Statutory interpretation.txt

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toricazaly
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220192
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Statutory interpretation.txt
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2013-05-18 17:14:23
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SOURCES OF LAW
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  1. The main topics of statutory interpretation:
    • Literal rule
    • Golden rule
    • Mischief rule
    • Purpose approach
    • Rules of language
  2. Literal rule definition
    Looks at the plain, ordinary, dictionary meaning of the words/phrases in the act
  3. Literal rule extra information
    • Lord esher: R v Judge the city of London 'it is not for judges to question whether the legislature has committed an absurdity' - its their job just to apply the law
    • The literal rule does use extrinsic aids such as the oxford dictionary of the year - cheeseman
  4. Literal rule cases
    • Whitely v chappel
    • LNER v Berriman
    • Fisher v bell
  5. Whitely v chappel (literal rule)
    • A man was charged with impersonating 'any person entitled to vote'
    • Judge said dead people can't vote so defendant was aquitted
    • Completely absurd - anyone could get away with this offense
  6. LNER V Berriman (literal rule)
    • Work man killed oiling the track without a look out
    • The fatal accident act (1940) - compensation only payable if injury/death when 'relaying' or 'repairing' track
    • The court held ailing and maintaining the track does not equal repairing
    • No compensation - unfair
  7. Fisher v Bell (literal rule)
    • Shop keeper charged with 'offering for sale' flick knives
    • Found not guilty because an offer is an invitation to treat - it was just a window display
    • Unjust decision
  8. Advantages - literal rule
    • Easy to apply - No debate
    • Judges dont make law - maintains separation of powers and parliamentary soveinty as it follows parliaments words
  9. Disadvantages - literal rule
    • Dictionaries have usually more then one meaning - ambigious
    • Can result in unfair, absurd and harsh decisions
    • Prof zander said it was mechanical
  10. Golden rule definition
    • Looks at the literal meaning but the court is then allowed to avoid an interpretation which would lead to an absurd result
    • Two ways:
    • Narrow interpretation- choose between an alternative meaning
    • Broader interpretation - words have one clear meaning but the meaning would lead to an repugnant decision. In this case the court will invoke the golden rule to modify the words of statute in order to avoid this problem.
  11. Case for narrow interpretation
    • R v Allan - it was an offense to 'marry' whilst ones original spouse was still alive (no divorse). The word marry can either mean to become legally married to another person or in a more general term 'go through a ceremony of marriage'- court decided second meaning as you cannot legally be married to two people at the same time.
    • If first was applied noone would be convicted of bigamy - would be absurd
  12. Broader interpretation
    • Re sigsworth (1935) - the son had murdered his mother. The mother hadnt made a will so normally her estate would be inherited by her next of kind according to the rules set out in the administration of justice act 1925
    • No ambiguity in words but courts were no prepared to allow a murderer inherit and benefit from his crime
  13. Advantages - golden rule
    • Fairer and more compassionate
    • Provides an escape route from unfair decision
  14. Disadvantages - golden rule
    • Limited use; element of judicial law making
    • The courts are unsure when to use it - it wasn't used in LNER v Berriman or Whitely v Chappel
  15. Mischief rule definition
    • Finds the problem that parliament was trying to address and read the Act sympathetically
    • Under this rule therefore the court should look to see what the law was before the Act was passed in order to discover what gap that act was intended to cover. The judge will then cover the gap by interpretating the Act
  16. Cases for the mischief rule
    • DPP v Bull (1994)
    • Smith v Hughes (1960)
  17. Smith v Hughes (1960)
    • 'it shall be an offense for a common prostitute to loiter or solicit in a street problem public place for the purpose of prostitution'
    • The women were not in a 'street' - on balcony and the windows of the ground floor rooms
    • Court said they were guilty
  18. DPP v Bull (1994)
    • Male prostitute charged with an offense against s1. Street offences act (1959)
    • 'it shall be an offense for a common prostitute to loiter or solicit in a street problem public place for the purpose of prostitution'
    • Acquitted because judges said a 'common prostitute' only applied to women
  19. Advantages of mischief rule
    • Allows judges to look back at the gap in the law which the Act was designed to cover
    • Law commission prefers this rule
  20. Disadvantages of mischief rule
    • Judicial law-making - own judges view filling the gaps
    • Uncertainty in the law - difficult for solicitors to advise clients
    • Not as wide as purposive approach
  21. The purposive approach definition
    • Tries to find the 'purpose' of the Act and interpret accordingly
    • Parliament purpose can be discovered by using 'intrinsic' and 'extrinsic' aids
    • Intrinsic aids -inside the Act
    • Extrinsic aids - outside the Act
  22. Intrinsic aids
    • Anything within the Act itself:
    • Preamble
    • Long title
    • Definition section
    • Other sections
    • Objective sections (if there is one)
    • Schedules
  23. Extrinsic aids
    • Matters outside the Act:
    • previous acts on the same points
    • Earlier case law
    • Oxford Dictionaries, including those from the time when the act was passed - cheeseman
    • Hansard - pepper v Hart
    • Law commission report - black clawson
    • International treaties - fothergill v Monarch airlines
  24. Purposive approach case
    • Jones v Tower boot co.
    • 'in the course of employment' included racial harassment that happened at work even thought it wasn't a part of work
    • Had the literal rule been used the employer wouldn't have to had to pay compensation.
  25. Evaluation of purposive approach
    • Leads to justice on individual cases BUT makes law less certain
    • Fills in the gaps in the law BUT leads to judicial law-making.
  26. Rules of language
    Expressio unuis exclusio alteruis - exclude other things

    Ejusdem generis - For a list of words followed by general words

    Noscitur a sociis - context of the word is used in
  27. Expressio unuis exclusio alteruis
    To mention one thing/some things is to exclude other things - of there is a list but not general words then the only items in the list are included

    • Tempest v Kilner (1846)
    • Only 'goods, wares and merchandise' were affected by the statute because only them were mentioned so dont include stocks and shares
  28. Ejusdem generis
    List of specific words followed by general words - limited to the same kind of thing to the specific word

    • Powell v Kempton park race course (1899)
    • The d was charged with keeping a 'house, office, room or other place for betting'
    • However he was operating outdoors and the court decided that the general words 'other place' has refered to indoor places -D not guilty
    • RESTRICTED RULE
  29. Noscitur a sociis
    Looks at the context in which the word is used - words cannot be considered in isolation. They are known by the company they keep.

    IRC v Frere - decided 'interest' meant annual because the word annual had already been defined

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