The literal rule that means judges must give the words in statute theirplain ordinary and literal m

Denise McBride

Legislation and statuary interpretation

Statutes are Acts passed by Parliament they are expressed in words and words can be imperfect. Parliament tries to draw up the words as not to create uncertainty. This is not always straightforward because some words are extensive and diverse in their meaning. Judges may not agree with Acts of Parliament and feel that there is room for improvement. However it is not a judge’s role to question an Act. A Judge cannot fail to apply an Act even it produces a bizarre outcome or if it clashes with the Human Rights Act 1998. A judge’s role is to interpret statute and relate it to imminent Cases. There are many reasons why statute is in need of interpretation, the Act is badly drafted, the subject matter is complex and errors are bound to happen, the Act fails to provide for all situations and there may be changes in the use of language. In my essay I will attempt to explain the aids used by judges to interpret statute and the different approaches to statutory interpretation. I will also apply the rules of statuary interpretation to the scenario of Ted’s takeaway.

The three principal Approaches to statuary interpretation

To assist judges interpret statute the court adheres to different rules devised over the years by preceding judges. These rules are as follows,

The literal rule The Literal rule is the first approach that will be taken. This is where judges give the words in statute their plain ordinary and literal meaning, even if this results in absurdities or hardship. The literal word must be taken even if it seems to go against what Parliament might have intended. This can be identified in the Case that follow Case: Fisher v Bell [1961] Under the Restriction of offences Act 1959 it was made an offence to sell certain offensive weapons. A shopkeeper, who had a flick knife in his shop window, was charged under the offence. It was held that displaying an article in a window did not equal to an offer for sale and was regarded as an invitation to treat. The literal meaning of the words were applied, even though under the Act Parliament had intended to stop the sale of flick Knifes.

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The Golden rule this is where the literal rule would lead to a result that was not clear. Then the judge could apply an interpretation that could avoid a bizarre outcome. This is where the judge has to look at the literal word and if it creates an absurdity then the meaning can be modified slightly and no further. This can help rectify absurd situations like following Cases, Re: Sigworth [1935] where the defendant murdered his mother and she had not made a will. The defendant then became her next of kin and under Administration of Estates Act (1925) would inherit her estate. The court applied the Golden rule here and it held that a defendant would not inherit any estate from a person they had murdered. R v Allen (1872) this Act states ‘whosoever, being married, shall marry any other person during the life of a former husband or wife shall be guilty of bigamy’. A person cannot legally marry if they are already married. If the words were interpreted as ‘attempt to marry’ this would be more consistent with the intention of Parliament

The Mischief rule this is also known as Heydon’s Case (1584), this permits the court to look at the problem or the mischief that the Act was trying to correct. By reading the Act in a particular way that would attain the appropriate remedy. As identified in the Case: Smith v Hughes [1960] Two women appealed against their convictions of ‘soliciting in a public place or street for the purpose of prostitution’; this was an offence under the Street Offences Act (1959). These women were inside a house tapping on the windows beckoning passers by to come inside. It was obvious they were soliciting. However this was not in the street or a public place but in private property and the women had not breached the literal word of the Act. The court addressed the mischief in the Act and held that the women were guilty. As the Act was directed at ‘cleaning the streets and or to stop people or passers by being molested or solicited by prostitutes’. There is another approach that has similarities with the mischief rule called the purposive approach. This approach does not just look at the filling in the gaps to remedy the mischief in the Act but calls for judges to decide what was intended by parliament.

Internal (intrinsic) aids are within the Act itself and can assist the judge to understand the aim and intent of the statute. The statute must be read as a whole, the long Title, sets out the purpose of the Act. This can be used to show intention. Nonetheless it cannot be shown to contradict clear intention. In addition to this is the short title, which is merely an easy way of recognizing the Act, (e.g. Dangerous Dogs (Act 1991)).

External (extrinsic) aids the court looks at various aids to help them understand what an Act means.They include dictionaries for the different meanings of the words in statute.(ordinary or the alternative if need be), previous Acts covering the same topic and ‘Hansard’which is the transcripts of what is said in Parliament (after the Case Pepper and Hart (1993) ).

