Statutory interpretation
When there are issues and disputes, it can be because two different people think that the law is ambiguous and not clear what it says. But what happens when a statute is unclear? Judges will look at the law that has been created and have to interpret the law as they see fit. There are a few approaches that judges can take when deciding what the law is. Judges and Parliament are divided with regards to the approach judges should take. Parliament are democratically elected and therefore it is their responsibility to create the law. Judges are supposed to administer and apply the law, as opposed to deciding which course they wish the law to take. We will be looking at these different approaches judges take and their positive and negative effects on the legal system.
The Literal Approach
This is the approach taken usually by conservative judges who believe it is not their responsibility to be making and choosing what the law is. This means that judges read words for their literal meaning and allow no rigidity within the meaning. Also, they decide not to read around these words and follow the black letter of the law. This approach can be strict and cruel in some cases when the literal approach is followed in cases. The approach can create absurd outcomes and can ignore moral issues within legal cases.
This is the approach taken usually by conservative judges who believe it is not their responsibility to be making and choosing what the law is. This means that judges read words for their literal meaning and allow no rigidity within the meaning. Also, they decide not to read around these words and follow the black letter of the law. This approach can be strict and cruel in some cases when the literal approach is followed in cases. The approach can create absurd outcomes and can ignore moral issues within legal cases.
The Purposive Approach
This is where judges will look at the reason for a section or Act of Parliament and try to understand the purpose behind the law and then incorporate this into their judgement. The European Courts use this approach all the time by looking at Articles, Conventions and Directives and implementing the law that correlates with the idea of what they believe the legislature had in mind when making the laws. The intentions can be found in various places such as Hansard (written recordings of everything said in Parliament). This approach also helps to prevent absurd outcomes and can allow following of morality in courts.
There are three rules that judges can use when interpreting the law and applying it to cases in their judgements. They never entirely state how they have come to this decision, or what they have considered when making their judgement. They simply use these rules to 'discover' the law and state what stands in the case.
Jones v Tower Boot Co (1997)
This case was about a man that was suffering from racial discrimination at work. His employers argued that it was not within the course of employment so technically they were not responsible. However, the judges said that the purpose of the law was to stop people from suffering this discrimination. Therefore, as this was still happening, they deemed it an offence and something that they wanted to stop, regardless of the literal reading of the words. The idea is that this is different to reading and looking for a mischief; the purpose looks at the reason for the Act of Parliament using various resources.
Pepper v Hart (1993)
This is an example of a case where the judges use the purposive approach to interpret the law.
This is where judges will look at the reason for a section or Act of Parliament and try to understand the purpose behind the law and then incorporate this into their judgement. The European Courts use this approach all the time by looking at Articles, Conventions and Directives and implementing the law that correlates with the idea of what they believe the legislature had in mind when making the laws. The intentions can be found in various places such as Hansard (written recordings of everything said in Parliament). This approach also helps to prevent absurd outcomes and can allow following of morality in courts.
There are three rules that judges can use when interpreting the law and applying it to cases in their judgements. They never entirely state how they have come to this decision, or what they have considered when making their judgement. They simply use these rules to 'discover' the law and state what stands in the case.
Jones v Tower Boot Co (1997)
This case was about a man that was suffering from racial discrimination at work. His employers argued that it was not within the course of employment so technically they were not responsible. However, the judges said that the purpose of the law was to stop people from suffering this discrimination. Therefore, as this was still happening, they deemed it an offence and something that they wanted to stop, regardless of the literal reading of the words. The idea is that this is different to reading and looking for a mischief; the purpose looks at the reason for the Act of Parliament using various resources.
Pepper v Hart (1993)
This is an example of a case where the judges use the purposive approach to interpret the law.
