THE UNIVERSITY OF TECHNOLOGY, JAMAICA

THE FACULTY OF LAW

LEGAL METHODS, RESEARCH & WRITING

UNIT 2- LECTURE NOTES

Focus of Unit Two:

(i) Statutory Interpretation; namely:

(a) Rules of Interpretation;

(b) Aids to Interpretation

(ii) Sources of Law;

(iii)Primary & Secondary Legislation

STATUTORY INTERPRETATION

Written words are not like conversation: there is no inflexion, no stress, no sense of

irony, no opportunity to ask what do you mean?; the lifeblood of everyday speech is

missing. The reader therefore has to give life to the words by interpreting what they

mean and how they are meant to apply to particular situations.

James A. Holland and Julian S. Webb: Learning Legal Rules

The above quotation accurately reflects the difficulty which often times accompanies reading and

interpreting the written word.

More than any other piece of written material, it can be argued that statutes represent some of

the most complex writing which exists. They are some statutes so unclear, cumbersome and

difficult to understand that many times it is only after several readings of same that one is able to

get a sense of what the draftsman was trying to say.

The Legal draftsman is responsible for putting the will of the Legislature in written form. His job

is therefore critically important. He must approach his job with unrivalled precision and clarity

always, with a view to making its interpretation easy.

Based on the amount of litigation that has arisen over the years with respect to statutory

interpretation, it would appear as though this is not the easiest of tasks. Where the words of a

statute are clear and unambiguous, no problem arises with respect to its interpretation and

citizens are expected to conduct themselves accordingly. Where however, the words of a statute

are unclear, or ambiguous, the draftsman has undoubtedly opened up his work to judicial

interpretation.

In the past, when legislation came up for Judicial Interpretation, there were traditionally three

major rules which the court used independently to assist it. These were:

(i) The Mischief Rule

(ii) The Literal Rule

(iii)The Golden Rule

THE MISCHIEF RULE

The Mischief Rule is arguably the oldest known rule of statutory interpretation having its basis in

the Heydons case of 1584. At its core, the rule is concerned with trying to ascertain what defect,

wrong or mischief Parliament was trying to remedy by enactment of the disputed legislation and

interpreting the legislation with this in mind. This rule is therefore concerned with interpreting

the Act so as to give effect, as far as possible, to the objectives of Parliament.

In the Heydon case, the Baron of Exchequer set out four basic questions which had to be

considered prior to the proper application of this rule. These were:

(i) What was the common law before the making of the Act?

(ii) What was the mischief and defect for which the common law did not provide?

(iii)What remedy the Parliament hath resolved and appointed to cure the disease of the

Commonwealth and

(iv) The true reason of the remedy.

Having answered those four questions, the job of the judge was then to construe the Act so as to:

(i) suppress the mischief;

(ii) Advance the remedy;

(iii)Suppress anything that would lead to the continuance of the mischief and;

(iv) Advance the cure and the remedy according to the true intent of the makers of the Act for

the publics benefit.

What this meant is that the judges, in applying the rule, did what they could with the words of

the statute in order to effectively deal with the mischief as they saw it. While this is

commendable, the mischief rule, in its traditional sense, was limited in scope as the courts were

not permitted to look beyond the bounds of the Act to discover the mischief Parliament was

trying to remedy. This was because, around the time when this rule was first propounded, the

mischief could always be discovered within the Act itself as the reason for the Acts existence

was stated in the preamble. The internal context of the Act was therefore sufficient to determine

exactly which mischief Parliament was trying to address.

As noted by Lord Diplock in the case Black Clawson International Ltd. v Papierwerke

Waldhof Aschaffenburg AG:

when it was laid down, the mischief rule did not require the court to travel beyond the

actual words of the statute itself to identify the mischief and defect for which the

Common law did not provide for this would have been stated in the preamble

The above case is credited with expanding the traditional Mischief Rule. In that case Lord Reid

stated:

The word mischief is traditional. I would expand it in this way. In addition to reading

the Act, you look at the facts presumed to be known to Parliament when the Bill

which became the Act in question came before it and you consider whether there is

disclosed some unsatisfactory state of affairs which Parliament can properly be

supposed to have intended to remedy by the Actthe mischief which this Act was

intended to remedy may have been common knowledge 40 years ago. I do not think it is

today. But it so happens that a committee including many eminent and skilled members

made a full investigation of the matter and reported some months before the Act was

passedI think that we can take this report as accurately stating the mischief

and the law as it was then understood to be, and therefore we are fully entitled to

look at those parts of the report which deal with those matters.

The more modern approach to the mischief rule therefore, (which bears resemblance to the

purposive rule to be discussed below), unlike the more traditional approach, facilitates the review

of material which is not intrinsic to the Act alone; for example, in the cases of Guyana Labour

Union v McKenzie and Bata Shoe Co Guyana Ltd et al v Commissioner of Inland Revenue

judges used the more modern approach to the mischief rule to look at a report on the legislation

and a report of the legislative committee to find the mischief parliament was trying to suppress.

Using the traditional approach to the rule, judges would not have been permitted to do that.

Critique of the Mischief Rule

While the mischief rule undoubtedly is one of the more embracing and all encompassing rules of

the three traditional rules (we will see this after a full discussion of all the rules) because it goes

beyond the mere language of the statute and seeks to give effect to the legislative purpose, the

Mischief Rule is not without its defects.

