What are the two most important sourcesof English Law?EU LawActs of Parliament – and the considerablequantities of delegated legislation. Forexample: Statutory Instruments, By-Lawsetc.
Language is not a precise tool …Words often take their meaning fromcontextShades of meaning (e.g. the word‘Park’)Words can change over time - grievousStatute can be hurried and not thoughtout fully: e.g. Dangerous Dogs Act 1991Language differences (EU).Draftsmen cannot foresee everything
Judge starts with a presumption …That common law has not been changedunless Act shows a clear intention to doso.That Mens rea is required in criminalcases.That Parliament has not retrospectivelychanged the law.
Rules of Language …If a list is followed by general words, thegeneral words are interpreted in thecontext of the list …Powell v Kempton Racecourse (1899).If there are no general words at the endof a list, only things in the list arecovered by the legislation. This is calledexpressio unius exclusio alterius (theexpression of one, excludes others).
Powell v Kempton Racecourse …Powell v Kempton Racecourse(1899).The words other place were held tomean other indoor place because thelist referred to a house, office, room orother place and house, office androom are all indoors.This is known as the ejusdem generisrule.
Rules of Language (contd)Words generally are interpreted in thecontext of the Section and Act as a whole.This is called noscitur a sociis (knowing aword by the company it keeps).
Approaches to interpretationLiteral Rule Golden Rule Mischief Rule – Vanstone & Sherrattclaim that a modern descendant of theMischief Rule is the … PurposiveApproach. However, Dr J considersthis to be a modern methodology whichowes its development to European Law.
ECHR compatibility …s.3 of the Human Rights Act 1998 saysthat judges MUST read all primary andsecondary legislation in a way that iscompatible with the ECHR.
ECHR compatibility …Thus, if the section or legislation has morethan one meaning – the Courts mustinterpret in accord with the ECHR.
ECHR compatibility …If legislation is not compatible – theJudge notifies the Govt Minister andleaves it to him/her.This interpretive approach, because it islaid down by Parliament, takesprecedence over common law methods.But it does not make common lawapproaches redundant. For example,the relevant Q of law may not involve ahuman rights issue.
The Literal RuleThe role of the judge is to apply the law –not make it.The only difficulty is in deciding whatParliament has said…To help determine the judges use aids thathelp clarify precisely what Parliament hassaid …
Intrinsic & Extrinsic aids …They use Intrinsic aids (definitionswithin the statute) and/or Extrinsic aids(things outside such as dictionaries).For an example of how this operatessee Mandla v Dowell Lee  HL. Inthis case a boy was excluded fromschool for wearing a turban. A Questionof Law was whether a Sikh fell withinthe Race Relations Act 1976.
Intrinsic and Extrinsic aidsThe statute (intrinsic aid) defined ‘race’as including ‘ethnicity’ – but what doesthat mean? House of Lords used adictionary (extrinsic aid) and eventuallydecided ‘ethnicity’ refers to a longshared history from a particular region.Hence, the ratio from Mandla v DowellLee now binds lower courts in relationto what ‘ethnicity’ means.
The Literal ApproachThe literal approach concentrates onwhat Parliament has said. This canoccasionally throw up odd results…See Fisher v Bell (1960), Whiteley vChappell (1868), R v Judge of the Cityof London Court  and other literalcases on the Intranet (see Case Notes).
Fisher v Bell (1960)Shopkeeper displayed a knife in hiswindow. While the Restriction ofOffensive Weapons Act 1959 made itan offence to sell such a knife.D succeeded in arguing that a display ina shop window is not an offer for sale.Under contract law it is an invitation totreat with any offer made by customers.It was presumed that Parliament did notintend to change common law
Whiteley v Chappell D was charged under a section whichmade it an offence to impersonate ‘anyperson entitled to vote’.D had voted using a dead person’s name.The Court held D was NOT guilty since adead person is not, in the literal meaningof the word, ‘entitled to vote’.
R v Judge of the City of London CourtIn this case, Lord Esher said, inapplying a literal approach …“If the words in the Act are clear thenyou must follow them even if they leadto a manifest absurdity. The court hasnothing to do with the question ofwhether the legislature has committedan absurdity.”
