The English Legal System - Unit 1 Statutory Interpretation PDF

The English Legal System Unit 1 -- Prepare Work -- Statutes and Interpretation **The Importance of Statutory Interpretation** - No court may overrule any statute, and a court can do no more than interpret it -- the power of Parliament to legislate is unfettered - Who is involved in the c...

The English Legal System Unit 1 -- Prepare Work -- Statutes and Interpretation **The Importance of Statutory Interpretation** - No court may overrule any statute, and a court can do no more than interpret it -- the power of Parliament to legislate is unfettered - Who is involved in the creation of an Act of Parliament - Minister - Usually, a Government Minister will promote a Bill. They or their department will formulate the policy. Are we looking for the intention of these politicians and their advisors? - Draftsmen - The Parliamentary draftsmen will then try to put that policy into concise legal language. Maybe we are trying to ascertain their ideas when they formulated the language of the Bill? - MPs in Committee - The Bill spends a considerable time being discussed in detail by MPs in committee. Should the courts attempt to follow the deliberations of these MPs? - MPs in House - The Bill is voted upon by both Houses of Parliament at various stages. Should parliament's intent be inferred from the debates leading up to the passing of the Act? - The Queen - Finally it's the Queen who formally assents to the Bill, and it's at that moment that it becomes an Act. Is the monarch's intention what we are looking for? - Thinking about these options, we can now see how difficult its for the courts to ascertain the intention of Parliament - Minister - The minister's intent is important - it's they who conceived the Act. But then the Act eventually passed will probably have been amended greatly from the Bill the minister originally submitted to Parliament - Draftsmen - The draftsmen are the people who write the words of the statute at every stage from Bill to Act. If anyone knows what the words mean, surely they do. But they have no formal role and, in theory, just translate the intent of others into print. - MPs in Committee - The MPs in Committee discuss the Bill in detail. Their deliberations reveal why the Bill is changed before it becomes law. But their deliberations are politically motivated, and perhaps are not appropriate as a source of assistance in statutory interpretation. - MPs in House - MPs debate the Bill in the House of Commons. Their contributions often explain why the Bill is changed before it becomes law. But again their speeches are politically motivated, and perhaps are not appropriate as a source of assistance in statutory interpretation. - The Queen - It's Her Majesty's Government which formally sponsors most Bills. The monarch gives the Royal Assent and, in theory, has a veto over legislation.  - In practice, Kings and Queens now have little influence on policy, and a monarch has not vetoed legislation since Queen Anne in 1707! - So the intent of Parliament emerges as an artificial and elusive concept **The Goodwin Case** The defendant was riding a jet ski when it collided with another jet ski seriously injuring its rider. He was charged with the doing of an act by the master of a ship which caused or was likely to cause serious injury, contrary to section 58(2)(a) of the Merchant Shipping Act 1995. His application to have the indictment quashed on the ground that the jet ski was not a \"ship \" for the purposes of section 58, as it was not a \"vessel used in navigation \" within the definition in section 313(1), was dismissed, and he pleaded guilty on the basis that he was the \"master\" of the jet ski. The defendant appealed on the ground, inter alia, that, although by virtue of regulation 4 of the Merchant Shipping Act 1970 (Unregistered Ships) Regulations 1991 section 58 of the 1995 Act extended to unregistered \"sea-going ships\" and to \"masters \... employed in them\", the jet ski was not such a vessel and he was not a master so employed. **Charge**: Doing an act as master of a ship which caused -- or was likely to caused -- serious injury contrary to section 58, subsection 2(a) of the Merchant Shipping Act 1995 **Appeal:** on the basis of statutory interpretation of the word vessel **The Principles of Statutory Interpretation** - The general principles - Rules of Construction: reasons why a court or a lawyer places a particular construction on a statute - Rules of Language: technical tools to help you use the language in a statute to resolve any ambiguity - Aids to Interpretation: these are resources outside the statute, such as dictionaries which a lawyer or court can use to help resolve problems - Presumptions: assist lawyers by providing a set of assumptions about the intent of Parliament, as a backdrop to their reasoning **Rules of Construction** - The Literal Rule - Ordinary and natural meaning of the words - A dictionary often helps - Literal approach to statutory interpretation is a feature of common law countries - Civil law jurisdictions statutes are not designed to cater explicitly for every eventuality Imagine your partner is working on the railways. You get a phone call from the Railway Company to say that they've been killed whilst oiling points at a junction. You want to sue the company and you're advised that there is a statute which may be relevant. The statute says that the widows of workmen injured