2862504
Description
Flashcards by hollie.manning96, updated more than 1 year ago
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Created by hollie.manning96
almost 9 years ago
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| Question | Answer |
| WHY DO WE NEED STATUTORY INTERPRETATION? | - Ambiguity in language - Drafting errors - New developments - Changes in the use of language - Membership of the EU |
| WHAT ARE THE TWO MAIN APPROACHES? | Literal Approach Purposive Approach |
| WHAT IS THE LITERAL APPROACH? | Requires that judges take the precise meaning of the words in the statute as plainly and simply as possible |
| WHAT IS THE PURPOSIVE APPROACH? | Aims to interpret the purpose behind the act rather than the wording |
| WHAT ARE THE THREE RULES? | Literal Rule Golden Rule Mischief Rule |
| WHAT IS THE LITERAL RULE? + CASES | The court will give words their plain and ordinary meaning, even if it leads to absurd or unjust decision CASES: R v JUDGE OF THE CITY OF LONDON (definition) WHITELEY v CHAPPELL (entitled to vote) BERRIMAN (relaying & repairing) CHEESEMAN (passenger) |
| ADVANTAGES OF THE LITERAL RULE | - Encourages draftsmen to be precise - Makes law more certain & consistent - Upholds parliamentary sovereignty - Satisfies the separation of powers |
| DISADVANTAGES OF THE LITERAL RULE | - Too rigid, does not allow for change - Interprets the word too excessively, disregards the meaning - Ignores ambiguity of the language - Can lead to absurd or harsh decisions |
| WHAT IS THE GOLDEN RULE? + APPROACHES + CASES | Modifcation of the literal rule. Looks at the meaning but can avoid interpretation which would result in a harsh decision APPROACHES: Broad & Narrow CASES: BECKE v SMITH (definition) JONES v DPP - Narrow Approach (vicinity) R v ALLEN - Narrow Approach (marry) SIGSWORTH - Broad Approach (murdered his mum to inherit her estate) |
| ADVANTAGES OF THE GOLDEN RULE | - Allows judges to avoid harsh decisions - Respects the words used by Parliament - Acts as a check for the literal rule |
| DISADVANTAGES OF THE GOLDEN RULE | - Judge's interpretation may vary - Judges gain more control - Used very rarely, more useful rules |
| WHAT IS THE MISCHIEF RULE? + CASES | HEYDON'S CASE - has four elements: - Common law before the act - What was the mischief that was not being addressed - What remedy Parliament is using to address the problem - True reason of the remedy CASES: HEYDON'S CASE (definition) SMITH v HUGHES (street) EASTBOURNE BOROUGH COUNCIL (street) ROYAL COLLEGE of NURSES v DHSS (registered medical practitioner) |
| ADVANTAGES OF THE MISCHIEF RULE | - Avoids repugnant decisions - Promotes flexibility within the law - Reforms and improves law - Fair and rational to the defendent |
| DISADVANTAGES OF THE MISCHIEF RULE | - Undermines Parliamentary sovereignty - Inconsistency, each judge is different - Hindered by the availability of extrinsic aids (Hansard) |
| WHAT IS THE PURPOSIVE APPROACH? + CASES | Broader than the mischief rule - does not just look at the gap in the law but the intention behind it CASES: MAGOR & ST. MELLONS R v REGISTRAR GENERAL R v SECRETARY OF STATE COLTMAN v BIBBY TANKERS |
| ADVANTAGES OF THE PURPOSIVE APPROACH | - Gives effect to parliament's true intentions - Justice for defendents - Broad approach, can cover different situations - Fills in the gaps within the law |
| DISADVANTAGES OF THE PURPOSIVE APPROACH | - Can make law uncertain - Subjective decision making - May be difficult to find Parliament's intention - Relies on extrinsic aids |
| WHAT ARE INSTRINSIC AIDS? + EXAMPLES + CASES | Inside the act - Long Title (BLACK CLAWSON) - Short Title (THEFT ACT 1968) - Margin Notes (R v MONTILA) - Explanatory notes (THE EQUALITY ACT) |
| WHAT ARE EXTRINSIC AIDS? + EXAMPLES + CASES | Outside of the act - Hansard (PEPPER v HART) - Law Commission Reports (BLACK CLAWSON) - White Papers - Case Law (SHIVPURI) |
| WHAT IS HANSARD? + CASES | The official report and transcripts of what is said in Parliament during debate Was not allowed to be refered to in court until 1992 CASE: DAVIS v JOHNSON (Lord Denning challenged the ban) PEPPER v HART (overruled the decision in Davis v Johnson, could use Hansard as an aid) |
| UNDER WHAT CIRCUMSTANCES CAN HANSARD BE USED? | - Legislation is ambiguous or leads to absurd decisions - The material relied upon consists of one or more statements made by a minister - The statements relied upon must be clear |
| WHAT PROBLEMS ARE THERE WITH USING HANSARD? | - Legal costs (25%) - Used even where an act has not been ambiguous - Sometimes it is not helpful and they would've reached the same decision without it |
| WHAT SHOULD PARLIAMENT CONSIDER WHEN PASSING ACTS? | - The two approaches - The three rules - The rules of language - Presumptions held by judges - The theory of the separation of powers |
| WHAT ARE PRESUMPTIONS? | Fundamental principles trhta judges assume arew intended to be maintained and not challenged. Judges stand by these rigidly, if they intend to go against one, they must state it in the act |
| WHAT ARE THE PRESUMPTIONS JUDGES FOLLOW? + CASES | - Against a change in the common law (LEACH) - Mens Rea is required in criminal cases (SWEET v PARSLEY) - The crown is not bound by statute - Legislation does not apply before the enactment (Human Rights Act) |
| WHAT ARE THE THREE RULES OF LANGUAGE? | Ejusdem Generis Expressio Unius Exclusio Alterius Noscitur A Sociis |
| WHAT IS THE MEANING OF 'EJUSDEM GENERIS'? + CASES | Where there is a list of words followed by generic words, then the general words are limited to the same kind of items as the listed specific words CASES: POWELL v KEMPTON RACE COURSE (house, office, room or other place of betting) HOBBS (stone, concrete, slag or similar material) ALLEN v EMMERSON (theatres and other places of amusement) - must have two or more things in the list |
| WHAT IS THE MEANING OF 'EXPRESSIO UNIUS EXCLUSIO ALTERIUS'? + CASES | "the mention of one thing excludes others" Where there is a list or words not followed by general words, then the act only applies to words in the list CASES: TEMPEST v KILNER (goods, wares and merchandise) R v INHABITANTS OF SEDGLEY (coal mines) |
| WHAT IS THE MEANING OF 'NOSCITUR A SOCIIS'? + CASES | " A word is known by the company that it keeps" Words must be looked at in context and interpreted accordingly, it involves looking at other words in the same section or at other sections in the Act CASES: INLAND REVENUE COMMISSIONERS v FRERE (other annual interest) BROMLEY LONDON BOROUGH COUNCIL v GREATER LONDON COUNCIL (economic) |
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