In Whiteley v Chappell (1868) stated in Jacqueline Martin (2002: 58), the defendant had pretended to be someone who was entitled to vote, but who has past away and under the law it was an offence to impersonate ‘any person entitled to vote’. Conversely, the court held the defendant not guilty “since a dead person is not, in literal meaning of the words, ‘entitled to live’.” Also the decisions made by using the literal interpretation can lead to cruel decisions, which can be seen in London & North Eastern Railway Co v Berriman [1946] which can be found in Jacqueline Martin (2002: 58) as well. In this case, the facts were that, a railway worker who was oiling points along a railway line got killed. According to the Fatal Accidents Act, a “look-out person should be provided for men working on or near the railway line ‘for the purposes of relaying or repairing’ it. Therefore, his widow tried to claim compensation but failed because the courts took the literal meaning of ‘relaying’ and ‘repairing’ and found that the Berriman was actually maintaining the line and not relaying or repairing it.
Although the literal rule respects Parliamentary sovereignty, i.e. giving the courts a restricted role and leaving law making to those elected for the job, it can sometimes cause absurdity and injustice in the outcomes of the statute (which can be seen in the statutes mentioned earlier). Therefore, the court also uses other approaches, such as the mischief rule and golden rule. The below statutes shows that the judicial decisions have not ‘only ever taken’ literal rule.
First of all, statutes whereby the golden approach is used for statutory interpretation means the words or phrases in statutes are given a meaning other than their ordinary everyday meaning. It is an expansion of the literal rule which includes statutes such as in Alder v George [1964] 2 DB7 whereby George entered a sentry post at an army base which was classed as a prohibited place under the Official Secrets Act 1920. Therefore he was charged with obstructing a member of HM Forces ‘in vicinity of a prohibited place”. George argued that he was actually in the base and not in vicinity of prohibited place, so could not be convicted. However, as stated in (Alix Adams 2000:34) the court took the golden approach and held that to use literal approach, it would cause an absurd result; therefore ‘vicinity’ must be interpreted as “including the place itself, not just its environs”.
Another statute using the golden interpretation can be found in R v National Insurance Commissioner ex p Connor (1981) which is stated in Slapper & Kelly 1999:140. The facts were that Connor had killed her husband in order to be entitled to a widow’s pension. The court held that Connor could not gain the widow’s pension because “she had been the actual cause of her widowed status by killing her husband”. On the other hand, if the courts had taken the literal approach, than of course Connor would be entitled to the widow’s pension.
Another approach that has been expended from the literal rule is the mischief rule. In short, the mischief rule is when the court examines the law before the Act to try and discover the problem (mischief) that Parliament had intended to solve, (Heydon’s Case [1584] 3 Co Rep 7a). One of the main statutes that have used the mischief approach is in Smith V Hughes [1960] 1 WLR 830 which interpreted section 1(1) of the Street Offences Act 1959 which stated it was an offence “for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.” In this case, six different prostitutes were either standing on the balcony or behind the windows on ground floor room and they were tapping on the balcony/window to get the attention of the men walking past. The prostitutes were charged and found guilty of the offence as the court took the mischief interpretation, even though they argued that they had not actually been ‘in a street or public place’. Lord Parker CJ’s stated “ Everybody knows that this was an Act to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes”, this was found in Jacqueline Martin 2002:60. Another important statute that has used the mischief approach in order to provide justice is in Royal College of Nursing of the United Kingdom v DHSS [1981] AC 800, found in Erika Kirk1998:77. The main factor in this statute is the Abortion Act 1967 which required that a pregnancy should be ‘terminated by a registered medical practitioner” meaning that only doctors were allowed to carry out an abortion lawfully. However, after 1972 doctors carried out the first part of the operation and the nurses then carried out the second part, as there were improvements in medical terminating. The problem that courts had to decide was whether the above procedure was lawful according to the Abortion Act. The court held that the aim of the Act was to ensure that “abortions were carried out under qualified medical supervision.” This was the case in the statute therefore the terminations were lawful.
Conclusion:
I personally think that the validity of the statement depends on the time in which you are referring to. This is because the three approaches to statutory interpretation have been developed at different stages of legal history. Especially during the eighteenth and nineteenth century whereby the literal approach was strongly used and is still widely used as the appropriate starting point in determining the meaning of a statute.” (Erika Kirk 2001)1
However, Professor John Willis who analysed the approaches that judicial decisions based upon, suggest (SH Bailey & MJ Gunn 19962) that the court chooses the rule which would result in justice and fairness. He also stated that “Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands.” Also Lord Griffiths has also the same point of view that the English legal court system have moved away from only using the literal approach, “The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language” and that now, the courts use other approaches to which “seeks to give effect to the true purpose if legislation”.
