Statutory interpretation is difficult because of the indeterminacy of language, but the English judiciary usually reach result that accords with

common sense and does not offend our sense of justice.

Do you agree with the above statement?

What is statutory interpretation?

• Statutory interpretation is the process by which courts interpret and apply legislation.• Some amount of interpretation is

often necessary when a case involves a statute. • The Parliament makes the law,

the courts apply it.

The problem with statutes:

• Often complex and imprecise• Ambiguous, vague and uncertain• Over elaborated• Cannot cover every eventuality

Why do we need statutory interpretation?• Broad terms (Brock v DPP) • Ambiguity (R v Allen)• Drafting Errors• New Developments (Royal College of Nursing v DHSS)

Literal Rule

• Give all the words in a statute their ordinary and natural meaning. • Per Lord Tindall C.J. in The Sussex Peerage Case (1844): “If words of the

statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in the natural and ordinary sense”• Lord Esher in R v City of London Court Judge (1892): ‘If the words of an Act

are clear, interpretation must follow them even though the legislature has committed an absurdity. ’ – unless the words in an Act admit of two different interpretations.

R v Maginnis (1987)• The defendant was charged under

the Misuse of Drugs Act 1971, with having drugs in his possession and with intent to supply them.• Defendant claimed that he had

intended to return the drugs to a friend who had left them in his car.• Held: Handling the drugs back was

‘supply’.

Why Statutes are Difficult to be Interpreted under Literal Rule

• Dissenting judgement of Lord Goff: ‘I do not feel able to say that either the delivery of goods by a depositor to a depositee, or the redelivery of goods by a depositee to a depositor, can sensibly be described as an act of supplying goods to another.’• R v Maginnis showed that there can be disagreement over the literal

meaning of statutes. • Similar disagreement happened in Attorney General’s Reference (No 1

of 1988)(1989).

• Following the original meaning of the words can lead to:

InjusticeLegal loopholes

Literal Interpretation creating InjusticeLondon and North Eastern Railway Co v Berriman (1946)• A railway worker was knocked down and

killed by a train while he was doing routine maintenance and oiling. No ‘stopping man’ had been provided.• Under statute, compensation was

available to workers killed when engaging in ‘relaying or repairing’ tracks.• Held: His widow was unable to claim for

damages.

Literal Interpretation Creating Legal Loopholes

Whiteley v Chapell (1868)• It is an offence to impersonate

‘any person entitled to vote’ at an election.• Defendant impersonated a

dead person.• Held: Dead person was clearly

not entitled to vote. The accused was acquitted.

Fisher v Bell (1961)• The Restriction of Offensive

Weapons Act 1959 made it an offence to ‘sell or offer for sale’ any flick-knife.• The defendant displayed a flick-knife

in his shop window.• Held: Not guilty. Displaying a flick-

knife is only an ‘Invitation to treat’, not an offer for sale.• However, this is obviously just the

sort of behaviour that Act was set up to prevent.

Partridge v Crittenden (1968) 2 All ER 421• The defendant advertised offering

some bramble finches for sale in a magazine.• S 6 of the Protection of Birds Act

1954 made it an offence to offer such birds for sale.• Held: An invitation to treat, not an

offer for sale.

R v Harris (1836)• Defendant bit the

nose off the victim.• The statute made it

an offence ‘to stab cut or wound’.• Held: Defendant not

guilty.

R v Goodwin (2005)• s 58 of the Merchant Shipping Act

1995 makes it an offence for ‘the master of…a United Kingdom ship’ negligently to do any act which cause or is likely to cause serious injury to any person.• s 313: ships is defined as including

every description of vessel ‘used in navigation’.• The accused was a driver of a jet-ski,

he crashed into another jet-ski and injured the other driver.

• CoA: jet-ski is not used in the purpose of travel from one place to another. • S 58 applies to sea-going ships, while jet-ski was used only within the

port of Weymouth.• The accused was not guilty under the Act.

Advantages of Literal RuleRespect Parliamentary Sovereignty.Give the courts a restrictive role.Leaving Law making to those elected for the job.More certainty.