One of its most significant defects being the lack of certainty as it relates to what the court is

permitted to look at in the determination of the mischief. As noted before, when the rule was first

propounded, the mischief was identified by examining the Preamble and other words of the

statute, i.e. by looking at the content of the statute itself. The landmark case of Black Clawson

however on the face of it, seemed to broaden the application of the rule by expanding the

material the courts could look at to determine the mischief Parliament was trying to address,

but fell short in giving any decisive indicators on how far the court could go. Practically, the rule

still seems largely constrained by the legislations internal context which, in some instances, is

very limiting.

So while the case gave some leverage in the rules application and appeared to have expanded its

boundaries, it also made it clear that there were still some inherent limitations in the rule. In his

judgment Lord Diplock noted:

when it was laid down, the "mischief" rule did not require the court to travel beyond the actual words of the statute itself to identify "the mischief and defect for which the

common law did not provide", for this would have been stated in the preamble. It was a

rule of construction of the actual words appearing in the statute and nothing else. In

construing modern statutes which contain no preambles to serve as aids to the

construction of enacting words the "mischief" rule must be used with caution to

justify any reference to extraneous documents for this purpose.

Even in its broadened sense, the mischief rule still seems to dictate that reference to intrinsic aids

must be used as far as possible, with extraneous documents being allowed in limited situation.

See full case of Black Clawson (reference provided in tutorial sheet).

THE LITERAL RULE

It is interesting to note from the offset that the literal rule and the mischief rule are worlds apart

in their approach and in many instances the final interpretation a court gives a piece of

legislation. They are separate rules existing independent of each other.

The literal rule is rooted in the Sussex Peerage Case of 1844.

In that case Tindal Chief Justice stated:

If the words of the statute are in themselves precise and unambiguous then no more can

be necessary than to expound words in their natural and ordinary sense. The words alone

themselves do best declare the intention of the lawgiver

A later restatement of this rule can be found in the case of Duport Steel v Sirs [1980] 1WLR in

which Lord Diplock stated:

Where the meaning of the statutory words is plain and unambiguous it is not for the

judges to invent fancied ambiguities as an excuse for failing to give effect to its plain

meaning because they consider the consequences of doing so would be inexpedient, or

even unjust or immoral.

This approach basically states that the words used by the legislature in a statute should be given

their ordinary or usual meaning and it is usually the preferred approach of conservative judges. If

the words are clear then the meaning of the words assigned to them must be given their literal

meaning no matter how unjust or absurd the result. If the words when interpreted literally are

capable of having alternative meanings, then this rule cannot be applied, and as such this is

automatically disqualified in the face of ambiguity.

The basic premise of this rule is that the court cannot presume parliaments intention; if

Parliament intended a certain result, it would have said so in clear plain language. Therefore,

when employing this rule, the courts are not required nor expected to look anywhere else for

assistance in the interpretation of the statute.

As noted by Rosemarie Belle Antonie in her book Commonwealth Caribbean Law and Legal

Systems, The words of themselves are sufficient and independent. The background to the

legislation, its policy objectives, other sections within the statute, and other potentially useful

indices of meaning, are all excluded.

Notably, the rule as expounded in the Sussex Peerage case, permits the review of the Preamble

in certain instances to assist it with the interpretation of the statute; the preamble, being noted at

page 143 of the Sussex Peerage case, as a key to open the minds of the makers of the Act.

There is no problem with this rule when its application results in a reasonable interpretation of

the statute. The application of this rule becomes difficult however, when as a result of

incompetent drafting, the rule produces either an improbable result or in extreme cases, a

manifest absurdity, as on the application of this rule, notwithstanding how unlikely a result may

be when the statue is literally interpreted, the judges are bound to accept that literal

interpretation.

Lord Esher put it best in the case of R v Judges of City of London Court when he said:

If the words of an Act are clear, you must follow them, even though they lead to a

manifest absurdity. The court has nothing to do with the question of whether the

legislature has committed an absurdity.

This sentiment was also noted in the case of Hope v Smith where it was stated:

where the language of an enactment is clear and unambiguous, it is not the function of

the courts to relieve against any harshness which it may not may not be thought to

occasion. That is a matter for Parliament to consider, and if Parliament thinks that any

hardship which any legislation may cause can be avoided by the judicial exercise of

discretion by those to whom is committed the duty to administering it, the courts

must decline to assume a corrective power which they do not at all possess

In that case the court was essentially saying that it does not have the jurisdiction to look behind

the clear words of Parliament; to do so would be acting clearly outside their judicial function as

interpreters of the law and not makers of the law

An example of the proper application of the literal rule which led to a manifest absurdity is the

case of Baptiste v Alleyne (1970) 16 WIR 437; where a defendants conviction was quashed on

appeal because he was found outside a house with his hand through a window choking the

female occupant. He was charged with the offence of being found in any building with an intent

to commit a felony.

The court of Appeal found that if a person is to be convicted of such an offence, there must be

clear and unmistakable evidence that the person had been found in the building. De La Bastide

JA, for the Court of Appeal stated:

There is no such evidence in the instant case, for on a full and reasonable interpretation

of the evidence which was that the appellant was standing on the ground outside the

window with both hands inside the house, he cannot in this courts view be said to have

been found in the building on a literal meaning or ordinary interpretation of the words

of Section 29 (d) of the Larceny OrdinanceThe Court of Appeal allowed the appeal and

quashed the conviction.

(Please read entire case).

It is submitted that this is a far too detached view for the courts to take when called to interpret

statute and one could see how undesirable the application of this rule may be at times.

Some of the more notable defects of the literal rule may be summed up as follows:

(i) The Literal interpretation of words in a statute do not always evoke the intention of

Parliament, as such it may be an inadequate means to interpret statutes.

(ii) This rules assumes that words have plain and ordinary meanings apart from their context.

