https://padlet.com/hharding_75136/egkmrvovkr89 The Literal, Golden, Mischief Rule. The Purposive Approach. Aids to Interpretation. Rules of Language. en-us 2017-11-21 10:51:32 UTC 2018-01-04 07:17:20 UTC hello@padlet.com https://padlet-assets.s3.amazonaws.com/icons/Balance.png hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/209032878 The Literal Rule involves applying the 'plain, ordinary, literal meaning' of words - even if this would lead to a manifest absurdity. Lord Esher states "If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. Judges use the Literal Rule to promote parliamentary supremacy. There are two cases which support this rule. In LNER v Berriman, the deceased was oiling points along a railway line. He was killed by a train whilst on the railway track. His Widow brought the case to court to gain compensation against Eastern Railway CO and his co-workers. However, the court used the Fatal Accidents Act which stated; a look-out should be provided for men working or near a railway line. The court interpreted the statute with the literal meaning of the words relaying and repairing. Which, came to a conclusion that the deceased doing maintenance would not claim compensation. In DPP v Chesseman, the defendant was caught masturbating in a public lavatory by two police officers. The defendant was charged with the statute Town Police Clauses Act 1847. This act stated that the defendant would be convicted if caught by a passenger. However, the literal meaning passenger meant 'anyone resorting in the ordinary way to a place for one of the purposes normally used'. The police officers did not count as passengers as they were stationed there resulting in the defendant being acquitted.]]> 2017-11-21 10:56:36 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/209032878 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/209558128 The Golden Rule is a modification of the Literal Rule, where the court is allowed to avoid an interpretation that may lead to an absurd result. In the Golden Rule there is the Narrow Approach or the Broad Approach. In the Narrow Approach the court may only choose between the possible meanings of a word or phrase. If there is only meaning, that must be taken. In the Broad Approach it is where the words only have one clear meaning, but that meaning would lead to a repugnant situation and where the clear meaning would produce a result that is not allowed, the judges will modify  the words. The case to support the Narrow Approach is R v Allen. In this case the defendant whom was already married tried to marry someone else. In the statute of the Offences Against the Persons Act it was an offence to 'marry' whilst one's original spouse was still alive and there had been no divorce. The court the interpreted the word 'marry' where there was two possible interpretations of that meaning. The court chose to interpret the second meaning that meant marry is when a person takes part or goes through a ceremony of marriage. This resulted the defendant in being acquitted. The case to support the Broad Approach is Re Sigsworth. In this case the defendant murdered his mother and was charged with murder. The statute questioned in this case was the Administration of Estates Act. This stated that those who had not made a will and had died; their next of kin will gain there inheritance. The court interpreted this statute as the issue would not be entitled to inherit where they had killed the person they would be inheriting from. This court did this as they did not want a murderer to benefit from his crime. Resulting in the defendant not inheriting money and convicted. This approach shows how the judges erode parliamentary supremacy.]]> 2017-11-22 21:29:05 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/209558128 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/209558161 The Purposive Approach is used to figure out Parliaments purpose and what they believe Parliament was meant to achieve. Lord Denning said 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..." Viscount Simmonds then states that the rule is "a naked usurpation of the legislative function under the thin guise of interpretation" meaning the judges aren't interpreting the law they are making the law and eroding Parliamentary Supremacy. The use of the Purposive Approach had increased since the Human Rights Act from 1998 as Judges are now more mindful. In Jones v Tower Boot Company, the claimant was racially harassed by his fellow workers, including a burnt arm from a hot screwdriver, being whipped with a piece of welt, having metal bolts thrown at his head and being called racist names. The court used the statute of the Race Relations Act and it stated that anything done by a person in the course of employment shall be treated of the purposes of this Act. The key phrase interpreted was course of employment and the court used the purposive approach as it would be partially wrong to allow racial harassment go without justice. The resulted the defendants being liable. In R v Registrar-General ex parte Smith the defendant whom had committed two murders was applying for his birth records. The court used the statute Adoption Act which stated that an adopted person of the age 18 had the right of access to their birth records. However, a psychiatrist at Broadmoor believed the defendant