Interpreting the Meaning of Words, Which Are Unclear?

STATUTORY INTERPRETATION

AS 2013-2014

We have already noted that the court can challenge delegated legislation but not legislation itself on the basis of the sovereignty of Parliament doctrine. This is not to say however that the courts do not have an important function with regard to legislation.

The judge has the task of:

Interpreting the meaning of words, which are unclear?

OR

‘Fill in the gaps’ when an act does not make it clear whether a certain situation is covered

The meaning of the law in statutes should be clear & explicit but this is not always achieved. Many cases come before the courts because there is a dispute over a meaning of an act of Parliament. In such cases the court's task is to decide the exact meaning of a particular word or phrase. There are many reasons why the meaning may be unclear:

a) A broad term

b) Ambiguity

c) A drafting error

d) New Developments

e) Changes in the use of language - The meaning of words can change over years.

In order to apply legislation judges must ascertain the meaning of the legislation, & in order to ascertain the meaning they are faced with the difficulty of interpreting the legislation.

Legislation passes on to the judiciary (JUDGES) what Parliament has said the law should be in relation to a particular situation.

One essential requirement of legislation is that it can be generally applied;the need for it to be written in such a way so as to ensure that it can be effectively applied in various circumstances without the need to detail those situations individually.

I.e. building

The need for making the statute generalhowever can only really be achieved by making the statute less clear.

A broad term could be used leaving it to the user to decide what it includes:

e.g., where the Theft Act 1968 refers to the word ‘building’ in the offence of burglary (see first handout)

Legislation therefore involved a certain degree of uncertainty that can only be made certain through judicial interpretation.

HOW MAY JUDGES ABUSE THEIR ROLE AS NECESSARY INTERPRETERS OF LEGISLATION?

LITERAL APPROACH V PURPOSIVE

The conflict between these two approaches is one of the major issues of statutory interpretation.

Should judges examine each word and take it literally or should it be accepted that an Act of Parliament cannot cover every situation and the meaning of words cannot always be exact. In European law the purposive approach is always taken

LITERAL APPROACH / PURPOSIVE APPROACH
Definition /

• The purposive approach emphasises the purpose or aim of the law and applies it to the facts accordingly.
• It follows the spiritnot the letter of the law.

(Refer to Adam question p6 first handout)

The underlying purpose is to interpret legislation as Parliament intended it but how do judges do this when they were not in Parliament when the legislation was passed?????

Definition of ROBBERY/BURGLARY – first handout pg. 3

THERE ARE 5 PRINCIPLES THAT JUDGES USE TO HELP THEM INTERPRET STATUTES

A)Three rules (approaches) of interpretation that judges have developed

B) Intrinsic aids (aids from within the act)

C) Extrinsic aids ( )

D) Presumptions – starting points which can only be rebutted by statute using words showing a contrary meaning

E) Rules of language

A)THE RULES OF INTERPRETATION ADOPTED BY JUDGES

i)THE LITERAL RULE (APPROACH)

Under this rule the judge is required to consider what the legislation actually says rather than to consider what it means.

R V JUDGE OF THE CITY OF LONDON 1892

Lord Esher said, “If the words of the act are unclear, you must follow them even if they lead to a manifest absurdity”

IN ORDER TO ACHIEVE THIS END THE JUDGE SHOULD GIVE THE WORDS IN LEGISLATION THEIR LITERAL MEANING:

LONDON NORTH EASTERN RAILWAY CO V BERRIMAN 1946

FACTS:The Fatal Accidents Act was designed specifically to give railway worker’s dependant family compensation in the event of an accident while ‘Repairing of Relaying lines’. Mr. Berriman was killed whilst ‘maintaining’ the lines. Mrs. Berriman applied for compensation & the judge in the court applied the act LITERALLY.

Was Mrs. Berriman awarded compensation?

Give reason for your answer.

DECISION:

WHITLEY V CHAPELL 1868

FACTS: D was charged under a section which made it an offence to impersonate ‘any person entitled to vote’. D had pretended to be a person who was on the voters’ list but who had died. Anyone who is dead is not entitled to vote. The judge applied the act literally to D.

Was D convicted?

Give reason for your answer.

DECISION:

R V HARRIS 1836

FACTS: Harris bit of the end of the V’s nose. The statute stated that it was an offence

“To stab, cut or wound any person”

Did Harris commit such an offence?

HELD:

ADVANTAGES OF LITERAL RULE

i)

ii)

iii)

iv)

DISADVANTAGES OF THE LITERAL RULE

i)

ii)

iii)

IV)

ii) THE GOLDEN RULE

This rule is generally thought of as an extension of the literal rule. It is generally applied in circumstances where the application of the literal rule is likely to result in what appears to the court to be an obviously absurd result.

