Learning objective: to be able to explain the different approaches to interpreting statute that judges use. Statutory Interpretation “Parliament is supreme legislator, but from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land.” An Introduction to the Study of the Law of the Constitution – A.D. Dicey 1885

Some words Grievous Malicious Reckless Vehicle

The curious case of Sir Roger Casement In 1916, Sir Roger Casement was charged with high treason contrary to Treason Act, It was alleged that during World War I he incited British subjects who were prisoners of war in Germany to renounce their allegiance to the King. The statute declared that treason was committed '... if a man do levy war against our Lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm [,] or elsewhere... '. Si home leve de guerre contre nre dit Seignr le Roi en son Roialme, ou soit aherdant as enemys nre Seignr le Roi en le Roialme, donant a eux eid ou confort en son Roialme ou p aillours

Some laws All men are created equal Ties must be worn The as-much-as-you-can-eat buffet price applies as long as you finish your food. Any food left on the plate will be charged for at a higher price. Please do not use mobile phones in the library It is an offence to drink alcohol in a public place Thou shalt not kill

Exam questions Rules of interpretation – literal, golden, mischief, purposive approach Aids to interpretation, rules of language, presumptions Pros and cons of different rules of interpretation

The Literal Rule Whiteley v Chappell (1868): It was an offence to impersonate “any person entitled to vote”. Fisher v bell (1961): It was an offence to “offer for sale”.

Your task Amend the offences to make them more effective. Choose one of the cases. Design an A4 sheet featuring the name and ratio for lamination and display on the wall.

Pros and cons of the Literal rule The constitutional role of parliament is respected – it is for a democratic parliament to amend laws Application of the literal can lead to changes in the law (e.g. Fisher v Bell) Absurdity (e.g. Whiteley v Chappell) Injustice (e.g. LNER v Berriman [1946] – railway companies had to provide a look-out whenever a railwayman was “repairing or relaying” but Mr Berriman was oiling).

Learning objective: to be able to explain both the broad and narrow approach to... The Golden Rule “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity 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 or inconsistency, but not farther.” (Lord Wensleydale in Grey v Pearson (1857)

The Narrow Approach If there are two possible meanings, take the one that avoids absurdity. R v Allen (1872)

The Broad Approach Where there is only one meaning, the meaning can be modified to avoid absurdity Adler v George (1964)

Pros and cons of the Golden rule Prevents the a_________ and i_________ of the literal rule (e.g. Re Sigsworth (1935)). More likely to to produce what parliament intended. (Would MPs have wanted Sigsworth to inherit?) Unpredictable – who is to say what is absurd? Too much power to judges?

The mischief rule The classic case that sets out the four factors : Heydon’s Case (1584) : 1.What was the common law before the Act? 2.What was the “mischief”? 3.What remedy did the Act attempt to provide? 4.What is the reason for the remedy?

Smith v Hughes (1960) It is an offence to solicit “ in the street or public place ” - Street Offences Act 1959 “Everybody knows this was an Act designed to clean up the streets.” – Parker LCJ Judicial law-making?

Pros and cons of the mischief rule Avoids a__________ and i___________. Example: Under the Local Govt. Act 1982, it was an offence to use premises as a live sex encounter establishment without a licence. This was defined as a place where there were entertainments “which are not unlawful”. The defendant claimed his peep-shows were unlawful and therefore he could not be convicted. Allows law to be applied as parliament intended.

Too much power to unelected judiciary? Allows the judiciary to update legislation when (it can be argued) this is parliament’s job. E.g. RCN v DHSS (1981) – Abortion Act 1967: No offence is committed “when a pregnancy is terminated by a registered medical practitioner”. This was described by Lord Edmund Davies as “ redrafting with a vengeance ”

It is from the 16 th century......from the 16 th C when common law was the main source of law....from the 16 th C when parliamentary supremacy was not well- established....from the 16 th C when laws mentioned the “mischief”...from 16 th C when judges often drafted laws on behalf of the king (so they knew what the law was for).