may be hostile towards his natural mother if having the records. The court then ruled that the Registrar-General did not have to supply any information as Parliament would not have wanted to promote serious crime. ]]> 2017-11-22 21:29:21 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/209558161 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/209558301 When interpreting a statute, Judges then rely on the use of Aids to guide themselves on a case and there are two types of Aids. Intrinsic Aids refer to help that is found inside the statute which the judge is interpreting. Extrinsic Aids refer to help that is found outside the statute which the judge is interpreting. Intrinsic Aids are definition sections, long titles, short titles, headings and marginal notes. The short title is the indication on what the statute is about. In the case LNER v Berriman the name of the act used was the Fatal Accidents Act which is made to prevent workers being killed. A date is used in the short title as it distinguishes what Act to use as statutes wont apply till the date it was enacted. It is also to indicate what edition of dictionary to use. The definition section is a glossary that defines vague words in a statute and it helps the Judges interpretations in court. In the case Oxford v Moss the statute used was The Theft Act which defined the word property as includes money and all other property, real or personal, including things in action and other intangible property. In this case the defendant has stolen confidential information included within an exam paper but it did not count as property as that confidential information did not constitute property. Extrinsic Aids are dictionaries, interpretation acts, law reform reports and hansard. Hansard is an edited record of all proceedings in both House of Parliament, Commons and Lords, including when a Bill being debated. This where Judges can look if they want to find what Parliaments intention was in passing a particular statute. In Pepper v Hart it allowed Hansard with the three circumstances 1. words of an act are ambiguous and are likely to lead to an absurdity 2. there is a statement in hansard relating to the statute in question 3. that statement would clear up the ambiguity. The Law Reform Reports can be referred to in order to discover the mischief that Parliament was seeking to deal with. In DPP v Bull male prostitutes were charged under the Street Offences Act. But, the Law Commissions report stated that the Street Offences Act only applied to female prostitutes. The report then helped judges to interpret the statute and apply it to the case.]]> 2017-11-22 21:30:28 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/209558301 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/209783689 The Mischief Rule allows the court to interpret in what was the problem Parliament was trying to stop and to decide how to stop this problem. The Mischief Rule asks these questions in Heydon's Case. 1. What was the common law before the Act was made?  2. What was the mischief and defect for which the common law did not provide? 3. What was the remedy that Parliament created to cure the disease of the commonwealth? 4. What was the true reason for the remedy? In Smith v Hughes the statute that was interpreted was the Street Offences Act where it made it an offence to prostitute in a street or public place. The appellants/defendants were howling at men from a balcony/window of the ground floor. The words the court interpreted was street, loiter and public place. The court concluded that the mischief the Act was trying to solve was prostitution resulting in the defendants being convicted as even if they weren't on a street they were still prostituting by calling out to men. If the Literal Rule was used the defendants would have been acquitted. In RCN v DHSS the statute that was interpreted was the Abortion Act where it made it an offence for a nurse to do an abortion. This case came to court as a nurse performed the second part of an abortion without a doctor present. The wording the court interpreted was terminated by a registered medical practitioner. This led to the nurses being acquitted as the mischief this Act was aimed at solving was illegal abortions being performed and coming at a risk to women, so the court stated now that nurses could safely perform abortions at a hospital.]]> 2017-11-23 20:03:09 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/209783689 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/209792168 In addition to such aids, there are three rules of language which a judge can use to help him in his task of statutory interpretation. Ejusdem generis meaning things of the same kind. This is where there are two or more specific words followed by a general word, the general words are interpreted to be of the same kind of specific words. In Powell v Kempton Park Racecourse Co, the statute the Betting Act made it an offence to keep a house, office, room or other place for betting. The defendant was betting outside by the racecourse itself and was acquitted. For, the court said that all places specified were indoors. The Act did not relate to outdoor places. Expressio unius est exclusio alterius meaning the inclusion of one thing excludes another. This is where there are a list of specific words NOT followed