or killed whilst relaying or repairing the railway line will be entitled to claim compensation. - Arguments on why your claim might succeed - Using the Golden rule / Mischief rule / purposive approach -- Act was designed to protect people and allow families to receive compensation if necessary - Not fair that just relayers and repairers could recover and not oiling point people - Arguments on why your claim might fail - Literal rule -- the partner was not killed while relaying or repairing the railway line **The Golden Rule** - Mitigate some of the problems which can arise from the literal rule - A court will try to apply the Literal Rule but if this leads to manifest absurdity or an invidious result, then the court will depart from the literal meaning if there is any ambiguity **The Mischief Rule** - Allows interpretation of a statute in line with the intent of Parliament -- one way to do this is looking at Hansard, the official record of proceedings in parliament - The court will try to ascertain why the legislation was introduced with this wording and will seek to resolve ay ambiguity and reflect the legislative intention **The Purposive Approach** - Mainly used in for laws derived from EU Legislation -- Under the European Communities Act 1972, the court was required adopt a purposive approach in construing EU related legislation - Courts must interpret legislation bearing in mind the purposive approach and mischief rule are often interchangeable and would yield the same result - The purposive approach is also used in relation to human rights law -- The Human Rights Act incorporated into UK law most of the rights set out the European Convention on Human Rights - S. 3 of the Act expressly states that, "so far as its possible to do so... legislation must be read in a way which is compatible with the Convention Rights" **Rules of Language** - Take a moment to think of arguments why you should be allowed to keep your ocelot in the flat. You should also anticipate the arguments the residents' committee might raise to thwart you. - An easy argument would be that the list doesn't mention ocelots- so they're not allowed - For instance, that you interpret the word 'cat' bearing in mind the proceedings words -- they all relate to domesticated animals. They ocelot may be a member of the cat family but its not an ordinary domestic car. An alternative would be to say that you interpret the general words "other pets" in the light of the more specific words which precede them - Wider argument -- "here, the rest of the document is about keeping the flats' conditions and reputation up to standard, and about the safety of residents - Rules of Construction help decide which meaning to give words and rules of language explain how the words have the meaning they do **Aids to Interpretation** - The courts are, in principle, prepared to use anything to ascertain the intention of Parliament, although they place greater reliance on some sources than others - The centre of their attention will always be the statute itself -- anything used in the same Act is called an Intrinsic Aid - You'll find definitions clauses, usually at the start of the relevant part of the Act, or towards the end in an interpretation - Other parts are helpful but not binding -- headings, marginal notes, long title -- can help determine mischief in an Act - Extrinsic Aids - Interpretation Acts - Hansard - Previous Statutes - Dictionaries - Academic Know How - Previous Judicial Interpretation - Other - Other extrinsic aids include: - Law Commission - Official Reports - Legal Practice - International Conventions - Other Jurisdictions - Historical Setting **Presumptions** - Rebuttable presumptions can guide courts and lawyers - Loose rules that give lawyers a common starting point from which to depart in their reasoning. These presumptions are said to be rebuttable because a statute may expressly override them - Against alteration of common law - A pivotal presumption is the one against alteration of the common law. The theory is that these two sources of law- statute and precedent case law- should sit comfortably alongside one another. This is sometimes difficult when statute - for instance, the Sale of Goods Act - is superimposed upon existing areas of law- in that case, the law on contract terms. - Importantly it's presumed that no statute applies retrospectively- otherwise something which, when you did it, was lawful, might be rendered unlawful after the event. As you can imagine, this presumption is rebutted very rarely. - In a penal statute any ambiguity is construed in favour of subject - Another important presumption is that in a penal statute any ambiguity is construed in favour of the defendant. This would certainly have been relevant in *R v Goodwin*, although the point was not raised. Had the arguments against a jet ski being a ship been less convincing, the court might well have used this presumption to find Goodwin innocent - a man should not be given criminal liability if the law is genuinely unclear. - No criminal liability without guilty intent - An extension of this is the presumption that, unless the statute expressly states otherwise, criminal liability will accrue only if the defendant intended in some way to commit the crime. These two presumptions only apply to criminal cases such as *R v Goodwin*. These presumptions would not apply to the earlier jet ski case *Steedman v Schofield* - you can tell from the case name that it's a civil case. - Other - Other presumptions include: - against the retrospective operation of statutes - against ousting the jurisdiction of the courts **Now back to the man who pretended to have a gun under his jacket, so he could steal some valuables. What do you think the House of Lords concluded on the issue of whether the hidden fingers were an imitation firearm?