The purposive approach Pepper v Hart (1993) “the fine distinctions between looking for the mischief and looking for the intention...are technical” Lord Browne- Wilkinson “The days are gone when the courts adopted a strict...view of interpretation which required them to adopt the literal meaning of the language.” Lord Griffiths

Magor & St Mellons v Newport Corporation (1950) Lord Denning said “ We sit here to find 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...”

Davis v Johnson (1979)

Bulmer Ltd v Bollinger SA (1974) “ All the way through the treaty there are gaps and lacunae. They have to be filled in by the judges, or by regulations or directives. It is the European way.” – Denning MR

Jones v Tower Boot Co 1997 Liability of employer for racist acts committed "in the course of his employment“ – What had parliament intended when it passed the Race Relations Act 1974?

Pros and cons of the purposive approach Avoids a__________ and i___________. Does what the lawmakers intended. Consistency with EU: Many of our laws are intended to make the UK comply with European law. Too much power to unelected judges Judges can make decisions based on public policy (e.g. Fitzpatrick v Sterling Housing Assoc. Ltd [1999].

starter Magor & St Mellons v Newport Corporation 1950 Bulmer Ltd v Bollinger SA 1974 Pepper v Hart 1993 Jones v Tower Boot Co. 1997

Aids to interpretation These are divided into intrinsic and extrinsic meaning those found in the act itself and those found outside it. Your task, in 2 groups, prepare a presentation to give to the other half of the class. Each group will get 10 minutes on the PC and time to prepare and rehearse. Presentations must take no longer than 2 minutes each.

Intrinsic : Preamble, now called the ‘long title’ (“An act to...”), e.g. Theft ActPreamble Westminster CC v NASS [2002] stationery-office.co.uk/pa/ld200102/ldjudgmt/jd021017/westmi-1.htm (use of explanatory notes), stationery-office.co.uk/pa/ld200102/ldjudgmt/jd021017/westmi-1.htm Section headings, schedules Section headings schedules

extrinsic Old: other, related acts of parliament; the context; case law; contemporary dictionaries Academic works – e.g. The Institutes of the Laws of England by Sir Edward Coke

New: Hansard but only where there is ambiguity and a clear statement by the minister would clarifyexcept in the case of... Hansard Where a statute introduces international law (e.g. A European directive) where it must be interpreted purposively: 3 Rivers DC v Bank of England (no.2) (1996) The Interpretation Act 1978 he/she/they etc Law Commission reports;Law Commission reports international conventions, regulations, directives

This afternoon’s 10 minute test (b) Outline the golden rule and the mischief rule of statutory interpretation. (10 marks) Friday’s 10 minute test: (c) Discuss the advantages of each of the two rules of interpretation described in your answer to question (b). (10 marks)

Rules of language Eiusdem generis : general words to be interpreted according to specific words that precede them, e.g. Powell v Kempton Park Racecourse (1899) Was an open air betting stall a “ house, office or other place ”?

Expressio unius est exclusio alterius When only particular words are used, the Act only applies to what is specifically stated, e.g. In R v Inhabitants of Sedgley (1837) rates could be charged on “land, titles and coal mines”. Could they be charged on tin mines?

Noscitur a sociis The meaning can be taken from the context, e.g. The Refreshment Houses Act 1860 stated that you needed a licence to keep all “houses, rooms, shops or buildings” open in the evening for “entertainment”. Was the defendant’s cafe included?

EU Law Move towards purposive approach (judges have to for law inspired by Europe, get used to it for the rest) In Marleasing (1992) the ECJ ruled that national law had to be interpreted to follow the aim of the European law.

Human Rights Act 1998 S3 Your task: Read about Mendoza v Ghaidan (2002) and write a paragraph explaining how the Court of Appeal reached its decision.

Presumptions Common law still in effect unless specifically repealed Mens rea required in criminal cases (Sweet v Parsley(1970)) Law does not apply retrospectively There is a presumption in favour of lenity

Past exam question Describe the golden rule and one of the rules of language; (10 marks)