by general words, the items will be limited to those included in the list only. In Inhabitants of Sedgeley a statute said that tax could be charged on land, houses and coal mines. Therefore tax could not be charged on limestone mines. Noscitur a sociis meaning a word is known by the company it keeps. This is where judges interpret a word according to context. In Inland Revenue Commissioners v Frere the statute was referring to interest annuities and other annual interest and the court interpreted it to mean annual interest as this was written later in the same sentence. ]]> 2017-11-23 21:13:58 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/209792168 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218618618 Firstly, it creates certainty in the law because it follows the Act strictly word for word and so the Act will always have the same meaning. For example in DPP v Cheeseman the word passenger was taken from the dictionary and so everyone will be viewed under the same definition of 'passer by'. This is good because it keeps law fair and consistent and allows lawyers and defenders to prepare for trial. Secondly, it respects parliamentary supremacy as it follows the exact wording and literal meaning parliament used. For example in LNER v Berriman, Judges stuck to the strict meaning of 'relaying' and 'repairing' and refused to include 'maintaining' as it wasn't specified by Parliament. This is good because, it is Parliaments job, not the judges to make law as they represent society. Lastly, its easy to use and saves time as you can simply look up words and apply them to the case. For example in Whitely v Chappell they only had to decide what entitled to vote meant and then see how that worked in the case facts. This is a swift 'justice' which means more cases can be dealt with and no one has the difficulty of deciding what should happen in a case.]]> 2018-01-03 19:26:04 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218618618 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218631784 Firstly, it leads to absurd decisions because it follows the words of the act strictly and may end up being restrictive. For example in Whitely v Chappell he wording 'entitled to vote' couldn't apply to someone dead. Therefore not guilty even though it was fraud. The bad decisions will be made due to technicalities and may prevent justice. Secondly, it assumes unattainable perfection in draftmanship and assumes that parliament never makes any mistakes. For example in LNER v Berriman, repairing or relaying track entitled employees a look out. Maintaining a track did not entitle to one. This is not what parliament wanted. Then the intention isn't actually fulfilled and it leads to absurd decisions parliament didn't intend. Lastly, it may be hard to agree on 'literal' meanings because words may have more than one meaning. For example in R v Allen, marriage had two different meaning that could have been taken. Then it could make it difficult to actually apply the literal rule and therefore loses the supposed advantages of 'easy and time saving'.]]> 2018-01-03 20:01:07 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218631784 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218635025 The advantages are that firstly, it respects parliamentary supremacy as it follows the exact wording and literal meaning parliament used. For example in LNER v Berriman, Judges stuck to the strict meaning of 'relaying' and 'repairing' and refused to include 'maintaining' as it wasn't specified by Parliament. This is good because, it is Parliaments job, not the judges to make law as they represent society and secondly, its easy to use and saves time as you can simply look up words and apply them to the case. For example in Whitely v Chappell they only had to decide what entitled to vote meant and then see how that worked in the case facts. This is a swift 'justice' which means more cases can be dealt with and no one has the difficulty of deciding what should happen in a case. Then the disadvantages are firstly, it leads to absurd decisions because it follows the words of the act strictly and may end up being restrictive. For example in Whitely v Chappell he wording 'entitled to vote' couldn't apply to someone dead. Therefore not guilty even though it was fraud. The bad decisions will be made due to technicalities and may prevent justice and secondly, it may be hard to agree on 'literal' meanings because words may have more than one meaning. For example in R v Allen, marriage had two different meaning that could have been taken. Then it could make it difficult to actually apply the literal rule and therefore loses the supposed advantages of 'easy and time saving'.]]