Anyone who has a proper command of language knows that to accurately ascertain

the meaning of a particular word, it must be construed against the context it is placed

and it is only then that the complete sentence or in this particular case, statutory

provision can be properly interpreted.

(iii)The literal approach is confined to words which bear only one meaning; where a word is

ambiguous and capable of bearing more than one meaning the deficiencies of this

approach become obvious.

(iv) Even where the meaning of a word is plain, different judges may interpret its meaning

differently as in the case of Newsbury District Council v Secretary of State for the

Environment. In that case all five judges agreed that the word repository had a clear

and natural meaning and yet all five judges assigned a different meaning to the word.

(v) The literal approach is far too limited in scope; it ignores the circumstances which gave

rise to the enactment of the statue thereby denying judges the right to interpret the

statue in a wholistic sense;

(vi) The emphasis on the literal approach assumes a certain perfection of draftsmanship which

is largely unrealistic.

(vii) The use of the literal approach implies a certain laziness in the judges who do no need

to be concerned which other statutory aids.

(viii) The strict use of the literal rule can sometimes lead to such absurdities that the ends of

justice are wholly defeated and the confidence of the public in the judicial system

deflated.

THE GOLDEN RULE

Having seen some of the absurd decisions which could result from a strict application of the

literal rule, the golden rule is based upon the assumption that Parliament does not intend to effect

an absurd or inconvenient result. In its simplest terms, this rules allows for a departure from the

ordinary meaning of words, or more particularly: the literal rule, if to apply same would lead to a

manifestly absurd result.

The golden rule seems to have originated from the case of Grey v Pearson (1857) where it was

stated that the golden rule means no more that that the meaning of words of the Act may be

modified in order to avoid repugnance, inconsistency or absurdity. In that case Lord

Wensleydale stated:

in construing statutes and all written instruments, the grammatical and ordinary sense

of the words is to be adhered to unless that would lead to some absurdity, or some

repugnance or inconsistency with the rest of the instrument in which case the

grammatical and ordinary sense of the words may be modified, so as to avoid that

absurdity, but no farther.

The rational of the rule is that the legislature could not have possibly intended the result that

would have occurred on an ordinary literal interpretation of the words. This does not mean that

one could assign the words in dispute any meaning whatsoever, so that the meaning, though it

would not produce an absurd result, bears no resemblance to the objective of the Act, but rather ,

it means that in instances where the meaning of the word may be modified, or a less usual

meaning be assigned so that an absurd result does not arise and yet still the assigned meaning

would conform to the overall objective of the legislature, then one could depart from the literal

approach.

The Golden Rule is therefore meant to correct inappropriate language which may have been used

by the draftsman on the premise that where the main object and intention of a statute are clear, it

must not be reduced to a nullity by the drafters lack of skill or ignorance of the law, except in a

case of necessity or absolute intractability of the language used.

The idea simply is that as far as possible, effect is to be given to the objectives of the legislature,

and if a substitute to the ordinary word is required to do this, then so be it.

As noted by Lord Lindley in the Duke of Buccleuch:

You are not to construe an Act of Parliament so as to reduce it to rank absurdity. You

are not to attribute to general language used by the Legislature in this case, any more than

in any other case, a meaning which would not carry out its object, but produce

consequences which, to the ordinary intelligence, are absurd. You must give it such

meaning as will carry out its objects.

Lord Reid, in the case of Gartside v IRC had his take on the golden rule when he stated:

It is always proper to construe an ambiguous word or phrase in light of the mischief

which the provision is obviously designed to prevent, and in the light of the

reasonableness of the consequences which follow from giving it a particular construction.

These authorities seem to be saying many things, so the question really becomes how and when

do you apply the golden rule. This question seemed to be answered by Lord Blackburn in the

case of River Wear Commissioners v Anderson. In that case, Lord Blackburn stated:

We are to take the whole statute together, and construe it all together, giving the

words their ordinary signification, unless when so applied they produce an

inconsistency, or an absurdity or inconvenience so great as to convince the court

that the intention could not have been to use them in their ordinary signification,

and to justify the court in putting on them some other signification, though less

proper, is one which the court thinks the words will bear.

What Lord Blackburn is saying can be broken down as follows:

(i) Before one can even look to the application of the golden rule, one must have started at

the literal rule;

(ii) It is only after recognition that the application of the literal rule would result in a manifest

absurdity if read within the statute as a whole, that the court is permitted to substitute

the ordinary meaning of the word with one that is less common, but one which

relates to the overall objective of Parliament

In this way, the golden rule may be viewed as an accessory to, or a shadow of the literal rule. It

does not exist independently of the literal rule but only comes into play as a back up when the

literal rule has failed to produce a reasonable result.

It should be noted that the courts are reluctant to substitute words in a statute, or to add

words to it, and it has been said that they will only do so when there is a repugnancy to

good law. As noted by Rosemarie Belle Antoine, the rule may thus be expressed as a rule

of commonsense; She seemed to be echoing the sentiments of Lord Goddard CJ in the case

of Barnes v Jervis when he stated.A certain amount of commonsense must be applied in

construing statutes.

Criticisms of the Golden Rule

This rule has been criticized because it seeks to go against the ordinary meaning of the words

used, and it has long been recognized that it is not the job of the courts to make law but rather to

interpret it; it is the job of Parliament to make law, and if parliament words are clear then effect

should be given to them regardless of the absurdity.

As noted in the case of Warburton v Loveland:

Where the language of an Act is clear and explicit, we must give effect to it. Whatever

may be the consequences, for in that case the words of the statute speak to the intention

of the legislature.

