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59 Cards in this Set

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Statuatory Interpretation
Once Parliament has passed an Act, it then falls to the courts to apply the statute Difficulties where the facts of the case may not have been envisaged by Parliament or drafting errors or ambiguity in the statute. The Interpretation Act of 1978 which provides basic definitions such as singular includes plural and he includes she.
Literal Rule
The literal rule of statutory interpretation should be the first rule applied by judges. Under the literal rule, the words of the statute are given their natural or ordinary meaning and applied without the judge seeking to put a gloss on the words or seek to make sense of the statute.
Literal Rule Example

R v Harris (1836) 7 C & P 446
Creates loopholes in the law
Biting was not stabing
Defendant bit off his victim's nose. Statute made it an offence 'to stab cut or wound' the court held that under the literal rule the act of biting did not come within the meaning of stab cut or wound as these words implied an instrument had to be used. Therefore the defendant's conviction was quashed.
Literal Rule Example

Whitely v Chappel (1868) LR 4 QB 147
Dead men can't vote
Creates loopholes in the law
statute made it an offence 'to impersonate any person entitled to vote.' The defendant used the vote of a dead man. statute required a person to be living in order to. The literal rule was applied and the defendant was thus acquitted.
Literal Rule Example

R v Maginnis [1987] AC 303
The defendant was charged with possession of a controlled drug with intent to supply it to another under s.5(3) of the Misuse of Drugs Act 1971. A package containing £500 worth of cannabis was found in his car. The defendant stated the cannabis belonged to a friend and that the friend was picking it up later. The trial judge ruled that his action in handing the drugs back to the friend was an action of supply. The defendant then pleaded guilty and appealed. Court of Appeal quashed the conviction. Held: HOL ..The conviction was reinstated.
Fisher v Bell [1961] 1 QB 394

Literal Rule Applied
The defendant had a flick knife displayed in his shop window with a price tag on it. Statute made it a criminal offence to 'offer' such flick knives for sale. His conviction was quashed as goods on display in shops are not 'offers' in the technical sense but an invitation to treat. The court applied the literal rule of statutory interpretation.
Partridge v Crittenden 1968

Literal Rule Applied
The defendant placed an advert in a classified section of a magazine offering some bramble finches for sale. S.6 of the Protection of Birds Act 1954 made it an offence to offer such birds for sale. He was charged and convicted of the offence and appealed against his conviction.

The defendant's conviction was quashed. The advert was an invitation to treat not an offer. The literal rule of statutory interpretation was applied.
London and North Eastern Railway v Berriman [1946] AC 278

Literal Rule can lead to injustice
A railway worker was killed whilst oiling the track. No look out man had been provided. A statute provided compensation payable on death for those 'relaying or repairing' the track. Under the literal rule oiling did not come into either of these categories. This result although very harsh could not to be said to be absurd so the golden rule could not be applied. There was no ambiguity in the words therefore the mischief rule could not be applied. Unfortunately the widow was entitled to nothing.
Disadvantages of Literal Rule
Creates awkward precedents which require Parliamentary time to correct
Fails to recognise the complexities and limitations of English language
Undermines public confidence in the law
Advantages of the literal rule
Restricts the role of the judges
Provides no scope for judges to use their own opinions or prejudices
Upholds the separation of powers
Recognises Parliament as the supreme law maker
Golden Rule
the golden rule - if the literal interpretation leads to an absurdity, then modify the interpretation to a less obvious meaning. An absurdity may arise from a literal meaning of the words.
Example of Golden Rule

Adler v George [1964] 2 QB 7
Adler v George [1964] 2 QB 7
Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces 'in the vicinity' of a prohibited palace. The defendant was actually in the prohibited place, rather than 'in the vicinity' of it, at the time of obstruction.
Held: The court applied the golden rule. It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. His conviction was therefore upheld.
Example of golden Rule

R v Allen (1872) LR 1 CCR 367
R v Allen (1872) LR 1 CCR 367
The defendant was charged with the offence of bigamy under s.57 of the Offences Against the Person Act 1861. The statute states 'whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence'. Under a literal interpretation of this section the offence would be impossible to commit since civil law will not recognise a second marriage any attempt to marry in such circumstances would not be recognised as a valid marriage.
Held:The court applied the golden rule 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld.
Example of Golen Rule

Re Sigsworth [1935] 1 Ch 98
A son murdered his mother. She had not made a will. Under statute he was her sole issue and stood to inherit her entire estate. The court applied the Golden rule holding that an application of the literal rule would lead to a repugnant result. He was thus entitled to nothing.
Advantages of the golden rule
Errors in drafting can be corrected immediately re: Allen
Closes loopholes
Often gives a more just result
Brings common sense to the law
Disadvantages of the Golden Rule
Judges are able to add or change the meaning of statutes and thereby become law makers infringing the separation of powers.
Judges have no power to intervene for pure injustice where there is no absurdity re: Berriman
Mischief Rule
The mischief rule of statutory interpretation is the oldest of the rules. The mischief rule was established in Heydon's Case [1584] EWHC Exch J36 . In Re Sussex Peerage, it was held that the mischief rule should only be applied where there is ambiguity in the statute. Under the mischief rule the court's role is to suppress the mischief the Act is aimed at and advance the remedy.
Example of the mischief rule

Smith v Hughes [1960] 1 WLR 830
Smith v Hughes [1960] 1 WLR 830;
he defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public.