And most importantly, whether the court uses the literal rule, golden rule or the mischief rule, it depends entirely on the judge. So as to say that the courts only ever use the literal rule maybe understated of the approaches used within the courts. It can even to the extreme whereby in once case it uses the literal rule to decide and the mischief rule in another case. An example is shown as stated by Jacqueline Martin 2002:63, where Lord Parker decided the case in Fisher v Bell by using the literal approach and in Smith v Hughes he used the mischief rule.
What would be the effect on English Law of the abolition of the doctrine of judicial precedent?
Firstly, according to Keenan and Riches 1998:17, judicial precedent means “a decision made by a court in a case involving a particular set of circumstances is binding on other courts in later cases, where the relevant facts are the same or similar.” And most importantly a court must follow previous decisions made by superior courts, but a superior court is not bound by the previous decisions of an inferior court.
The doctrine of the judicial precedent has been and still is very important in the English Legal system, for example, it has improved the consistency of the law especially with the acts developing such as the Council of Law Reporting (1865) and the Judicature Acts (1873-75) and with the creation of the hierarchy of courts. (also found in Keenan and Riches 1998:17). The links to fairness whereby “similar cases should be decided in a similar way” and it also provides certainty as “people know what the law is and how it is likely to be applied in their case” Therefore it has advantages for lawyers to advise his/her clients and for businesses to know their limits according to the law. (Slapper and Kelly 1999;34)
However, if there were an abolition of the doctrine of judicial precedent then, the consistency and fairness of the English Law would be problematic i.e. having different outcomes for every case even if the facts are similar. This could result in huge outcry from the public, media etc. it would also result in lawyers more likely to give incorrect advise tot heir clients and businesses are in more danger of committing an offence without knowing “what financial and other arrangements are recognised by the law.”
The flexibility of the English System would also suffer greatly as decisions can not be reacted quickly to changing needs of society, and also parliament would have to decide the outcome of every single case, therefore it would be very time consuming. It would be a massive change to the system and the pubic may not favour this, as most people dislike change. However, if there was no judicial precedent then some cases can have a fairer outcome as they no longer to follow previous decisions which may have been set a long time ago when things are totally different to nowadays. For example, in RvR (1991) it was not an offence for rape within a marriage but up until 1991 this changed as the courts held that rape within marriage was a crime. Yet this was only recent when this case over turned a legal principal centuries old. This offence may have established sooner if there was no judicial precedent.
Conclusion
This shows that there are advantages to the abolition of the doctrine of judicial precedent, but there are also disadvantages. It mainly shows that the abolition of the doctrine of judicial precedent can cause quite a few problems and may need a long time to getting used to it.
Also if there were no doctrine of binding precedent then the English System may use other alternatives, such as the use of code, which is found mostly in Continental Europe (Marsh and Soulsby 2002:14). This works by “almost all of the rules of civil and of criminal law have been written out fairly simple, and then formally enacted by legislature”. On the other hand, this may take a while for the English system to adapt to this system.
Bibliography
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Principals of Business Law by Kelly & Holmes (1997); 2nd Edition, Cavendish Publishing Limited; Great Britain.
- Nutshells English Legal System by Penny Darbyshire (2001); fifth edition; Sweet & Maxwell Limited; London.
- The English Legal System by Jacqueline Martin (2002); third edition; Hodder & Stoughton; UK.
- Law for Business Students (2000); second edition; Pitman Publishing; Great Britain
- The English Legal System by Gary Slapper & David Kelly (1999); forth edition; Cavendish Publishing Limited; UK.
- English Legal Method by Erika Kirk (1998); second edition; Blackstone Press Limited; UK
- English Legal Method by Erika Kirk (1998); Second Edition; Blackstone Press Limited; UK
- The Modern English Legal System by SH Bailey & MJ Gunn (1996); third edition; Sweet & Maxwell Limited; UK
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A Level Law Revision Guide by Stephen Field and Raymond Emson; (1998) Macmillian, UK.
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Business Law; Marsh and Soulsby (2001); Nelson Thornes, UK