** - The House of Lords decided that the final verdict was **Innocent**. Note first of all that none of the rules of language seem to be relevant.  - Rules of Language are more commonly used when we need to interpret a list, as in our earlier ocelot example. - The Golden Rule could be used by either side. It might be argued to be absurd that this behaviour -- terrifyingly effective as it was - could not amount to the commission of this offence. Equally it is arguably absurd for a hand to be counted as something in the possession of a man. The fact that there are two contradictory absurdities here may mean that neither is truly absurd. - If you thought the Mischief Rule was relevant and should prevail on the side of conviction, then Lord Bingham acknowledged this, saying: - **"While an imitation firearm lacks the capacity of a real... firearm to kill or injure, it has much the same capacity to frighten or enforce compliance.... So it's not surprising that Parliament has... legislated to criminalise the use and possession of imitation firearms".** - The House expressly ruled out using the Purposive construction, as it would create an offence where Parliament had not created one - that is, it would offend the presumption in favour of the defendant. - However, it was the literal rule which won the day in the House of Lords. The dictionary definition of the word, "possession" was used and the conviction was quashed. As Lord Rodger of Earlsferry accurately, if obscurely, stated, "*dominus membrorum suorum nemo videtur* - no one is to be regarded as the owner of his own limbs". - Test Your Knowledge: **Question 1** In the case of *Corkery v. Carpenter* \[1951\] 1 KB 102 the court held that under s.12 of the Licensing Act 1872, a person found drunk in charge of a \'carriage\' on the highway may be arrested without a warrant. In that case the court took the view that the word \'carriage\' could include a bicycle for the purpose of construing the Act. What mischief or mischiefs do you think the Act intended to remedy? Injury of pedestrians from drunken road users The preservation of public order Feedback The Act was aimed at drunken persons in charge of some form of transportation and the exact nature of that transportation was interpreted widely. The mischief the statute intended to remedy was injury to the public from drunken drivers and the preservation of public order. **Question** **2** The case of *Smith v. Hughes* \[1960\] 2 All ER 859, considered the meaning of s.1(1) of the Street Offences Act 1959. It is an offence under that Act for a prostitute to solicit in a \'street or public place\'. The women were not actually in the street, but were inside their homes, tapping on their windows and calling to attract the attention of men. Which of the following reflect the correct consequences of applying the rules? There is more than one correct answer. Hide answer choices  Literal Rule: acquittal Mischief Rule: conviction Golden Rule: doesn\'t apply Feedback The literal rule would have resulted in the women being acquitted. The reason is that they were in their own homes and, using the plain, ordinary or literal meaning, \'a street or public place\' does not include private residences. However, the women were found guilty. Lord Parker used the mischief rule and stated that the aim of the Act was \'to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes\'. It could be argued that the golden rule does not apply here as neither decision would have created an absurd or obnoxious result. **Question 3** Best definitions for Intrinsic and Extrinsic Aid. Intrinsic Aid is the use of the statute itself, for instance by use of *noscitur a sociis* Extrinsic Aid is the use of material from outside the statute Feedback Intrinsic Aids are **any** part of the statute itself which assists interpretation of a section of it. The statute must be read as a whole and the words read in context (note the overlap with rules of language). Extrinsic Aids are aids to interpretation which lie outside the statute itself, for instances the Interpretation Acts but also dictionaries, other statutes, Hansard and so on **Question 4** Let us assume for the purposes of the next three questions, that the legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place. Which of all the \'rules\' and aids listed are likely to be the most helpful in each case? Do not try to reach a conclusion as to whether each person has committed the offence. First, Jack is arrested for standing in a street with an unlit cigarette in his mouth. Purposive Approach Mischief Rule Literal Rule Feedback Well done. The mischief rule or the purposive approach. We would need to consider why it was an offence to smoke in order to determine whether having an unlit cigarette in Jack\'s mouth was included. The mischief or purpose of the Act is to prevent people from inhaling the smoke from other\'s cigarettes. There are health and safety issues which apply. An unlit cigarette would not be included on this basis. However, if the purpose of the Act was to prevent the public being \'offended\' by