> 2018-01-03 20:16:20 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218635025 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218636250 Firstly, it gives rise to parliaments true intentions as Judges can change the words of an Act to make the statute actually do what parliament wanted. For example in R v Sigsworth, the statute made it clear that a person's "issues" should receive their inheritance upon their death, meaning D would inherit mother's money. The court used the broad approach to amend the statute to stop murderers financially profiting from their crimes, as clearly this is not what parliament intended. This is good as judges can enforce the law to give effect to what parliament intended. Secondly, it avoids absurd decisions as judges can change meanings of words in an act to ensure they make sense in circumstances. For example in R v Allen it would be absurd to define 'marry' as 'to be legally married' as no one could ever commit bigamy. Judges chose the meaning 'to go through a ceremony' to find D guilty as parliament wanted. This is good as justice will be served in cases where if literal rule of act was used it would lead to an absurd decision. Lastly, it applies to words with multiple meanings as judges can choose between different meanings with the narrow approach. For example in R v Allen marriage could have meant 'legally marry' or 'go through a ceremony'; the court were able to chose second meaning to avoid an absurd result. This is good as it fixes the problem with the literal rule in these situations and so makes the law quick and easy to interpret. ]]> 2018-01-03 20:21:41 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218636250 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218639477 Firstly, it creates uncertainty in the law as all judges will differ in their opinions of what is absurd and so many disagree on when or how to change the words in an Act. For example in R v Sigsworth the Judges may not have thought that getting his inheritance was an absurd decisions and so many have stuck with the literal rule. Which then leads to inconsistent decisions and lawyers and defendants will be unable to prepare properly for their cases. Secondly, it erodes parliamentary supremacy as Judges are allowed to change the wording of an Act and so are clearly changing the law from parliament wrote it. For example in Adler v George the Judges changed the wording to 'in or in the the vicinity' of a prohibited place, giving a whole new meaning to the phrase which parliament did not draft. Which is bad as it is parliaments job not judges to make law, as they were elected and represents society. It gives undemocratic power to judges. Lastly, it is inflexible (narrow approach) as judges still have to choose between set meanings of a word. For example in Adler v George there may be many definitions of vicinity, but none of them would have applied well to the facts so broach approach is used. Then Judges are still very restricted when using the narrow approach and may not actually be able to clear up the absurdity.]]> 2018-01-03 20:39:44 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218639477 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218642574 The advantages are that firstly, it avoids absurd decisions as judges can change meanings of words in an act to ensure they make sense in circumstances. For example in R v Allen it would be absurd to define 'marry' as 'to be legally married' as no one could ever commit bigamy. Judges chose the meaning 'to go through a ceremony' to find D guilty as parliament wanted. This is good as justice will be served in cases where if literal rule of act was used it would lead to an absurd decision and secondly, it applies to words with multiple meanings as judges can choose between different meanings with the narrow approach. For example in R v Allen marriage could have meant 'legally marry' or 'go through a ceremony'; the court were able to chose second meaning to avoid an absurd result. This is good as it fixes the problem with the literal rule in these situations and so makes the law quick and easy to interpret. Then the disadvantages are firstly, it creates uncertainty in the law as all judges will differ in their opinions of what is absurd and so many disagree on when or how to change the words in an Act. For example in R v Sigsworth the Judges may not have thought that getting his inheritance was an absurd decisions and so many have stuck with the literal rule. Which then leads to inconsistent decisions and lawyers and defendants will be unable to prepare properly for their cases and secondly, it is inflexible (narrow approach) as judges still have to choose between set meanings of a word. For example in Adler v George there may be many definitions of vicinity, but none of them would have applied well to the facts so broach approach is used. Then Judges are still very restricted when using the narrow approach and may not actually be able to clear up the absurdity.]]> 2018-01-03 20:59:00 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218642574 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218643687 Firstly, it avoids absurd decisions as judges can ignore the strict words in an Act and prevents the problems parliament wanted to stop. For example in Smith v Hughes it would be absurd to find D not guilty just because they were on a balcony when they were still doing the thing parliament wanted to stop. By ignoring the word street, the court were able to actually stop this mischief. This is good as it means justice will be served in cases where had the literal rule been used there would have been an absurd result. Secondly, it promotes flexibility as judges can ignore the strict words in an Act and use their own legal knowledge and intuition to come to a sensible and just decision. For example in RCN v DHSS judges could consider medical advances since the abortions act to allow nurses to help perform safe abortions, despite them not technically being 'medically registered practitioners'. This is good as it means judges are not forced to make unjust decisions and can consider the circumstances and changes in society when deciding a case. Lastly, it saves parliament time amending laws as judges are filling in the gaps for parliament and so save them time having to re-examine all the old Acts. For example in any Mischief case, judges could identify the problem and come to a sensible decision rather than waiting for Parliament to change the words for them. This is good as it saves parliament time legislating and they can focus on better things; also leads to swifter justice.]]