmen know technical legal language and so the common law expression was not altered.
Parliament overruled this decision by statute the same year.
1.6 Rule of Language
Even the literal rule does not take words in complete isolation. It is common sense that the other words in the Act must be looked at to see if they affect the word or phrase which is in dispute. In looking at the other words in the act the courts have developed a number of miner rules which can help to make the meaning of words and phrases clear where particular sentence construction has been used. These rules which also have Latin names are:
The ejusdem generis rule
The expression mention of one thing excludes others
A word is known by company it keeps.
1.6.1 The Ejusdem Generis Rule
This states that where there is a list of words, then the general words are limited to the same kind of item as the specific words.
Case 1: Powell v Kempton Park Racecourse
The defendant was charged with keeping a house, office, or other place for betting’. He had been operating betting at what is known as Tattersall’s Ring, which is outdoors. The court decided the general words ‘other place’ had to refer to indoor places since all the words in the list were indoor places and so the defendant was not guilty.
Case 2: Allen v Emmerson
Concerning whether a ‘funfair’ was a place of amusement. There must be at least two specific words in a list before the general word or phrase for this rule to operate.
Held: The phrase ‘theatre or other place of public entertainment’ includes a funfair even though it was not of the same kind as theatres.
1.6.2 Expressio Unius Exclusio Alterius (The mention of one thing excludes the others)
Where there is a list of words which is not followed by general words, then the Act applies only to the items in the list.
Case: Tempest v Killer
The Court had to considered whether the statue of Frauds (which required a contract for the sale of goods, wares and merchandise’ of more than 10 pounds to be evidenced in writing) applied to a contract for the sale of stocks and shares. The list ‘ goods, wares and merchandise’ was not followed by any general words, so the court held that only contracts for those three types of things were affected by statue; because stocks and shares were not mentioned they were not caught by the statue.
1.6.3 Noscitur A Socils (A word is known by the company it keeps)
This means that the words must be looked at in context and interpreted accordingly; it involves looking at other words in the same section or at other sections in the Act. Words in the same section were important in Inland Revenue Commissioners v Frere, where the section set out rules for ‘interest’ on its own would have meant any interest paid, whether daily monthly or annually. Because of the words ‘other annual interest’ only meant annual interest.
Other sections of the Act were considered by the House of Lords in Bromley London Borough Council v Greater London Council.
1.7 Presumptions
The most important presumptions are:
A presumption against a change in the common law
In other words it is assumed that the common law will be apply unless Parliament has made it plain in the Act that the common law has been altered.
A presumption that mens rea is required in criminal cases
The basic common law rule is that no-one can be convicted of crime unless it is shown that they had been required intention to commit it.
Case 1: Sweet v Parsley- presumption of mens rea in criminal offences.
Lord Diplock:
The courts will not easily ‘infer an intention of Parliament to create offences for which an honest and reasonable mistake was no excuse’.
‘…a general principle of construction of any enactment, which creates a criminal offence is that, … they are … to be read as subject to the implication that a necessary element in the offence is the absence of a belief held honestly and on reasonable grounds in the existence of facts which, if true, would make the act innocent.’
Case 2: B v DPP HL-mens rea required in criminal offences
D a 15 year old boy sat next to a girl aged 13 on a bus and incited her to commit an act of gross indecency (a "shiner" = oral sex). The Crown argued that Parliament had intended the offence to be one of strict liability.
Held: D was entitled to be acquitted of the offence if he held an honest belief that the child in question was 14 or over, and that the prosecution had the burden of proving the absence of honest belief on the defendant's part.
Lord Nicholls said it was accepted that D honestly believed V was over 14, and in the light of modern authorities it made no difference whether or not this belief was reasonable. The offence was a serious one, and the presumption that serious criminal offences require proof of mens rea should prevail.
Case 3: Blake, RV CA-mens rea required in criminal offences.
This presumption can be rebutted where for example the statute is concerned with an issue of public safety. So D was convicted of broadcasting without a licence because the broadcasts could have interfered with the emergency services and air traffic controllers.
A presumption that the Crown is not bound by any statute unless the statue expressly says so.
A presumption that legislation does not apply retrospectively
This means that no Act of Parliament will apply to pass happenings; each Act will normally apply from the date it comes into effects.