the sight or use of cigarettes, Jack is guilty. This interpretation is, however, unlikely. We could also use the literal rule. This would also result in Jack being found not guilty, as he is not \'smoking\' a cigarette in the accepted sense. **Question 5** The recent legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place. Secondly, Mandy is arrested whilst smoking a cigarette in the street. Interpretation Acts Feedback Well done. Section 6 of the Interpretation Act 1978 (an extrinsic aid) states that the masculine includes the feminine and vice versa, therefore Mandy would be guilty. **Question 6** The recent legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place. Finally, Andrew is found smoking in his university halls of residence - is this a public place? Another statute. The purposive approach. The mischief rule. Feedback We may be able to find another statute in which \'public place\' is defined, another extrinsic aid (in fact, there is such a definition in s. 16 of the Public Order Act 1986), but we would also have to look at the mischief rule again to determine whether there is any similarity of purpose between the two statutes in order to decide whether it should be interpreted in the same way. **Question 7** The case of *R v. Allen* (1872) LR 1 CCR 367 required an interpretation of s.57 of the Offences Against the Person Act 1861. This section provided that: \"Whosoever being married, shall marry any other person during the lifetime of his spouse... shall commit the offence of bigamy.\" The court concluded that the word \'marry\' can mean: \(1) to become legally married to a person; or \(2) to go through a marriage ceremony. If the word \'marry\' had been given the first interpretation, it would be impossible for anyone ever to commit this offence as one cannot legally marry if one is already married! The court therefore interpreted the word as meaning \'going through the ceremony\' of marriage. Which rule of construction was the court using? The golden rule. Feedback This is an example of the court using the golden rule to choose between two meanings of a word. In addition, the literal interpretation would lead to the absurd result that no-one could be convicted of bigamy. No mention is made of the reason for, or the purpose of, the legislation, so neither the mischief nor purposive rules are relevant. Question 8 In the case of *Whiteley v. Chappell* (1868) LR 4 QB 147 the defendant pretended to be someone who was on the voters\' list, but who had died. He was charged with impersonating \'a person entitled to vote\', but was found not guilty. The reluctant conclusion drawn by the court was that Whiteley could not be convicted of the statutory offence because the person he impersonated was dead, and on a literal construction of the relevant statutory provision, the deceased was not \'a person entitled to vote\'. Is the following statement correct? \"If the mischief rule had been used. The defendant would have been found not guilty.\" False Feedback The aim of the legislation was clearly to prevent people from voting when they were not entitled to vote or had already voted. Therefore the defendant was clearly in breach of the spirit of the law, although not the strict letter of it. The effect of the three rules of construction is that different decisions can be reached, depending upon which is used on the given facts. **Question 9** Can records of speeches by MPs be used to help resolve any ambiguities in statutes? Feedback The court can use speeches by MPs to help resolve statutory ambiguities, but only if the particular MP was the sponsor of the Bill, or the relevant minister. The formal record of proceedings in Parliament is Hansard, so an advocate would refer to a speech by such an MP as reported by Hansard. Question 10 If the court was using a speech by an MP to help resolve a statutory ambiguity, which rule of interpretation would it most likely be applying? Mischief rule. Feedback You would try to use Hansard to work out \'from the horse\'s mouth\' what the mischief was which caused the Act to be passed by Parliament. Indeed, you could in theory use Hansard to back up any argument on statutory interpretation. However, you should always be careful when using Hansard as the Minister or promoter of the Bill might have been unsuccessful in getting their unamended Bill through both Houses of Parliament. **Question 11** A clause in a lease agreement states: \'The following animals must not be brought into this block of flats: dogs, cats, hamsters and gerbils\'. Using the *noscitur a sociis* rule, would the list include a leopard? No Feedback Well done. Common sense would suggest that leopards would not be included. The rule which applies here is that of *noscitur a sociis*, because the clause contains an exhaustive list of animals. As a consequence, a leopard would not be included because \'cats\' in this context means \'domestic cats\'. **Question 12** The Factories Act 1961 required that all \'floors, steps, stairs, passageways and gangways\' had to be kept free from obstruction. The question which the court had to decide in *Pengelly v. Bell Punch Co. L*td \[1964\] 1 WLR 1055 was whether a floor used for storage came under the provisions of the Act. What do you think was the answer to this question? False Feedback Well done. *Noscitur a sociis* was used to assist in the interpretation of the Factories Act 1961. The court held that as all the other words were