Other major criticisms lie in the fact that this approach is too subjective and leaves too much

discretion to individual judges with respect to what is deemed absurd. What an individual judge

may deem absurd may not have been deemed absurd by the legislature. As there is no definite

common interpretation of absurd the application of the golden rule is thought to be uncertain and

erratic.

In fairness to the rule however, it is submitted that it is only, after reading the text as a whole

that the a judge can decide whether the literal approach produces an absurd result or not; so that

the determination of whether the meaning of a word is absurd or not has not so much to do with

the subjective definition of the word, but rather, if after reading the text as a whole the literal

interpretation could never be deemed to correspond with the will of the legislature.

CONTEMPORARY APPROACHES

Difficulties and inconsistencies with the three traditional rules of statutory interpretation have led

to alternative approaches being proposed and used.

In the modern context courts are being increasingly urged to adopt a unified contextual approach

where greater prominence is given to the context of the words used in the statute as opposed to

the words themselves. This approach has been promoted by Sir Rupert Cross and it recognizes

the value to be placed on each of the more traditional rules in getting the interpretation of statute

right. The unified contextual approach can be broken to its most basic down as follows:

(i) The judge must first give effect to the ordinary, or where appropriate, the technical

meaning of the words. However this must be done having regard to the general

context of the statute.(merge of literal and golden rule).

(ii) If the judge finds that the primary meaning of the words produces injustice, absurdity,

anomaly or contradiction, then he may move on to consider other possibilities; for

example he may choose a secondary meaning. There is a presumption that Parliament

does not intend an absurdity (golden rule.)

(iii)A judge may also include words necessarily implied by the words in the statute or

exclude or alter words, but he should do so rarely and only out of absolute necessity.

This should only be done where the words are unworkable or totally

irreconcilable with the rest of the statute (golden rule)

As was stated by Lord Scarman in the case of Stack v Frank Jones (Tipton) Limited

If the words used by Parliament are plain, there is no room for the anomalies

test, unless the consequences are so absurd that, without going outside the statute,

one can see that Parliament must have made a drafting mistake. If words, have

been inadvertently used, it is legitimate for the court to substitute what is apt to

avoid the intention of the legislature being defeatedIf a study of the statute as a

whole leads inexorably to the conclusion that Parliament had erred in its choice of

words, for example used and when or was clearly intended, then the courts

can and must eliminate the error (of commission or omission) by interpretation,

but mere manifest absurdity is not enough, it must be an error of commission or

omission) which in its context defeats the intention of the Act.

THE PURPOSIVE APPROACH (difference between this and the golden approach lies in

the fact that the golden rule can only substitute meaning after looking at the statute as a

whole whereas the purposive approach allows you to look outside of the text to effect the

purpose of Parliament)

Aside from the unified context rule, there is the purposive approach.

The purposive approach was propounded by Lord Denning. As noted in Notham v London

Borough of Barnett, this approach seeks to promote the general legislative purpose underlying

the provision in issue. The purposive approach is not only constrained by the use of statutory

text, as the golden rule is, but rather in order to effect the purpose of the disputed legislation, the

court may have regard to the various rules of or aids to construction and presumptions.

With respect to this approach, Lord Denning in the case of Magor and St. Mellons v Newport

Borough Council (1952) HL stated:

We do not sit here to pull the language of Parliament to pieces and make nonsense of

itwe sit here to find out the intention of Parliament and carry it out, and we do this

better by filling in the gaps and making sense of the enactment.

Lord Griffiths put it another way in the renowned case of Pepper v Hart. In that case Lord

Griffiths stated:

The days have long passed when the courts adopted a strict constructionist view of

interpretation which required them to adopt the literal meaning of language. The courts now

adopt a purposive approach which seeks to give effect to the true purpose of legislation and

are prepared to look at much extraneous material that bears upon the background against

which the legislation was enacted,

The court is to presume that the legislature intended to enact provisions consistent with the

legislative purpose.

In the case of Duport Steels Ltd v Sirs, Lord Scarman stated the following, inter alia, with

respect to the application of the purposive rule:

i. In the purposive approach the judges seek the interpretation which will promote the

underlying purpose of the statute, rather than being content to apply the ordinary

meaning to the words read.

ii. Interpretation does of course imply in the interpreter a power of choice where different

constructions are possible. But our law requires a judge to choose the construction

which in his judgment best meets the legislative purpose of the enactment.

iii. If the result is unjust but inevitable, the judge may say so and invite Parliament to

reconsider its position. But he must not deny statute (note that this shows clearly that

this approach focuses mainly on effecting the legislative purpose and if this is found

to be unfair, after the application of all permissible aids, then not even on application

of this rule, can the court deny the unfavourable interpretation.)

iv. Unpalatable statute may not be disregarded or rejected merely because it is unpalatable;

v. Only if a just result can be achieved without violating the legislative purpose of the

statute may the judge select the construction which best suits his idea of what justice

requires.

vi. The court does not decide whether or not any real doubts exists as to the meaning of an

enactment until it has first discerned and considered the purpose and contents of the

enactment.

vii. Without exception statutory words require careful assessment of themselves and their

context if they are to be construed correctly. The ground and cause of the statute is

referred to before deciding whether the words are clear or ambiguous.

The purposive approach thus takes account not only of the words of the Act according to their

ordinary meaning but also the context. Context here does not simply mean linguistic context, but

also takes into account the subject matter, scope and purpose of the Act. There is no

concentration on language to the exclusion of context or vice versa.

The rule therefore puts forward a more wholistic approach to the interpretation of statutes, with

the objective in the words of Lord Griffith in Pepper v Hart being the approach which seeks to

give effect to the true purpose of legislation.