The Golden RuleHowever, in some cases the Judiciarymay apply the Golden Rule. This giveseffect to the clear words used byParliament, but will stop short of arriving atan absurd decision. See the cases of R v Allen (1872) and R vSigsworth (1935). See also other GoldenRule cases on the Intranet
R v Allen (1872)s.57 of the Offences Against the PersonAct 1861 made it an offence to ‘marry’whilst the original spouse was still alive(i.e. with no divorce).D claimed he could not ‘legally marry’because he was not divorced. The courtdecided that in the Act the word ‘marry’means ‘to go through a ceremony ofmarriage’. To accept otherwise wouldproduce an absurd result.
R v Sigsworth (1935)A son had murdered his mother.Mother had not made a will but, as perrules in Administration of Justice Act1925, her next of kin (her son) wouldinherit. No ambiguity in the wording ofthe Act, but the court refused to let amurderer benefit from his crime. Heldthat the literal rule should not apply andthe golden rule was used to prevent arepugnant situation.
The Mischief Rule …The Literal and Golden Rule determinewhat Parliament said. The Mischief Rule isapplied to what Parliament meant.This derives from an old rule going back toHayden’s Case (1584) and was applied inSmith v Hughes (1960). See Mischief Rulecases on the Intranet and read textbook‘AS Law’.
Hayden’s Case (1584)There are four points a Court should consider … 1. What was the common law before the Act? 2. What was the mischief and defect which thecommon law did not provide? 3. What is the remedy Parliament haveresolved? 4. The true reason of the remedy.The Judges should then suppress the mischiefand apply the remedy.
Smith v Hughes (1960)Prostitutes charged with soliciting onthe streets contrary to the StreetOffences Act 1958.Defence made that they were inside abuilding and tapping on a window toattract men (thus not on the street).Despite such, the Court applied theMischief Rule and found them guiltybecause the SOA Act 1958 wasdesigned to prevent prostitution.
A possible moral dilemma…Royal College of Nursing v DHSS(1981).This concerned the Abortion Act 1967 .Court of Appeal applied a Literal Ruleand said Doctors needed to takemedical action as per the legislation.This prevented nurses fromadministering abortion drug via a drip.
A possible moral dilemma.However, the House of Lords decidedthat the Abortion Act 1967 wasdesigned to prevent the mischief of‘back-street abortions’. Hence, so longas the Doctors supervised inducedabortions they would be within thestatute and operating legally.This case emphasises, there is adanger that Judges may be tempted toallow their moral convictions tointerfere.
Purposive ApproachEU link. Looks at the purpose behindthe legislation so as to give effect to thatpurpose.Case of Pepper v Hart (1993) enablescourts to look at Hansard where theyconsider the law is ambiguous.From 1999 a set of explanatory notesare issued with each Bill – these aredesigned to assist understanding andare not part of the Act.
Purposive ApproachUsed in Pickstone v Freeman in relationto equal treatment. Also in R v RegistrarGeneral ex parte Smith (1990).Note however, Cutter v Eagle Star(1998) and the caution, orconservatism, when it comes tochanging the law
Pickstone v Freeman (1988)In Pickstone v Freeman (1988) the Court ofAppeal held that Article 119 of the Treatyof Rome on equality of treatment for menand women was clear and could beapplied directly. Thus, they assumed thatParliament’s intent was to comply with EUlaw.
R v Registrar General ex parte Smith(1990).s.51 of the Adoption Act 1976 enables aperson to obtain a birth certificate when18 – subject to certain conditions.
R v Registrar General ex parte Smith(1990).Smith wanted a certificate in order tofind his mother – problem he was adangerous murderer in BroadmoorMental Hospital.Literal rule said he could have thecertificate – purposive approach appliedsince ‘Parliament could never haveintended to promote such seriouscrime.’
Cutter v Eagle Star (1998)Defendant insurance company would beliable to pay damages if Cutter wasinjured on a road (he was on a car park).C of A decided that a car park was a roadfor the purposes of the Road Traffic Act(1988). H of L reversed this with LordClyde saying …
Cutter v Eagle Star (1998)"It may be perfectly proper to adopt a stainedconstruction to enable the object and purposeof legislation to be fulfilled. But it cannot betaken to applying unnatural meanings tofamiliar words or to stretch the language that itsformer shape is transformed into somethingwhich is not only significantly different but hasa name of its own. This must be particularly sowhere the language has no evident ambiguityor uncertainty about it."