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Much of our law comes from Acts of Parliament. These are also known as statutes and a large number of them are passed by Parliament each year. The law needs to be clear and certain but there are many occasions when the meaning of a statute or a specific part of it is the subject of a dispute in a case which comes before the courts. In such cases the court has the difficult task of deciding upon the exact meaning of a particular word or purpose.
The courts are helped in this task by a number of well tried and tested rules of statutory interpretation. Judges have their own preferences as to these rules and judges are free to choose which approach to adopt depending upon the circumstances.
The various rules are the Literal rule, the Golden rule, the Mischief rule and the Purposive approach.
The literal rule involves applying the 'plain, ordinary literal meaning' of words – even if this would lead to a manifest absurdity. (Lord Esher in R v Judge of the City of London Court (1892)). The judge will be assisted by references to a dictionary as these will give the plain ordinary meaning of words. It is likely that reference will be made to a dictionary in common use such as the Oxford English Dictionary.
In addition some care will need to be taken to use a dictionary in use at the time the legislation was passed. This is because the courts recognise that the meaning of words may change with the passing of time. Once the meaning of the particular word has been ascertained at the time the Act was passed the court will then need to consider how this meaning relates to present day usage and circumstances. This was so in the case of Cheeseman v DPP which involved acts of indecency in some public toilets. This is an offence under the Town Police Clauses Act 1847. The court had to determine the meaning of the words ‘street’ and ‘passenger’ and found that the meaning of the word 'passenger' did not extend to include police officers who were acting upon a complaint and were waiting for the defendant at the scene and therefore not passengers in the sense of persons using the toilets. Whilst this may be the case some would argue that such a literal and narrow approach fails to look at the wider picture and purpose for the legislation.
Despite such criticisms the literal rule has been in use since the nineteenth century and has been the most commonly applied rule up until recent times when more modern approaches such as the purposive approach have been found to be more appropriate.
The literal rule can be further illustrated by such cases as IRC v Hinchy (1960), LNER v Berriman (1946), Fisher v Bell (1960), Whiteley v Chappell (1868) and Cutter v Eagle Star Insurance co Ltd (1997). In such cases the apparent harshness of the rule can be seen together with the tendency for the rule to be used even in circumstances when an absurd result came about.
In the Berriman case , a railway worker was killed when carrying out maintenance work which consisted of oiling the points on the railway track. A look out had not been provided in accordance with a requirement under the Fatal Accidents Act and his wife claimed compensation. The Act referred to providing a lookout for men when 'relaying or repairing’. The court used the literal rule and decided that oiling the points amounted to maintenance work and not relaying or repairing and therefore Mrs Berriman’s claim failed. The rule has been criticised for such harsh decisions.
In Whiteley v Chappell which concerned an offence of impersonating a person entitled to vote, the accused had used the identity of a dead person whose name was on the voters list. The court decided that no offence had been committed because the dead person was not in the literal sense entitled to vote. Clearly had, for example, the mischief rule been used then the court may well have come to a different conclusion. Such decisions have led to the literal rule being heavily criticised for making a nonsense of the law. It is probably fair to say that the decision in this case went against what Parliament intended.
In Cutter v Eagle Star Insurance Co Ltd (1997) the claimant, Stuart Cutter, was sitting in the front passenger seat of a motor car parked in a parking space in a multi-storey car-park in Tunbridge Wells. A can of lighter fuel in the rear of the car had leaked inflammable gas into the car. The driver entered the car and before driving off lit a cigarette. The gas was ignited and Cutter sustained injury. The case turned on whether the car park was a road for the purposes of the Road Traffic Act 1988. The House of Lords took the view that the purpose of a road was to provide a means for cars to reach a destination; the purpose of a car park was for cars to park. The fact that there was a road across the car park did not make it a road.