While the purposive rule has been criticized on the grounds that it gives judges too much lee-way

in interpretation, or in the words of [Lord Simmonds in the case of Magor and St. Mellons v

Newport Corporation it facilitates a naked usurpation of the judicial function under the guise

of interpretation, the purposive approach seems to be most accepted approach to statutory

interpretation today.

Whether the harsh criticism of Lord Simmonds aforesaid, is truly deserved is open to debate as,

it should also be noted that even under this rule, if there is nothing to qualify the language

used then effect has to be given to it even if the result is unfair or unjust. The judge

interpreting the statute cannot for any reason attach a meaning to a statutory provision which the

words cannot bear. IT IS ONLY WHEN THE MEANING OF THE WORD IS DOUBTFUL and

leads to some result which cannot reasonably be supposed to have been the intention of the

legislator that one can look for some other possible meaning of the words.

It should be seen therefore, that just like the golden rule, the purposive rule may be viewed as an

accessory to, or a shadow of the literal rule. It does not exist independently of the literal rule but

only comes into play as a back up when the literal rule has failed to produce a reasonable result

AIDS TO INTERPRETATION

Under the purposive approach, we spoke about the fact that the use of certain extrinsic aids to

interpretation was permissible in determining the legislative purpose. The more common aids to

construction are as follows:

(i) Rules of Language;

(ii) Presumptions;

(iii)Intrinsic Aids;

(iv) Extrinsic Aids

Some of the more common rules of Language:

(i) Nosciter a sociis

The meaning of a word is to be gathered from its context. The meaning of a word is liable to be

affected by the words surrounding it. The legislature is deemed not to waste words or say

anything in vain.

As noted by Stamp J in the case of Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691

English words derive colour from those which surround them. Sentences are not mere

collections of word to be taken out of the sentence, defined separately by reference to the

dictionary or decided cases, and then put back into the sentence with the meaning which you

have assigned to them as separate words

Essentially the meaning of a word is clarified by the words with which it is associated.

Note the case of Mills v Cooper below for application of this rule.

Mills v. Cooper

An information preferred against the defendant that he, on December 22, 1965, being a gipsy did

without lawful excuse or authority encamp on a highway contrary to section 127 of the

Highways Act, 1959, was dismissed in February, 1966, on a submission of no case to answer on

the grounds that the justices were not satisfied that he was a gipsy.

Some ten weeks later a similar information was preferred against him alleging that he was a

gipsy on March 13, 1966, and he contended that, since the issue whether he was a gipsy had been

decided in his favour in February, there was an issue estoppel debarring the justices from

reopening that question and that the later proceedings were oppressive and an abuse of the

process of the court.

The justices being in doubt whether the doctrine of issue estoppel was applicable in criminal law

refused to apply the doctrine but dismissed the information in their discretion on the ground that

the proceedings were oppressive and an abuse of the process of the court. On appeal.

HELD: Allowing the appeal,

(1) that, in the context of section 127 of the Highways Act, 1959, "gipsy" could not bear

the dictionary meaning of a member of the Romany race but was to be given the colloquial

meaning of a person leading a nomadic life with no fixed employment and with no fixed

abode (per Lord Parker C.J.), or a person without fixed abode who led a nomadic life,

dwelling in tents or other shelters or in caravans or other vehicles (per Diplock L.J.); so

that being a gipsy was not an unalterable status, and a person might have been a gipsy at

one time and not a gipsy at another time.

(2) Accordingly, since the issue determined in February was that the defendant was not a

gipsy on December 22, 1965, and the issue for determination some 10 weeks later was

whether he was a gipsy on March 13, 1966, the justices were right in so far as they did not

apply the doctrine of issue estoppel.

(ii) Ejusden generis rule (of the same kind)

Where general words follow particular words, the general words are confined to the same class

(ejusdem generis) as the particular words. As noted by Rose Marie Belle Antoine, The intention

is to cover a wide range of similar circumstances by first creating a genus, category or clad that

is two or more examples, followed by a general expression which has the effect of extending the

operation of the statute to all particular circumstances which are within the genus created. In this

way, the statute does not need to list all the relevant examples.

The case of Powell v Kempton Park Racecourse Co illustrates the use of this rule well. In that

case a section of the Betting Act prohibited the keeping of a house, office, room, or other place

for betting with persons resorting thereto. The issue at hand was whether Tattersalls Ring at a

racecourse was an other place within the meaning of the Act.

The House of Lords held that it was not since the words house, office and room created a

genus of indoor places. A racecourse being outdoors, did not fall within the genus.

It must be noted however that before this rule can take effect a clear category must first be

indentified.

(iii) Expressio unius est exclusion alterius

This rule literally means to mention one thing is to exclude another. The mention of one or more

things of a particular class may be regarded by implication excluding all other members of the

classe.g lands, houses and coalmines may mean that no mines other coalmines are included

in the word

This rule should however be applied with discretion. In the case of Prestcold (Central) Ltd. v

Minister of Labour it was stated:

It is often a valuable servant but a dangerous master to follow in the construction of

statutes or documents. The exclusion is often the result of inadvertence or accident and

the maxim ought not to be applied when its application, having regard to the subject

matter to which it is to be applied, leads to inconsistency or injustice

(iv) Generalia specialibus non derogant

Where Parliament in an earlier statute has directed its attention to a particular case and has made

provision for it unambiguously, there is a presumption that if subsequent legislation lays down a

general principle, that general principle is not to take away from what the legislature provided for

individually unless an intention to do so is specifically stated.

Presumptions

1. There is presumption against interference with vested rights; a mans rights are not to be

taken away on an ambiguity;

2. There is a presumption against ousting the jurisdiction of the courts

3. There is a presumption that statues do not operate retrospectively. If this were otherwise

there would be no certainty to the law and citizens could never be sure as to whether they

would be charged for a crime which did not exits at the time they may have done a now

illegal act.