The golden rule starts by looking at the literal rule but then the court is allowed to avoid the interpretation which could lead to an absurd result. There are 2 views on how the Golden rule should be used. The first is very narrow:

Narrow application

Where the words are capable of more that one meaning then you can choose betweenthe 2 meanings but beyond that you cannot go

The narrow view can be seen in practice in:

R V ALLEN

FACTS: s57 of the Offences Against the Person Act 1861 stated that

“Whosoever being married shall marry any other person during the life of the former husband & wife shall be guilty of bigamy”

It was pointed out that it was impossible for a person already ‘married’ to ‘marry’ someone else they might go through a marriage ceremony but would not actually be married.

Using the literal rule would make the statute useless.

The courts therefore took ‘shall marry’ to mean ‘shall go through a ceremony of marriage

ADLER V GEORGE

FACTS:D was charged under the Official Secrets Act with obstructing a member of the armed forces ‘In the vicinity of a prohibited place’. D argued that he was actually ‘In the prohibited place’ not ‘In the vicinity of’. Had the court applied the LITERAL interpretation then he would have been found ______.

DECISION:the court interpreted the phrase ‘In the vicinity of’ to include

“In a prohibited place” to avoid the absurd result

Wider application

The second & wider application of the Golden rule is that where the words have only one clear meaning but that meaning would lead to an unsatisfactory situation.

In such a case the court will invoke the golden rule to modify the words of the statute to avoid this problem:

RE SIGSWORTH

FACTS:Son had murdered his mother.

The mother had not made a will so according to the rules of the Administration of Estates Act her estate would go to her next of kin this would mean her son would inherit as her ‘issue’.

There was no ambiguity in the words of the act, but the court was not prepared to let a murderer benefit from his crime.

HELD:So it was held that the literal rule would not apply & the golden rule would be used to stop the son inheriting.

Effectively the court was writing into the act that the ‘issue’ would not be entitled to inherit where they had killed the deceased

The golden rule provides an opportunity for judicial law making. The narrow approach allows a judge to choose between 2 or more meanings of a word.

The wider interpretation shows that the golden rule is often seen as the mischief rule in disguise finding & upholding Parliament’s intention in creating the Act. However in using the golden rule they are still seen to be applying the law – upholding the doctrine of separation of powers.

ADVANTAGES OF THE GOLDEN RULE

1) It respects the exact working of Parliament except in limited situations when there is a problem with the literal rule. The Golden rule provides an escape route - SIGSWORTH

2)It allows judges to choose the most sensible meaning of words when there is more than one meaning to an act. It can provide sensible decisions when the literal rule would lead to a repugnant situation – R v ALLEN it avoids the worst problems of the literal rule

3)It helps put into practice what Parliament really wanted as P would never have wanted the literal outcome in ALLEN

DISADVANTAGES OF THE GOLDEN RULE

1) It is limited in its use it is only used on rare occasions when the wording is absurd or repugnant. Michael Zander described it as ‘a feeble parachute’. In other words it is an escape route from the literal rule but cannot do very much

2) It is not always possible to predict whenthe courts will use it.

3) The Law Commission noted that there was no clear meaning of ‘absurd result’so it is unclear when it will be used

iii) MISCHIEF RULE

Judges fill in the ‘gaps‘ in the law

This is the most flexible rule of interpretation. The rule stresses the need to interpret legislation in a way that gives effect to the objectives of the act.

It was originally set out in HEYDON’S case in 1584.

In Heydon’s case it was stated that in making use of the mischief rule the court should consider the following things:

I)What was the common law before the act was passed?

II)The judges look at this common law to discover what ‘gap’ or ‘mischief’ the Act was introduced to cover.

III)The court should then interpret the Act in such a way that the gap is covered

This was an attempt to discover the intention of Parliament and apply it to the cases before the courts.

The judge should interpret the statute in such a way as to put a stop to the problem that parliament was addressing.

SMITH V HUGHES 1960

FACTS:In this case a prostitute was soliciting from a balcony of a private house to men to men in the street below. She was charged with ‘Soliciting in a street or public place’

Using the literal rule she was:

Using the mischief rule she was:

DECISION:

In SMITH v HUGHES Parliament had obviously not anticipated her activities therefore there is a ‘gap’ or ‘loophole’ in the law that judges can fill using the mischief rule

ROYAL COLLEGE OF NURSING V DHSS 1981

FACTS:In this case it was the working of the abortion act which was in question it stated that a ‘pregnancy could be terminated be a registered medical practitioner’. When the act was passed in 1967 the procedure to carry out an abortion was such that only a doctor (registered medical practitioner) could do it. From 1972 techniques improved & meant that the second part of the procedure could be done by a nurse without a doctor present. The court had to decide if the procedure was lawful under the Abortion Act.

HELD: The 3 judges based there decision on the MISCHIEF RULE pointing out that the mischief that Parliament was trying to remedy was the unsatisfactory state of the law before 1967 & the number of illegal abortions.

They also said that the grounds for the act was to ensure abortions were carried out by proper skilled people in hospitals.

The 2 judges in the minority took the literal view & said that the words of the act were clear & that terminations could only be carried out by doctors.

