Common law rules of interpretation
Explain how the judges use the mischief rule of interpretation
The assess the common law that existed before the enactment of the statute in question and try to understand the mischief or problem prevalent in the common law. This is done in the hope of uncovering the remedy that Parliament intended to provide with the enactment of the statute and the true reason of the remedy.
Identify three rules of language with cases
Noscitur a sociis-Bromley LBC v GLC or Inland Revenue Commissioners v Frere
Ejusdem generis-Hobbs v CG Robertson
Expressio unius exclusio alterius-Tempest v Kilner
Define the doctrine of precedent
The doctrine of precedent is based on the latin maxim stare decisis which means stand by what has been decided and do not unsettle the established.
The doctrine of precedent requires like cases to be decided alike and lower courts to be bound by higher courts.
How did the HOL approach the doctrine of precedent before 1966? Give a case and explain why this approach was taken
Before 1966, the HOL was bound by its own decisions. This was decided in London Street tramways v London County Council because certainty in the law was seen as more important than the injustice that may arise from having to follow past decisions
Outline how the CoA applies the doctrine of precedent generally
The CoA is bound by the UKSC
The two divisions of the CoA are generally not bound by each other
Both divisions of the CoA are generally bound by themselves( Young v Bristol Aeroplane)
Describe the difference between the narrow view of the golden rule and the wider application of the golden rule.
Under the narrow view of the golden rule, judges look at all the possible dictionary meanings of the words of the statute and choose the most sensible meaning. This is illustrated in the case of R v Allen where the judge had to interpret the words 'shall marry' for the offence of bigamy under the Offences Against the Person Act 1861. It was held that the offence could be committed simply by going through a marriage ceremony and did not necessarily require the registration of the marriage.
The wider application of the golden rule allows the judges to modify the words of the statute to avoid a repugnant situation. In Re Sigsworth, it was held that a murderer could not profit from an inheritance under the Administration Estates Act 1925. Such a literal interpretation of the words 'next of kin' would lead to repugnancy and hence the judges used the wider application of the golden rule to add words into the Act.
Identify five extrinsic aids to interpretation
Dictionaries/textbooks
explanatory notes
Hansard
Law commission report( Black Clawson case)
international treaties and conventions( fothergill v monarch airlines, Laroche v Spirit of adventure)
Historical setting
Previous precedent
Acts of Parliament on the same topic
Human Rights Act 1998
Describe the three types of precedent
If a point of law has never been decided before and a judge gives a ruling on the matter, it sets an original precedent. In the case of Hunter v Canary Wharf and Urquart and others v Tate Modern, an original precedent was set when it was held that interference with TV reception and overlooking were not grounds for an actionable nuisance.
A binding precedent must be followed by all lower courts. The UKSC sets binding precedent for all courts lower in the hierarchy
A persuasive precedent is one that the judge may consider but is not bound to follow. The judgements of courts lower in the hierarchy and the obiter dicta of all judgments are persuasive and are not mandatory for a judge in a later case to follow. In addition, decisions of the judicial committee of the privy council and decisions of courts in other countries such as Newzealand is persuasive. Dissenting judgements which are the minority judgements are also sometimes preferred and count as persuasive precedent.
What is the Practice Statement
The Practice Statement was issued in 1966 by the Lord chancellor which allowed for the HOL(now UKSC) to depart from its own decisions when it was right to do so. This power to depart from their own decisions was to be used sparingly because certainty in the law was very important especially in criminal law
How does the CoA depart from itself?
The CoA departs from itself using the exceptions in Young v Bristol Aeroplane. The civil division chooses to depart from itself if a previous decision is per incuriam( in error). In Rickards v RIckards, the earlier decision of Podberry v Peek was not followed since the earlier court had misunderstood the effect of a HOL decision.
The CoA can also depart from itself if there are two conflicting CoA decision. They can choose to follow the one they want usually the later decision.
The CoA can depart from itself if there is a conflicting HOL decision. In Family Housing Association v Jones,the CoA ignored its own previous precedents and instead followed the decision of the HOL in Street v Mountford.
The criminal division of the CoA adopts a much more flexible approach and can depart from its own decisions when following a past decision causes injustice. They can refuse to follow a past decision where the law has been misunderstood or misapplied as in R v Simpson. This extra exception is in place because the liberty of the suspect is at stake.
Explain the difference between the literal and purposive approach to interpretation
The literal approach includes the literal rule where the judge looks at the literal dictionary meaning of the words of the statute. The words of the statute are followed closely even if it leads to 'manifest absurdity'( per Lord Esher in R v Judge of the City of London Court.' This rule was applied in the case of Whitely v Chappel where a statute which aimed at preventing electoral malpractice made it an offence to impersonate a person entitled to vote. the accused was acquitted in this case because he impersonated a dead person who literally speaking was not entitled to vote.
Under the purposive approach, the judge gives effect to the spirit of the law rather than the strict letter of the law. The task for the judges is to decipher Parliamentary intention and interpret statutes accordingly. An application of the purposive approach is in the case of Quintavelle. In this case, the judge extended the regulation of the Human Fertilization and Embryology Act 1990 to CNR embryos even though the statute literally only applied to fertilized embryos. this helped give the statute an interpretation close to Parliamentary intention which was to effectively regulate the use of embryos.
