a level law OCR, making a law, statutory interpretation

Royal College of Nursing v DHSS (1981)

-Abortion Act 1967 provided that a pregnancy should be 'terminated by a registered medical practitioner' -when the Act was passed the procedure was such that only a doctor could do it -from 1972 onwards improvements in medical technique meant that the usual method of terminating a pregnancy was to induce premature labour with drugs -1st part carried out by doctors, 2nd by nurses - was this legal? PRINCIPLE -HOL (3/2) held it was legal -mischief Parliament was trying to remedy was the unsatisfactory state of the law before 1967 and the number of illegal abortions -also said the policy of the act was to broaden the grounds for abortion and ensure they were carried out with proper skill -other 2 judges took the literal view - said the other judges were not interpreting the Act but 'redrafting it with a vengeance'

Adler v George (1964)

-Official Secrets Act 1920 made it an offence to 'obstruct her Majesty's Forces in the vicinity of a prohibited place' -D had obstructed the forces personnel actually inside the prohibited place -court had to decide if this was the same as 'in the vicinity' PRINCIPLE -guilty - would be absurd if those causing an obstruction outside would be guilty but those that had got inside were not -interpreted the words in the act to mean 'in or in the vicinity of the prohibited place'

Golden rule disadvantages

-can only be used in limited situations -not possible to predict when the court will use it it is a 'feeble parachute' (zender)

Mischief rule advantages

-deals with the mischief parliament was trying to deal with -fills in the gap in the law -produces a 'just' result

Purposive approach disadvantages

-difficult to find parliament's intention -allows judges to make law -leads to uncertainty in the law

Extrinsic aids to interpretation

-external sources to help explain the meaning 1. Dictionaries 2. Earlier case law 3. Academic texts 4. Previous Acts of Parliament on the same topic 5. Law Reform Reports 6. Reports of international conventions, regulations or directives 7. Explanatory notes 8. Reports of Royal Commissions 9. Human Rights Act 1998 10. Interpretation Act 1978 11. Historical setting 12. Hansard

the literal rule advantages

-follows wording of parliament -prevent unelected judge judge making law -making the law more certain - easier to predict how the judges will interpret the law

disadvantage of law reform reports as an aid to statutory interpretation

-in one cases the proposals for reform and/or the draft bill will not be wholly accepted by the government, and they will include different changes to the bill. or the bill may start as the one drafted by the law reform body but be changed during the legislative process -in these situations the report is not helpful, as parliament's intention is not the same as in the report. - law commission reports are only available for limited areas of law. so there may not be any report on the particular point arising in court. o forthergill v monarch airline ltd(1980)

Purposive approach advantages

-leads to justice in individual cases. -allows for new developments in technology -avoid absurds decisions

Literal rule disadvantages

-not all acts are perfectly drafted -have more than one meaning -can lead to unfair or unjust decision.

disadvantages of using hansard

-referring to hansard is not always helpful. the particular words at issue may not have been mentioned in the debate. alternatively what was said may not make the words any clear. o in R v Deegan (1998) the court appeal was concerned with the meaning of 'folding pocketknife' the court found that the statements made by the minister in the debate were not clear and they refused to take them into account. -the additional cost involved as lawyers feel obliged to spend expensive time reading through all the relevant debates in order to avoid being sued for negligence by their clients.

Advantages of law reform reports an aid to statutory interpretation

-report by law reform bodies are issued after research, consultation and considerable preparation. -problems in the current law are usually identified and the report will set out the reason for they proposed change to the law. all this will help the court understand the purpose for the.new law. - in many cases the report will include a draft bill. where that bill has become law without alteration, it is clear that parliament argued with the report. so helps with finding the intention of parliament.

Golden rule advantages

-respects the words of parliament -allows the judge to choose the most sensible meaning -avoids the worst problems of the literal rule

Mischief rule disadvantages

-risk of judicial law making -not as wide as the purposive approach -can make the law uncertain

advantage of intrinsic aid

-some are placed in statute by parliament in order to make the law clearer. this means that the courts are more likely to come to the interpretation that parliament intended. -the inclusion of a long preamble setting out the purpose of parliament was particularly helpful -there are may be definition section which sets out what is meant by certain words to phrase.

