A classic example of this approach from the area of contract law is Fisher v Bell. Here, a shopkeeper who had put a flick-knife in his window shop, together with a price tag, was charged under a particular statute with 'offering the knife for sale'. The charge was dismissed on the basis that, in line with the general contract law principles, the placing of an article in a window did not amount to an offer, but was merely an invitation to treat, and therefore the charge was inaccurate. There was no doubt that the flick knife was an offensive weapon and that the legislation was aimed at controlling the sale of such weapons, nor was there any doubt that the shopkeeper would have sold the knife, but the court stood by the literal interpretation of the Act in question and refused to extend the usual legal interpretation of the word 'offer'
This can further be illustrated in R v Magginis where their lordships gave a strict interpretation of s5(3) Misuse of Drugs Act 1971. Here, they held that the defendant was guilty of the offence because a person in unlawful possession of a controlled drug left with him by another person for safekeeping had the necessary intent to supply it to another.
As can be seen, although a strict literal meaning is given, there is a sound basis of reasoning for the rule in that "how else would a judge find Parliament's intention but through the words they have used?". In Sussex Peerage Case 1844 "if the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in the natural and ordinary sense.
The golden rule is considered an extension of the literal rule. It is used when the application of the literal rule will result in, what appears to the court an obvious absurd result.
Adler v George - Under the Official Secrets Act in operation at the time, it was an offence to obstruct HM Forces in the vicinity of a prohibited place. George had, in fact, been arrested whilst obstructing such forces within such a prohibited place. The court found no difficulty in applying the golden rule to extend the literal wording of the statute to cover the action committed by the defendant.
This is illustrated in Re Sigsworth where on the facts, a son murdered his mother. The issue is whether the son is to benefit from the mother's estate? The mother left no will thus following Administration of Estates Act 1925, "the next of kind is to benefit" which if a literal meaning is used would be the son. However, this cannot be fair and cannot be Parliament's intention. Thus the judges modified the ordinary sense of the word "next of kin" to mean issue of any relationship where a person should not benefit from his own wrong doings.
The mischief rule is of venerable age, being clearly established in Heydon's Case. It gives the court a justification for going behind the actual wording of a statute in order to consider the problem that the particular statute was aimed at remedying. At on level, the mischief rule is, clearly, the most flexible rule of interpretation, but it is limited by being restricted to using previous common law to determine the particular mischief the statute in question was designed to remedy. In Heydon's Case, it was stated that in making use of the mischief rule the court should consider the following four things:
- What was the common law before the passing of the statute?
- What was the mischief in the law which the common law did not adequately deal with?
- What remedy for that mischief had Parliament intended to provide?
- What was the reason for Parliament adopting that remedy?
An example usually of the use of the mischief rule is Corkery v Carpenter, where a person was arrested for being drunk in charge of a bicycle. He was subsequently charged under the Licencing Act with being drunk in charge of a carriage, as the legislation made no actual reference to cycles. It is certainly arguable that a cycle is not a carriage, but in any case, the court elected to use the mischief rule to decide the matter. The purpose of the Act was to prevent people from using any form of transport on the public highways whilst in a state of intoxication. The cycle was clearly a form of transport and, therefore, its user was correctly charged.
It is usually suggested that the above 3 rules are ranked in a hierarchical order, the first being the preferred rule only giving way to the second in certain circumstances, and the third rule only being brought into use in a perceived failure of the other two to deliver an appropriate result. On consideration, however, it becomes obvious that there is no such hierarchy. The literal rule is to be used, unless it leads to a manifest absurdity, in which case it will give way to the golden rule, but what determines whether any particular result is an absurdity, other than the view of the judge deciding the case? The rules are contradictory, at least to a degree and there is no way in which the outsider can determine in advance which of them the courts will mobilise to decide the meaning of a particular statute. In reality, it may be seen, therefore, that the three rules are simply different rules which are no more than devices by means of which the judges justify their particular decisions.
In addition to using the usual rules of interpretation, judges are now required by the Human Rights Act 1998 to construe statutes in such a way as, so far as possible to give effect to the rights provided under the ECHR. This new requirement might well have the effect of invalidating previous interpretations of statutes which had to be decided without reference to the Convention. No doubt, the future will see many strained interpretations of statutes in an endeavour to keep them within the parameters of the Convention.
Apart from the supposed rules of interpretation considered above, the courts may also make use of certain presumptions. As with all presumptions, these are open to rebuttal. They can be listed as follows:
- Since Parliament is sovereign, it can, of course, alter the common law by express enactment, but, otherwise, a statute is presumed not to make any fundamental change to the common law in the face of an alternative interpretation which maintains the existing common law position.
- A statute does not impose criminal liability without proof of mens rea - thus in Sweet v Parsley, the owner of property was acquitted of being concerned with the management of premises which had been used for the smoking of cannabis. The House of Lords decided that, as she did not know her property was being used for that purpose, she could not be guilty of the offence with which she was charged. As stated previously, this presumption can be rebutted either expressly by the wording of the legislation as in many strict liability offences, or by implication, on the basis of the judge's interpretation of the statute.
- A statute is presumed no to operate retrospectively. It is however, always open to Parliament to enact such legislation as it did with the War Damage Act 1965 in order to prevent the Burmah Oil Company from collecting damages which the courts had decided were owed to it from the State.
- A statute is presumed not to intend to deprive individuals of their property or interfere with their rights without compensation
- A statute is presumed not to apply to the Crown unless there is a clear statement that it is to be so bound.
- A statute is presumed not to run counter to international law and , where possible, it should be interpreted in such a way as to give effect to existing international legal obligations.
As with the 'rules' of interpretation, simply being able to list the various presumptions does not, in fact, mean a great deal in the face of judicial discretion in deciding which particular ones to follow. The various contradictions and weaknesses evident in the manner in which judges interpret legislation mention above were encapsulated in the Law Commission's Report entitled The Interpretation of Statutes Law Com No 21, 1969. There has been no action on this Report to date.