They said that the other 3 judges were not interpreting the act but re-drafting in with vengeance

EASTBOURNE BOROUGH COUNCIL V STIRLING 2000

FACTS: a taxi driver was charged with ‘Plying for hire in any street without a license to do so’.

His vehicle was parked on a taxi rank on a station forecourt, not on a street

HELD: He was found guilty as, although the taxi was on private land, he was likely to get customers from the street. The court referred to SMITH v HUGHES saying that it was the same point

R v Z 2005

FACTS:

DECISION:

ADVANTAGES OF THE MISCHIEF RULE

i)Avoids absurdity & injustice – DHSS / R V Z

ii)Promotes flexibility to find the purpose of the act and gives the legal experts more freedom of choice in their decision - DHSS

iii)Lord Denning said it allows judges to “fill in the gaps” when P has left something out and to use common sense and to use wording to reflect what P was trying to deal with therefore promoting the purpose of the law. – SMITH V HUGHES

iv)Allows the act to be interpreted to take into account the social, economic & technological changes in society - DHSS

DISADVANTAGES OF THE MISCHIEF RULE

i)It contradicts Separation of Powers as it allows judicial law making which is undemocratic. Judges are trying to fill in the gaps in the law with their own views on how the law should remedy the gap– DHSS case shows that judges do not always agree on the use of the mischief rule.

ii)Makes the law uncertain it is impossible to know when a judge may use the rule & also what result it might lead to. It is therefore difficult for a solicitor to advise clients on the law. – STIRLING / SMITH v HUGHES

iii) The mischief rule is not as wide as the purposive approach as it is limited to looking back at the gap in the old law. It cannot be used for a more general consideration of the purpose of the law.

iv ) Finding the mischief the act was trying to prevent is not easy even if Hansard is used. The judges may not reflect Parliament’s true intention as they were not there when the act was passed - DHSS

PURPOSIVE APPROACH

This goes beyond the mischief rule in that the court is not just looking to see what the gap was in the old law; the judges are deciding what they believe Parliament meant to achieve.

The champion of this approach was Lord Denning.

It means that the court, in interpreting the statute, will take into account what they believe Parliament meant to achieve however imperfectly this might have been expressed in the words used. – ‘The purpose of the act’

ROYAL COLLEGE OF NURSING V DHSS 1981

JONES V TOWER BOOT CO 1997

FACTS; The Race Relations Act S32said that it was an offence “to physically or verbally abuse within the course of employment”

A young black worker was being racially abused by his workmates during their unpaid lunchhour.

When he complained his employer said that the abuse did not fall within the ‘course of his employment’as it was in his unpaid lunch hour & so he could do nothing about it.

The Employment Tribunal agreed with the employer & said that the employer could not be held responsible to the black worker for his workmates’ behavior.

The CA disagreed using the PURPOSIVE approach to interpret s32.

They said that PARLIAMENT’S INTENTION WAS TO ELIMINATE DISCRIMINATION WITHIN THE WORKLPLACE & this would not be achieved by using a literal construction to the wording.

R V Z

HELD: Guilty as the purpose of the act was to stop terrorism & terrorists which they clearly were. (See attached sheet)

FITZPATRICK V STIRLING HOUSING ASSOACIATION 1999

(See attached sheet)

ADVANTAGES OF THE PURPOSIVE APPROACH (also see mischief rule)

i)It is much wider than any of the other 3 rules so that judges can use more discretion & find the true purpose behind the act – JONES/DHSS

ii)Avoids absurdity & injustice – DHSS / R V Z

iii)Allows the act to be interpreted to take into account the social, economic & technological changes in society - DHSS

iv)Promotes flexibility to find the purpose of the act and giving legal experts like judges more freedom of choice in their decision – DHSS/ JONES

v)Many of the courts in the countries in the EU use this approach, which brings us more into line with them

DISADVANTAGES OF THE PURPOSIVE APPROACH (also see mischief rule)

1)It contradicts Separation of Powers as it allows judicial law making which is undemocratic. Judges are trying to fill in the gaps in the law with their own views on how the law should remedy the gap– DHSS case shows that judges do not always agree on the use of the mischief rule.

ii)Makes the law uncertain it is impossible to know when a judge may use the rule & also what result it might lead to. It is therefore difficult for a solicitor to advise clients on the law. – STIRLING / JONES

iii)Not always easy for judges to find Parliaments intention (even if HANSARD is used) they may get it wrong –DHSS Parliament may not have wanted nurses to do abortions/ JONES

iv)Could lead to confusion judges could change the meaning of what the acts says – DHSS

v)It means the law is working retrospectively – R V Z/DH

AIDS TO INTERPRETATION

In addition to the 3 main rules of interpretation there are a number of secondary aids to construction. These can be categorized as INTRINSIC or EXTRINSIC in nature.

B)INTRINSIC ASSISTANCE

Judges using the literal and golden rule are more likely to favor these but they can be taken into account whichever approach is used.