The Courts And Statutory Interpretation

List and explain the 4 main approaches which the courts use to assist them in interpreting statutes.

Statutory interpretation (SI) is when judges use methods to understand statutes and the words used within them. This ensures the Law is practiced in a fair way. SI is needed of old words, as they had different meanings, the ambiguity of a word or the context in which it is used.

There are 4 main rules are;


Judges attempt to do what Parliament had ‘literally’ intended. Words are given their plain, ordinary or literal meaning, even if the outcome is not desired, or not sensible.

This suggestion was by Lord Esher [1] who stated that if the words of an Act were clear, they must be followed, the courts were not responsible for whether the wording is absurd. [2] In one case [3] The Court of Appeal heard that under the literal legal meaning of ‘offer’ [4] , the shop-keeper had not caused an offence as he had not made an offer to sell. The Act was revised by Parliament to make it an offence to display a flick-knife in a shop window. Problems may still occur with the new wording as courts now have to interpret the meaning of ‘display’, and if it is therefore permissible for a shopkeeper to sell the weapons without actually displaying them.


An extension of the literal rule. Judges find the literal meaning and modify it to avoid an absurd outcome. There are two provisions; the narrow approach, in which the words do not produce absurdity; and the wider approach, in which words hold no affront to public policy. The difference between the two shows when there is only one meaning and the impact applying that meaning would have, for example, in R v Allen [5] the defendant was convicted for bigamy. [6] The narrow approach was used to give ‘marry’ the meaning of going through a ceremony. If this had not been done the Act would not apply as a person who is already married cannot re-marry, as that is an offence.

In the case of Re Sigsworth [7] the wider golden rule ensured the ‘issue’ would not inherit when they had committed the murder, to prevent a repugnant situation and to ensure there was no conflict to public policy.


Courts look at what the law was before the Act was passed to find a gap and establish the wrongdoing that Parliament wanted to stop. There are three conditions; it must be possible to work out what the mischief was; it must be obvious that Parliament failed to deal with the mischief and it must be possible to define the additional words used to close the gap. In Smith v Hughes [8] the court had to interpret s 1(1) of the Street Offences Act1959 [9] . The prostitutes appealed the conviction on the basis that they were not on the street or in a public place [10] . The courts established the mischief Parliament was trying to stop was prostitution itself.


The courts look beyond the mischief rule to find the purpose Parliament was trying to achieve. This was first used in 1950 but became common in the 1970’s when the UK became a member of the European Union. In R v Secretary of State [11] the House Of Lords used the purposive approach to decide that organisms created using cell nuclear replacement (CNR) were classed as an ‘embryo’ under the Human Fertilisation and Embryology Act 1990 [12] . Interpretation was needed because CNR was not possible in 1990 when the Act was passed, and fertilisation was not used in CNR so the purposive approach was used because Parliament had not intended to define concepts they were unaware were possible.

Looking at these approaches to SI we can see the possibilities available to judges and it may be a concern that these rules are selected at their will. The initial ethical response to each defendant’s actions seems to have been prioritised over the possible consequences [13] . The years these offences were committed dictates the judges reasoning but they would be looked at differently today, certainly after the introduction of the HRA [14] .

The European Court of Justice (ECJ) uses an additional approach; the ‘5th rule,’ known as the Teleological rule. The courts go beyond the purposive to look at the spirit of the legislation. This is because SI now has to comply with the HRA 1998 which highlight our rights as human beings.

What difference does it make that the UK is a member of the European Union?

Before joining the EU we had negative rights. These entitled us to do anything that was not illegal. The prohibitions were vague such as ‘you cannot steal’…etc. We could do anything that was not banned and allowed offences to occur, such as the acceptance of teachers hitting children [15] .

The UK has an un-written constitution, so these rights were easier to remove. Parliament passed power from the monarchy following the Bill of Rights [16] and parliamentary supremacy was introduced, they had no limits and could make laws on anything, such as the barbaric laws we still have today. [17] Dicey stated that parliament had power to do what other countries would have to re-write their constitution to do and argued that the ‘rule of law’ meant that the government should be answerable for its actions before an ordinary court, presided over by the ordinary independent judges and applying the ordinary laws of the land. [18] This is also acknowledged within the HRA [19] which states ‘any person certain of whose functions are functions of a public nature’. This should include everyone but states it does not include the Houses of Parliament, following the Parliament Acts 1949.