The court applied the mischief rule holding that the activities of the defendants were within the mischief the Act was aimed at even though under a literal interpretation they would be in a private place.
Example of the Mischief Rule

Royal College of Nursing v DHSS [1981] 2 WLR 279
The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences Against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (ie a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses.
It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available.
Example of Mischief Rule

Elliot v Grey [1960] 1 QB 367
The defendant's car was parked on the road. It was jacked up and had its battery removed. He was charged with an offence under the Road Traffic Act 1930 of using an uninsured vehicle on the road. The defendant argued he was not 'using' the car on the road as clearly it was not drive-able.
The court applied the mischief rule and held that the car was being used on the road as it represented a hazard and therefore insurance would be required in the event of an incident. The statute was aimed at ensuring people were compensated when injured due to the hazards created by others.
Problems with the mischief rule
Advantages of the mischief rule

Closes loopholes

allows the law to develop and adapt to changing needs eg Royal College of Nursing v DHSS

Creates a crime after the event eg Smith v Hughes , Elliot v Grey thus infringing the rule of law.
Gives judges a law making role infringing the separation of powers.
Judges can bring their own views, sense of morality and prejudices to a case eg Smith v Hughes, DPP v Bull.
canons of construction
canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges.
Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench.
Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.
Internal Aids

Intrinsic Aids
Long title of the Act
Explanatory notes
Other sections of the Act
Definition sections in the Act
Rules of Language
Textual Canons ( canons of Construction)
Rules of Language

"Delius generis"
(Latin phrase which means of the same kind) rule: where general words follow a list of specific examples, the general words take their meaning from the specific words and so are not as general as they first appear. For example in the phrase houses, flats and other buildings other buildings can mean only other dwellings, and would not include, for example, a church.
Rules of Language

"Noscitur a socciis"

Inland Revenue v Frere [1964] 3 All ER 796
words take their meaning from those around them - ambiguous words or phrases can be clarified by referring to the context in which they are used
cat baskets, toy mice, flea collars and food, under this rule a loaf of bread would not
Rules of Language

In pari materia
("upon the same matter or subject")
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

Where a statute does not expressly provide otherwise, it is presumed the following apply:
Statutes do not affect the monarch
Statutes do not operate retrospectively
Existing rights are not to be interfered with
Statutes do not change the common law
mens rea is required for criminal liability
Ejusdem generis rule

Powell v Kempton Park [1897] 2 QB 242 House of Lords Indoor rooms Enclosure was not indoors
This applies where a statute contains a list of items followed by and 'other...'. When the courts are determining what is counts as 'other' they will look at the context of the things in the list. Eg a statute which states it applies to lions, tigers, cheetahs and other animals would apply also to leopards but not to a horse.
Expressio unius est exclusio alterius

R v Inhabitants of Sedgely (1831) 2 B & Ad 65
Land, houses and Coalmines ( other mines not included)
This means the express mention of one thing excludes all others. So if a statute stated it applies to lions and tigers (without stating and other) it would only apply to lions and tigers and not leopards and cheetahs.
External aids

extrinsic aids
text books
Academic writings
Law Commission Reports
Case law from other jurisdictions
Previously reference to Hansard was not allowed by the courts: Davis v Johnson [1978] 2 WLR 553
However this position was changed in:
Pepper (Inspector of Taxes) v Hart [1993] AC 593

Stare Decisis

Let the Decision Stand
The doctrine of judicial precedent is based on stare decisis. That is the standing by of previous decisions. Once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts.
Example of Stare Decisis

Donoghue v Stevenson[1932] AC 562, the House of Lords held that a manufacturer owed a duty of care to the ultimate consumer of the product. This set a binding precedent which was followed in Grant v Australian Knitting Mills [1936] AC 85
ratio decidendi
The Reason for the judgement
The ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future cases containing the same material facts.
obiter dicta
The obiter dicta is things stated in the course of a judgment which are not necessary for the decision. Said by the way of if X and Y had been precent in a case the judgement would have been ruled differently
persuasive precedents
Persuasive precedents
case law from other jurisdictions and traditionally the Privy Council decisions have been merely persuasive on the English courts.
However, exceptionally the Privy Council may be binding:

Attorney General for Jersey v Holley [2005] 3 WLR 29
A landmark case where the Privy Council declared that they were announcing the law applicable not only to Jersey but also to England and Wales.
Hierarchy of the courts
There exists a hierarchy of the courts. The basic rule is that a court must follow the precedents from a higher court, but they are not bound to follow decisions from courts lower in the hierarchy.
European Court of Justice
Supreme Court (formerly House of Lords)
Court of Appeal
Divisional Courts
All other courts (County, Crown, Magistrates, tribunals - these have no power to create precedents)
Supreme Court
The House of Lords was replaced by the Supreme Court from 1st October 2009. The Supreme court will exercise the same jurisdiction as the House of Lords and the Law Lords will take office as Justices of the Supreme Court.
At one time the House of Lords were absolutely bound by their own previous decisions:
London Street Tramways Co Ltd v London County Council [1898] AC 375
However, in 1966 the Lord Chancellor, Lord Gardiner, issued a Practice Statement allowing the House of Lords to depart from a previous decision where it appears right to do so
Practice Statement

Whilst the House of Lords had this power, they were reluctant to use it:
Knuller v DPP [1973] AC 435
conspiracy to corrupt public morals as established in Shaw v DPP . The House of Lords doubted the correctness of the decision in Shaw but declined to depart from it.
1966 Practice Statement the House of Lords needs to be mindful of the retrospective effect of their decisions
Cunningham [1982] AC 566 the House of Lords refused to overrule the previous decision of R v Vickers [1957] 2 QB 664 because of the retrospective effect it would have on those convicted of murder and had been subject to the death penalty.
Cases where the House of Lords have used the Practice Statement:
British Railways Board v Herrington
Addie v. Dumbreck [1929]
Duty of care to tresspassers
Court of Appeal
The Court of Appeal is bound by judgments from the ECJ, the House of Lords and Supreme Court. It is generally bound by its own previous decisions however this is subject to the exceptions set out in Young v Bristol Aeroplane:
Young v Bristol Aeroplane co Ltd 1944
Lord Greene MR:
"The Court of Appeal is bound to follow its own decisions exceptions to this rule are:—
(1) The court is entitled and bound to decide which of two conflicting decisions of its
own it will follow ;
(2) the court is bound to refuse to follow a decision on its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords ;
(3) the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory
effect which would have affected the decision was not brought to the attention of the earlier court.
Per incuriam is a Latin terms which means "through lack of care".
A court decision made per incuriam is one which ignores a contradictory statute or binding authority, and is therefore wrongly decided and of no force. A judgment that's found to have been decided per incuriam does not then have to be followed as precedent by a lower court.In criminal cases a decision made per incuriam will usually result in the conviction being overturned.
Criminal Division of the Court of Appeal
Greater Flexibilty in Criminal Division
R v Gould [1968] 2 QB 65
appeal was allowed despite the fact that there was a previous Court of Appeal precedent against the defendant.
Ways of avoiding precedent
This is where a court higher in the hierarchy departs from a decision made in a lower court. The previous decision is no longer binding.
R v R [1991] 3 WLR 767 The House of Lords overturned the matrimonial exception to rape. His conviction for rape was upheld.
British Railway Board v Herrington [1972] AC 877 overruled
Addie v. Dumbreck [1929] AC 358
This is where a higher court departs from the decision of the lower court on appeal.
This is where the facts of the case are deemed sufficiently different so that the previous case is no longer binding.
Balfour v Balfour [1919] 2 KB 571
Merritt v Merritt [1970] 1 WLR 1211
The Court of Appeal distinguished the case of Balfour v Balfour on the grounds that the parties were separated.
Purposive approach
Domestic judges are required to apply the Purposive approach whenever applying a piece of EU law.
Lord Simon explained the purposive approach in Maunsell v Olins[1975] AC 373
Lord Simon ...‘The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language.’
Purposive Approach
the purposive approach to statutory interpretation seeks to look for the purpose of the legislation before interpreting the words. The purposive approach starts with the mischief rule in seeking the purpose or intention of Parliament.
Purposive Approach
more flexible approach giving judges greater scope to develop the law in line with what they perceive to be Parliament's intention. The purposive approach more readily embraces the use of extrinsic aids to assist in finding Parliament's intention. the rule on reference to Hansard in Pepper v Hart the House of Lords adopted a purposive approach.
Advantages of the purposive approach
It is a flexible approach which allows judges to develop the law in line with Parliament's intention (eg Maunsell v Olins)
It allows judges to cope with situations unforeseen by Parliament (eg Quintavalle)
It allows the law to develop to cover advances in medical science (eg Quintavalle)
It allows the courts to give effect to EU Directives (Pickstone v Freemans)
Allowing reference to Hansard makes it easier for the courts to discover Parliament's intention (Pepper v Hart)
Disadvantages of the purposive approach
Judges are given too much power to develop the law and usurping the power of Parliament
Judges become law makers infringing the Separation of Powers (Montesquieu)
There is scope for judicial bias in deciding what Parliament intended
It assumes Parliament has one intention and ignores the fact that Parliament is divided on party lines
Allowing reference to Hansard may lead to prolonged examination of irrelevant material by lawyers which adds to the cost and length of litigation
Declaratory theory of law making
According to William Blackstone judges do not create or change laws. They simply discover and declare what the law has always been. This means that case law operates retrospectively since the law as declared has always existed.