Disadvantages of Literal Rule× Create injustice where Parliament probably never intended any.× Useless when the answers to a problem cannot be found in the words

of the statute. E.g. Broad term. × The Law Commission (1969): ‘assumes unattainable perfection in

draftsmanship’. Draftsmen cannot predict every situation.× The meanings of words changes over time.× Create legal loopholes.

Golden Rule

Literal Rule gives an absurd result( Parliament could not have intended)

Judge substitute a reasonable meaning (secondary meaning lead to common sense interpretation)

Lord Wensleydale in Grey v Pearson (1857)• First adhere to the grammatical & ordinary sense of

words• Absurdity/repugnance/inconsistency modify the

ordinary sense of words• To avoid absurdity & inconsistency but no further

The Golden Rule 

Literal rule leads to an obviously absurd result Golden Rule

Official Secrets Act 1911 it was an offence to obstruct HM Forces in the vicinity of a

prohibited placeGeorge in fact been arrested whilst obstructing such forces

within such a prohibited place

The court applies golden rule extend literal wording of statute ---To cover the action committed by defendant---

Adler v George (1964)

Two/ more literal interpretations Golden Rule applies (leads to the least absurd effect)

S57 Offences Against the Person Act 1861

--------an offence to ‘marry’ whilst the original spouse was still alive (with no divorce).

Already married, how to ‘marry’ someone else?

Literal rule make the statute uselessThe court applies golden rule decided

that in the Act the word ‘marry’ means ‘to go through a ceremony of marriage’

---Avoid absurd result--

R v Allen (1872)

The House of Lords stated that:• Obvious error hade been made

in drafting a statute• the words could be added to a

statute by a judge to give effect to Parliament’s intention

---Avoid absurd result--

Inco Europe Ltd v First Choice Distribution (2000)

the words have only one clear meaning, but the meaning would lead to a repugnant situation modify the words of the statute

Administration of Justice Act 1925-Mother (murdered by son) hadn’t made a will-Under this Act, her next of kin (her son) would inherit

No ambiguity but the court applies golden rule refused to let a murderer benefit from his crime

---prevent a repugnant situation---

R v Sigsworth (1935)

Prevent absurdity and injustice caused by literal rule

----help the courts put into practice what Parliament really means

Advantages of Golden Rule

× no clear guidelines as to when the courts are willing to reject the patently absurd and adopt this approach.

× Law Commission noted in 1969:• The rule provided no clear meaning of ‘absurd result’• The rule turns out to be a less explicit form of

mischief rule(judged by reference to whether a particular interpretation irreconcilable with general policy of legislature)

Disadvantages of Golden Rule

• Literal rule is too rigid, judges apply golden rule and mischief rule to come to a result which is in accordance with common sense and justice.• Aids are used as a tool to assist judges in reaching a result in accord

with common sense and justice.• Literal rule and golden rule direct judges towards internal aids• Mischief rule direct judges towards external aids• Human Rights Act 1998 as an alternative for judges to decide in

accordance with common sense and justice.

MISCHIEF RULE

More leeway for judges compared to the other two rules.

The rule examines what the law was before the passing of an Act by looking into the gap or ‘mischief’ (the problem) that the Act was intended to govern.

The courts should interpret the Act so that the mischief is covered.

It was laid down in Heydon’s Case (1584) EWHC Exch J36. Judges has to

consider four factors:

1. What was the common law before the statute was passed?

2. What was the gap, mischief and defect for which the common law did 

not provide?

3. What remedy did the Parliament intend to provide?

4. The true reason of the remedy; and then judges have to make such 

constructions so as to suppress the mischief and advance the remedy.

CASES THAT APPLIED THE RULE :•Corkery v Carpenter [1951] 1 KB 102•Smith v Hughes [1960] 1 WLR 830•Royal College of Nursing v DHSS [1981] 2

WLR 279•R (on the application of Haw) v

Secretary of State for the Home Department and another [2006] EWCA Civ 532

Corkery v Carpenter [1950]

• Facts: The defendant rode a bicycle while under the

influence of alcohol. Under s.12 of the Licensing Act 1872, it was an

offence to be ‘drunk while in charge on any highway… of any carriage, horse, cattle, or steam engine’

COURT HELD:Defendant was guilty. The mischief rule was to be applied.Thus, a carriage included bicycle.

