Karteikarten
statutory interpretation
Karten in diesem Stapel (26)
- 1what is it?judges interpreting acts of parliament (the words)- which can produce unfair, unjust results
-using literal rule, purposive approach and golden rule - 2aids to understanding-interpretation sections e.g. s2-6 of the theft act 1968 own interpretation built into act)
-the interpretation act 1978 - applies to some general words e.g. 'he' includes 'she'
-however still disputes over meanings so court must decide - 3reasons for statutory interpretation-broad terms- the dangerous dogs act 1991 includes the phrase 'any dog of the type known as the pit bull terrier' Brock v DPP 1993 is type the same as breed
-ambiguity- words with more than one meaning e.g. marry
-new developments- royal college of nursing v DHSS case on the abortion act 1967
-changes in the use of language - cheeseman v DPP 1990 - 4the literal approach v purposive approach-cheeseman open to criticism- defeats purpose of parliament by giving the literal meaning
- purposive takes broader view
-purposive used in EU law
-not so in English law- judges have developed 3 different rules - 5the literal rule-courts giving words in their plain , ordinary or literal meaning even if the result is not very sensible
-r v judge of the city of London court 1892 ' if the words of an act are clear then you must follow them even though they lead to a manifest absurdity
-developed in 19th century and it was the main rule used until middle of 20th - 6caseswhiteley v chappell -absurd decision - impersonated a dead person for voting, not guilty as the dead person was not entitled to vote
- london & north eastern railway company v berriman 1946- harsh- widow claimed compensation but refused because he was oiling, not relaying or repairing
cheeseman v DPP - arrested for masturbating in public toilets but found not guilty - 7advantages-certainty- people know what the law is
-follows the words that parliament has used- parliament is our democratically elected law-making body so unelected judges aren't making law - 8disadvantages-every act is not perfectly drafted and does not cover every situation that parliament intended e.g. whiteley v chappell
-words can have more than one meaning
-can lead to unfair or unjust decision - berriman - 9narrow application of the golden rulejones v dpp- the court may only choose between the possible meanings of the word
- r v allen - 2 meanings of the word marry , where D married second woman. s 57 of offences against the person act 1861 said his was illegal but D said he hasn't committed an offence because the word marry in that act meant to legally marry and he hadn't - 10wider application of the golden rule- if the words have only one clear meaning but would lead to repugnant result then the word can be modified (of an act) to avoid the problem
-re sigsworth issue could not inherit from someone they had killed, modified to - murderer will not benefit from crime - 11advantages-respects the exact words of parliament except in limited situation- more than one meaning
-provides an escape route out of strict application of the literal rule, by modifying
-allows the judge to make sensible, just decition - 12disadvantages-very limited in its use so only used on rare occasions in comp. with mischief and purposive
-not always possible to predict when judges will use the rule
-professor zander has described it as being a 'feeble parachute'- limited way of escaping from bad wording - 13the mischief rule-gives judges more discretion (flexibility)
must consider
-what was the common law before act passed
definition comes from heydons case
-what was the mischief (problem) for which the common law did not provide
-what was parliaments remedy in the act
-the judge should interpret the act in such a way that the problem or gap is covered - 14smith v hughessmith v hughes 1960
The 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. - 15the royal college of nursing v DHSS 1981act said abortion had to be terminated by a medical practitioner.
-the first part was carried out by a doctor then the second part by nurses without a doctor present
-in HoL 3 judges said lawful (mischief rule) pointing out that the mischief that parliament was trying to remedy was the number of illegal abortions, 2 unlawful(literal rule) - 16advantagesallows judges to fill in gaps in the law
-promotes the purpose of the act
-produces just results
-in 1969 the law commission recommended that it should be the only rule used in S I - 17disadvantages-judges trying to fill in the gaps with their own views of how it should be remedied
-can make law uncertain so lawyers do not know how to advise clients
-not as wide as the purposive approach since it is limited to looking back to the law prior to the act - 18the purposive approach-goes beyond the mischief rule
-judges look for the purpose of parliament and interpret the law to achieve the purpose
- more flexibility - 19R v registrar general, ex parte smith 1990-court interpreting s51 of the adoption act 1976 which required the registrar general to -supply such information as is necessary to enable the adopted person to obtain a certified copy of the record of his birth
- used purposive approach 'parliament could not have intended to promote serious crime' - 20advantagesproduces justice in individual cases
-broad approach covering more situations
-fills in gaps in law (quintavalle)
-useful where there is new tech unknown at the time of the act
-flexible - 21disadvantages-can make law uncertain because of the flexibility
-unelected judges deciding what the law should be rather than using the literal meaning of the words parliament approves
-difficult to discover the intention of parliament -hansard can be confusing - 22extrinsic aids-these are matters which are outside the act
-undisputed sources are
-previous acts of parliament on same topic
-the historical setting
-earlier case law
-dictionaries of the time - 23intrinsic aids-matters within the statute itself that helps make its meaning clearer
- courts can consider the long title, the short title and the preamble (if any)
-older statutes usually have a preamble (may indicate the purpose or mischief)
-modern acts dont or a very brief one e.g. theft act says it is an act to modernise the law of theft - 24rules of language : noscitur a sociis-a word is known by the company it keeps
-looking at words in the same section or in other sections of the act
-same section- inland revenue commissioners v frere 1965- interest annuities or other annual interest
-other sections -bromley london borough council v glc 1982 - meaning of 'economic' - trying to introduce cheap fairs - 25ejusdem generis rule-applies where there is a list of specific words followed by general word
- the general words are then limited to the same kinds of language as the specific words
-powell v kempton park racecourse 1899 - D charged with keeping a 'house, office, room, or other place for betting' betting outdoors
- must be at least 2 specific words before general words (allen v emmerson 1944) 'theatres and other places of amusement - operating a funfair
-as there was only one specific 'theatres', funfair did come under the general term - 26expressio unius exclusio alterius-the mention of one thing excludes others
-list of words not followed by general words
- the act only applies to items in the list
-tempest v kilner- statute of frauds 1677 'contract for sale of goods, wares, and other merch. to be evidenced in writing' - contract for ales of stocks and shares didn't have to be in writing
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- Karteikarten am statutory interpretation, erstellt von vetonvishka1998 am 28/05/2015.
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- vetonvishka1998
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