The Literal rule
The literal rule is when the judges apply the plain, ordinary meaning of the words to the case. They can use the dictionary meaning and apply that strictly without any interpretation. This can produce some unfair outcomes but at least all of the cases are consistent and the same outcome. This is the original method of interpreting statutes and is the most commonly used process. The use of the literal translation of the words is key. DPP v Cheeseman (1990) A man was masturbating in a public toilet. The police who found him convicted him under a section that said being found by a 'passenger' was part of the crime. It was decided that the police were stationed outside the public toilet because he had been doing it before. He was acquitted because the police were not deemed as 'passengers'. Whiteley v Chappell (1868) The man in the case voted for dead people in elections. The law said that it was unlawful to vote for somebody entitled to vote. The dead people he voted for were not entitled to vote, therefore he had not broken the law in this respect. Clearly he had been deceitful but under a literal interpretation of the words he had done nothing wrong. LNER v Berriman (1946) A man working for LNER was hit by a train. His wife sued for negligence against the fact that there was no look out when he was working on the tracks. The law involved said that there was to be a look out when workers were repairing or relating track. The fact he was oiling the tracks meant that he was 'maintaining' and that they had done nothing wrong. This meant the company did not have to pay out and that the wife received no compensation for the civil wrong done to his family. |
Advantages of the Literal Rule
The Literal Rule creates certainty. If judges interpret the laws using the Oxford English Dictionary, then everybody can use that same resource and be able to predict the outcome of cases in the future. It also means that people understand the laws that are applied to them. The use of the rule upholds Parliamentary Supremacy. This is the idea that Parliament is the most important and powerful part of our legal system and government. Parliament, in theory, could create any law and repeal all previous laws; it has the power to change anything because it is the elected body that represents the people in our society. By following the legislation and not straying away from what our representative democracy has decreed, we are upholding our political system. Examples of this can be Cheeseman, where the judges followed the letter of the law, regardless of the outcome. Lord Esher also said that it is the role of Parliament to make changes and not for the judiciary. Disadvantages of the Literal Rule The literal rule can create loopholes in the law. Fisher v Bell for example; if you show things in your window you are inviting them to that but it is one way in which a person can still advertise things in their shop windows. It means therefore that people can get away with things when they have been commit wrongful acts in society. It can lead to unfair or absurd outcomes. LNER v Berriman's judgement follow strict rules and wording in the law and it meant that a woman was left without any compensation when her husband was hit by a train. His employer should have made sure he would be safe when carrying out his work but because of the wording of the relevant law, it meant they did not have pay out for his death. This is an example of an absurd outcome that is socially distasteful, but lawfully sound. |
The Golden rule
The idea of the golden rule is to give judges another option to interpret the law in Acts. As we have seen, the literal rule can create absurd outcomes that we do not agree with (LNER v Berriman meant the wife could not sue for negligence based on a technicality). The judges can see these issues of interpreting specific words and depart from this to correct the injustice. They can do this is two different approaches:- The narrow approach - this looks at the interpretation of a specific word. If this word has it's literal ordinary dictionary meaning attached to it and it creates an absurd outcome, the judges may use a different interpretation of the word to produce a different outcome. The broad approach - where the words are not ambiguous, the judge can choose not to follow the ordinary approach but gives a new meaning to the words to bring about a better result. If the words interpreted are going to create a repugnant result then the judge can look to avoid that from happening using this rule. R v Allen (1872) In this case, a man was a bigamist. He had two wives. It said that it was illegal to marry two women. Literally, a second marriage is not a legal contract because you cannot marry if you are already marry. In legal terms, the second marriage did not count but he went through the process and married two women at the same time knowing that there were two. He had committed a wrong but following the literal rule would lead to an absurd outcome. Therefore, the courts could use the golden rule and depart from that decision and follow another. Adler v Geoge (1964) He got on to the premises of an RAF station and disrupted the work of a guard who was on security duty. The RAF station was a prohibited place identified under the Official Secrets Act 1920. The issue was that it was an offence to be in the vicinity of a prohibited place. He argued that as he was on the actual site he could not be in the vicinity. The judges applied the golden rule and interpreted that the vicinity could include the actual place itself as it would be absurd to let him get away with this act on a word technicality. He was found guilty of the offence. Re Sigsworth (1935) A son murdered his mother before she had made a will. He stood to inherit her entire estate because she had not made a will. The court then said that this would be an absurd outcome and that you should not be able to benefit from your crime. The golden rule was used saying that applying the literal rule of inheritance would lead to an absurd outcome. He was then entitled to nothing. |
Advantages of the Golden Rule
