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MODEL ANSWERS AS LAW
LAW01 EXAM
Law Making and the Legal System
Statutory Interpretation
Explain the literal rule of Statutory Interpretation.
The literal rule interprets the words of an act by their ‘ordinary natural’ meaning as stated in the Sussex Peerage case in 1844. This upholds the separation of powers doctrine as judges should interpret the law, not make it as this is parliament’s role. Judges should use the Oxford English Dictionary (OED) from the time of the Act and apply the meaning. Words are given the same meaning throughout on Act.
In the case of Whitley v Chapel, the D impersonated a dead person to use his vote. The act stated that it is illegal to impersonate a person ‘entitled to vote’ which by its ‘ordinary natural’ meaning does not include dead people who are not entitled to vote this the D was found not guilty.
In the case of Fisher v Bell the D displayed flick knives (illegal in the UK) in his shop window. The Act stated that you should not be ‘offering for sale’ flick knives which placing them in a shop window is not doing by its ‘ordinary, natural meaning’ as this is only advertising. The D was therefore found not guilty illustrating how the literal rule is applied.
In the case Cheeseman v DPP the D was witnessed masturbating in public toilets by two police officers. The Town Police Clauses Act (1847) stated that those witnessing the D must be passengers. By its literal ‘ordinary, natural meaning’ the police needed to be travelling which they were not. The D was therefore found not guilty demonstrating again how the literal rule is used.
Extra: To summarise Lord Esher in the Case of R v Judge of City of London (1892) 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 absurdity’. This illustrates how it is a judge’s role to interpret Acts as the literal rule does even if the result is absurd as the cases above show. The literal rule simply interprets acts by their literal meaning as it interprets exactly the legislature stated in the Act.
The advantages of the literal rule
Judges are applying the will of parliament which is democratic as unelected judges are not making law, merely applying law passed by Parliament. For example, In the case of Fisher v Bell clearly Parliament had made a mistake in drafting the Act as advertising a flick knife in a window should have been a criminal offence. But the unelected judge simply applied the law literally to the case which flagged up the problem to parliament who democratically altered the Act later to then make this a criminal offence. Viscount Simmonds argued that it was not upto judges to fill in the gaps because of perceived drafting problems with an Act. If a gap was found by a judge “the remedy lies in parliament amending it”.
The Literal rule makes cases predictable as the same meaning is given every time a word is used in an Act. So in the case of LNER v Berrimen anyone widow whose husband was killed oiling or maintaining railway track now knows they will receive no compensation for their husband’s death Without having to waste time and money going to court.
The result is certain so lawyers can advise their clients on the likely outcome and there is likely to be less litigation (court action). For example in the case of Cheeseman as there is a strict interpretation of the word “passenger” in the Act police will certain that they cannot waste time and money waiting for a suspect to commit an offence. So if they do the D will be found not guilty due such surveillance not being allowed in the first. Lord Simon expressed this argument in Stock v Frank Jones Ltd, when he claimed that leaving Parliament to make changes was “far preferable to judicial contortion of the law to meet apparently hard cases with the result that ordinary citizens and their advisers hardly know where they stand”.
Disadvantages of the Literal Rule.
A disadvantage of the literal rule is that it is very rigid. For example in the case of LNER v Berrimen, Parliament would have intended for the wife of a railway worker who died oiling and maintaining the tracks to get compensation. However she didn’t because of the ‘literal meaning’ of the words ‘relaying and repairing’ in the Act. Therefore the rigidity of the literal rule caused the wife not to get compensation even though this would not have been parliament’s intention. This a disadvantage as it means when results are absurd, judges cannot provide justice in individual cases.
Another disadvantage is that the literal rule assumes Acts are perfectly written but the English language is often ambiguous and unclear. For example in the case of Whitley v Chapel Parliament had not thought of the possibility of impersonation of a dead person to use their vote when writing the Act but as this is what the D did, he was found not guilty due to the loophole. Therefore the unclear English used in the Act meant that it could be interpreted in a way where the phrase interpreting those ‘entitled to vote’ didn’t include dead people. This is a disadvantage as it means the unclear English language means parliament cannot create Acts that cover all future potential issues.
Also the literal rule has the disadvantage that Parliament need to rectify the errors following absurd, unjust cases. For example in the case of Fisher v Bell where the D was found not guilty for displaying flick knives in a shop window as the Act specified he must be ‘offering to sell’, Parliament then had to amend the Act. This is time consuming and expensive and parliament do not have time to do this for all absurd, unjust cases. The law commission 1969 stated it ‘assumes unattainable perfection in draftmenship’ suggesting that getting acts perfect is impossible so if the literal rule is used parliament will have to constantly amend Acts which is also impossible.
Explain the Golden Rule of Statutory Interpretation.
The golden rule can only be used if the literal rule creates an absurd result. It can therefore only be used as an exception. The narrow interpretation of the golden rule looks at an alternative meaning of the word phrase in question creating an absurd result. An alternative meaning from the dictionary that doesn’t create an absurd result should be used. The wide interpretation is used when there is no suitable alternative meaning. This is where the judge modifies the meaning of the word to make it make sense.
The case of R V Allen uses the narrow interpretation. Allen was married to two different women and was charged with bigamy. The words in the Act ‘shall marry’ here interpreted by the literal rule as to mean to be legally married. However the second marriage cannot be legal as it is illegal to marry two people at once, using the literal rule. However when the golden rule was applied, another definition of the word marry was found meaning to have a marriage ceremony. This meant that the D could be found guilty now after the literal rule produced an absurd result.
