The problem set is approaches to statutory interpretation by
the judiciary. In theory, parliament is the supreme law-making authority in the
land. However, it is up to judiciary to interpret laws and as such they can
often modify a law beyond what was originally intended, therefore setting a
precedent and arguably ‘making’ a law. Statutory interpretation concerns the
role of judges when trying to apply an Act of Parliament to an actual case.
Language used in statutes can cause problems, for example the word may not be
very clear in the context of the sentence, it could be that the word is
particularly old in light of todays context or it could mean that the
parliament hasn’t foreseen certain situations that may arise in the future because
of new development or new technologies. An example of where the language was
unclear can be seen in the case of Twining v Myers (1982), where court had to
decide whether roller skates amounted to a ‘vehicle’.  It can be a difficult process for the judiciary
of fully understanding what parliament meant to achieve or what they intended.
As a result, there has been a development of there in how words in statutes can
be interpreted.

The literal rule says that the judges must apply the law
literally – using the words in statute in their ordinary signification. Lord Esher
in R v Judge of the City of London Court (1892) said ‘if the words of an act
are clear then you must follow them even if they lead to a manifest absurdity.’
An example case where the literal was used is Whiteley v Chappell (1898). The
facts of the case were that defendant was charged under a statute where it was
an offence to impersonate ‘any person entitled to vote’.  The defendant had pretended to be a person
whose name was on voter’s list, but had died. In applying the literal meaning
of the words in the statute, the defendant couldn’t be found guilty because
dead people, literally speaking, aren’t entitled to vote so the defendant got
away with it even though it was an absurd result.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!

order now

An advantage of the literal rule is that it prevents
unelected judges from making law, by keeping to the literal rule it means that
the judges don’t enter that dangerous position of moving away from what
parliament intended and creating laws that otherwise would not have exist. The
literal rule also makes the law more certain and easier to understand. However,
not every act is perfectly drafted. For instance, in the Dangerous Dogs Act
1991 there was confusion over the words ‘type’ and ‘breed’. Additionally, not
every act covers every situation. There are new developments in societies that wouldn’t
have been foreseen. Words may have more than one meaning and the act be unclear
as words change overtime. Literal rule can lead to an absurd, unfair or unjust
decision. This can be seen in London & North Eastern Railway Co v Berriman
(1946), where a widow was denied compensation because the Fatal Accidents Act stated
that a lookout man must only be provided ‘for the purposes of relaying or
repairing’ as oppose to oiling.

The golden rule was developed to tackle the absurd, unfair
and unjust situations arising from the application of literal rule. This rule
allows judges a little more leeway, allowing judges to refer to various other
documents around the statute such as the report of Parliamentary commissions to
aid understanding of the statute. There are two approaches to the golden rule –
the narrow application and the wider application. The narrow application of the
golden rule can be seen in the case Alder v George (1964). Official Secrets Act
1920 made it an offence to obstruct Her Majesty’s Forces ‘in the vicinity’ of a
prohibited place. The defendants obstructed HM Forces in a prohibited area but
they argued they were not guilty as literal wording of Act did not apply as ‘in
the vicinity’ means ‘outside but close to it.’ By applying the narrow application,
the court found them guilty to avoid an absurd result, stating it should be
read as ‘in or in the vicinity of’ the prohibited.

The narrow application of the golden rule sometimes didn’t go
far enough in terms of solving a particular problem in a case and making sure
there was a just outcome. This was seen in the case of Re Sigsworth (1935),
where the defendant murdered his mother. As she had no will, he stood to
inherit all of her estate as her next of kin under the Administration of
Justice Act 1925. The court felt that parliament never intended or foreseen a
murderer should benefit from the act of the crime financially so the defendant
did not inherit his mother’s estate as the golden rule was used to avoid a ‘repugnant’
situation. It can be argued that the judges at this point are effectively creating
law as they were writing into the act that a person who has murdered their next
of kin should not inherit.

Golden rule provides an escape route from absurd literal
meanings so it leads to a more just outcome. It also allows the judge to choose
the most sensible meaning of words as judges are given discretion to choose
between the first meaning of the word and the second meaning to enable them to
find the right decision in the case. Additionally, as seen in the case Re Sigsworth
(1935), the golden rule can avoid a repugnant as it would have simply been immoral
for a murderer to benefit financially from killing a relative. However, it is
still rather limited in its use and used rarely as it doesn’t give judges too
much discretion. It is also not possible to predict when the court will use it
so when clients are looking to be advised by their legal counsel, the lawyers
will be unsure of whether a judge will actually apply the golden rule or not.

The mischief rule gives more discretion to judges. It is
derived from the 16th century and enables the judge to figure out what mischief
the statute was intended to address and then to interpret the statute in such a
way so as the tackle the problem that the statute was supposed to tackle. An
example case where the mischief rule was used is the Smith v Hughes (1960),
where six women were charged under the Street Offences Act 1959 in which it was
an offence for a common prostitute to loiter or solicit in a street or public
place for the purpose of prostitution. However, the women were not ‘in a street’
but on the balcony, attracting the attention of passers-by’s. Had the court
applied the literal rule it would have meant that the prostitutes would have
been found not guilty. Therefore, the court applied the mischief rule and
believed the intention of the parliament was to essentially clean up the streets
from common prostitutes.  

An advantage of the mischief rule is that it promotes the
purpose of the law as the judges are looking to see what parliament wanted to
achieve. Once they have identified what parliament intended they can try to
apply it to the gap in the law in the case before them today to produce a just
result. A disadvantage is that since the judges have more discretion there is a
danger that the original intention of the parliament could be misinterpreted.  Additionally, it can lead to uncertainly for
lawyers to advise clients as to which direction the court might take.

The purposive approach gives even more discretion to the
courts, the judges are not simply looking at the gap in the old law like in the
mischief rule but what they believe parliament meant to achieve.  This was seen in the case Regina V Registrar
General, ex parte Smith (1990), the case concerned the interpretation of the
Adoption Act 1976 where an individual when having reach the age of 18 was entitled
to obtain a record of their birth, provided they had undertaken counselling.
The applicant Charles Smith, whilst meeting the criteria set out by parliament,
had been convicted of two murders and was detained in Broadmoor for psychiatric
illness. As a result, he was deemed to a potential threat to his birth mother
should her identity be discovered. The purposive approach allowed the court to
try and deal with a tricky situation, they felt that the purpose of the act surely
was not to have a birth mother at rick so the application was denied.

An advantage of the purposive approach is that it allows
more situations to be covered which leads to justice in many individual cases.
It is useful where new technology or scientific advancement is made as
parliament can’t foresee future developments. Additionally, it gives more
discretion to avoid an absurd situation. However 


I'm James!

Would you like to get a custom essay? How about receiving a customized one?

Check it out