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The problem set is approaches to statutory interpretation by
the judiciary. 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’ (Charman, Vanstone and Sherratt, 2011).  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 – by examining the words in a statute, and giving them their ordinary,
grammatical meaning (Jones, 2015). 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’ (Sterzhantov, 2018). An example
case where the literal rule was applied 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 (Jones, 2015).

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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’ (Martin, 2017).
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 (Huxley-Binns,
Martin and Frost, 2017).

The golden rule was developed to tackle the absurd, unfair
and unjust situations arising from the application of literal rule (Jones,
2015). 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 (InBrief.co.uk, 2018). 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 that
vicinity’ included being inside the actual place (Jones, 2015).

The wider application was applied 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 (Abbott, Pendlebury and Wardman, 2013). 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. Under
this rule, the judges have to examine the common law prior to the Act, locate
the mischief or defeat in the common law, identify the remedy Parliament meant
to propose to eliminate the mischief, and finally, to give effect to that
remedy (InBrief.co.uk, 2018). 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 (Huxley-Binns,
Martin and Frost, 2017).

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 (Lawmentor.co.uk,
2018).  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 (Halstead,
2013). 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, it can be said that it gives
too much discretion and law-making power to judges who are unelected. This
means, unlike elected officials, the judges can’t be held into account for
making bad laws. Furthermore, the purpose approach, similar to the golden rule and
the mischief rule, leads to uncertainty in the law and unclear when it will be
used.

In conclusion, the power to make law is primarily given to
the parliament and under the constitution judges are under no obligation to
make law. However, legislation may sometimes be ambiguous or unclear. When this
occurs, the judiciary will need to decide between different interpretations of
legislation. The literal rule doesn’t allow judges to make any changes and
leaves law making to parliament although it can lead to absurd outcomes. The
golden rule allows judges to modify the literal meaning of the words in order
to produce a more just outcome. Under the mischief rule, the court can
interpret an Act in such a way to cure the ‘mischief’ by looking at what the
law was before the Act was passed, what the problem was with that law and what
the remedy was that parliament was trying to provide. The purposive approach is
the most flexible approach giving judges greater scope to develop the law in
line with what they perceive to be Parliament’s intention. Therefore, judges
can effectively make or change laws through statutory interpretation,
especially by using the mischief rule or the purposive approach.

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