Statutory interpretation Topic 4 Statutory interpretation

‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean - neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master - that’s all.’ ‘Humpty Dumpty’ in Lewis Carroll, Through the Looking Glass.

Write down your understanding of the following words: Ambiguous? What does it mean? Round?

Did you know? Of the 500 most-used words in the English language, each has, on average, 23 different meanings The word ‘round’ has 70 different meanings!

statutory interpretation Introduction to statutory interpretation Many statutes are passed by Parliament each year. The meaning of the law in these statutes should be clear and explicit but this is not always achieved Statutory interpretation concerns the role of judges when trying to apply an Act of Parliament to an actual case. The wording of the Act may seem to be clear when it is drafted and checked by Parliament, but it may become problematic in the future.

The rules of interpretation “The courts must uphold the will of Parliament and not try to usurp its powers, but sometimes it necessary to try and understand what the words used by the parliamentary draftsman mean.” The rules of interpretation There are two approaches to statutory interpretation: the literal approach and the purposive approach. There are also three main rules of statutory interpretation that judges use to decide a case: the literal rule the golden rule the mischief rule

TASK: Cheeseman v Director of Public Prosecutions (1990) Question 4???? Was this the correct decision? Why? Reasons? What else could/should the courts have done?

Literal Approach versus Purposive Approach The case of Cheeseman illustrates several of the problems of stautory interpretation. It is an example of the courts taking the words literally. However, it can be argued that the defendant was ‘wilfully and indecently exposing his person in a street’ and that he was caught doing that. Is it important that the police officers were ‘passengers’? Some people would argue that the whole purpose of the Act was to prevent this type of behaviour; this is the purposive approach to statutory interpretation – instead at looking at the precise meaning of each word, a broader approach is taken

This conflict between the literal approach and the purposive approach is one of the major issues in statutory interpretation. Should judges examine each word and take the words literally or should it be accepted that an Act of Parliament cannot cover every situation and that the meanings of words cannot always be exact? In European law the purposive approach is taken. In English law the judges have not been able to agree on which approach should be used, but instead, over the years they have developed three different rules of interpretation. These are the: Literal rule Golden rule Mischief rule

Literal rule The literal rule respects parliamentary sovereignty. The judges take the ordinary and natural meaning of the word and apply it, even if doing so creates an absurd result. Lord Esher said in 1892: ‘The court has nothing to do with the question of whether the legislature has committed an absurdity.’

Golden rule The golden rule is an extension of the literal rule. If the literal rule gives an absurd result, which is obviously not what Parliament intended, the judge should alter the words in the statute in order to produce a satisfactory result. Judges may used the narrow approach or the broad approach.

Mischief rule The mischief rule (or purposive approach) gives judges the most flexibility when deciding what ‘mischief’ Parliament intended to stop. It was established in Heydon’s Case (1584). When using this rule, a judge should consider what the common law was before the Act was passed, what the problem was with that law, and what the remedy was that Parliament was trying to provide.

Smith v Hughes [1960]. Section 1(1) of the Street Offences Act 1959 said "it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purposes of prostitution." The court considered appeals by six different women who had been on a balcony or at the windows of ground floor rooms. In each case, the women were attracting men by calling to them or tapping on a window. They argued they were not guilty since they were not in the street. Re Sigsworth (1935). A son had murdered his mother. The mother had not made a will, but in accord with rules set out in the Administration of Justice Act 1925 her next of kin would inherit (who was the son). Fisher v Bell [1960] A shopkeeper displayed a flick-knife in his window. The Restriction of Offensive Weapons Act 1959 made it an offence to offer such a knife for sale. The defendant argued that a display of anything in a show window is simply an offer to treat and this means that, under contract law, it is the customer who makes the offer to buy the knife. Task – apply each of the rules of statutory interpretation to each of the above cases.

Fisher v Bell (1961) This case concerned a flick knife displayed in a shop window. Lord Parker acquitted Bell under the Restriction of Offensive Weapons Act 1959, even though it was obvious that this was exactly the sort of behaviour that Parliament intended to stop. He justified his decision because the draftsmen knew the legal term ‘invitation to treat’ (which would have been applicable in this case) but failed to include it.To respect Parliament’s sovereignty he had to infer that they had left it out on purpose.

Smith v Hughes (1960) The defendants were charged with ‘soliciting in a street or public place for the purposes of prostitution’ contrary to the Street Offences Act 1959. They were soliciting from upstairs windows. Lord Parker used the mischief rule to convict, as he believed that the ‘mischief’ that Parliament had intended to stop was people in the street being bothered by prostitutes.

Re Sigsworth (1935) Re Sigsworth (1935) is an example of the broad approach of the golden rule. A son had murdered his mother. The mother had not made a will, but in accord with rules set out in the Administration of Justice Act 1925 her next of kin would inherit (who was the son). There was no ambiguity in the wording of the Act, but the court was not prepared to let a murderer benefit from his crime. So it was held that the literal rule should not apply, the golden rule being used to prevent a repugnant situation.

R v Allen (1872) R v Allen is an example of the narrow approach of the golden rule. The wording of the Offences Against the Person Act 1861 had to be given a different interpretation for the crime of bigamy, because the way it was written meant that the crime could never be committed. The court used the golden rule and held that ‘marry’ meant ‘to go through a marriage ceremony’.

TASK: Which of the three approaches to statutory approach do you think is best? Why?

Other aids to interpretation intrinsic aids extrinsic aids presumptions Latin rules of language

Intrinsic aids Intrinsic aids are sources within the Act (internal aids). In order to determine the meaning of a section of an Act of Parliament, the judge may wish to look at other sections in the Act: definition section long and short title preamble

Extrinsic aids Extrinsic aids are sources outside the Act (external aids). Examples include: dictionary Hansard Human Rights Act 1998 legal textbooks Interpretation Act 1978 explanatory notes

Presumptions Judges make presumptions about the wording of a statute. They know that: the common law has not been changed unless the Act clearly states to the contrary a criminal offence requires mens rea (a guilty mind) the law should not act retrospectively

Latin rules of language There are also Latin rules of language that aid interpretation: ejusdem generis (Beswick v Beswick) expressio unius est exclusio alterius (Tempest v Kilner) noscitur a sociis (Powell v Kempton Park Racecourse)