Describe the various approaches (or rules) a judge may use to decide the meaning of a statute. Illustrate your answer with cases (15 marks). (A) For a judge to decide he meaning of a statute, they would use the rules of language, these were developed by lawyers over time, these rules are little more than common sense, however they are not always precisely applied. The rules are Ejusdem generis rule, Expressio unius est exclusion alterius rule and Noscitur sociis rule.
The Ejusdem Generis rule, this means where the words follow a list of specific words, the general words are constructed as being limited to persons or things with the class outlined by the particular words. So in reference to 'dogs, cats an other animals,' the phrase 'and other animals' would be limited in their application to a category of domestic type animals and would not extend to wild animals.
Shown in the case of Powell v Kempton Racecourse (1899), illustrates this rule where the term 'other place' had to refer to indoor places since all the words in the list were indoor places and the defendant was not guilty ad he had been operating a betting ring outdoors. Expressio unius est exclusion alterius rule means, the expression of one thing implies the exclusion of another. Under this rule if there is no general word at the end of the list, then the express mention of one member of a particular class implies the exclusion of another.
Thus where an act specifically mentioned 'Persian cats'. The term would not indicate other breeds of a cat. Tempest v Kilner (1846) indicated this rule, where the list of goods, wares and merchandise was not followed by any general word so the court held 'stocks and shares' were not caught by the statute because they were not mentioned. Noscitur a sociis, this means the meaning of a word can be gathered from its context, under this rule words of doubtful may be better understood from the meaning of the words around in the section and may involve looking at the whole Act.
For example, if a statute mentioned 'cat baskets, toy mice and food', it would be reasonable that food meant cat food and not dog food. Presumption, this means that the judges can assume that certain points are implied in all legislation. Two of the most significant presumptions are; 1) the presumption that mens rea is required in criminal cases (but it is not because of Strict liability cases) 2) Legislation does not operate retrospectively: its provisions operate from the day it comes into force, and are not backdated
These presumptions will be applied unless a good argument is given to show they don not apply. General Rules of interpretation have been evolved by judges, these are; Literal rule, Golden rule and Mischief rule. The Literal rule, according to this rule, the working of an Act must be construed according to its plain, literal and grammatical meaning no matter how absurd the result may be. A judge could refer to other statutes that had used that word and to cases that had been decided on the meaning of the word in those statutes.
However the problem with this rule is that it doesn't always achieve the obvious purpose of the statute and can make nonsense of the law. Case to illustrate this is Whitley and Chapel (1868), this was the case when a statute made it illegal for someone to pretend to be 'any person entitled to vote' at an election, however the defendant was impersonating a deceased voter, however person does not mean a dead person therefore defendant was not guilty. The rule can also lead to harsh decisions, as in the case of LNER Railway Co.
This was the case when the railway company was being sued for the death of Mr Berriman by Mr Berrimans wife, when he was killed whilst maintain the tracks, because there was no look out, but it failed because he was maintain the track and not relaying or replacing, therefore a lookout should not have been there. This was an absurd ruling. But the judge's function was to apply the law and not decide how parliament would go about it.
The advantage to this rule is that it respects parliamentary sovereignty, and leaves the law making to parliament, however the rule has disadvantes as rule can lead to absurd outcomes, therefore be unjust, and unfair. Golden Rule, this provides that if the literal rule will give an absurd outcome, that was clearly not parliaments intention, then modification to the literal rule is permitted. Also if the word is ambiguous, then the rule should be used as it prevents absurdity and is in line with parliaments reasoning for that statute.
There are two views on how far the golden rule should be used; 1) Firstly there is the narrow application; this is where the court may only choose between the possible meanings of a word or phrase. If there is only one possible meaning then that should be taken. This view was used in the case of R v Allen (1872); this was an interpretation on the s57 of the offences against the person's act 1861, which provides that any person who 'being married shall marry' commits the offence of bigamy.
But 'marry' could mean to become legally married or go through with marriage ceremony. However it could not be interpreted literally because then, the statute would be useless, therefore the, it was decided that the meaning of marry was, 'go thought with marriage ceremony' for the purpose of the Act. 2) Wider application of the golden rule, this is where the words have only one clear meaning, but that meaning would lead to a repugnant situation. In such case the court will invoke the golden rule to modify the words of the statute to void the problem.
