The Golden Rule is really an elaboration, extension or moderation of the Literal rule. It states that words should be used in their Literal meaning only to the extent that it does not produce an absurd or intolerable verdict. Lord Wensleydale, in the the case Grey v Pearson (1857) said “The grammatical and ordinary sense of the words is to be adhered to, unless it would lead to some absurdity, when the ordinary sense may be modified to avoid absurdity but no further…” This became known as “ John Wensleydales’s golden rule” . This rule can be applied in two ways.Firstly by the narrow meaning whereby if there is ambiguity in the words of Legislation; preference will be given to the meaning of the word which does not result in absurdity.
In Adler v George (1964) 2 QB 7, the Defendant had been charged under S. 3 of the Official Secrets Act 1920, under which it is an offence to obstruct HM forces “in the vicinity of any prohibited area”. The defendant carried out the obstruction inside the area. The defendant was found guilty of the charge; the court did not limit itself to the literal wording of the act.
The second use of the Golden rule is the wider or broad approach. It is used to avoid an outcome that is absurd or obnoxious to principles of Public Policy even if the word(s) have one meaning. In the case,Re Sigsworth (1935). The defendant had murdered his mother. She did not have a Will and he stood to inherit her estate as next of kin, by being her “issue”. The court however applied the Golden rule and held that “issue” would not be entitled to inherit where they had killed the deceased.
This decision had however contrasted and contradicted the words of both Lord Diplock and Lord Scarman in the case Duport Steels Ltd v SIRS (1980) HL. Lord Diplock said “where the meaning of the statutory words is plain and unambiguous, it is not for the judges to invent fancied ambiguity as an excuse for failing to give effect to its plain meaning…doing so would be inexpedient or even unjust or immoral ; Lord Scarman in his words said “In the field of Statute Law judges must be obedient to the will of Parliament…not to change it to meet the judge’s idea of what justice requires..”
The Mischief rule is somewhat older rule and is sometimes referred to as the rule in Heydon’s case(1584) . It can be used by the court to interpret a statute that was passed to remedy a common law defect, lacuna or loophole. The judges use this rule to decide what mischief or loophole the statute intended to correct or close.
In applying this rule, the court will consider four principles, i.e. “What was the common Law before the rule was passed?”, “What solution was offered by Parliament”, “What is the true reason for the solution?” and finally “What was the Mischief the Law did not solve?”
A good example would be the Corkery v carpenter (1951) case where a person found under the influence of alcohol while in charge of a “carriage” could be arrested without a warrant. In that case, the court interpreted “carriage” to include a bicycle. The court obviously felt that the intention of Parliament in passing the legislation was to protect the public from drunken people in driving vehicles on the roads or public places.It would have produced an absurd verdict if the Literal rule was used.
The Mischief rule has been applied in the Royal College of Nursing v DHSS (1981) case the recent DPP v Bull (1994) 4 All ER 411. An alternative method to the Mischief rule is the Purposive approach which allows for the most discretion to be exercised. As Lord Cooke in R v SOS for the Environment ex parte Spath Holme (2000) HL said “the purposive principle of interpretation is the governing one…”.
The purposive approach is one that will “promote the general legislative purpose underlying the provisions” (As per Lord Danning MR in Northam v London Borough of Barnet (1978).) The rule is used to the interpretation of statutes involving European Community Law. European Communities Legislation is drafted in a very different way to English Legislation. The EC favours a Civil Law approach and is a simpler drafting.
The purposive approach is required for all EC Law under Section 2 (4) of the European Communities Act 1972. Where there is a conflict between EC Law and UK Law, UK courts must choose an approach that interprets legislation implementing EC Law. The courts must consider wide economic and social aims of the EC/EU.
In Lister v Forth Dry Dock and Engineering Co Ltd (1989), the House of Lords used the combination of the purposive approach and the proper implementation of the EC Directive to pass out their verdict. It would also be true to know that the English courts cannot simply disregard statutes or strike them down if it is not possible to interpret them in accord with the ECHR, they can however by section 4 make a declaration of that incompatibility.
Generally Speaking, therefore it can be said that there are two contrasting views as to how judges should interpret a statute. The Literal approach dominant in the English Legal System looks primarily at the words of the Statute to construe its meaning. Lord Danning however, famous for his purposive interpretation felt that by applying the Literal rule, the intention of Parliament could be destroyed.
The Literal and to a lesser extent the Golden rule looks at the actual meaning of the words in the Statutes. The Mischief and Purposive approach go beyond that and allow judges to look outside of the Literal meaning and see that much discretion is exercised. “The days have long passed when the courts adopted a strict constructionist view of interpretation…courts now adopt a purposive approach which seeks to give the true purpose of Legislation.” (As per Lord Griffiths, in Pepper v Hart).
This many would say, allows judges to make law by assuming to know Parliament’s true intention in a given piece of Legislation. It can be seen as the courts interfering in areas outside the remit, as per the doctrine of Separation of Powers.
In conclusion, it would be right to submit that if the intention of Parliament is clear from the words used, there is no need for the courts to go outside the Statute to find the intention of Parliament. From the words of Lord Simone in Maunsell v Ollins (1975), “The first task of a court of construction is to put itself in the shoes of the draftsman”.