4. There is a presumption in favour of strict construction of a penal statute; i.e. Penal

statutes should be construed strictly in favour in of the citizen. A person should not be

penalized under clear law. A law that inflicts hardship or deprivation of any kind in

essence penal

5. There is a presumption that Parliament does not intend to take away property rights.

6. There is a presumption against a change in common law; unless the words of the subject

statute are clear, the courts will not effect a change to the existing law. A corollary to this

presumption is that plain clear words are necessary to establish an intention to interfere

with common law rights.

7. Presumption towards fairness and justice.

8. Presumption of constitutionality.

9. Presumption that the latter statute repeals the former.

10. The presumption that where provisions within statute conflict the latter provision

overrides the former. The true application of this rule is that the court must determine as a

matter of construction which is the leading provision and which may give way to the

other.

11. Presumption that Parliament does not legislate contrary to its international obligations.

12. Ut res magis valeat quam pereat

It is better for a thing to have effect that to be made void; put another way, Parliament does

not legislate in vain.

Statutes must be construed to make them operative. If the choice is between two

interpretations, the interpreter should avoid a construction that would reduce the legislation

to a mere futility. Where alternative constructions are equally open, the alternative which

works best with the system which the particular piece of legislation seeks to regulate should

be chosen, over one which would introduce uncertainty, friction or confusion into the

working of the system.

Intrinsic Aids to Interpretation: (Falls under the mischief, golden and purposive rule;

definitely not permissible under the literal rule)

Intrinsic Aids to Interpretation are parts of the Act itself, which assists in the interpretation of

same. Some common intrinsic aids to interpretation are:

(i) Other Enacting Words:

An examination of the whole statute, or least those parts which deal with the subject matter

should give some indication as to the overall purpose of the legislation. As a piece of legislation

should read coherently when read as a whole, this would show if a particular interpretation will

lead to absurdity when taken with another section.

(ii) Long Title

It was established in the nineteenth century that the long title could be considered as an aid to

interpretation. As noted by Lord Simon in the Black Lawson case: the Long Title can be

considered the plainest of all guides to the general objectives of the statute.

(iii)The Preamble

Where a preamble exists, it usually states quite clearly the mischief to be remedied and the scope

of the Act. It is therefore an obvious internal aid when it comes to determining the purpose of the

legislation.

(iv) Short Title, Headings, side notes and punctuation may help to put disputed

legislation into context

External Aids to Interpretation (Used in more contemporary approaches: Modern mischief

Rule (Black Clawson) Purposive Rule, Unified Context Rule)

(i) The historical setting

A judge may consider the historical setting of the provision that is being interpreted if this may

assist in determining the legislative purpose.

(ii) Dictionaries

(iii)Other statutes in para material (i.e, statutes dealing with the same subject matter.) This

may assist in determining how the statute should be read. They are some instances

where the statute expressly states that it should be read as one with a particular piece

of statute of series of statutes.

(iv) Official Reports (As in the Black Clawson case)

Legislation may be preceded by a special report of an advisory committee. This kind of

material may provide evidence of the pre-existing state of the law and the mischief which

the legislation was intended to deal with.

However it recognised that the recommendation contained in the reports may not be regarded

as evidence of Parliaments intention as Parliament may not have accepted the

recommendations or acted upon them.(Black Clawson)

(v) Treaties and International Conventions

There is a presumption that Parliament does not legislate contrary to its international

obligations.

(vi) Parliamentary Reports

Prior to the landmark case of Pepper v Hart it was held that a court could not refer to

parliamentary material for any purpose whatsoever connected with the interpretation

of statutes. The case of Pepper v Hart relaxed this rule significantly, and though it

imposed certain limitations on when the court could have regard to parliamentary

material, it represented a major step forward for the contemporary approach as it

broke down the absolute rule which formerly made this material unreviewable.

Read entire case of Pepper v Hart

SOURCES OF LAW

There are six (6) main sources of law in the Commonwealth Caribbean; these are:

(i) The Constitution;

(ii) Legislation;

(iii)Common Law;

(iv) Customs and Conventions;

(v) International Law and the law of regional treaties;

(vi) Equity

The Written Constitution

The written Constitution is arguably the most important source of law in the Commonwealth

Caribbean. This is due to the fact that it is the supreme law of the land and all other legislation is

subordinate to it to the extent that any inconsistency with it is ultra vires.

In the context of the government of a state, the written constitution is the legal document which

sets out the framework of the state, the principal organs and the principal functions which those

organs must operate. A States Constitution should, inter alia:

(i) Establish the organs of government; that is, establish the legislature, the executive and the

judiciary.

(ii) Detail the allocation of power between the organs of government and regulate the

relationship that exists between them;

(iii)Make provision for the resolution of disputes regarding the interpretation of the

Constitution and provide for amendment of the Constitution.

A modern Constitution should also establish the fact that every person is entitled to certain

fundamental rights and freedoms and provide for the protection of these rights.

Constitutions can be:

(i) Written or unwritten

(ii) Rigid or flexible

Legislation

Legislation can be defined as the will of the legislature in written form. It is influenced by

cultural, economic, political and social climate of the society within which it is intended to

operate and is often times the crystallization of an objective. In many ways therefore, legislation

is a means to an end, a way to effect the will of the legislature.