used to indicate passage, a floor used exclusively for storage did not fall within the Act. **Question 13** The case of *Wood v. Commissioner of Police of the Metropolis* \[1986\] 1 WLR 796 highlighted the difficulty in interpreting exactly what is meant by an offensive weapon. This was defined by s.4 of the Vagrancy Act 1824 as being \'any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon\'. Mr Wood was charged under this Act after using a piece of broken glass, which had fallen out of his front door, as a weapon. Which ONE of the following is correct? Feedback Well done. Here, unlike in the last example, we have general words, which follow specific words. So we need to interpret the general words in the light of the specific words that proceed it. C cannot be right as it does not acknowledge the deliberate generality of the words, \'offensive weapon\'. B is not right because it fails to look for a common denominator among the words which precede it. It therefore takes too wide an interpretation of the general words at the end of the list. Broken glass is not of the same type as it was neither made nor adapted for causing injury to a person. It is not enough that an item has the potential for such use. If a general word follows two or more specific words, that general word will only apply to items of the same type, as the specific words. *Eiusdem (or ejusdem) generis* means \'of the same type\'. To determine whether this rule applies, use the structured approach set out below to Mr Wood\'s use of the broken glass: 1. Here there are general words (\'or other offensive weapon\') following a list of specific words. 2. The specific words are all of the same type in that they are items made or adapted as weapons. Because they have been designed as weapons, they have a common feature. 3. Interpretation: broken glass is not of the same type as it was neither made nor adapted for causing injury to a person. It is not enough that an item has the potential for such use. **Question 14** In *R v. Inhabitants of Sedgley* (1831) 2 B & Ald 65, the court considered whether the poor rate levied on occupiers of \'lands, houses and coal mines\' under the Poor Relief Act 1601 could be levied on owners of other types of mine. Bearing in mind how this list is different to the list of offensive weapons under s.4 of the Vagrancy Act 1824, what do you think the outcome of the case was? The Poor Rate did not apply. Feedback Well done - the Poor Rate did not apply. *\'Expressio unius*\' was the relevant rule of language. This rule applies where there is a list of words, which is not followed by general words - hence the difference with the definition of an offensive weapon. The judges held that the Poor Rate could not be levied on other mines. This makes sense as otherwise there was no explanation for the insertion of the word \'coal\'. However, care must be taken when using this particular rule, as the omission may be inadvertent. Note that this rule usually produces the opposite result to the \'*Noscitur*\' rule. **Question 15** Consider the example taken from a decided case. A statute requires an employer to protect employees from \'danger from shock, burn or other injury\' Does this include tripping? **If you were a judge hearing the case, which of the following rules would you apply?** Eiusdem generis Feedback The *eiusdem generis* rule was applied in the case *Lane v London Electricity Board* \[1955\] 1 ER 324 as these are specific words which are followed by the general word \'or other injury\'. However, as shock and burn were both dangers from electricity, they were regarded as a different type of injury to tripping over the cables, so tripping was excluded. **Hunting Act 2004** - Hunting Act is a primary Legislation as it is a public statute - A secondary legislation is the granting of additional law-makers powers to another branch of government by an Act or Statute - Primary Legislation - Generally, consists of statutes (acts) that set out broad outlines and principles but delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act - Secondary Legislation - The executive branch can then issue secondary legislation (mainly via its regulatory agencies) creating legally-enforceable regulation and procedures for implementing them - **The short title** is The Hunting Act, and the year (2004) is the year of its publication. This is the proper way to describe a statute - **The long title** is 'An Act to make provision about hunting wild mammals with dogs; to prohibit hare coursing; and for connected purposes'. The aim of this is to give some indication of the Act's general purpose - **Full Citation** -- the citation is 2004 Chapter 37. Thus it is the 37^th^ Act of 2004 - Prior to 1963 the "regnal year" method was used, eg. 5 Eliz. II c.7 was the 7^th^ statute of the 5^th^ year of the Present Queen's reign -- 19957 - **Date --** this is the date when Royal Assent was given, converting the Bill into an Act -- An Act takes effect on this date, unless otherwise stated - **Enacting Formula -** this indicates that an Act has been properly passed by all the different parts of the legislature -- under the date (BE IT ENACTED) - **Section 1** prohibits hunting a wild mammal with a dog, unless the hunting is exempt - **Section 4 --** provides a defence if the person reasonably believed that the hunting was exempt and these are set out in Schedule 1 - **Section 6 --** section 6 confirms that a person convicted will