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mels statutory interpretation

Kirsty Dcosta Law Inglés 31 fichas

Fichas del conjunto (31)

  1. 1R v. Casement (1916) (Statutory Interpretation)During the First World War, Sir Roger Casement was charged with treason. Casement's defence was that the Treason Act 1351 was unpunctuated and that his guilt was therefore not clear-cut. The words of that Act, which was originally written in Norman French, said that a man was guilty of treason:
    ‘If a man be adherent to the king's enemies in his realm giving to them aid and comfort in the realm or elsewhere ...’
    The judges found under a microscope the faintest ‘virgule’ – a slash which was the precursor to the comma:
    ‘If a man be adherent to the king's enemies in his realm giving to them aid and comfort in the realm, or elsewhere ...’
    Sometimes interpretation really matters…
    Would-be Irish insurrectionist Sir Roger Casement (1864-1916): ‘hanged on a comma’
  2. 2Heydon’s Case (1584) (The Mischief Rule - developed from this case)Lord Coke: “For the sure and true interpretation of all statutes in general… four things are to be discerned & considered:
    In an action determining the validity of a lease the court formulated the mischief rule. In applying the mischief rule the court must discern and consider:
    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 the Parliament hath resolved and appointed to cure the disease of the commonwealth? And,
    The true reason of the remedy;
    and then the office of all the judges is always to make such construction as shall "suppress the mischief, and advance the remedy"… and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico [for the public good]”
  3. 3Cheeseman v Director of Public Prosecutions [1992] (mischief rule+ literal rule)The defendant was arrested in a public lavatory in Leicester and charged with wilfully and indecently exposing his person in a street to the annoyance of passengers contrary to section 28 of the Town Police Clauses Act 1847
    however the Public Health Amendment Act 1902 stated that ‘street could also mean any public place under the control of the local authority and the oxford English dictionary of the time of the Town Police Clauses Act stated that ‘passengers' could also mean a ‘foot-passenger' but as the police were not actually travelling at the time the defendant could not be arrested in those circumstances.
    So the offence was outside the mischief of the Act!
    ‘The mischief at which this part of the Act of 1847 was aimed is in my view clear. It remains fairly clear after the 1907 amendment. It was to protect members of the public pursuing their normal avocations against the annoyance caused by men exposing themselves. If one asks whether the defendant's conduct (however unattractive) falls within that mischief the answer must, I think, be that on this occasion it did not
  4. 4Gorris v Scott (1874) (mischief rule)Contagious Diseases Act 1869 included a requirement that all sheep be put in pens on ships. Sheep transported by Scott were swept overboard because they had not been fenced in. Gorris sued Scott for damages for lost sheep under the Act.
    No. Court held that the purpose of the Act (the mischief parliament was trying to put right) was to prevent spread of disease, not to allow claims like that of Gorris.
  5. 5Re Sigsworth [1935] (The Golden Rule)Mrs Sigsworth was found dead. The Inquest found she had been murdered by her son who was also dead. Mrs Sigsworth’s will left everything to her son. By old rules of public policy, the son (and therefore his estate) cannot inherit in these circumstances. Therefore Mrs Sigsworth died intestate.
    But under the administration of estates act - person entitled on intestate was her son + his estate.
    court held statute couldnt have intended murders to be allowed to inherit despite being silent on the point.
    the old rule which had applied to inherting a will was applied to intestacy on grounds that cases like this would be obnoxious to that old principle + must be read as being subject to it.
    The literal rule should not apply and the golden approach was adopted to avoid absurdity.
  6. 6Magor and St. Mellons v Newport Corpn [1951] 2 All ER 839 (HL) (The Literal Approach) It is sufficient to say that the general proposition that it is the duty of the court to find out the intention of Parliament – and not only of Parliament but of ministers also – cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limitedThe Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect.
    Held: Rights to compensation are well capable of falling within the definition of ‘property of a company’ in the relevant provisions of the Corporations Law. The courts should ‘construe very narrowly any substantive or procedural barriers against having recourse to courts for the rectifying of wrongs’. However, in the construction of a statute the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill any gaps disclosed. To do so would be to usurp the function of the legislature.
    The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited. If a gap is disclosed, the remedy lies in an amending Act and not in a ‘usurpation of the legislative function under the thin disguise of interpretation’
  7. 7Fisher v Bell [1961] (The Literal Approach)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.
