Statutory Interpretation Assignment III
(a) Extrinsic aids are tools which a judge can use to help aid themselves when interpreting a decision, they are situated outside of the relevant statute a judge would be referring to when making a decision. Extrinsic aids that a judge may use include dictionaries (from the year the act was passed), other acts, other cases (precedents) and Hansard, to name a few. Sometimes it can be very difficult for a judge to identify the exact meaning of an act, for example when a broad term is used or when changes in the use of language have occurred. This is when extrinsic aids can prove most useful, as they can help a judge to clarify the exact meaning of an act.
One example of a judge using an extrinsic aid is found in the case (Cheeseman v DPP, 1990). In this case a judge used a dictionary to identify the meaning of the word "passenger", a word which had changed in meaning since the Town Police Clauses Act, 1847 had been passed. The judge needed to identify what the word "passenger" meant at the time the act was passed, as the defendant should only be convicted if the 1847 meaning of "passenger" applied to him. To do this the judge used the Oxford English dictionary from 1847, the year the act was passed. This allowed the judge to identify what the word "passenger" meant when the act was passed and then interpret whether the defendant was a "passenger", under the 1847 definition of the word. So by using a dictionary a judge can identify the exact meaning of a particular word or phrase to help make the meaning of an act clearer, making it easier to interpret.
Another type of extrinsic aid that judges use is other cases (precedents). Sometimes judges will look at precedents, cases which establish a principal or rule that courts then uses to help aid them in interpreting subsequent cases. When judges use precedents they also need to establish whether it is a binding precedent, this means a lower court is bound by a higher courts findings and so therefore has to apply or follow the precedent established, this helps to ensure consistency in decisions throughout the court system. A judge could also look at persuasive precedents when making their decision, this type of precedent is not binding and so doesn't have to be followed, but is usually useful and relevant and can persuade a judge one way or the other. An example of a precedent is in the case (R v Gotts, 1992), where the defendant charged with attempted murder argued he could use the defence of duress. The court of appeal ruled that duress could not be used as a defence based on the precedent set out in the House of Lords in (R v Howe, 1987).
Another extrinsic aid judges may use to aid them in making their decision is Hansard. Hansard is the official daily reports and debates in Parliament proceedings and so could help a judge to clarify the meaning of an act. There was originally a rule that meant that Hansard couldn't be used to aid judge's decisions as going through Hansard was a slow process and it was often unclear. Lord Denning however argued in (Davis v Johnson, 1979), that to not use Hansard "would be to grope around in the dark for the meaning of an act without switching ...
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Another extrinsic aid judges may use to aid them in making their decision is Hansard. Hansard is the official daily reports and debates in Parliament proceedings and so could help a judge to clarify the meaning of an act. There was originally a rule that meant that Hansard couldn't be used to aid judge's decisions as going through Hansard was a slow process and it was often unclear. Lord Denning however argued in (Davis v Johnson, 1979), that to not use Hansard "would be to grope around in the dark for the meaning of an act without switching the light on". However at this stage the House of Lords ruled that judges shouldn't use Hansard when interpreting a statute. Then in (Pepper v Hart, 1993), judges allowed the use of Hansard but restricted it. The restrictions meant that Hansard could only be used if the meaning of an act was unclear and that a judge could only look at the parts where the minister for the relevant bill had spoken.
(b)i. Under the literal rule courts will give words their natural and ordinary meaning even if the result is not sensible. An advocate of this rule was Lord Reid, who in (Pinner v Everett, 1969) stated that "Judges should look at the 'natural and ordinary' meaning of a word or phrase in its context in the statute". Using the literal rule, the relevant term I believe a judge would need to interpret in this case would be "in a street or public place". As Harriet was in her flat, which is neither in a street or a public place, I think a conviction would be extremely unlikely.
Under the mischief rule the court will look to see what the law was before the act was passed in order to discover what gap or 'mischief' the act was intended to cover. The court should then interpret the act in such a way that the gap is covered. The mischief rule was set out in (Heydon's case, 1584). A case demonstrating the use of the mischief rule is (Royal College of Nursing v DHSS, 1981). In the Abortion Act 1967 it stated that a pregnancy should be 'terminated by a registered medical practitioner'. By 1981 advancements in medicine meant that part of an abortion was often carried out by a nurse, who isn't a registered medical practitioner. The House of Lords ruled using the mischief rule that parliament was trying to prevent the number of illegal 'backstreet' abortions rather than abortions carried out by those with proper skill in hospitals. Using the mischief rule and the source I believe the relevant term a judge would have to interpret would be 'for the purpose of prostitution'. Harriet is 'soliciting' the attention of her friend, who is in the 'street' and so using the source would likely be convicted under these two points alone. However I would argue that Harriet is not 'soliciting... for the purpose of prostitution' which is the case in the source, and so a conviction would be unlikely.
ii. Under the literal rule I believe the relevant term that a judge would have to apply its natural and ordinary meaning, would be 'in a street or public place'. Once again as Stella is in her flat, which is neither in a street or public place, I think a conviction would be very unlikely using the literal rule.