Re Sigsworth (1935)

-son had murdered his mother -mother had not made a will, so normally her estate would pass to her next of kin under the Administration of Estates Act 1925 -meant that her murderer son would have inherited PRINCIPLE -no ambiguity in the act, but court was not prepared to let a murderer benefit from his crime -held that the literal rule should not apply; the broad approach to the golden rule should be used to prevent the repugnant situation of the son inheriting

disadvantage of intrinsic

-there are not included in every statute. -some intrinsic aids may be placed there by printers and do not necessarily select parliament's intention. -definitions are not always included and this can lead to uncertainty.

the need for statutory interpretation

Changes in the use of language - Cheeseman V DPP (1990) Ambiguity Drafting error New Developments - Royal College of Nursing V DHSS (1981) A Broad Term - Dangerous Dogs Act 1991

Intrinsic aids to interpretation

Found within the act itself, the judges will use other parts of the act to understand the meaning of the word/phrase in question -found within the act itself 1. Long and short title 2. Marginal notes and headings 3. Preambles (very old acts) 4. Schedules 5. Interpretation sections 6. Punctuation

R v Registrar General ex parte Smith

The adoption act allowed people over 18 to have copies of their record of birth if certain criteria had been met. Smith was a psychopath and his psychiatrist believed he had hostile intentions in finding his mother. The courts decided that he couldn't have a record of his birth as the purpose of the act was to rue et families and not to allow for revenge

Inland Revenue Commissioners v Frere

The issue was the correct meaning of interest 'interest, annuities or other annual interests ' It was decided that interest meant annual interest because the the other terms in the phrase were also examples of annual interest

Golden Rule

a modification of the literal rule to avoid an interpretation that is absurd. example case -adler v George (1964) re sigsworth (1935)

London & north eastern railway co. v berriman

a railway worker was killed while doing maintenance working. his widow claim for compo under the regulation under fatal accidents act- which stated 'for purposes of relaying' and repairing'. the claim failed because he was not relaying or repairing.

Literal Rule

a rule of statutory interpretation that gives the words their plain ordinary or dictionary meaning case are Whitley v Chappell (1868) London & north eastern railway co. v Berriman (1946)

Eastbourne Borough Council v Stirling (2000)

a taxi driver was charged with 'plying for hire in any street' without a licence to do so. his vehicle was parked on a taxi rank on the station forecourt, not on a street. PRINCIPLE found guilty as, although the taxi was on private land, he was likely to get customers from the street. the court referred to smith v Hughes and said that it was same point.

Hobbs v CG Robertson Ltd (1970)

a workman injured his eye when brickwork that he was removing splintered. he claimed compensation under the construction regulations 1961. These regulations made it a duty for employers to provide goggles for workmen when 'breaking, cutting dressing or carving of stone, slag' and the similar materials'. the specific words were 'stone concrete and slag' HELD: that brick was not ejusdem generis with stone, concrete slag. the reason was that all the other material were hard, so that bits would fly off them when stuck with a tool, whereas brick was a soft material. this ruling meant that the workman's clam for compensation failed.

advantage of hansard

hansards is available for everyone to consult. it gives the entire debate of parliament on the statute in question. this means that not only can the minister or promoter's statements be found, but also the discussion and questions that led to the statement. this may make the words in the statute much clear. -in some cases hansard can be very helpful oAE Beckett &sons (lindens) ltd v midland electricity (2001)

the mischief rule

it looks back to the gap in the previous law and interprets the act so as to cover the gap. four points the court should consider are: -'what was the common law before the making of the act?' -'what was the mischief and defect for which the common law did not provide?' -'what was the remedy the parliament hath resolved and appointed to cure the disease of the commonwealth?' -'the true reason reason of the remedy. then the office of all the judge is always to make such construction as shall suppress the mischief and advance the remedy' CASES smith v Hughes (1960) eastbourne borough council v Stirling (2000) royal college of nursing v DHSS (1981)

Smith v Hughes

it shall be an offence for a common postitute to loiter or solicit in a street or public place for the purpose of prostitution. Prostitutes still causing mischief to people 'on the streets'. as one was on a first balcony some where in a window. they defences was that there went on the street PRINCPLE viewed in this way it can matter little whether the prostitute is soliciting while in the street or is standing the doorway or on a balcony, or at a window, or whether the window is hut or open or half open.

the three rules

literal rule the golden rule rule the mischief rule

the effect of the human rights act 1998 on statutory interpretation

section 3 of the human right act says that, so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the rights in the european convention on human rights. this applies to any case where pone of the rights is concerned, but it does not apply where there is no involvement of human right. an example of the effect of the human rights act on interpretation. which involved interpretation of the rant act 1977 o Mendoza v ghaidan (2002).