Smith v Hughes [1960]• Facts:

- Women involved in prostitution who were

not soliciting ‘in a street’ but from the

balcony and windows of ground-floor

rooms.

- Attracted passers-by by calling to them or

tapping on the window, which were half

opened or closed.

• Application:- The rule was used to interpret s 1 (1) of the Street Offences Act 1959 which said that ‘it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.’ - The defendants argued that they were not literally ‘in a

street or a public place’

- COURT HELD:Defendants were guilty. The Act aimed to provide for the mischief which was to

clear up the streets without being solicited by common prostitutes. Lord Parker stated that: ‘I am content to base my decision on that ground and that ground alone.’

Royal College of Nursing v DHSS [1981]

• Facts:- Nurses carried out abortions with the use of drugs and procedures .

- The Abortion Act 1967 - a person shall not be guilty of an offence under the law, if the abortion was carried out by a ‘registered medical practitioner’.

- From 1972 onwards, improvements in medical techniques meant that the normal method to terminate a pregnancy was to induce premature labour with drugs.

- It was now the practice for the first part of the procedure to be carried out by the doctor and the second part to be performed by the nurses in the absence of the doctor’s presence.

COURT HELD: Defendant was not guilty.By majority that the Act was to govern the number of

illegal abortions and ensure that proper skills were administered by the hospitals.

Dissenting views of the other judges- took the literal view (words were clear and that terminations were to be carried out by a medical practitioner.

R (on the application of Haw) v Secretary of State for the Home Department and another [2006] EWCA Civ 532

• Facts:- The Claimant had been holding a protest in

Parliament Square, opposite of Parliament against the war in Iraq since June 2001.- Lived on the pavement and displayed large placards

protesting about Government policy in Iraq- Prior to the Serious Organised Crime and Police Act

2005, s.133 (1), such demonstrations were lawful but after the law was passed, any person who intended to organise a demonstration in the vicinity of Parliament, had to apply for authorisation to do so.

Advantages of Mischief Rule• It gives judges the discretion to cover up ‘loopholes’ in the law• This allows for interpretation of statues in light of changing

circumstances.• Judges are encouraged to look at Hansard to determine the intention

behind the ministers words• In 1969, the Law Commission suggested that the mischief rule should

be the only rule used in Statutory Interpretation.

Disadvantages of Mischief Rule• Challenging to discover Parliament’s intention even with the aid of

Hansard. It only expresses the intention of the government.• Instances where judges misinterpret and changes the meaning of the

Act.• Too much discretion is given to judges. Changes should be made by

Parliament.• Uncertainty in the law as it is impossible to know when a judge will

use the rule and what the result will be.

Purposive Approach

• Goes beyond the mischief rule and seeks to determine the purpose and the intention of Parliament passing the Act.

• Not concerned with the words or phrases set out in the Act but what the Act was trying to achieve.

• Used in the European Court of Justice.

• It was applied to domestic legislation in the case of Pepper v Hart (1993). Lord Browne- Wilkinson: “the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature.”

Advantages of Purposive ApproachBetter designed and applied for European Legislation. (Pickstone v

Freemans (1988)Broad approach and covers more situations. Looks at the overall

purpose of the Act.Leads to justice in individual cases

Disadvantages of Purposive Approach× Like the other rules, it leads to judicial law-making.× Uncertainty in the law.× Difficult to determine Parliament’s intention.

More use of the purposive approach?