The major difference between legislation and common law lies in the ability of the legislature to

enact legislation without any need to refer to precedent. As noted by RoseMarie Bell Antoine in

her book Commonwealth Caribbean Law and Legal SystemsIt (as in Legislation) can

embody radical and new principles of law. It is not necessary to formulate legislation by

referring to already existing principles. It is therefore meant to be a quick and efficient way of

implementing new laws and reforming old ones. AN ASIDE: Whether this actually obtains in

the Commonwealth Caribbean is something worthy of discussion, as it is not uncommon for

legislation to take years before it is passed; notwithstanding that fact however, it does not take

away from the fact that there is much value in legislation with respect to the law making process.

As noted by The Honourable Mr. Justice VRAC Crabbe, legislation takes on an even more

important function in formerly colonized societies. He noted that Legislation is an instrument of

change and innovation in any country. In ex colonial societies like the Commonwealth

Caribbean, its role assumes a greater importance and an additional dimension. In a similar vein

Rose-Marie Belle Antoine noted, Legislation must be used to reverse the alienation of English

Laws and customs to allow law to reflect the goals and aspirations of West Indian Society.

COMMON LAW

Common Law can be described as the body of law which consists of judicial decisions in

instances where there are no applicable statutes. To this extent, common law may be referred to

as judge made law. As recognized by Rose Marie Belle Antoine, the existence of the

Common law in the Commonwealth Caribbean is directly linked to the experience of

colonization in the region and the consequence of reception and transplantation of law form

England.

One of the major characteristics of the common law is its adhoc nature, and how it continues to

grow on a case by case basis, one case adding to another.

Originally the common law was a body of unwritten rules formulated by the Kings courts

(collectively known as Common Law Courts) in an informal and flexible manner. As the body

of common law developed, the common law became more rigid and identifiable. Due to a

commendable system of case reporting, common law can no longer be considered unwritten law,

and after the Constitution and Statute may be viewed as the third most important source of law in

the Commonwealth Caribbean.

Equity

Equity or equitable principles, grew out of the need to correct the often rigid and inflexible rules

of the common law. While equitable rules, rights and remedies are also law a distinction is

made between equitable rights and legal rights. As common law grew and became more

slavish to the doctrine of precedent or stare decisis which we will discuss later, it became very

rigid and in many instances left many litigants without legal remedy in instances where the very

essence of fairness or justice dictated they deserved a remedy. What was meant to be a

uniformed system of law ;i.e the common law; in many instances became a stumbling block to

justice. This shortcoming of the common law created the impetus for creation of the law of

equity, otherwise known as equitable principles.

Some of the more important maxims of equity which give rise to the application of the law of

equity or equitable principles are as follows:

(i) Equity does not suffer a wrong to be without a remedy. This means that if there is not

a deserving remedy under common law, equity can create one.

(ii) Equity does not assist a volunteer For example, some consideration must have been

given for a right claimed;

(iii)He who comes to equity must come with clean hands you cannot expect the granting of

an equitable principle if you have done some wrong in the matter ; this is perhaps one

of the more popular equitable principles;

(iv) Equity looks to the intent and not the form. This means that equity will give effect to the

intention of the parties notwithstanding the absence of a formality.

(v) He who seeks equity must do equity; on the other side of the clean hands principle; if a

person seeks equity he must be prepared to act in an equitable matter with respect to

future obligations in the matter. For example case of specific performance, should

be prepared to pay interest on monies owed to vendor.

It is important to note that equity is not a self-sufficient system or source of law. It pre-

supposes the existence of common law and only comes into play where common law fails to

provide a remedy in circumstances, which, to deny same would be unjust.

Customs and Conventions

Though separate and distinct legal concepts, customs and conventions share certain unifying

characteristics. They both arise out of the social mores and practices of a people and they both

depend on proper recognition and acceptance by the courts before they are viewed as binding

legal sources. As noted by Rose Marie Bell Antoine, the courts must declare customs and

conventions as law and not mere social practice. As such, custom and convention cannot be

considered as entirely independent sources of law.

Brief Notes on Customs:

(i) They evolve over time to become law;

(ii) Laws which evolve from customs are more likely to reflect the social reality

of which they are a part. Note that this is not necessarily so for the Commonwealth

Caribbean where common law, as noted above, is largely imported from England.

(iii) The party who pleads a customary rule must prove it

Brief Notes on Conventions:

(i) Conventions can be considered the non legal rules of the Constitution (note this is

specifically the unwritten constitution.

(ii) They can be defined as rules of constitutional behavior which are considered to be

binding by and upon those who operate the constitution but which are not enforced by

the law courts or by House of Parliament.

(iii)Conventions are usually practices which have been observed for a sufficiently long time

thereby qualifying them for constitutional status.

(iv) It is important to note that some of the more popular conventions have been codified in

the written Constitution thererby giving them express legal sanctity. In this way, one

may say there are no such things as conventions in the written constitution, as the

very act of codifying them and enshrining them in the written Constitution goes

against the core meaning of a convention; that being a non-legal rule of the

Constitution. In practical terms therefore, conventions as a source of law is more

applicable to a place like the UK where there is an unwritten Constitution and

therefore constitutional rules are to be found in Acts of Parliament, Judicial Precedent

and Conventions as opposed to the Commonwealth Caribbean where conventions

per se have taken root in the written Constitution thereby making them law/legal rules

as opposed to non-legal rules. That being said however, conventions are sometimes

called upon to assist in interpreting the constitutional rules which they influence.

International Law

International Law in the Commonwealth Caribbean is a source of law to the extent that it

influences common law and legislation. It is becoming increasingly common for statute to have

regard to international law before enactment, this is especially so as the presumption is that

statutes are not to be enacted contrary to a countrys international on obligations.

International Law is thought to have an especially significant role as a source of law with respect

to human rights issues in the Commonwealth Caribbean.