Tempest v Kilner (1846)

the court had to consider whether the statute of frauds 1677 (which required a contract for the sale of 'goods, wares and merchandise' of more than £10 to be evidenced writing) applied to a contract for the sale of stock and shares. the list 'goods, wares and merchandise' was not followed by any general words.

Allen v Emmerson (1944)

the court had to interpret the phase 'theatres and other place of amusement' and decide if it applied to a funfair. HELD: as there was only one specific word, 'theatres', it was decided that a funfair did come under the general term 'other place of amusement' even though it was not of the same kind as theatre POL:-there must be at least 2 specific words in the list before the general word or phrase for this rule to operate

the purposive approach

the courts look to see what is the purpose of the law passes by parliament. cases: Rv Register-General, ex parte smith (1990) r v human fertilisation and embryology authority (2003)

Whitley v Chappell (1868)

the defendant was charged under a section which made it an offence to impersonate 'any person entitled to vote'. the defendant protected who name was on the list but was died when voting. the court held that the defendant was not guilty since a dead person is not, in the literal meaning of the words, 'entitled to vote'

types of aids to interpretation

the ejusdem generis rule expressio unius nascitur a sociis

the effect o EU law on statutory interpretation

the purposive approach is the one preferred by most European countries when interpreting their own legislation. it is also the approach which has been adopted by the european court of justice in interpreting European Union law. from the time when the uk become a member of the European Union in 1973, the influence of the European preferences for the purposive approach has affected the English to court in two ways. 1) they have had to accept that for law which has been passed as a result of having to conform to a European Union law, the purposive approach is the correct one to use 2) the fact that judges have had use the purposive approach for European Union law for over 40 years has made them more accustomed to it and therefore, more likely to apply it to English law. even though the uk voted to leave the EU, English judges are likely to continue to use the purposive approach

Mendoza v Ghaidan (2002)

the rent act applied here a person who had the tenancy of a property died. it allowed unmarried partners to succeed to the tenancy as it stated that 'a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant. the question was whether same sex partners had the right to take over the tenancy.

aid to interpretation intrinsic and extrinsic aids

there are some aids to help the judge with interpretation

noscitur a sociis

this phase means: a word is known by the company it keep this means that the words must be looked at in context and interpreted accordingly; it involves looking at other words in the same section or at other sections in the act. o inland revenue commissioners v frere (1965)

expressio unius exclusion alterius

this phase means: the express mention of one thing excludes others. where there is a list of words which which is not followed by general words, then the act applies only to the items in the lists like in- TEMPEST v KILNER (1846)

the ejusdem generis rule

this states that where there is a list of specific words followed by general words, then the general words are interpreted in line with the specific words like in://HOBBS v CG ROBERTSON (1970) -ALLEN V EMMERSON

interpreting EU law

where the law to be interpreted is based on European Union law, the English courts have had to interpret it in the light of the wording and purpose of European Union law. this is because the treaty of Rome, which set out the duties of European Union member states, required all member states to take all appropriate measures... to ensure fulfilment of the obligation'. the European court justice in the marbleising case (1992) ruled that this included interpreting national law in the high and the aim of European Union law.

R v Human Fertilisation and Embryology Authority (2003)

without the necessary written consent of the deceased husband, the 1990 Human Fertilisation and Embryology Act prohibits the storage of his cryopreserved sperm and its use in artificial insemination by the widow. When doctors retrieved sperm from Stephen Blood, he was already comatose from meningitis and would die soon thereafter. His widow sought release of the sperm to her for posthumous conception. Without the actual existence of a written consent for cryopreservation and also for disposition upon death, both storage of the sperm and its later use are prohibited under the licensing statute. The court did not address common law issues concerning consent to the retrieval of sperm from an unconscious man because those issues were not argued.