The mischief rule gives judges more discretion then the other two rules. The mischief law looks at the gap in the previous law and interprets the words to advance the remedy. For example Smith V Hughes this was to interpret a section of the street offences act.
Purposive approach is looking at the reasons why a law was passed and interpreting the words accordingly. E.g. Mellons V Newport corporation (1950). Which says that they find out the intention of parliament and carry it out by filling out the gaps and making sense. The purpose approach gives judges more discretion in their decision, It can lead to judicial law-making. Judges also made use of launguage rules.
Ejusdem Generis is general words which follow a list are limited to the same kind. A case example is Powell V Kempton Park Racecourse (1899) this is where the defendant was charged with keeping a house, office, room or other place for betting. He had been operating betting outdoors. The court decided that the general words ‘other place’ had to refer to indoor places and so the defendant was not guilty.
Expressio Unius is the express mentioned if one thing that excludes others. For example; Tempest V Kilner where the court had to consider whether the statute of frauds act applied to a contract for the sale of stocks and shares. The list ‘goods, wares and merchandise’ was not followed by any general words, stocks and shares was not mentioned.
Noscitur a sociis which means that the words must be looked at in context and interpreted accordingly. It involves looking at words in the same section or others sections in the act.
For example; Revenue commissioner’s v frere (1965).
The court will make presumptions or assumptions about the law. If the statue clearly states the opposite, the presumption will not apply and it is said that the presumption is rebutted. There are 4 important presumptions.
A presumption against a change in the common law, this mean the common law will apply unless Parliament has made it plain in the Act that the common law has been altered. For example Leach v R (1912) Where a wife could be made to give evidence against her husband under the Criminal Evidence Act 1898. The act did not expressly say that this would happen, the common law rule said that the wife could not be compelled to give evidence still applied.
A presumption that Mens Rea is required in Criminal Cases, this means that no one can be convicted of a crime unless it is shown that they had the required intention to commit it. For example; Sweet V Parsley (1970) the defendant was charged with being concerned with the management of premises, which were used for the purposes of smoking cannabis.
A presumption that the crown court is not bound by any statue expressly says no.
A presumption that legislation does not apply retrospectively, this means that the act of parliament will not apply to past happenings, each act will normally only apply from the sate it comes into effect.
Intrinsic aids are the matters within the statute itself that may help to make its meaning clearer. The court can consider the long title, the short title. An example of this is the Theft act 1968 states it is an act to modernise the law of theft. The long title may also explain briefly parliaments intentions.
Extrinsic Aids are matters, which are outside the act. Some external sources can help explain the meaning of an act. Undisputed sources are; Previous acts of parliament on the same topic, the historical setting, Earlier case law, dictionaries of the time. The three main extrinsic aids are Hansard the official report of what was said in parliament when the act was debated. Law reform bodies such as law commission. International Conventions, regulations or directives, which have been implemented by English legislation.
B. Briefly consider the advantages and disadvantages of literal rule.
Advantages of the Literal rule is that it follows the words that parliament enacted, it also prevents unelected judges making law. The literal law prevents courts from taking sides in legislative or political issues. They also point out that ordinary people and lawyers do not have extensive access to secondary data. The literal rule results in a quick decision because the meaning is found in the dictionary or other source. The literal rule also respects parliamentary supremacy because a judges function is to apply the words of parliament and not to make law.
Disadvantages of the Literal Rule is that it is not always possible to word an act so as to cover every situation, this can mean that an act does not have the effect parliament intended as in the case of whitely v Chappell where the defendant was charged under a section which made it an offence to impersonate any person entitled to vote. The defendant had pretended to be a person whose name was one the voters list, but who had died. The court held that the defendant was not guilty since a dead person is not, in the literal meaning of words, entitled to vote. Another disadvantage is that following the exact words can also lead to unfair or unjust decisions as in the Berriman case. Words may also have more then one meaning so that the act is unclear.
Criticism of the literal rule is that it is the oldest rule of construction and is till used today, mainly because judges may not legislate, some judges may prefer to stick to the law’s literal wording.