This was illustrated in the case of R v Sigsworth, this was where a son had murdered his mother, she had not made a will therefore the money would go to the son, however using the wider application of the golden rule, the court decided, that the son would not inherit from his murder, been though there was no ambiguity. However it must not be thought that the golden rule is used by courts to resolve ambiguities and doubts in favour of the meaning intended by parliament.
It is used only exceptionally and only where the application of the literal rule would render the statute inoperative or repugnant it therefore remains the question of judgement as to whether a result is so absurd that it cannot reasonably be supposed to have been the intention of the legislature. The advantage of the golden rule is that, it prevents absurdity and injustice caused by the literal rule, however the disadvantage is that there is no clear meaning of 'an absurd result'
The Mischief Rule, this rule, in practice this rule is the most important of these canons of construction. This provides that in cases of ambiguity and then interprets the words of the act in the light of this knowledge. The rule is derived from Haydon's Case (1584) where the judges decided that it was proper to look beyond the four corners of the Act. They said it was permissible to consider three things: 1. What was the law before the act was passed 2. What was wrong with that law 3. What did parliament intend to do to improve the law
So when the mischief rule is used, it is said that the courts should consider what Parliament intended to stop, basically what was the gap in the law, and ensure that the interpretation does stop mischief, what ever the literal meaning might decide. To do this they may use a variety of extrinsic aids including the history of the statute and, since 1993, the official record of the parliamentary debate (hansard) which took place when the act was going through parliament although there are restrictions on this as explained later.
This is quite a different approach to the literal rule. In 1960 the mischief rule was applied to Smith v Hughes 1960, case where a prostitute was maintaining that she was not soliciting 'in a street or public place' contrary to the street offences act 1959 when, sitting in her room, she tapped the windows, and attracted men passing by to go in. She herself was not 'in a street' when the soliciting took place, but the act intended people to walk freely, therefore using the mischief rule, it will look at the intention of the Act.
Another case which the HL used the mischief was the: Royal College of Nursing v DHSS (1981). The abortion Act 1967 provided that a pregnancy should be terminated by a 'registered practitioner'. In a 1967 when the act was passed the medical procedure was such that only a doctor could perform the procedure but with the advances in medical science, from 1972, part of the procedure was carried out by nurses without a doctor present.
A case went to the HL where the majority adopted the mischief rule and pointed out that the mischief that parliament was trying to remedy was the unsatisfactory state of the law before 1967 and the number of illegal abortions hence the new procedure was not illegal. However the courts must be careful at all times to ensure that they construe statutes, so that it is the will of parliament that is applied and not the views of the judges. Judges apply the law, they do not make it.
Advantages of the mischief rule is that is allows judges to look back at the gap in the law which the act was designed to prevent such tragedies. However a disadvantes would be that there is a risk of judicial law making, reflecting the separation of powers issue. The purposive approach to interpretation, this is said to be an extension of the mischief rule. But it goes beyond it in that the court is not just looking to see what the gap was in old law but the judges are deciding what they believe parliament meant to achieve.
Case: Magor and St Mellons RDC v Newport Corporation Lord Denning said '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'. The Modern Unitary Approach, this combines the elements of all three- the modern unitary approach, to respect the actual words of provision having regard to their context and the purpose (words, context and purpose) Briefly Explain Intrinsic (internal) and extrinsic (external) aids to interpretation.
Consider how useful they are in assisting judges to interpret Acts of Parliament (15 marks). (B) Intrinsic Aids (these are found within the legislation itself). Interpretation section, a complex statute will normally contain an interpretation section, defining the terms used in the particular Acts for example ss. 735-44A of the companies Act defines amongst other things 'accounts' and 'directors'. The preamble and long title, every act of parliament used to have a preamble which is set out at the beginning of each statute; this scopes the purpose of the Act.
The preamble was often quite lengthy; this was helpful as it assisted the judge when making decisions based on the meaning and intention of the law. However modern Acts, have short and long title instead, the long title gives this brief description. Schedules, these reattached to the act and are extra details, a kind of appendix, which elaborate on the main sections of the Act Marginal notes and headings, these summarise the effect of the sections of an Act.
Where the wording or either a marginal note or heading seems to contradict the main body of the act, the wording of the main body of the act should be followed this is because they are inserted after parliamentary debate (printing stage) and are therefore somewhat unreliable as an indicator of Parliaments will. The interpretation Act 1978, this itself is a statute and defines terms commonly used in acts of parliament. Foe example, this act says that 'unless a contrary intention appears' male includes female (i. e. he stands for she etc. ); singular includes plural and vice versa, and that a month means a calendar month.