Using the mischief rule a judge would first have to identify what parliament were trying to remedy by making this statute, in this case I believe the judge would identify this as preventing prostitutes from soliciting members of the public, like in the source. So using the mischief rule I think a conviction would be likely if Stella was soliciting members of the public for the purposes of prostitution, and like Lord Parker argued as the soliciting was aimed at people at in the street, the act should be interpreted to include this activity as this is what parliament was trying to remedy.
iii. Under the literal rule, I believe the relevant terms a judge would need to apply their natural and ordinary meanings to, would be 'in a street' and 'for the purpose of prostitution'. As Susan was situated in the local high street I believe the judge would then only need to identify whether she was there for the 'purposes of prostitution'. If a judge ruled she was there for the purposes of prostitution then a conviction would be likely and if the judge ruled she wasn't there for that purpose then a conviction would be unlikely.
Using the mischief rule I believe a judge would identify the 'mischief' parliament were trying to remedy, as preventing members of the public being solicited by prostitutes. So in this case I believe you would once again have to identify whether or not Susan was there 'for the purposes of prostitution'. If she was then a conviction is likely as this is the 'mischief' parliament had set out to remedy, if she wasn't then a conviction is unlikely.
(c)The mischief rule was set out in (Heydon's Case, 1584), it consists of four main principles. Firstly, what was the common law before the making of the act? Secondly, what was the mischief and defect for which the common law did not provide? Thirdly, what was the remedy the parliament hath resolved and appointed to cure the disease of the commonwealth? Finally, what was the true reason for the remedy? Then all judges should construct their decision in favour of suppressing the mischief and advancing the remedy. In more simple terms the court should interpret an act in such a way so that the 'mischief' or gap is covered. From 1969 the Law commission described the mischief rule as a 'rather more satisfactory approach' than the other two established rules. The mischief rule gives a judge more discretion and is far less rigid than the literal or golden rule, which should prevent absurd or unjust results. The mischief rule can however lead to greater inconsistency in decisions to the discretion judges have. The discretion and flexibility a judge has when applying the mischief rule also make it the most practical approach to use when interpreting European law/ directives, which is generally quite broad in its meaning.
An example of the mischief rule in effect, is the case of (Eastbourne Borough Council v Stirling, 2000). In this case a taxi driver was charged with 'plying for hire in any street' without a license to do so. He was however parked on a taxi rank on a station forecourt, which was private land and so couldn't be deemed 'in any street'. The court however referred to the precedent set out in (Smith v Hughes, 1960) and decided that although not directly in the street, the driver was still plying for hire in the street as his vehicle was positioned so that the offer of services was aimed at people in the street. The court applied the mischief rule as the aim of the act was to prevent unlicensed taxi cabs from touting for business. An advocate of the mischief rule was Lord Denning, who in (Magor and St Mellons v Newport Borough Council, 1952) stated 'We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We 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 than by opening it up to destructive analysis'.
A final example of the mischief rule in practice is shown in the case (Tesco v Brent LBC, 1993). In this case a 14yr old was sold a video with an '18' classification and so the supermarket chain was charged for an offence under the Video recordings Act 1984. The Act provided that it would be an offence to sell such a video where the seller had reason to believe the buyer was under age, this meant the act would apply to the checkout operator rather than the company itself. Lord Justice Staughton however applied the mischief rule in order to find the supermarket chain guilty, rather than checkout operator. He deemed it was parliament's intentions for the company to be liable based on the strength of its employees knowledge, otherwise no national company could ever be prosecuted.
An advantage of using the mischief rule is that a judge is given more discretion or flexibility when interpreting a statute, this can help prevent absurd or unjust results. The mischief rule can be more easily applied to European law/ directives, especially in comparison with the other two rules of interpretation. When judges use the mischief rule to interpret a statute they will often prevent the need for amendments or complete redrafts of acts being made, which allows parliament greater time to deal with more important issues. The flexibility available when applying the mischief rule also means that this is the only rule that can be used when interpreting the (Human Rights Act, 1998). This act needs to be interpreted differently from other legislation as it is a 'living document', which is constantly updated/ changed. Due to all of these advantages this rule is currently the most widely used in interpreting statutes.
A disadvantage of using the mischief rule is that because of the discretion/ flexibility a judge has it can lead to inconsistent decisions being made. The mischief rule is also not as straightforward as the other two rules and so therefore can be more complex in its application, however extrinsic aids can help to combat the complexity involved. For example an acts meaning may be unclear and so it is difficult to identify what 'mischief' parliament were setting out to 'remedy' by producing this act. You can also argue that by using the mischief rule, judges can in effect, create laws which therefore usurps the legislative powers designated to parliament.
AS Law29/10/09
