English Legal Process.

The use of the literal rule becomes less controversial and a consideration of the cases reveals examples where the rule has been used as a justification for what otherwise might appear as partial judgements. 

The case of Fisher v Bell (1961) is a good example of this. After a number of incidents in which flick knives were used, Parliament came to the decision that the use of flick knives should be banned. The restrictions of the offensive weapons act 1959 made it an offence to sell or offer to sell any flick knives. It was decided, in line with general contract law principles that the placing of an article in a window did not amount to an offer, but was merely an invitation to treat and therefore the shopkeeper couldn’t be charged with ‘offering the goods for sale’

The court followed the contract law interpretation of the meaning of offer in the act in question. It didn’t consider non- legal interpretation of the word offer. The executives’ attitude t the courts legal literal interpretation in Fisher v Bell (1961) can be surmised from the fact that later legislation, such as the trade description Act 168, has legislated that invitations to treat are to be treated in the same way as offers for sale

The further problem, which arises in the literal rule, is relating to the difficulty judges face in determining the literal meaning of the most common of terms. This part is shown in the case R v Miginnis (1987).

There are both advantages and disadvantages for the literal rule. Judicial interpretation grants law-making powers to judges- derogation from parliamentary supremacy. It can create absurd results. It is not useful when deliberately broad terms are used. Perfect drafting is impossible. In addition, the question of what is absurd or immoral and therefore allowing the plain words of a statute to be ignored is by necessity a subjective one, and so the interpretation will vary with the judge's background, upbringing, education, and beliefs; which will inevitably differ greatly from the mean at least some of the time. Although this may not be controversial where there is no dispute as to the 'correct' result (although correctness is surely neither absolute nor objective) in some areas of law, non-literal constructions are one-man statutes on matters that should properly be the subject of public debate.

The General Rule

The golden rule is still referred to by the courts today as a means of modifying stringent application of the literal rule it was set out by Lord Blackburn in River Wear Commissioners v Adamson. The golden rule, he stated, enabled the courts “ we are to take the whole statute and construe it all together, giving the worlds their ordinary significance, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance”

Examples of the Golden rule include Sigsworth 1935, Sigsworth murdered his mother and tried to claim his inheritance. There is a rule that no one should profit from his or her wrong, this overruled a clear statutory right of a son to inherit on intestacy. Hence statutes may be modified on grounds of public policy, as one was in this case (the principle was an existing common law principle that would have applied had she had died having made a will). Although this is a clear breach of the rule that clear and unambiguous words cannot be ignored, it surely accorded with Parliament's wishes.

An advantage of the golden rule is that in prevents the absurdity and injustice caused by the literal rule. It helps the courts put into practice what parliament really means. Disadvantages of the golden rule include what the law commission found. They noted in 1969 that the ‘rule’ provided no clear meaning of an ‘absurd result’. Another disadvantage is that it turns out to be a less explicit for of the mischief rule.

The mischief rule

According to the Law Commission this was the most satisfactory of the 3 rules (and the Golden Rule was condemned). It was set out in Heydon’s case (1584), which provides that judges should consider what the law was before the statute passes. The Mischief rule was broken up into four main criteria points

• What was common law before the act?
• What was the mischief for which the existing law did not provide?
• What remedy has parliament decided upon?
• Judge should make such constructions on the Act to suppress the mischief and subtle inventions and evasions for continuance of the mischief, according to the true intent of the makers for the Act

An example of this act would be the Street Offences act, Smith v. Hughes 1960, a prostitute solicited from inside a building to the street. A private building was held to be a ‘street or public place’ for the purposes of the Act to avoid the mischief of harlotry.

An advantage of the mischief rule is that the rule helps avoid absurdity and injustice. It has a more satisfactory approach than the previous two rules.

These are a few of the various methods in which the courts can use to interpret statutes. As mentioned previously the method that a judge will use to interoperate its statue will vary on the case, the judges’ background, education beliefs and upbringing

The European Court of Justice and the Appellate Committee of the House of Lords differ in their roles and function. Below are some examples of how the functions of these two courts differ.

The House of Lords, in addition to having a legislative function has a judicial function as a court of last resort with the U.K. Historically the House of Lords also function as a course of first instance for the trials of peers and for impeachment cases. Today, the House’s jurisdiction is essentially limited to the hearing of appeals from the lower courts. Appeals are technically not to the House of Lords, but rather to the Queen in Parliament, by constitutional convention legally qualified judges known as Lords of Appeal or Law Lords, rather than all of the lords hear the appeals. Sine World War two usually in a committee known as the House of Lords Appellate Committee rather than in the chamber of the House.In accordance with the Constitutional Reform Act 2005, the judicial functions are set to be transferred to a new Supreme Court of the United Kingdom in the near future.

An Appellate Committee usually consists of five law lords. Proceedings are less formal than in the lower courts. Counsel of the Appellant is heard first, then councel of the respondant and finally counsel or the Appellant in reply. There are frequent questions from the Law Lords as arguments are developed and challenged. The length of hearings varies but the average is two and a half days.

Appeals from England, Wales and Northern Ireland leave to appeal either from the court below or from the House. Petitions for leave to appeal are heard byan Appeal committee of the three Lords of Appeal. If leave is granted by the court below the appeal then proceeds to a Appellate committee.

The role of the European Court of Justice is the complete opposite. The European Court of Justice (ECJ) deals with disputes and upholds the Treaties of the European Union. Its job is to ensure that European law is uniformly interpreted and applied throughout the Union. It has jurisdiction in disputes involving Member States, EU institutions, businesses and individuals. It sits in Luxembourg and is composed of 25 judges, one judge from each Member State.

 The ECJ operates in a number of different ways. For example, the court can make preliminary rulings to avoid differences of interpretation of EU law by national courts. The concept was introduced by the founding Treaties and, without creating a hierarchy, institutionalised cooperation between the Court of Justice and the national courts.

To be appointed, the Judges and Advocate Generals must either be highly qualified academic lawyers or be High Court or Appeal judges in their own jurisdictions. They are appointed by joint agreement of the Governments of the Member States and have a renewable term of six years.

Their independence must be beyond doubt. Once appointed, they are not allowed to hold any other office of an administrative or political nature, indeed, they can't be involved in any occupation, paid or unpaid.

The overall role and functions of the Appellate Committee are important but the ECJ’s issues are more global. Their main function is to ensure that EU law is applied pm each member state. On the other hand the Appellate committee can also make important decisions.

The European Court of Justice is a good court that sorts disputed matters within member states. The Appellate Committee has its advantages as it makes significant decisions that can help out in U.K law

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