The golden rule is a modification of the literal rule. In the event that an unreasonable or absurd result is arrived at when interpreting the words used in the Act, the golden rule allows the judge to modify the interpretation so as to bring about a fair and just decision. The rule is seen as having limited use in the sense that it only comes into play if it is necessary to use the rule to avoid an absurdity. The rule embraces two approaches, a narrow approach and a broad approach. The narrow approach is used where a word has more than one meaning. The narrow approach under the golden rule uses the most acceptable meaning. The broad approach is used when there is only one meaning of a word but an absurd result needs to be avoided such as in the case of Adler v George (1964).
Under section 3 of the Official Secrets Act 1920, it was an offence to obstruct HM Forces in the vicinity of a prohibited place. Mr Frank Adler had been arrested whilst obstructing such forces within such a prohibited place (Markham Royal Air Force Station, Norfolk). His argument was that he was not in the vicinity of a prohibited place as he was actually in a prohibited place. The court applied the golden rule to extend the literal wording of the statute to cover the action committed by the defendant. Had the literal rule been applied, it would have produced an absurd result, as someone protesting near the base would be committing an offence whilst someone protesting in it would not.
The purposive approach is probably the broadest approach of all the rules of interpretation. It is certainly more flexible than either the literal rule or the golden rule which tend to concentrate upon the meaning of individual words or phrases.
The purposive approach is often compared to the mischief rule. Under the mischief rule the court is looking to see what gap there was in the old law and how Parliament has filled the gap and what remedy has been provided for. The purposive approach on the other hand is broader still in that it is not just looking to see what gap might have existed in the law previously but the judges are attempting to identify what they believe Parliament meant to achieve. In other words what is the purpose of the Act?
As a natural consequence of this approach the judges find themselves concerned with matters which are outside the confines of the particular statute itself. This includes the context in which the law was created. The judges therefore consider it quite appropriate and proper to examine the concerns of the government and Parliament at the time the Act was passed.
In particular therefore, if legislation has come about as a result of a review of the law by the Law Commission and recommendations for change and improvements, then the judges may well be willing to consider the Law Commission's Report. The report might well include draft provisions for inclusion in any subsequent Bill. This is because the judiciary realise, quite sensibly, that the Law Commission's work will have been arrived at as a result of a fully considered examination of the area of the law in question including any shortcomings or other areas for improvement. The Law Commission is after all charged with keeping the law under review and was set up in 1965 for this very purpose.
Similarly, the judges may well be willing to consider any government minister’s introductory statement made in support of the proposed legislation at the time it was introduced. Such considerations are now permitted under the House of Lord‘s ruling in Pepper v Hart (1993) which overruled Davis v Johnson (1967), subject to the limitations as to its use set out in the judgement.
It is also the case that as part and parcel of the purposive approach, judges will find it essential and necessary to consider a range of external aids in their quest for what they believe Parliament meant to achieve. This might include such matters as the works of leading academics such as the late Prof Smith in the case of criminal law and Prof Glanville Williams in respect of constitutional law. It would not be out of the question for judges to consider work carried out by Royal Commissions.
There are a number of cases which illustrate the purposive approach. These include IRC v McGuckian (1997), Coltman v Bibby Tankers Ltd (1988), R v Registrar General ex parte Smith (1990) and Magor and St Mellons v Newport Corporation (1950).
The case of R v Registrar-General ex parte Smith (1990) concerned the application for information enabling Smith to obtain a birth certificate which in turn might enable him to ascertain the whereabouts of his natural mother. Smith had two convictions for murder. Although the relevant words of the Act in question were clear, the Court of Appeal decided that the Act could not have been intended to facilitate serious crime and ruled that the Registrar-General did not have to supply the information sought.
Lord Denning was a champion of the purposive approach and did not attempt to disguise his perception of the role of a judge. This was clearly shown in the case of Magor and St Mellons v Newport corporation (1950) when he used words to the effect that ‘we sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis'
However whilst he was supported in this approach by the likes of Lord Steyne, he did have his opponents, not least Lord Simmonds and Lord Scarman, who were both of the firm opinion that it was Parliament’s job to intervene in such circumstances.
(Word Count 1849)
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