• s.2 of the European Communities Act 1972 -  all parliamentary legislation must be construed in accordance with European Law. (R v Secretary of State for Transport ex parte Factortame (1990))

Aids to Statutory Interpretation

- legislation itself (internal aids)-outside the legislation(external aids)

Eg. Human Rights Act 1998

Internal Aids-literary rule & golden rule direct to internal aids

a) The statue itself (decide what provison of the Act & compare with provision elsewhere in the statue)

-Clues may provided by the long title of the Act

b) Explanatory notesAct passed since the beginning of 1999, published at the same time as the Act

Rules of language• Developed by lawyers over time • Little more than common sense• Ejusdem generis (general words follow specific ones taken to include

only things of the same kind)Powell v Kempton Park [1897] 2 QB 242• Expressio unius est exclusio alterius (express mention of one thing

implies the exclusion of the another)R v Inhabitants of Sedgely (1831) 2 B& AD 65• Noscitur a sociis (A words draws meaning from the other words

around)Inland Revenue v Frere [1964] 3 ALL ER 796• Additional existence for the judge to reach the results which

accordance with the justice and common sense based on the cases

Presumption• Statutes do not change the common law• The legislation does not intend to remove any matters from the jurisdiction of the

courts• Existing rights are not be interfered with• Laws which create crimes should be interpreted in favor of the citizen where

there is ambiguity• Legislation does not operate retrospectively ; its provision operate from the day it

comes into force, and are not backdated ( L’Office Cherifien des Phosphates Unitramp SA v Yamashita- Shinnihon Steamship Co Ltd (The Boucraa) (1994)• Statutes do not affect the Monarch

External Aids• Mischief Rule directs the judge to external aids- Historical setting(consider the provison that is being interpreted as well as other statute dealing with the

same subjects)- Dictionaries and textbooks (consulted to find the meaning of a word, or gather information about the

views of legal academics on a point of law)- Reports (Legislation may be preceded by a report of a Royal Commission, the Law Commission or some

other official advisory committee) Eg. Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG(1975)

- Treaties (Parliament does not legislate in such way that the UK would be in breach of its international obligations)

- Previous practice (General practice & commercial usage in the field covered by legislation may shed light on the meaning of a statutory term)

- External aids are said to be useful tool to assist judge refer whenever there is uncertainty of the meaning of the context.

The Human Rights Act 1998• Incorporates into UK law the ECHR, which is an international treaty signed most democratic

countries , and designed to protect basic human rights• Statutory provision must be interpreted which compatible with the European Convention• Legislation must be override Convention rights if there is a clash , Government that intent on

passing such legislation would be likely to face considerable opposition• Does not affect the validity of the statute in question , but designed to draw attention to the

conflict so that the Government can change the law to bring it in line with the Convention.• Whenever there is ambiguity in the meaning of the words regarding to the issue of HR, judge will

decide the cases based on justice and common sense which compatible with the HRA• Human Rights Act itself is sufficient to protect people’ rights and interest

Hansard• Official daily report of parliamentary debates , a record of what was said during the introduction of

legislation

• Davis v Johnson (1978) make reference to the parliamentary debates during its introduction.

• Pepper v Hart (1993) overturned the rule against consulting Hansard and such consultation is clearly now allowed.

• Decision in Pepper v Hart was confirmed in Three Rivers District Council v Bank of England (No.2) (1996) concerned correct interpretation of legislation passed in order to fulfil obligations arising from an EC directive.

• Only interpret meaning of words in legislation, but not discover the reasons for it.

• No certainty- no specific section stating what the courts require-issue of judicial law making

• False concept of parliamentary intent.

• However, when the word is without ambiguity, the court do not rely on Hansard, because the ordinary meaning itself already very clear. Wilson and others v. Secretary of State for Trade and Industry.

Conclusion

• Literal rule is too rigid, judges apply golden rule and mischief rule to come to a result which is in accordance with common sense and justice.• Aids are used as a tool to assist judges in reaching a result in accord

with common sense and justice.• Literal rule and golden rule direct judges towards internal aids• Mischief rule direct judges towards external aids• Human Rights Act 1998 as an alternative for judges to decide in

accordance with common sense and justice.

Suggestions for reform• Should we abolish the literal rule? • Give the judiciary more creative power in a reasonable sense• Slowly move towards the purposive approach with regards to

European Union law• Codify case laws as to how the civil law operates – simpler

Thank You.