Statutory is not the most effective rule to

Statutory interpretation is the process by which courts interpret and apply legislation. Although there are statutes that have a clear meaning and require no extra thought, there are those that have unclear or imprecise wording where a judge’s interpretation is needed. Although there is always an attempt to create specific wording when crafting statute, sometimes words can have double meanings that were not considered. Also, unspecific terminology such as crowd leaves room to argue the definition in that specific instance. Without the ability for judges to choose how to interpret a statute there could be inconsistencies between the intention of the law and how it is enforced.

When a judge is interpreting statutes they must use several rules as an underlining guideline to every interpretation. The first rule is the literal rule. The literal rule is the simplest form of interpretation and means the intention of parliament is best achieved by giving the words their ordinary natural meaning wherever such words are capable of a literal meaning. In practice this means that the Oxford dictionary definitions of the words in the statute are used as the interpretation of any given words meaning. In theory, this works fine, but in practice there are often problems with the wording of the statute and a clear difference between it and the intentions of the legislation. One example of this would be Fisher V Bell 19611 where the defendant had a flick knife on display in his shop window with a price tag on it. He was charged due to the Restriction of Weapons Act 19592, but he was never convicted because goods on display at a shop are not offers but rather an invitation to treat. This is a clear example of the intention of the law and the outcome of the case differing. The law intended to ban the offering of flick knifes for sale but the wording meant that the definition of offering had not been met and therefore the defendant got off. To summarise the literal rule is not the most effective rule to follow to meet the intentions of the legislation in the first place as a judge only has one means to interpret the legislation, through the exact definition of the wording which can often lead to absurdity as shown in the Fisher V Bell 1961 case.

The next rule that a judge may choose to follow is the golden rule this is the rule that allows a judge to depart from a literal approach where this would lead to an absurdity. This means that the judge must first apply the literal rule and then if this would lead to an absurdity the golden rule may be used. There are two approaches in the golden rule, the first is the narrow approach and the second is the wide approach. The narrow approach is for when a word is found to have more than one interpretation or meaning. The judge will then use the meaning that they believe best suits the situation given. An example of the narrow view would be R V Allen 18723, during this case the defendant was charged with bigamy. The statute stated that if you have been married and your spouse is still alive it is an offense to marry. The court used the narrow approach to say that the word marry means to go through a ceremony of marriage rather than to get legally married. If the first meaning was used then it would be impossible to convict bigamy. This is the case as divorce was not possible in 1872. This example shows that two interpretations of a word can have a vastly different effect on how a law is used. Although a key problem with the narrow view is the judge that you receive can have a large effect on the verdict of your case. Several judges can see a word and come to different conclusions on which interpretations to use. This can then lead to complications in future cases when they view previous interpretations.

The second approach is the wide approach. This is where a word has one meaning but that meaning would lead to an absurd result, when this applies the judge would be allowed to modify the word or words to avoid the issue. One example of this would be Sigsworth 19354. Under the administration of justice act 1925 if you have not made a will you inheritance would go to your next of kin. In Sigsworth 1935 a son had murdered his mother but due to the administration of justice act 1925 the same son would inherit his mother’s wealth. The court decided that the literal ruling would be absurd and that the wide approach to the golden rule should be applied meaning that the son would not benefit from murdering his own mother. This approach shows that even with no ambiguous wording a judge can prevent an absurd situation using the correct approach to statutory interpretation. It helps to prevent loopholes in the law being abused. Although it is possible a judge with a particular viewpoint can use this rule to help enact his version of a statute rather than the actual intention behind the statute.

Another rule that exists for a judge to use is the Mischief rule, although this has been replaced by the modern adaptation, the purposive approach. The Mischief rule aims to look at the defect in the law that the act was trying to eradicate. This rule was first made during Haydon’s case 15845, although this is the oldest of the rules it has been used consistently since its establishment. When using the mischief rule the court must consider the 4 points. What was the common law before the making of the Act? What was the mischief and defect for which the common law did not provide? What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth? And the true reason of the remedy. These points are together used for a judge to resolve a mischief that the common law was not able to provide. An example of where this was the case would be Smith V Hughes 1960, 376 years after the creation of the rule. During this case the defendants were prostitutes charged by the Street Offences Act 1959. The problem came by the act using the words public place and the prostitutes were on a private premise balcony. If the literal rule would have been applied they would not have been charged, as they were on private property. The courts instead applied the mischief rule, as the defendants were still visible by the public and were charged under the Street Offences Act 1959. The court decided that the mischief rule should be used to remedy the loophole being abused by the prostitutes. Although it could be argued that this makes the law uncertain, as the judge has the power to change the law if they see fit. Rather than just adjusting ambiguity the judge would have the power to change the statute with regards to the intent of the legislation. This could be seen as unfair and the responsibility of the lawmakers to make there laws specific and with clear intent, although that would then bring into the question of the possibility of thinking of every scenario when writing law, which seems unlikely.

The final rule that a judge may choose to follow is the purposive approach which was explained by Lord Simon during the Maunsell V Olins 19756 case. He said “The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language.” One example of its use would be during the royal college of nursing v DHSS 19817 case. This case was about the legality of an abortion carried out by a nurse. The Offences against the person act 1861 made it an offense for anyone to carry out an abortion.

1 Fisher v Bell 1961 1 QB 394

2 Restriction of Offensive Weapons Act, 1959 (7 & 8 Eliz. 2 c. 37), s. 1 (1)

3 R v Allen (1872) LR 1 CCR 367

4 Sigsworth 1935 1 Ch 98

5 Heydon’s Case 1584 EWHC Exch J36

6 Maunsell v Olins 1975 AC 373 House of Lords

7 Royal College of Nursing v DHSS 1981 2 WLR 279