The Golden Rule of Statutory Interpretation
The rules of interpretation are a guide for judges as to how they should go about interpreting what Parliament meant in statute and there are a list and a set order that judges will always start when using the rules
- Literal rule
- Golden rule
- Mischief rule
- If the statute has been made by the European Parliament they can only apply the purpose of the approach.
They will always start with the literal rule and the literal rule is precisely that it tells the judges that the way in which they should interpret a word or a direction in statute is to give it is literal meaning and by literal we mean it's Ordinary and natural meaning so the literal rule is about giving a word it's Ordinary and natural meaning even if that word leads to an absurdity.
We’re going to take a look at the golden rule which is applied after the literal rule may be applied where the application of the literal rule would lead to an absurdity so in the court if the judge decides this is going to lead to an absurdity if they wish they can then apply the golden rule so the courts may apply a secondary meaning and that secondary meaning may avoid an absurd result.
Commissioners versus Adamson and that's 1876 to 1877 it's a long case and what that effectively said is that in a case in the late 19th century is that the court may apply
This second meaning will avoid an absurd result. There are two different types of the Golden Rule there is the narrow approach and the broad approach and they're both well illustrated in some cases,
When the narrow approach is applied when the word or phrase is capable of more than one literal meaning and the narrow approach is applied this allows the judge to apply the meaning that avoids the absurdity.eg how season can mean spring summer winter autumn or it can mean salt and pepper
The narrow approach allows the judge to choose the one that is applying so the one that avoids absurdity the broad approach is applied where there is only one literal meaning but applying that one literal meaning would cause an absurdity
Under the broad approach, the court will modify the meaning to avoid the absurdity so in the narrow approach, the judge chooses the meaning that avoids the absurdity in the broad approach they narrow the one literal meaning to avoid the absurdity examples are given in the cases below.
The case is R versus Allen in (1872) and in R versus Allen the defendant was charged with the offense of bigamy under Section 57 of the Offenses against the Person Act 1861 now bigamy is when you marry more than one person.
The statute states whosoever being married shall marry no other person during the lifetime of the former husband or wife is guilty of an offense under the literal interpretation the offense would be impossible and the reason it would be impossible is because you can't marry somebody if you are already married because it's against the law so if you can't marry somebody because it's already against the law a second marriage is always going to be impossible because you're not allowed to do it because you're already married so under the literal interpretation the offense would be impossible to commit since civil law would not recognize a second marriage and any attempt to marry in such circumstances would not be recognized as a valid marriage and
If it wouldn't be recognized as a valid marriage then you can't be married twice so through the Golden Rule the court applied that the word marry should be interpreted as to go through a marriage ceremony, therefore, it didn't matter whether or not you were married i.e. you had a wife or a husband what mattered in this sense is that Marry had its other meaning about going through a marriage ceremony and Allan's conviction was upheld.
The golden rule starts to remove those absurd results the consequences of using the golden rule though because it seems relatively sensible in the face of it is it leads to what we call judicial law-making it in the case stated above you've seen the judge making a decision that changes the law now if you truly believe it you're an absolute purist in terms of democracy and the separation of powers
The only person that should be allowed to change the law is Parliament the golden rule starts to allow the judiciary into the process of law-making the narrow approach allows judges to choose between several meanings and finally, the broad approach allows the modification of the meaning of words. So those are the consequences of the golden rule the most important thing is that it allows judicial law-making okay so it allows you little more than choosing between several meanings and it allows the broad approach at least allows the modification of the meaning of words
Expert Opinion Evidence
We deal with opinion evidence in its basic form and we said that we don't allow opinions to take place so why do we allow experts to testify well it's simple in some trials we simply could not resolve without the use of experts.
They are essential to getting to the correct result how could we possibly prove for example that blood at the scene of the crime matches the blood of the potential offender if we couldn't call scientists to test the blood and we couldn't get experts to explain how DNA.
analysis happens there's no way we can ignore this evidence we know it's true or we know it's possibly true so how could we have trials without experts how could we have a negligence trial that looks at for example
A construction accident without having mechanics or mechanical engineers come forward to explain how the equipment works.
When you look at it experts are essential to trials they explain things that we as lay people are unable to understand but experts also have a flipside to this.
They pose a risk or the potential for prejudice, they’re a very special kind of witness and obviously if we don't understand what they're saying or we don't understand the subject of the expertise that they are dealing with that raises a lot of potentials to get things wrong another problem with experts that we have to be concerned about is experts are the only witness who is specifically called to give opinions.
With other witnesses we try to get them to give only the facts and those non-experts are allowed to give opinions on limit manners but we call experts for getting their opinion why did that crane malfunction we need the expert to say in my opinion it's X because they can't necessarily say with absolute certainty.
They are simply assembling facts and giving their best opinion do you believe that this blood matches that of the offender yes or no, because the jury is unable to draw the conclusion on its own it is very difficult for ordinary people even if you are presented with all the data about DNA evidence to reach a conclusion on their own.
You still need the expert to say “I believe that the person's blood is a match” without it we have a lot of trouble processing this type of information now this has a lot of risk opinions on
Our ultimate conclusions on things that we need to have to prove in a particular case the risk lie in having the jury subverted the Trier of fact search to accept what the expert says.
The real worry is that expert evidence will be misused let me give an example of how this may happen. You’ve got a witness who is qualified with PhDs and certificates and they come forward and start testifying the worry is that the jury is overvaluing this information and how do we critique this particular individual that's a problem.
These are smart people so how do we make sure they're not making mistakes, how do we know that what they're saying is correct.
We are now deciding a trial based on a very compelling individual with lots of credentials backed by science that we may or may not understand and we are going to see there are lots of situations in which you admit evidence for scientific purposes.
But at the same time, we worry about there been a push and pull about the extent to which we want experts in the courtroom.
As the court has stated on many occasions there's a real risk of human fallibility arising how our jurors are supposed to assess the weight of this evidence when it's cloaked under scientific mystique that we don't always understand and as the court pointed out in the leading case that deals with scientific expert evidence you dress it up in scientific language with impressive connections expert evidence is apt to be accepted by the jury as being virtually infallible and you may respond to this by saying it's an adversarial process let the other side call their expert there's some truth to that but then we end up with the possibility of having trials by experts we're no longer weighing the facts of the case we're actually dealing with all sorts of difficult concerns and just assessing the competing expertise of two witnesses.
The only way I can sum it up is to say we have a love-hate relationship with our experts we need them, we admit their evidence regularly but at the same time courts are encouraged to have a healthy scepticism the court says that the trial judge has an important gatekeeper function to ensure that expert evidence is only admitted when it's really essential to the purposes of the trial for which it's being intended.
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