These judgments support the view that courts should not overstep their jurisdiction attempting to change the words or meaning of an act. This is parliament’s role and as such if an absurdity should occur through the enactment legislation parliament shall be responsible for remedy of this absurdity. For instance Lord Bramwell, Hill v East and West India Dock Co "It is infinitely better to adhere to the words of an Act of Parliament and leave the legislature to set it right than to alter these words according to one's notion of an absurdity”.
The prosecution would also argue that Giles is in breech of SOA; s.1 (1) (a) of the act states “A man commits an offence if he solicits a woman (or… women) for…prostitution…from a motor vehicle”. Clearly if Giles is proved guilty of soliciting for the purposes of prostitution he would be in breech of this act.
If we apply the literal rule of statutory interpretation, Giles would be in breech of s.1 as the section forbids “the making of repeated approaches to women in an area known to be frequented by prostitutes”. Giles admits stopping his car to speak to women. If the literal rule is applied, in an area frequented by prostitutes, this would constitute an offence no matter of the nature of the women with whom he was talking.
However the defence would argue it inappropriate to convict Giles under the Act. The golden rule, or the mischief rule, are both tools of statutory interpretation which could be invoked.
The Golden rule is defined by Parke B, Becke v Smith “adhere to the ordinary meaning of the words … unless that is at variance with the intention of the legislature …or leads to any manifest absurdity or repugnance, in which case the language may be varied". While the position described here appears incompatible with the doctrine of parliamentary sovereignty; this doctrine may extend not only to the words of parliament but also the intention. If this is so, in this case surely parliament did not intend to restrain individuals for asking directions toward a market, rather parliament sought to remedy the problem of prostitution. As such the mischief rule could also be invoked.
Coke reports this rule to have been laid out by Barons’ of the Exchequer in Heydon’s Case " four things are to be … considered: 1st. What was the common law before the making of the Act?...2nd. What was the mischief … for which the common law did not provide?...3rd. What remedy the Parliament hath resolved…4th. The true reason of the remedy… the judge is always to make such construction as shall suppress the mischief and advance the remedy ". Again if we look at the facts of Giles’ case, then apply the mischief rule Giles’s innocence would be proven. The common law before the act did not bar anyone from making “repeated approaches to women” as it now provides for; the mischief parliament sought to resolve was the making of these approaches for the purpose of prostitution; the remedy parliament resolved was this act; and the true reason of the remedy was to detract from prostitution, not to apprehend those looking for directions.
It would also be argued that the Act is incompatible with the European Convention on Human Rights; Article 11 s.1 s “Everyone has the right to freedom …of association with others”. Restraining one from exercising the right they are afforded by stopping them “making approaches to women” would contravene this as the new act does not discriminate as too what the purpose of these approaches should be.
R v Inhabitants of Ramsgate (1827) 6 B&C 712
R v The Judges of the City of London Court [1892] 1 QB 273, 290
Hill v East and West India Dock Co (1884)9 App Cas 448
Sexual Offences Act 1985 s.1 (1) (a)
Becke v Smith (1836) 2 M&W 195
European Convention on Human Rights article 7 (s.1)
