Statutory Interpretation - Principles

This problem question necessitates a discussion surrounding the area of statutory interpretation. To achieve consistency, judges and legal authorities have attempted to establish guiding principles of interpretation. Statute law, unlike case law, provides rules in the form of a single verbal formula. The words of a statute have a distinctive authority which words in judgments virtually never have. ‘The need for interpretation or construction may arise for a variety of reasons. One may be careless drafting, or the form and content of the Act has been subject to hasty or ill thought-out amendments during the parliamentary process.’ [1] Furthermore, problems concerning the statute could be due to the following: arrangement, amendment, use of ambiguous words, broad terms, printing/drafting errors and unforeseeable developments. Similarly drafting is often criticised due to the archaic, obscure, complex, legalistic, uncertain and tortuous language used, this can be exemplified in the National Insurance Act 1946. Such issues arise due to the simple uncertainty of the words. For example in DPP v. Johnson [2] the meaning of ‘consume’ had to be considered. Ultimately it is the context in which the word has been used that ultimately determines the outcome. If there is no clear indication of what the words mean then the court will apply certain rules that have previously evolved out of the courts themselves. A consistent approach has not been taken; instead the courts have adopted drastically different approaches. The question arises as to how judges actually interpret legislation that comes before them and the traditional answer was that in determining the actual meaning of legislation, they make use of the three primary rules of statutory interpretation and a variety of other secondary aids to construction. The three rules of statutory interpretation are (a) the literal rule, (b) the mischief rule (c) the golden rule. It must be emphasized that these are not actual rules and that they maybe at best described as post hoc justifications for decisions which are taken in line with judicial preference.

The literal rule is the primary rule which takes precedence over the others. Under this rule the judge is asked to consider what the legislation actually says rather than considering what it might mean. Words and phrases should be construed by the courts in their ordinary sense and the ordinary rules of grammar and punctuation should be applied. In order to achieve this it is up to the judge to give words in legislation their literal meaning even if, the effect of this is to produce what might be considered as an otherwise unjust or desirable outcome. An example of this was demonstrated in R v Judge of the City of London Court[3]where Lord Esher stated ‘If the words of an Act are clear, then you must follow them, even though they lead to a manifest absurdity.’

An example from the area of contract law is Fisher v Bell[4] he had a flick knife on his shop’s window and was found a guilty with offering for sale. According to the low it was decided at the placing of an article in a window did not equal to offering. In other words, the Literal Rule considers what the legislation says rather than what it means. In Whitley v. Chappell[5] it was illegal to impersonate any person entitled to vote. A dead person who was not entitled to vote, so therefore was acquitted. Clear words must be applied – even if the result is absurd per Lord Edmund-Davies in Stock, i.e. the judges only role is in determining what unclear words mean. It will always be used unless an absurdity would result. The problem with the literal rule is that although it sounds simple, there is not always a prescribed meaning for words – the ordinary meaning may not be so ordinary at all – problems finding the natural meaning of words frequently occur.

The second one of these approaches is known as the ‘Mischief Rule’, in essence establishing the ‘mischief’ that the previous law was unable to cover/establish. This rule was initially set out in Heydon’s Case [6] when applying this case; the courts are obliged to consider the following: what was the common law before the statute was passed, what was the mischief in the law that the common law did not remedy, what was the remedy parliament intended to provide and what was the reason for the remedy. In Smith v. Hughes [7] it was concerned with the Street Offences Act 1959 where it was stated that ‘it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purposes of prostitution.’ This produced a problem whereby the prostitutes used alternative methods to create custom by standing in balconies etc.

This rule 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. An example of where the mischief rule has been used is found in the case of Corkery v Carpenter[8] where the defendant was sentenced to one month’s imprisonment for being drunk in charge of a bicycle in public. He was charged under section 12 of the Licensing Act 1872 with being in charge of a carriage. However the act made no reference towards bicycles. The court chose to use the mischief rule to decide on the matter. The purpose of the Act was to prevent people from using any form of transport on a public highway whilst in a state of intoxication. The bicycle was clearly a form of transport and therefore the user was correctly charged.

The golden rule is the final approach which is used when the application of the literal rule will result in what appears to the court to be an obvious absurd result. The rule was closely defined by Lord Wensleydale in Grey v Pearson[9] who stated, “The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.”

The ‘Golden Rule’ can be used in two ways: the narrow approach and the wide approach. The narrow approach is when a word has multiple meanings and the judge chooses the meaning that best fits the situation. As in R v. Allen [10] where the judge had to decide on which meaning of the word ‘marry’ he would apply in this situation. The wide approach is used when the meaning of a word would result in an absurd or repugnant outcome; this approach was used in the case of Sigsworth, Re, Bedford v. Bedford [11] the wide approach was used in this case so that the son would not inherit the estate after committing murder. So he was not rewarded for his guilty act. The golden rule provides no clear means to test the existence or extent of an absurdity. It seems to depend on the result of each individual case. Whilst the golden rule has the advantage of avoiding absurdities, it therefore has the disadvantage that no test exists to determine what an absurdity is. The final approach is the ‘Purposive’ approach; this entails the reference to materials which are external to the actual statute. These materials can direct the judge/s to the ‘purpose’ of the legislation and/or the disputed words. This approach focuses on why the Act was passed and the purpose of the Act. Within this approach there are intrinsic aids, which is material included within the statute and extrinsic aids referring to the material not contained within the printed Act.

Another issue to recognise when dealing with statutory interpretation is that there is also a requirement concerning the Human Rights Act 1998 whereby under s.3 (1) it states that ‘So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention Rights’. Similarly the rules of language are important; there are three main types of language to consider: ‘ejusdem generis’ where the lists of words from the same class are followed by a general word or phrase. An example of where this is apparent would be Powell v. Kempton Racehorse Company. [12] Secondly, ‘expressio unius exclusion alterius’ whereby the express mention of one member class excludes other members of the same class. This is exemplified in Tempest v. Kilner. [13] Finally the last type of language to consider is known as ‘noscitur a sociis’ where the word is known by its associates noted in Bromley London Borough Council v. Greater London Council. [14] Any trivial linguistic issues that arise are now handled by the Interpretation Act 1978 ‘this act, consolidated and amended the Interpretation Act 1889’ [15]