Errors in drafting can be corrected immediately. R v Allen is a clear example where they corrected the wording of an Act. Clearly, they do not want people to marry more than one person and that is one of the whole points of marriage; to be bonded with one person. The judges could correct the clear mistake in the Act and stop people from getting away with the offence on a literal technicality. Another advantage is that it brings common sense to the law. In Adler v George, it was pretty silly outcome and not something we want to allow in society. To let him get away on a technicality would be wrong and nonsensical so by allowing the judges to correct this and follow their common sense it makes the law simpler and more understandable. This then makes it more transparent and accessible for everybody in society. Disadvantages of the Golden Rule A disadvantage of the golden rule is that it gives power to the judges to interpret and adapt the law in specific areas. Re Sigsworth allowed the judge to move away from the literal ruling of inheritance law. It is not the judge's role to change the law. It may have been a repugnant decision that we do not like in society, but is it the judges role to fix this? It is Parliament's role as the elected representative body to change and adapt the law. Another disadvantage is that judges do not have the power to interfere with injustice, only absurd outcomes. For example, LNER v Berriman would not have been any better off under the golden rule as it was not an absurd outcome, just a pure injustice on specific wording. This restricts the role of the judge and means that they are applying and not creating the laws. The judges are creating retrospective law. In Re Sigsworth, what he did for the terms of benefiting from inheritance was not a problem at the time. It was after it happened that they deemed it wrong for him to benefit from his crimes. This is bad for the rule of law and the idea that we all know the law. |
The Mischief rule
Smith v Hughes (1960) There were prostitutes in the street and it was an offence under the Street Offences Act 1959 to solicit in a public place. The women were in the top windows and balconies of houses and the public could still see them. Under the literal rule, they were technically in a private place and therefore there would be no offence. However, the judge applied the mischief rule. They said that the mischief that was trying to be stopped was the soliciting in the visibility of the public. Therefore, since the mischief that was trying to be stopped occurred and so there was an offence. DPP v Bull (1995) A man was charge with the offence under s.1(1) of the Street Offences Act 1959. This made it an offence for a 'common prostitute to loiter or solicit in a public street or public place for the purposes of prostitution.' The Magistrates' Court found him not guilty. They stated that 'common prostitute' only related to females and did not cover males. The prosecution appealed by way of case stated. The court held that the Act did only apply to females. The word prostitute was ambiguous and they applied the mischief rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report into homosexuality and prostitution. The Report only referred to female prostitution and did not mention male prostitutes. The QBD therefore held the mischief the Act was aimed at was controlling the behaviour of only female prostitutes. |
Advantages of the Mischief Rule
One advantage of the mischief rule is that it can help to avoid absurd outcomes. An example of Smith v Hughes, where the prostitutes were harassing people in public. The Street Offences Act 1959 stated that it was an offence to solicit in a public place. They moved away and started doing it in a private place but they deemed that it was included in the act as the mischief was still happening. The extension of the law in this area preventing the absurd outcome. However, this created what we call retrospective law. It made the act in a private place after the offence had happened and therefore made them guilty when at first they didn't think it was an offence. This is bad for the rule of law, as people do not know where they stand with the law. Another advantage is that it promotes flexibility. It allows the law to change and develop to match society. However, judges do not have the power to change the law. Their role is to interpret and apply the law. It is not their responsibility to change the law. Parliamentary Supremacy is the fact that Parliament are the ones who make the laws as they are elected and therefore democratic. Disadvantages of the Mischief Rule One of the disadvantages is that it gives judges a lot of freedom to change the law when they see fit. Take Smith v Hughes as an example; they were able to say that it didnt matter if it was private or public where people were being hassled by prostitutes. If this was happening then there was still an offence but when the prostitutes were in private places they had not broken the rules. This is called retrospective law and is created by the judges when they interpret the words this way. Another problem is that it allows judges to bring their own bias and prejudices to the court and into their judgements. They can argue that a bad thing or a mischief is something we want to avoid, but it may be in their opinion and not representative of society like Parliament is. The examples given, Smith v Hughes 1960 and DPP v Bull 1995 are both about prostitution and the judges may not be aware of this section of society and also have unfair bias added to their judgements about these people. |
aids to interpretation
There are two types of aids to interpreting. When we describe 'internal' or 'external', it is regarding whether or not they are inside an Act of Parliament that is being interpreted.
Internal aids
These are aids to interpret the law within an Act of Parliament itself. There are a few examples of internal aids; the short title of the Act, the long title of the Act. Explanatory notes could also be used as an internal aid. There is a preamble for Acts that show what was intended.
External aids
These are things used outside an Act to interpret the words. These also can vary, including things like dictionaries (Oxford English Dictionary or legal dictionaries), law text books and articles by leading legal academics. Another external aid that is important is Hansard. This is the written transcripts of everything said in Parliament and can be accessed by the judges to see what Parliament said and intended when creating this Act. Pepper v Hart 1995 is the case that said that judges were now on allowed to use Hansard when interpreting statutes.
Internal aids
These are aids to interpret the law within an Act of Parliament itself. There are a few examples of internal aids; the short title of the Act, the long title of the Act. Explanatory notes could also be used as an internal aid. There is a preamble for Acts that show what was intended.
External aids
These are things used outside an Act to interpret the words. These also can vary, including things like dictionaries (Oxford English Dictionary or legal dictionaries), law text books and articles by leading legal academics. Another external aid that is important is Hansard. This is the written transcripts of everything said in Parliament and can be accessed by the judges to see what Parliament said and intended when creating this Act. Pepper v Hart 1995 is the case that said that judges were now on allowed to use Hansard when interpreting statutes.