1.8 Unified Approach
Sir Rupert Cross wrote that there was a Unified Approach to interpretation
A judge should start by using the grammatical and ordinary or, where appropriate, technical meaning of the words in the general context of the statue.
If the judge considers that this would produce an absurd result, then he may apply any secondary meaning which the words are capable of bearing.
The judge may read in words which he considers to be necessarily implied by the limit power to add to, alter or ignore words in order to prevent a provision from being unintelligible, unworkable or absurd.
In applying these rules the judge may resort to the various aids and presumptions.
However, this unified approach is based on the literal approach and does not allowed for the purposive approach.
1.9 The Purposive Approach
This goes beyond the mischief rule in that the court is not just looking to see what the gap was in the old law; the judge are deciding what they believe Parliament meant to achieve.
Case 1: Magor and St Mellons v Newport Corporation
Lord DENNING:
‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analyses
(He was saying that by applying the literal rule the intention of Parliament could be destroyed).
When this case was appealed to the House of Lords, Denning’s approach was considered by Lord Simonds as a ‘naked usurpation of the legislative function under the thin guise of interpretation…if a gap is disclosed the remedy lies in an amending Act’.
Case 2: R v Registrar- General, ex parte Smith-judicial consideration to the effect of their interpretation.
The applicant in this case was refused a copy of his birth certificate because he was likely to murder his mother.
‘Clearly, in this case, it would be absurd for a court to insist on implementing the clear words used by Parliament without having any thought to the consequences.’
Case 3: Bentham, R v CA
D robbed A, whom he believed owed him money. A was still in bed. The defendant pointed his finger, covered by his jacket at A and demanded “every penny in the house”. A believed his fingers were a gun.
Held: A purposive approach had to be adopted. Section 17 of the Firearms Act 1968 was clearly designed to protect the victim confronted with what he thought was a firearm. It did not matter whether it was a plastic gun or a biro or simply anorak material stiffened by a figure. If it had the appearance of a firearm the jury was entitled to find the offence made out.
1.9.1 The European Approach
The Purposive Approach is the one preferred by most European countries when interpreting their own legislation. It is also the approach which has been adopted by the European Court of Justice in interpreting European Law.
1.9.2 Interpreting European Union Law
When the law to be interpreted is based on the European Law, the court must interpret it in the light of the wording and purpose of the European Law. This is because of the Treat of Rome, which sets out the duties of European Member states, say that all Member States are required to ‘take all appropriate measures…to ensure fulfillment of the obligations’.
1.10 Finding Parliament’s Intention
There are certain ways in which the courts can try to discover the intension of Parliament and certain matters which they can look at in order to help with the interpretation of the statue.
1.10.1 Intrinsic Aids
These are matters within the statue itself that may help to make its meaning clear. The court can consider the long title, the short title and the preamble. Older statues usually have a preamble which sets out Parliament’s purpose in enacting that statue. Modern statues either do not have preamble or contain a very brief one. The long title may also explain briefly Parliament’s intentions.
1.10.2 Extrinsic Aids
These are matters which are outside the Act- it has always been accepted that some external sources can help explain the meaning of an Act.
As far as other extrinsic aids are concerned, attitudes have changed. Originally the courts had very strict rules that other extrinsic aids should not be concerned, however, for the following three aids the courts’ attitude has change. These three main extrinsic aids are:
Hansard: the official report of what was said in Parliament when the Act was debated.
Reports of law reform bodies, such as the law commission, which led to the passing of the Act
International conversations, regulations or directives which have been implemented by English legislation.
The use of Hansard
Case: Pepper v Hart- The Purposive Approach is preferred
This case concerned the tax liability of teachers at a public school where one of the Perks of the job was that their sons could be educated at One Fifth of the usual cost. This perk was a taxable benefit under s.61 (1) of the Finance Act 1976 as it was a cash equivalent. The question for the House of Lords was how much tax should be levied.
Held: Responses made by the Financial Secretary to the Treasury during the Committee stage of the bill to queries regarding concessions enjoyed by railway men made it clear that tax should be levied at the marginal cost incurred by the employer. Adopting this interpretation, tax should be assessed on the basis of the marginal cost to the employer, not on the average cost of providing education for the employees' sons and the public.
