Statutory interpretation

Statutory interpretation

1. Why do we need SI?

   • The term is used braodly
     • Brock v DPP 1993
   • The word is ambiguous.
   • A drafting error has been noticed.
   • Can issues arise from the use of language?
     • Words take meaning from context
     • Shades of meaning
     • Words meanings change over time - e.g. 'grevious'
     • Has not been thought out fully
       • Dangerous Dogs Act 1991

2. Rules and approaches

   • Literal
     • Literal
       • Berriman
         • Fatal Accidents Act
       • Gives words ordinary, grammatical meaning.
       • Judge of the City of London Court 1892
       • Whitely v Chappell 1868
       • Fisher v Bell
         • Restriction of Offensive Weapons Act 1959
       • Pros
         • Follows words of Parl used when law was created - Parl. Sov.
         • Using exact words means J’s are not making the law - provides no scope for opinions or prejudices.
         • Restricts role of J’s.
         • Law should be more certain - more clear for people planning to use the legal system.
       • Cons
         • Prof. Zander - “irresponsible mechanical and divorced from the relatives of the use of language.”
         • Law Commission 1969: Literal rule “assumes unattainable perfection in draftsmanship”.
         • Lord Steyn in 2004 - use with caution + Ruling can be absurd + May not enact will of Parliament + Words may shift over time.
         • Lord Denning - popular in the 19th century but wrong in principle.
         • Can be disagreements about what the ‘ordinary natural meaning’ is.
           • R v Maninnis 1987
         • Loopholes
           • Fisher v Bell
     • Golden
       • Best interpretation of words that are ambiguous, can be chosen to avoid absurdity.
       • Narrow
         • Jones 1962
         • R v Allen 1972
           • Offences Against the Person Act 1861
         • Adler v George 1962
           • Official Secrets Act 1920
       • Broad
         • Sigsworth 1935
       • Pros
         • Provides an ‘escape route’ from the literal rule.
         • Allows J’s to choose the most sensible meaning, where there would be more than one.
         • Allows for sensible results
         • Closes loopholes
         • Errors in drafting can be quickly corrected
       • Cons
         • Law Commission 1969 - no clear definition of what an absurd result is or when it should be used.
         • Limited
         • Excessive power to J's
         • Michael Zander - “a feeble parachute”.
     • Mischief
       • Looks at gap in law prior to Act and interprets words to ‘suppress mischief’.
       • Focused on what Parl meant, not what Parl said.
       • Can ignore wording of the statute in order to reach desired outcome.
       • Gives little more discretion to the J, as well as flexibility.
       • Heydon's Case 1584
         • Common law prior to Act
         • What was the mischief and defect for which the common law did not provide?
         • What was the remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth?
         • True reason of the remedy - J’s are to suppress the mischief and advance the remedy.
       • Re:Sussex Peerage
       • Smith v Hughes 1960
         • Street Offences Act 1959 s.1(1)
       • Eastbourne Borough Council v Stirling 2000
       • Royal College of Nursing v DHSS 1981
         • Abortion Act 1967
       • Jones 1984
         • Must be possible to determine precisely the mischief the Act was intending to remedy.
         • Must be apparent that Parl failed to deal with the mischief.
         • Must be possible to state the additional words that would have been there had Parl have realised what they left out.
       • Pro's
         • helps avoid uncertaitny and injustice.
         • Allows J's to look at the gap in the law.
         • Enables the law to change with the times and close loopholes.
         • Law Commission 1969 - “rather more satisfactory approach than the other two established rules”.
         • Supporters include: Denning and Prof. M. Zander.
       • Cons
         • Risks judicial lawmaking.
         • J's don't always agree on M.R.
         • May lead to uncertainty
         • Not as wide a purposive approach
         • Retrospective
         • J’s can bring their own PoV and prejudices to a case.
     • Fisher v Bell
     • Berriman
   • Purposive
     • Lord Denning in favour
       • Magor and St. Mellons v Newport Corporation 1950
     • Jones v Tower Boot Co.
     • Leads to justice in individual cases but makes law less certain
     • Fills in the gaps in the law but leads to judicial lawmaking.
     • Broad approach covers more situations but difficult to discover the intentions of Parliament.
     • Smith 1990
     • Cutter v Eagle Starr Insurance 1998
       • Road Traffic Act 1988
     • R (Quintavalle) v Secretary of State 2003
       • Human Embryology Act 1990
     • EU
       • From 1999 Hansard is issued with each Bill
         • Pepper v Hart
     • Contrast
       • Magor and St. Mellons v Newport Corporation 1952 - Lord Denning
       • L. Simmons
     • Influential
       • Bollinger
         • ECA 1972 s.2(4)
           • HRA1998
     • Pros
       • Justice in individual cases.
       • Broad
       • Useful for advances in tech.
     • Cons
       • Makes law less certain.
       • Allows judicial lawmaking.
       • Difficult to find out Parliament’s intention
       • Impossible to know when judges might use the approach.
   • Literal v Purposive
     • Cheeseman v DPP
       • Town Police Clauses Act 1947

3. Finding Parliaments intention.

   • Intrinsic Aids
     • Within statute
     • Long title, short title, preamble
     • Headings before a group of sections.
     • Schedules in an Act.
     • Marginal notes
   • Extrinsic aids
     • Matters outside Act
     • Previous Acts on a similar area
     • Historical setting
     • Dictionaries of the time.
     • Hansard
       • Davis v Johnson
         • Pepper v Hart
         • L.Scarman
     • Law Reform reports.
       • Black Cawson 1975
     • International conventions.
       • Fothergill v Monarch Airlines Ltd 1980
       • Could also use preparatory materials or explanatory notes.
       • Other countries allowed the use of this, therefore in the UK to enable uniformity in the interpretation of rules it was decided this was necessary.
     • Laroche v Spirit of Adventure UK Ltd 2009
       • Air Navigation Order 2000
   • Mandla v Dowell Lee 1983
     • Race Relations Act 1976

4. Rules of language

   • Ejusdem genenis
     • Powell v Kempton Park Racecourse 1899
     • Hobbs v CG Robertson Ltd 1970
       • Construction (General Provision) Regulation 1961
     • Allen v Emerson 1944
     • General words which follow specific ones are taken to include things of the same kind.
   • Expressio unius exclusio alterius
     • Tempest v Kilner 1846
     • Express mention of one thing implies the exclusion of others.
   • Noscitur a sociis
     • Inland Revenue Commission v Frere 1965
     • Bromley London BC v Greater London Council 1982
     • A word draws its meaning from context

5. Presumptions

   • No change in common law
     • Leach v R 1912
   • Mens rea must be present for criminal law
     • Sweet v Parsley 1970
   • Statutes aren't retrospective
   • Crown's not bound
   • Currently
     • Judges tend to look at words in a statute and interpret them in their context, giving effect to underlying purpose of the statute.
     • R v Registrar General (ex parte Smith) 1990
     • s.51 Adoption Act 1976

6. Does EU law have an effect?

   • English courts must interpret it in light of the purpose of EU law, due to Treaty of Rome we must “take all appropriate measures to ensure fulfillment of the obligations”
     • Marleasing 1992
   • Influence of HRA 1998
     • s.3
       • “so far it’s possible to do so, legislation must be read and given effect in a way which is compatible with EUConHR”
         • Mendoza v Ghiadan 2002
           • Rent Act 1997