The language rules help the courts understand statuary interpretation and are as followsThe Eiusdem Generis rule ‘this means of the same kind’ were there has to be two or more particular words that are preceded by a general term. Subsequently these words are specific to things of the same kind. If an Act specifies ‘cat’s dogs and other animals’ it refers to other animals as being of the ‘of the same kind’. The noscitur a sociis rule ‘a word gains its meaning from the company it keeps’this rule requires the judge to look at the whole sentence to determine what a word means.The word nut has different meanings.It can be used to describe an insane person, a small metalic threaded block that srews on a bolt and\or a nut that can be eaten. the Expressio wording rule requires that if particular object or thing is mentioned in an Act then it excludes the inclusion of other things. If an Act covers ‘weapons’ then it identifies with all objects that can harm another human being. If an Act mentions ‘hand guns’ then it only applies to weapons of this kind. In addition to the language rule is the Interpretation Act 1978 this provides guidelines for interpreting the Act. there is also Presumtions these are rules that must be followed unless the act specifies to the contrary.

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In the answer to Ted’s take away scenario if the judge applied the literal rule as in the Case: Fisher v Bell [1961] then the words in the byelaw 'to keep open any restaurant or premises for the sale of tea, coffee or other drinks after 11pm ' would have been taken literally and therefore Ted would win the Case. The reason being Ted had the doors to the restaurant shut. The Eiusdem Generis rule cannot be applied to this case as the byelaw states ‘tea, coffee or other drinks’ this means drinks of the same kind. The drink being sold was coca cola and this is not ‘of the same kind’. An example of this rule is Case: Allen v Emmesron (1944) the Act stated 'theatres and other places of amusement'. The place in question was a funfair therefore the rule did not apply as a funfair is outside and the rule refers to buildings.

The golden rule can only be applied if the literal word produced absurd or bizarre outcome as in the Case Re: Sigworth [1935]. Ted was not selling tea, coffee or other drinks and his café was not open. Therefore if the literal word is held he would not have breeched the byelaw. Perhaps making a small change to one of the words as in the Case: R v Allen (1872) would bring a different Case result and be more consistent with the intention of the local authority.

Applying the mischief rule to Ted’s Case would give more flexibility and fills in the gaps as to what the local authority was aiming to achieve in passing the byelaw. The local authorities were trying to stop the residents from being disturbed, by stopping people from gathering and making noise in the area after 11pm. Ted was selling drinks after 11pm to passers bye through a hatch in the wall. As in the Case: Smith v Hughes [1960]. The court could address the mischief in the byelaw, which was ‘selling drinks after 11pm ' and hold Ted guilty, as the byelaw was to stop the sale of drinks and disturbances after 11pm.

Judges can follow any of the three rules if they wish and it is up to the individual judge which rule to apply.

The literal rule ignores the broad use of language and applying this rule can sometimes lead to absurd and harsh results even if it goes against the wishes of Parliament. Giving the word it plain ordinary meaning can also be problematic as different judges have different interpretations on what a words literal meaning might be. The consequences for this are different result. This rule has been described as lazy, defeatist, mechanical and primitive and it has been argued that judges who use this rule will not accept the responsibility for working out the meaning of the Act. This rule also makes presumptions as to Parliamentary draftsmen never making mistakes.

The golden rule this rule is to prevent absurdities that might evolve as a result of the literal rule. The problem is different judges have different definitions of what might be absurd and the rule can only be used if a judge decides to apply it. The argument is that judges are acting outside their role as interpreters and are becoming legislators by ‘rewriting’ statute law.

The mischief rule this is a rule were the judge looks for the mischief that the Act was trying to remedy and fills in the gaps in accordance with the intentions of Parliament. However the judge must identify the mischief before he can apply this rule and this can be difficult. Different internal and external aids are used to help identify what the intentions of Parliament might be. This used to be even more difficult before the use of Hansard. As in the golden rule this rule allows judges to ‘rewrite’ statute law, some traditionalist judges condemn this, arguing a judge is not a legislators and his position should only allow him to interpret statute literally and enforce the words of parliament.

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