Lord Reid:
‘To apply the words literally is to defeat the obvious intent of the legislature. To achieve the intent and produce a reasonable result we must do some violence to the words.’
Lord Griffiths:
‘The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.’
Lord Browne-Wilkinson:
‘The purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature’.
Law Reform Reports
Case: Black Clawson - Reports of official commissions and committees
Recommendations made by committees are often implemented, even if only to a limited degree, by legislation. Whether such reports could be considered by the court in order to interpret legislation was considered in this case.
Held: The report of the Foreign Judgments Committee 1932 could be considered in order to ascertain the mischief to be averted, but the majority stressed that such reports could not be used to interpret the meaning of the words.
Lord Reid said:
'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. ...I have more than once drawn attention to the practical difficulties... but the difficulty goes deeper. Questions which give rise to debate are rarely those which later have to be decided by the courts. One might take the views of the promoters of a Bill as an indication of the intention of Parliament but any view the promoters may have about the questions which later come before the court will not often appear in Hansard and often those questions have never occurred to the promoters. At best we might get material from which a more or less dubious inference might be drawn as to what the promoters intended or would have intended if they had thought about the matter, and it would, I think, generally be dangerous to attach weight to what some other members of either House may have said... in my view, our best course is to adhere to present practice.'
International Conventions
Case: Fothergill v monarch Airlines Ltd– Purposive construction preferred
Mr Fothergill, in March 1975 arrived at Luton airport the contents of his luggage was missing, he did not complain within the required 7 days.
Held: Although on a literal interpretation in an English legal context 'loss' was to be differentiated from 'damage', that was not an appropriate method of interpretation of an international convention, such as the Warsaw Convention, which was incorporated by statute into English law. Instead, a purposive construction was to be adopted.
Lord Diplock drew attention to the importance of this aspect of the rule of law;
‘The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation.’
Where the text of an international convention is printed in another language as well as English, the courts may consider the text in the other language where the English text is ambiguous.
Explanatory Notes
These notes are much fuller than any previous explanatory memorandum. They are produced by the Government department responsible for the Bill. The notes usually explain the background to any proposed law, summarize its main provisions and, where a point is complicated, give worked examples. These notes are updated as the Bill becomes an Act of Parliament and, when the Bill becomes an Act of Parliament, a final version of the notes is published.
These notes are a potential new extrinsic aid to statutory interpretation. They could be helpful to courts when they have to interpret a law.
However, the notes are not part of the law. This is likely to cause conflict on whether they should be used for statutory interpretation. Judges who use the purposive approach are likely to support their use, but judges who use the literal approach will not use them. This is because explanatory notes are not intended to have legal effect; they are not a part of the Act itself and using them introduces the risk of changing the meaning of what is stated in the Act.
1.11 The Human Rights Act 1998
Case: Re: Mckerr
The latest decision by the Law Lords in respect of the alleged shoot to kill policy that allegedly operated in Northern Ireland. This alleged policy was investigated both by John Stalker and Colin Sampson. The applicant in this case sought amongst other things a declaration that the failure by the government to hold an Article 2 compliant investigation was unlawful. Article 2 of the Convention concerns the right to life and The European Court of Human Rights has held that by implication article 2 also requires there should be some form of effective official investigation when individuals have been killed as a result of the use of force the obligation to hold an investigation is an obligation triggered by the occurrence of a violent death.
Held: The deaths relating to this action occurred 20 years before the Act came into forces. The government’s failure to hold an effective official investigation into a violent death caused by a police officer had not breached the Human Rights Act 1998 s. 6(1) since the Act was not retrospective and created no right to investigate deaths which had occurred before its implementation.
Conclusion1
.12 ConclusionCase 1: Inland Revenue Commissioners v Frere
‘Interest’ meant annual interest. If the words - ‘other annual interest’ – had been left out, the interest could have meant any interest - weekly, monthly and so on.
Case 2: R v Registrar- General, ex parte Smith - Judicial consideration to the effect of their interpretation.
The applicant in this case was refused a copy of his birth certificate because he was likely to murder his mother.
‘Clearly, in this case, it would be absurd for a court to insist on implementing the clear words used by Parliament without having any thought to the consequences.’