Parliamentary supremacy is slowly eroding in a battle with the EU, when parliament makes and interprets statutes, they must take European Law and its features into account such as;

Regulations- directly applicable, member states need not be involved for the legislation to be made effective

Directives- offer a time limit in which member states need to act before the legislation is effective

ECJ decisions, which may be seen as irrelevant to UK law as the 28 judges are one from each member state, the spoken language is French, and there is little local knowledge.

Treaties- Parliamentary supremacy is given away under the Treaties of Europe such as the Treaty of Rome. [20] As a member state, this applies to the UK automatically.

Why do judges have to interpret statutes? Please give examples of possible problems which may occur if judges did not have guidance.

Judges interpret statutes to combat Parliament’s use of spelling, incorrect grammar, and language; such as old words, in Cheeseman v DPP [21] s28 of the Town Causes Act [22] contained the word ‘passengers’, the policemen were not, as they were stationary. In 1847 ‘passenger’ meant ‘a passer-by or through’, [23] it would have been better to state ‘to the annoyance of any person’ or ‘anyone’.

Factors such as technology [24] and rules of language call for interpretation, such as noscitur a sociis [25] where the word is looked at in context. In Inland Revenue Commissioners v Frere. [26] In the sentence ‘any interest, annuities or other annual interest’, both uses of ‘interest’ were interpreted as annual interest because of the context of the sentence. [27] 

The question arises why should parliament be making legislation if they are responsible for interpreting, sometimes re-writing them, and with the volumes of statutes introduced each year, why are the old ones not revised? The argument is the lack of money and the time it takes and the realisation of their diminishing Parliamentary supremacy, it could be said that they are no longer making our laws to begin with.

Failure to interpret an Act would then set a precedent for future occurrences when a person may be happy to serve time in prison for killing their parents, as long as they got an inheritance. [28] 

Explain the impact the HRA 1998 has had on statutory interpretation.

Since the introduction of the HRA, SI must comply with the Act.

After the Second World War (WW2) the European Convention of Human Rights (ECHR) was created. The rights were not Law, so did not have a direct effect. Parliament created the HRA, taking the rights outlined in the ECHR and introduced positive rights. [29] The HRA is an Act of Parliament. The ECHR was also given the European Court of Human Rights, introduced and now governed by the Council of Europe. [30] The impact on SI is that Parliament has a body to comply with, and our human rights are more highly regarded. This can cause problems as it did with the events of Muslim extremist, Abu Hamza, who appealed his cases through legal aid and received treatments on the NHS including £5000 metal hook and receiving benefits of £1,030.65 a week [31] , maintaining his human rights. The intention of the HRA was to give everyone more power to force public bodies to be more respectful of individuals and their rights, but where is the respect to the victims of terrorism who have to hear about characters such as Abu Hamza?

The declaration of incompatibility is available within the HRA in which, if a judge cannot reach a decision or interpret an act in a way that respects the human rights, then it can be declared incompatible. There will always be an inconsistency in the balance of powers now that the HRA must always be taken into account.

Read the attached case study and advise your client, Alison. She has been convicted under The Prohibition of Smoking in Public Places Act 2011.

When interpreting acts, judges use two aides. Extrinsic aides include dictionaries, and the Hansard [32] . Intrinsic aides are the sections of the Act, the long and short title and the sections of the main body.

In Alison’s case s2 (1) (a) ‘any public thoroughfare which goes on to be defined in s1(1) [33] . The literal rule could be applied as Alison was smoking one cigarette, not cigarettes. The main issue with this Act is that it is prospective. The Prohibition of Smoking in Public Places Act 2011 s5 [34] holds a prospective issue Providing Alison is questioning an appeal before this date, she cannot be convicted. The purposive approach could work against her to reach the nature of the Act that Parliament had intended, which is that smoking should be banned in every public place.