Statutory interpretation approach
How Statutes Are Interpreted
There are four main approaches that the courts use to interpret statutes: - the literal rule, the golden rule, the mischief rule and the purposive approach. Judges have to interpret statutes in order to make their decisions.
The literal rule requires considering what the legislation actually says rather than considering what it could mean. The words in the statute are given their literal, everyday meaning even if this produces an unjust or undesirable outcome. The literal rule was used in the case of Fisher v Bell. Mr Fisher was charge with offering the sale of a flick knife, but could not be convicted as he had only displayed it in his shop window and this was not a criminal offence.
The golden rule is considered to be an extension of the literal rule which states that if the literal rule produces an absurd result, then the court should look for another meaning of the word in order to avoid the absurd result. The rule was defined by Lord Wensleydale “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”. The golden rule was used in the case of Maddox v Storer. Under the Road Traffic Act it was an offence to drive at more than 30mph in a vehicle ‘adapted to carry more than seven passengers'. The vehicle in this case was a minibus made to carry eleven passengers rather than adapted to do so. The court said that ‘adapted to' could be meant as ‘suitable for'.
The mischief rule is the most flexible and allows judges to use more discretion than the other rules, although limited to using only previous common law to decide which mischief the Act was created to remedy. The rule is used to look at what the law was before the statute was passed in order to find what mischief the statute was intended to cover. The court will then interpret this in a way to ensure that the gap is covered. The definition originates from Heydon's case, where it was said that there were four points the court should consider: - what was the common law before the making of the Act, what was the mischief and defect for which the common law did not provide, what remedy parliament hath resolved and appointed to cure the disease of the commonwealth, the true reason of the remedy; and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy. The mischief rule was used in the case of Corkery v Carpenter where the defendant was imprisoned for being drunk and pushing his bicycle along a public street. He had been charged under Section 12 of the Licensing Act with being drunk in charge of a carriage, however, the Act made no actual reference to bicycles. The purpose of the Act was to prevent intoxicated persons from using any form of transport on a public highway. It was decided that the bicycle was clearly a form of transport and the defendant was sentenced accordingly.
The purposive approach is the more modern approach of interpreting law supported by Lord Denning. Not only is the court looking to see what the gap in the law is but make decisions as to what they feel Parliament was meant to achieve. Lord Denning stated “...we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis”.
The Effect Of The UK Being A Member Of The European Union
The UK became a member of the European Economic Community in 1973, since then the European preference for using the purposive approach has had an effect on the courts. The courts are required to use the purposive approach when deciding EU matters, thus are more likely to use this approach when deciding domestic law. In the case of Pickstone v Freemans, where although male and female operatives were paid the same, the male warehouse checkers were paid slightly more. Miss Pickstone claimed that the work of the operatives was equal to that of the checkers. Freemans plc argued that the female operatives were employed on like work to the male operatives and could not claim under section 1(2) (c) of the 1970 statute for work of equal value using the literal approach. The House of Lords decided that use of this approach would have made the UK in breach of its obligations to give effect to the EU directive. The purposive approach was used and Miss Pickstone was entitled to claim on this basis. Becoming a member of the EU has taken away parliamentary supremacy as we now have to follow EU laws including treaties, directives and Acts.
Why Judges Have To Interpret Statutes
Judges have to interpret statutes for a number of reasons and it is very important to understand these rules as they can result in very different decisions. Statutes are discussed and debated by parliament but the wording can sometimes be unclear. They are problems with drafting errors, spelling mistakes and grammatical errors. Some words occasionally have too broad a meaning and the language may have changed over time. Judges follow rules of language to help make meanings of words and phrases more clear. The ejusdern generis rule states that where there is a list of words the general words should be the same as the specific words. In the case of Powell v Kempton a ring at a racecourse was not interpreted as a ‘house, office, room or other place'. This is because the general words pointed that ‘other place' would mean indoors. In order to avoid an absurd result the court has to make a decision as to what they think parliament intentions were originally. This was shown in the case of Fisher v Bell . The Restriction of Offensive Weapons Act 1959 stated that it was an offence to offer for sale certain offensive weapons including flick knives. James Bell had displayed a weapon of this type in his shop window. When the literal rule was used to interpret the statute it appeared that Mr Bell could not be convicted because he had not offered the knives for sale. In contract law, displaying something in a shop window is not an offer of sale but an invitation to treat. It is the customer who makes an offer of sale by payment; therefore Mr Bell had not committed an offence. Parliament later changed the law making it clear that it is an offence to display certain offensive weapons in a shop window.
The Impact The Human Rights Act 1998 Has Had On Statutory Interpretation
The Human Rights Act 1998 has had an effect on all cases where there is an issue of human rights. Section 3 of the HRA 1998 states that an Act must be read and given effect in a way that is compatible with the European Convention of Human Rights. If a court finds that a provision in incompatible it may make a declaration of incompatibility however this does not affect the validity, continuing operation or enforcement of the provision of which it is given and is not binding on the parties to the proceedings in which it is made. Lady Justice Arden states ‘The UK is a relative newcomer in the field of statutory interpretation and human rights. But it is clear, even from domestic law developments thus far, that human rights require a fresh approach to some of the established ideas and concepts of statutory interpretation. Moreover, there is plenty of scope for the courts to develop further the approach to the interpretation of legislation where human rights are involved.'
I am advising my client Alison on whether she will be able to appeal successfully her conviction under The Prohibition of Smoking in Public Place Act 2011. She was caught walking on a footbridge over a main road while smoking a cigarette. I have found that this Act shall come into effect on 1 January 2012, as it is only the 21st January 2010 I believe my client was wrongly convicted.