    According to the aid: expressio unius exclusio alterius (to list one thing is to exclude another), the words ‘exposing for sale’ were left out on purpose
    Placing an item on display is not the same as ‘offering it for sale’, so according to the narrow literal meaning of the wording of the Statute he has not committed an offence.
  8. 8R v Harris (1836) (The Literal Approach)The defendant bit off his victim's nose. The 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.
    Using the aid to interpretation: Noscitur a sociis (a word is known by its associates):
    She was found not guilty, because by reading the provision as a whole, you could see that the statute pointed towards the use of a weapon, and teeth are not a weapon.
  9. 9Magor and St. Mellons v Newport Corpn [1951] 2 All ER 839 (HL) (purposive approach?)‘We do not sit here to pull the language of Parliament and of ministers to pieces and make nonsense of it. … We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.’
  10. 10Royal College of Nursing v DHSS [1981The 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.
    Held: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. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.
  11. 11Royal College of Nursing v DHSS [198] (mischief + golden rule becomin general purposive approach) the wording and structure of the section are far from elegant, but the policy of the Act, it seems to me, is clear. There are two aspects to it: the first is to broaden the grounds upon which abortions may be lawfully obtained; the second is to ensure that the abortion is carried out with all proper skill and in hygienic conditions.The RCN were raising the question whether it was lawful for nurses who were not ‘registered medical practitioners’ to participate in non-surgical procedure of medical induction (abortion) by the use of a drug called prostaglandin.
    Was ‘treatment for carrying out a termination’ the same as ‘terminating a pregnancy’ as required by the S1(1) defence?
    The 1967 Act was seeking to make abortions ‘easier’
    They worried about a return to back street abortions
    They worried about NHS resources if nurses could not carry out procedures
    They worried that without nurses the 1967 Act would be unworkable
    Their own moral convictions
    one starts by considering
    what was the state of the law relating to abortion before the passing of
    the Act, what was the mischief that required amendment, and in what
    respects was the existing law unclear - lord diploc began by defining methos to discover purpose of act
    continued his anaylsis by looking at whole context of abortion problem - social,economic + legal history in blue note
  12. 12Black-Clawson Case (1975) (white papers)The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
    Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may look outside a statute in order to identify the ‘mischief’ Parliament was seeking to remedy.
    The long title should be read as part of the context, "as the plainest of all the guides to the general objectives of a statute" (per Lord Simon in The Black-Clawson Case [1975]).
  13. 13Zafar v DPP [2004]The appellant (Z) drove a motor vehicle having consumed excess alcohol. Z provided specimens of breath at the police station and was found to be over the legal limit for alcohol. The Crown Court accepted that Z suffered from heartburn and may have had reflux of his stomach contents to his mouth at the material time. It also accepted evidence that Intoximeters could not always be relied on to recognise ‘mouth alcohol’. It held that the word ‘breath’ in the Road Traffic Act 1988, s 5(1)(a) did not distinguish between the terms ‘deep lung air’ and ‘mouth alcohol’ as both were components of the word ‘breath’ and no distinction between them was required.
    ISSUE The meaning of the word ‘breath’ in the Road Traffic Act 1988, s 5(1)(a).
    (appeal dismissed) The dictionary definition of ‘breath’ was ‘air exhaled from any thing’. That was how the word was used and understood in normal parlance. Thus, neither the dictionary definition nor the normal use of the word ‘breath’ limited its meaning to ‘deep lung air’.
  14. 14pepper v hartjhk
  15. 15Re M (A Minor) (Care order: Threshold Conditions) 1994Argument was about who should take of the child and the complication was that the statute set out rules where the 'child is suffering or is likely to suffer significant harm'. the child had been in such danger but at the time of the trial the circumstances had changed so the case centered on the meaning of the phrase '' is suffering'.
    Lord Templeman. My Lords, this appeal is an illustration of the tyranny of language and the importance of ascertaining and giving effect to the intentions of Parliament by construing a statute in accordance with the spirit rather than the letter of the Act.
    Act was created to protect children and lord templeman regarded the argumenst on use of the present tense in the statute as a distraction from that aim.
    can be seen as purposive appraoch or an example of judicial practicality + a desire to see justice done.
  16. 16Dupport steel v sirs 1980The House emphasised the need for courts to be even handed in interpreting statutes dealing with industrial relations. Where the words of the statute are plain and unambiguous, the Court ought to give effect to its plain meaning.
    Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.
