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Critical Analysis of the Literal, Golden and Mischief Rule
Statute law is law which is written and that is set in place by a legislature. Statute law may be used to extend, over rule or modify existing meanings of current common law. As well as this, entirely new laws can be created in statutes, there are three rules used when using statute law these rules are:
The Literal Rule
This rule is the basis of all court decisions in relation to statues. Here judges rely on the exact wording of the statute for the case. They don’t interpret meaning.
Lord Diplock in the Duport Steel v Sirs case (1980) defined the rule:
“Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to it’s plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral."
This definition says that a judge should not deviate from the literal meaning of the words even if the outcome is unjust. If they do they are creating their own version of how the case should turn out and the will of parliament is contradicted.
One Example of The Literal Rule was the Fisher v Bell case (1960). Under the offensive weapons act of 1959, it is an offence to offer certain offensive weapons for sale. Bristol shopkeeper, James Bell displayed a flick knife in his shop window. When brought to trial it was concluded that Bell could not be convicted given the literal meaning of the statute. The law of contract states that having an item in a window is not an intention of sale but is an invitation to treat. Given the literal meaning of this statute, Bell could not be convicted.
The R V Harris case (1836), where the defendant bit the nose off the victim. The statute stated the offence was ‘to stab or wound’. Under The Literal Rule, biting is not stabbing, cutting or wounding (implying the use of an instrument). The defendant was proven not guilty.
Main advantages of The Literal Rule:
1) No scope for the judges own opinions or prejudices to interfere.
2) Respects parliamentary supremacy and upholds separation of power.
3) Encourages drafting precision, promotes certainty and reduces litigation.
There are disadvantages to The Literal Rule. For example, in the R v Maginnis case (1987), the defendant was charged with possession of a controlled drug with intent to supply under the misuse of drugs act 1971 (s.5). The defendant claimed that the drugs belonged to a friend who was picking them up later. The judge stated that handing the drugs back was supply. The case was upheld on appeal. In his speech at the appeal, Lord Keith proposed that: “The word ‘supply’ in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other."
Lord Goff dissented saying:
"I do not feel able to say that either the delivery of goods by a depositor to a depositee, or the redelivery of goods by a depositee to a depositor, can sensibly be described as an act of supplying goods to another."
This case shows the main problem with The Literal Rule - that there can be disagreement over the literal meaning of statutes.
The Literal Rule can create loopholes in law, as shown in the Fisher v Bell (1960) case and the R v Harris (1960). Similarly, the Partridge v Crittenden (1968) case used a legal loophole.
The defendant placed an advertisement offering two bramble finches for sale (s.6 of protection of birds act (1954) makes it and offence to sell these birds). The advert was treated as an invitation to treat, not an offer for sale and the defendant was acquitted.
The Literal Rule can also lead to injustice. One example of this is the. In the London and North Eastern Railway v Berriman (1946) case a rail worker was killed whilst oiling a track; no ‘stopping man’ had been provided. Under statute, compensation is provided on death of workers ‘replacing or relaying’ track. The statute did not cover oiling and so compensation wasn’t given. This can undermine public confidence in the law.
The Golden Rule
The rule was defined by Lord Wensleydale in the Grey v Pearson case (1857) as: “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."
So, The Golden Rule is a modification of The Literal Rule to be used to avoid an absurd outcome.
The Golden Rule was used in the R v Allen case (1872). In this the defendant was charged with bigamy (s.57 of offences against the person act 1861) which, under statutes states: 'whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence'.
Under The Literal Rule, bigamy would be impossible because civil courts do not recognise second marriages, so The Golden Rule was applied to determine that the word ‘marry’ should be seen as ‘to go through ceremony’ and the conviction was upheld.
The Golden Rule was applied in the Adler v George case (1964). Under section 3 of the official secrets act (1920) it was an offence to obstruct HM Forces in the vicinity of a prohibited area. Adler was arrested for obstructing forces whilst in a prohibited area. Under The Literal Rule, Adler was not in the VICINITY of the area – he was IN the area – and so was not infringing the terms of the act. The Golden Rule was applied to extend the meaning of ‘vicinity’ and avoid the possible absurd outcome.
The main advantage of The Golden Rule is that drafting errors in statutes can be corrected immediately. This is seen in the R v Allen (1872) case where the loopholes were closed, the decision was in line with parliament’s intentions and it gave a more just outcome.
A major disadvantage of The Golden Rule is that judges can technically change the law by changing the meaning of words in statutes. They can, potentially infringing the separation of powers between legal and legislature.
The Golden Rule won’t help if there is no absurdity in the statute. For example the London and North Eastern Railway v Berriman (1946) case, where the widow couldn’t get compensation because the wording of the statute didn’t allow for this circumstance.
The Mischief Rule
This rule gives judges the most discretion of all. The 4 principles to follow were expressed in Heydon’s case (1584) which concerned a conflict over legal action against Heydon for trespassing on certain land:
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 rule is intended to rectify ‘MISCHIEF’ in the statute and interpret the statute justly. The mischief Rule uses common law to determine how the statute is interpreted.
In Smith v Hughes (1960), the defendants were charged under the street offences act (1959) with soliciting in a public place. The prostitutes were soliciting from windows, technically not a public place. The Mischief Rule was applied to interpret that the prostitutes were doing what the statute was trying to abolish so they were convicted.
The Golden Rule was used to handle a dispute in the Royal College of Nursing (RCN) v DHSS (1981) case. Here the RCN challenged the involvement of nurses in abortions. Under the offences against the person (1861) it is an offence for anyone to carry out an abortion. However, the abortion act (1967) claims an absolute defence for medically registered practitioners to carry out abortions.
Hormonal abortions are commonly administered by nurses. The Mischief Rule was used to interpret that the statute of 1861 was trying to combat backstreet abortions and therefore nurses fall within the 1967 abortion act.
The main advantage of The Mischief Rule is that it closes loopholes in the law and allows laws to develop. The main disadvantage is that it creates a crime after the event has taken place, which can be seen in the Smith v Hughes (1960) case. It allows judges to apply their opinions and prejudices - an infringement on the separation of powers.
When comparing the three rules there are differences and similarities. The Literal Rule is the basis of all cases. By providing no scope for the judges input, it upholds the separation of powers and respects parliamentary supremacy. However, its inflexibility can also create injustices.
The Golden Rule tries to compliment the Literal Rule by allowing judges to change the meaning of statutes in order to give justice. However, this infringes the separation of powers.
The Mischief Rule gives the most discretion to judges and is suited to specific, often ambiguous cases. The rule allows statutes to be refined and developed. However, the increased role of the judge means that his views and prejudices can influence the final decision.
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