Identify five intrinsic aids to interpretation
Long title
preamble
headings
schedules
marginal notes
interpretation sections
Identify all the appellate courts
UKSC
Court of Appeal
Kings bench divisional court hears criminal appeals
appeals can also go to the chancery, kings bench and family division
Identify one civil case and one criminal case in which the HOL used the Practice Statement
In Herrington v British Railways, the HOL overruled Addie v Dunbreck and held that a duty of common humanity was owed to trespassers
In R v Shivpuri, the earlier case of R v Anderton was a overruled and it was held that one can be guilty of attempting to commit an impossible crime if there was an intention to do so.
Does the CoA depart from HOL
Yes in two instances
1) Human rights cases. In Re Medicaments, the CoA declined to follow the HOL judgment in R v Gough and instead followed the decision of the European Court of Human Rights
2) Privy Council decisions: In R v James and Karimi, the CoA chose to follow the privy council decision in Holley instead of following a HOL decision in R v Smith
Discuss the disadvantages of the mischief rule of interpretation
There is a risk of judicial law making-eg Smith v Hughes or Royal College of Nursing v DHSS
Infringement of Parliamentary sovereignty
makes the law uncertain and unpredictable
difficult in application because the mischief is not outlined in a lengthy preamble like it used to before. There is judicial discretion as to what the mischief
it is much more limited than the purposive approach because it is limited to an assessment of the mischief in the common law( Lord Diplock in Jones v Wrotham Park). this rule is limited to filling the gap in the common law.
Too much reliance on the extrinsic aids to interpretation which can be unreliable ( Hansard disadvantages)
explain when hansard can be used as an aid
It can only be used when the legislation is ambiguous
only the statements of the promoter of the bill can be relied upon
the hansard itself should be clear
Name all the courts bound by the Court of Appeal
High Court
County Court
Crown Court
Magistrates Court
Court of appeal is also bound by itself
Give some examples of the judicial reluctance to use the Practice Statement
Lord Reid in Knuller v DPP stated that the Practice Statement can only be used when there is a good reason to do so.
In Jones v Secretary of State, 4 out of 7 judges disagreed with the earlier case of Re Dowling. Yet they still followed it.
In Austin v Southwark, the UKSC recognized that they had the power to use the Practice Statement but still chose not to use it.
Explain the judicial tool of distinguishing using case law examples
distinguishing is when a judge distinguishes two cases on a point of law of on facts to avoid having to apply precedent. In Balfour v Balfour it was decided that there is no intention to create legal relations between spouses. However, in Merrit v Merrit, it was decided that the contract between spouses was binding because they were on the verge of a divorce.
In the case of Read v Lyons, the earlier case of Rylands v Fletcher was distinguished because in Read v Lyons, there was no escape from one premises to another
Assess the effectiveness of the literal approach vs the purposive approach to interpretation
Literal
Respects Parliamentary sovereignty, makes the law certain and predictable, maintains separation of powers because unelected judges cannot make law. lawyers can advise their clients.
However, words are an imperfect mode of communication( Ingman). There can be errors in drafting like Dangerous Dogs Act 1991. Words can have more than one meaning like in R v Maginnis. Literal rule can lead to absurd outcomes like in Whitely v Chappel. It can lead to harsh decisions like in Berriman case. Michael Zander said it is divorced from the realities of language and it assumes an unattainable perfection in draftsmanship.
The purposive approach is much wider than any other rule and brings forward more sensible outcomes. it follows the spirit of the law. Examples-Quintavelle case and Jones v Tower Boot. Parliamentary intention is respected. It allows for the law to adapt to changing technology( Quintavelle case which accounted for the fact that embryos could be made through a new CNR technique). Leads to just decisions( R v Registrar General ex p Smith)
The purposive approach can lead to judicial creativity and infringement of Parliamentary sovereignty. This can be illustrated through cases outlined above where the exact words of the statute are modified to give a different meaning. Lord Scarman and Lord Simmonds expressed concern in the Magor case-'naked usurpation of the legislative function under the guise of interpretation.'
Risk of judicial law making and the erosion of the role of Parliament.
relies on extrinsic aids such as Hansard ( Pepper v hart). This in itself increases costs and has been described as unreliable.
Discuss the disadvantages of using hansard as an aid to interpretation
unreliable
rarely assists( jackson and others v Her Majesty's attorney)
Time and expense
Only reveals the view points of some members of the Parliament
What is the difference between ratio decidendi and obiter dicta
Ratio decidendi is the reason for deciding a particular case. It is any rule treated by the judge as a necessary step in reaching a conclusion( Sir Rupert Cross)
Obiter dicta is the other things the judge says for example the judge may explore hypothetical possibilities. Obiter dicta are the things the judge says by the way.
MY FAVOURITE QUOTE
Lord Bridge in R v Shivpuri-The Practice Statement is an effective abandonment to the judges pretention to infallibility.
What is the difference between overruling and reversing
Overruling is when there are two different cases and the later case states that the outcome in the earlier case is incorrect.
Reversing occurs when a case gets appealed to a higher court and the judgement of the lower court is changed. The important point to note is that it is the same case which is appealed.