  17. 17R v munks 1964question was whether the action of munks in wiring up a metal framed doorway so as to electrocute wife amounted to constructing an 'engine'. judgement in munks limited meaning of engine to 'mechanical contruvance'. deals w/ literal interpretation + rule of grammar (eusdem generis)
  18. 18river wear commissioners v adamsonI believe that it is not disputed that what Lord Wensleydale used to call the Golden rule is right viz. that we are to take the whole statute together and construe it all together, giving the words their ordinary significance unless when so applied they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification and to justify the court in putting on them some other significance which though less proper is one which the court thinks the words will bear.’
    Therefore, the golden rule requires that the literal rule should be applied to the statute in the first instance, but that if the literal rule results in an ambiguity or absurdity the court should try to interpret it in another manner so as to avoid the ambiguity or absurdity.
  19. 19GREY V PEARSONThe House was required to interpret a will where a benefit was to pass only if someone was to die ‘and not have children.’
    Held: ‘It is ‘the universal rule’, that in construing statutes, as well as in construing all other written instruments ‘the grammatical and ordinary sense of the word 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 that absurdity ad inconsistency, but no further’.
    linked idea of absurdity with situation, where a literal meaning would prove repugnant or inconsistent with the rest of the section or act (internal context).
  20. 20R v Allen (1872)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 and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld.
  21. 21Smith v HughesThe defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to loiter in a public space for the purpose of prostitution. The prostitutes were trying to attract men from balconies/windows, would signal price with fingers.
    mischief of act was to clear up streets but didnt specifiy who was in the streets. offense was comited under the section.
    Held:
    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.
  22. 22r v galvinGalvin acquired restricted ministry of defence documents. when galvin was charged under official ssecrets act he argued documents werent secret or official. he was still found guilty becuse the section reffered only to documents and the title being merely a label had to give to way to the words actually used in the section. the convictoin was squashed on other grounds.
  23. 23r v sheppard and anothercourt of appeal had to consider whether racially inflammatory material published on the webb fell within ambit of public order act. does written material inlude signs/other visible representation or limited to just signs. it was held that the phrase extended to the web - the includes here did not close off list
  24. 24coltman v bibby tankers 1988ship sank off coast of japan with loss of all hands. Administrators of estate of one of the engineers sued the ships owners, alleging that the oweners had provided defective equipment - to the extent the ship wasnt seaworthy. HL had to determine whether words in employers liability act meant that equipment includes any plant,machinery, vehicles, clothing etc. HL had to determine what the word 'includes' means. Solved problem by looking at other sections of act which listed things - when 'include' was mentioned, items not mentioned in the list could still be included
  25. 25massey v bouldencourt to decide whether a person had the right to drive a vehicle along a track which ran across the village green, owned by another person to get to his home. the owner of village green submitted that the use of the track contravened the road traffic act which said that a person commits an offense if w/out lawful authority they drive a mechanically propelled vehicle on common land, moorland,land of any other description. court held that it was difficult to identify what genus might be but village green would definelty fall within its scope. found liable.
  26. 26powell v kempton park racecourse 1899on whether tattersalls ring (place where horses are sold) falls withint other place in the phrase "house, office, room or other place". it did not but involved majority vote + detailed interpretation of literal meaning +purpose behind legislation
  27. 27(Mc Donald (deceased) (represented by mrs edna mcdonald) v national grid electricity transmission plc 2014supreme court had to decide whether regulations on the use of abestos covered the death of a former worker. One part of case hinged on whether his work which involved mixing abestos with water amounted 'mixing' within the statute because the surrounding words seemed to limit the word mixing to a more technical meaning used in industry. 2 judges held that the noscitur a sociis rule applied: word was in company of other techincal words so was limited by them. other 3 judges went the other way sayig word should be interpreted in wider context - should not be restricted to technical meaning.
    shows these are just grammar rules judge doesnt have to apply them if they think wording of act does justify their use.
  28. 28r v wheatley 1979whether 'explosive substance' in the explosive substances act included a pyrotechnic device.
  29. 29zafar v director of piblic prosecutionscase clearly demonstrates that merely because a particular interpretation is arguable or may lead to percieved injustice doesnt mean that word or section is ambiguous or absurd so as to trigger reference to hansard.
  30. 30pepper v hartThe House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. Previously the courts were not allowed
    to refer to Hansard (See Davis v Johnson).
    Held:
    The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and the teacher was not required to pay tax on the perk he received.
    reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.
  31. 31davis v johnson 1979 (stare decisis + use of different styles

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Law Fichas sobre mels statutory interpretation , creado por Kirsty Dcosta el 22/11/2016.
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