The case of Alder v George uses the wide approach to interpret the word ‘vicinity’ after the D’s broke into an air force base to protest against the keeping of nuclear weapons. The literal rule said the word ‘vicinity’ meant around the building and not in the building meaning the D’s would be found not guilty which would be absurd. As there were no suitable alternative meanings to the word ‘vicinity’ the meaning was modified to mean ‘within’ so that the D’s could be found guilty.
The case Re Sigsworth also used the wide approach when the D killed his mother to claim her money. The act stated that if there is no spouse, the only surviving ‘issue’ (child) would receive the money. However using the literal rule the D would have received the money which the public would find disgraceful as this would be absurd. Therefore on the grounds of public policy the word ‘issue’ was modified to mean that the issue would not be entitled to the money if they had killed the deceased. This meant that the D would not inherit the money which would be said to be fair.
Advantages of the Golden Rule.
By using the golden rule, fewer absurd and unjust results are made. For Example in the case of R v Allen, by using the literal rule an absurd, unjust result would be made. The literal rule interprets the word ‘marry’ to mean to legally marry which would mean the D could not be found guilty of bigamy as the act stated you cannot ‘marry’ two people. It is impossible to marry two people according to the literal rule. However the golden rule created a fair verdict by finding the alternative meaning as going through a wedding ceremony. This meant the D could be found guilty so a fair verdict was made that was not absurd or unjust. Therefore by using the golden role fair verdicts can be gathered instead of absurd and unjust verdicts which is an advantage as it means the justice system will be regarded as fair and less appeals will be made.
Another advantage is that parliament will not have intended to pass laws that produce unfair results. For example in the case RE Sigsworth parliament would not have intended for the D, who killed his mother to inherit her money, to actually inherit the money. The golden rule allowed the word ‘issue’ in the act to be modified so that if you kill the deceased, you cannot inherit their money. This meant that a fair verdict could be made which parliament will have wanted. Therefore by ensuring parliament’s intentions are met the Golden rule ensures verdicts are democratic as the intentions of those elected to make sure laws are met.
Another advantage is that the golden rule resolves the unfairness of the literal rule. For example in the case of Alder v George, the D’s broke into an air Force Base to protest against the storage of keeping nuclear weapons. The literal rule would have found them not guilty by interpreting the word ‘vicinity’ to mean around the building, this would be seen as unfair, as potential terrorists could occupy military buildings without be guilty of a crime. However the golden rule allowed for a fair verdict to be made by modifying the meaning to include inside the building. Therefore the golden rule resolves any unfairness which may be caused using the literal rule meaning.
Discuss the disadvantages of the Golden Rule
A Disadvantage of the golden rule is that it depends on each individual judge to decide what an absurdity is or a repugnant result is. For example in the case of Alder v George where the D’s broke into an air force base to protest against the keeping of nuclear weapons, the D’s were found guilty by modifying the word in the act ‘vicinity’ to include inside the building. Another judge may have thought it was not an absurdity to find them not guilty and may not have applied the golden rule. Parliament was clear that they wanted those in the ‘vicinity’ to be charged. This is a disadvantage as it leads to the rule being applied inconsistently. The Law Commission (1969) argued that the rule provides no clear means to test the existence of characteristics of absurdity. It is therefore subjective and can lead to unfairness.
Another disadvantage is that the rule gives too much power to judges. For example in the case of Re Sigsworth the judges effectively wrote words into the act. Sigsworth had killed his mother to inherit her money and the judge had to use the wide approach to effectively unite into the act that the issue (child) cannot receive their parent’s money if they’d killed them. We do not know if this would be what parliament would have intended to happen. Unelected judges are effectively making the law without it being debated by our elected parliament who makes decisions on our behalf. It is therefore undemocratic. Surely it would be better to allow this case to lead to an absurdity to send a signal to parliament so the Act can be changed for future cases like in Fisher v Bull.
It is also unclear when the rule should be used as an exception to the literal rule. For example in the case of LNER v Berriman most people would argue that the widow of a railway worker who died oiling and maintaining the tracks should receive compensation. However she didn’t, as the act said he needed to be ‘repaying’ or ‘repairing’ them. Surely parliament would have intended for her to receive compensation. However due to the judge’s opinion of what is an absurdity, she didn’t, as the golden rule was not considered. Therefore the rule may be applied inconsistently leading to potential unfairness and injustice. Michael Zander referred to is a ‘feeble parachute’ as it is only used in limited circumstances meaning it is ineffective.
Explain Mischief Rule of Statutory Interpretation.
The mischief rule is based on Heydon’s case in 1584. It looks at the problem/gap (mischief) the Act being interpreted was trying to solve when it was made. It looks at the intention of the Act and applies it to the case. It does not look at dictionary definitions and only looks at the intention/meaning of the Act from the time it was made.
For example in the case of Smith v Hughes 1960, a prostitute was calling from the balcony of a house to men on the street. If the offence was interpreted literally to solicit in the street, the D would be found not guilty as it was from the balcony of a house. Whereas the mischief rule looked at the problem the act was trying to solve which were men on the street being pestered by female prostitutes. The D was clearly pestering men on the street and therefore was found guilty giving a fair verdict.
Another example of using a mischief rule is the case of the Royal College of Nursing (RCN) v DHSS. Using the literal rule the words ‘registered medical practitioner’ do not include nurses and the act states that only registered medical practitioners can carry out abortions. However the mischief rule acknowledges that the act was created to ensure abortions could be carried out safely and hygienically. Due to technological advancements, nurses can now carry out abortions safely and hygienically and the court ruled that nurses can therefore be also regarded as ‘registered medical practitioners’ as this would solve the problem of unsafe abortions.