PRIMARY AND SECONDARY LEGISLATION

Legislation may be classified as either Primary Legislation or Secondary Legislation.

Primary Legislation includes Acts of Parliament created by the Legislature. They include: private

Acts, public Acts and certain legislative Acts made by the Crown under the Royal Prerogative..

(i) Private Acts consist of legislation that is proposed by a corporation, company or private

organization and affects only the proposer of the Act.

(ii) Public Acts are those statutes which are more common and which provisions are

applicable to the entire nation

(iii)The Legislative Acts made by the Crown under the Royal Prerogative are called Orders

in Council. The prerogative is the residue of the special common law power given to

the Crown or Head of State. This power is a limited power and is normally only

applicable in relation to the armed forces, states of emergency and the Civil Service.

Secondary Legislation is referred to as delegated or subsidiary legislation. It is the body of

rules created by subordinate or statutory bodies which have specific powers to do so because

Parliament through the primary legislation, delegated that power to them. The main types of

delegated legislation are bylaws, regulations and/or orders.

Some of the reasons for delegated legislation are:

(a) The speed with which it may be passed. The enactment of legislation may be a lengthy

process, the passing of delegated legislation in contrast is speedy.

(b) Some legislation requires a certain level of expertise best left to experts in their fields or

requires specific knowledge of a particular circumstance. In such situations, Parliament

may create a delegative function to best deal with passing the required legislation;

(c) Delegated Legislation is not as difficult to change as Acts of Parliament as it does not go

through the lengthy parliamentary approval process.

LEGAL METHODS, RESEARCH AND WRITING tutorial #2

A. STATUTORY INTERPRETATION

1. The case of Black Clawson International Ltd. v Papierwerke Waldhof

Aschaffenburg AG [1975] AC 591 is often said to be the locus classicus as it relates to

the modern restatement of the mischief rule. Yet, whether the recognition this case has

gotten for expanding the boundaries of the classic exposition in the Heydons case is well

deserved is questionable?

Critically analyse the above statement making your agreement or disagreement with the

subject statement clear.

2.

Discuss the following:

(a) How much further did the case of Black Clawson International Ltd. v Papierwerke

Waldhof Aschaffenburg AG [1975] AC 591 expand the traditional mischief rule as

first expounded in the Heydons case.

(b) Did it bring the sense of clarity to the definition of mischief and the application of the

mischief rule as one would have expected in such a recent judgment?

3. What was the significance of the landmark case Pepper v Hart [1993] 1 All ER 42 and how did

it advance the law with respect to statutory interpretation?

4. (a) In no more than Five Hundred words (500) words, discuss the relevance of statutory

interpretation being sure to briefly discuss the actual rules applied by the courts in the process.

(b)Having regard to the rules discussed at Item (a) aforesaid, discuss the differences (if any)

between the noted rules.

5. Prepare a summary tree with respect to the rules of interpretation. Note: Summary tree should

state rule clearly, principle in no more than 2 lines and have supporting cases and/or legal

authority. Be sure to note the similarities and differences (if any) between the rules.

6. Read the following passage and determine which rule of statutory interpretation is best described,

giving reasons for your answer:

Law does not operate in a vacuum and this is especially so for statute law. Often times a

statute is intended to guide and regulate the conduct and affairs of those to whom it is

addressed. Its content takes into consideration the cultural, economic, political and social

condition of the society within which it is intended to operate and is often times the

crystallization of an objective. The objective may be political, social, economic or even

personal but no doubt there is some ill so to speak that a statute is intended to address.

Legislation is therefore a means to an end.

B. SOURCES OF LAW

1. Identify and discuss the major sources of law in the Commonwealth Caribbean.

2. What exactly is meant by the terms primary and secondary legislation and what are the

similarities and differences, if any, which exist between the two.

C. CASES AND MATERIAL TO NOTE

Mandatory Reading (Students should have at the very least, a basic knowledge of the cases

noted at Items (i- v) below)

(i) Heydons case (1584) 3 Co Rep 7a

(ii) Black Clawson [1975] AC 591

(iii) Sussex Peerage (1844) Cl and Fin 85

(iv) Grey v Pearson [1857] 6 HC Cas 61

(v) River Wear Commissioners v Adamson (1877) - complete citation to follow

(vi) Pepper v Hart [1993] 1 All ER 42

Recommended Reading:

Rose Marie Belle Antoine, Law and Legal Systems Chapter 12

Cross on Statutory Interpretation

VCR Crabbe, Statutory Interpretation

Bennion on Statutory Interpretation (3rd Edition)

Maxwell, Interpretation of Statutes

Recommended Cases:

Re: The Mischief Rule

Smith v Hughes (1960) 2 All ER 859

Guyana Labour Union v McKenzie - citation to follow

Bata Shoe Co. Guyana Ltd et al v Commissioner of Inland Revenue - citation to follow

Re: The Literal Rule

Baptiste v Alleyne (1970) 16 WIR 437

Hope v Smith (1963) 6 WIR 464

Re: The Golden Rule

Davis v R ( 1962) 4 WIR 375

Enmore Estates Ltd. V Darson (1970) 15 WIR 192

Re: The Unified Context Approach

AG v Prince Ernest Augustus of Hanover [1957] AC 436

Re: The Purposive Approach

R v Barnet LBC [1983] 2 AC 309

Magor and St. melons v Newport Corporation [1950] 2 A.E.R. 122

Re: Rules of Language

Powell v Kempton Park Racecourse [1899] AC 143

Inland Revenue Commissioners v Frere [1965] AC 402

Tempest v Kilner (1846) 3 CB 249.