> 2018-01-03 21:06:26 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218643687 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218645712 Firstly, it creates uncertainty in the law as judges may disagree on what mischief parliament wanted to solve. For example in RCN v DHSS two judges felt that the literal rule should have been used instead of the mischief rule, which shows a different set of judges may have come to a different decision. This is bad as it leads to inconsistent decisions and lawyers and defendants will be unable to prepare properly for their cases. Secondly, it erodes parliamentary supremacy as judges have to decide for themselves what the mischief is and may end up ignoring parliaments wording to do so. For example in RCN v DHSS two judges said that the other judges were taking over parliament's role as supreme law-maker in re-drafting the legislation when they should just be interpreting the statute. This is bad as it is parliaments job, not s judges to make the law due to them being elected. Lastly, it is limited to fixing one problem as judges can only use it to 'fill the gap' in the old law (rather than give rise to parliament's real purpose). For example in R v RF ex parte Smith the mischief behinf the Adoption Act wasn't biological mothers being killed by their children in the future, so the mischief rule wouldn't apply. This is bad as it is still limited in its use and may not fulfil parliaments true intention.]]> 2018-01-03 21:19:40 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218645712 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218648035 The advantages are that firstly, it avoids absurd decisions as judges can ignore the strict words in an Act and prevents the problems parliament wanted to stop. For example in Smith v Hughes it would be absurd to find D not guilty just because they were on a balcony when they were still doing the thing parliament wanted to stop. By ignoring the word street, the court were able to actually stop this mischief. This is good as it means justice will be served in cases where had the literal rule been used there would have been an absurd result and secondly, it saves parliament time amending laws as judges are filling in the gaps for parliament and so save them time having to re-examine all the old Acts. For example in any Mischief case, judges could identify the problem and come to a sensible decision rather than waiting for Parliament to change the words for them. This is good as it saves parliament time legislating and they can focus on better things; also leads to swifter justice. Then the disadvantages are firstly, it creates uncertainty in the law as judges may disagree on what mischief parliament wanted to solve. For example in RCN v DHSS two judges felt that the literal rule should have been used instead of the mischief rule, which shows a different set of judges may have come to a different decision. This is bad as it leads to inconsistent decisions and lawyers and defendants will be unable to prepare properly for their cases and secondly, it is limited to fixing one problem as judges can only use it to 'fill the gap' in the old law (rather than give rise to parliament's real purpose). For example in R v RF ex parte Smith the mischief behinf the Adoption Act wasn't biological mothers being killed by their children in the future, so the mischief rule wouldn't apply. This is bad as it is still limited in its use and may not fulfil parliaments true intention.]]> 2018-01-03 21:42:15 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218648035 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218648430 Firstly, it avoids absurd decisions as judges can ignore the strict words in an Act and choose sensible wording which puts parliaments true intention into effect. For example in Jones v TBC it would be absurd for D to not be liable for the racism in his workplace due to a technicality about being in the 'course of emplyment'. By ignoring words of the Act, the court prevented discrimination as parliament wanted. This is good as justice will be served in situations where D really should be guilty. Secondly, it allows for social, economic and technological change as judges can ignore the strict words in an Act and choose a meaning that keeps a statute up to date with society and technology. For example in RCN v DHSS medicine had evolved since the Abortion Act. Judges could keep the Abortion Act relevant and up to date by allowing nurses to carry out Abortions too. This met parliaments purpose of making abortions safer. This is good as it means the law can be kept modern and sensible and apply widely to different cases. Lastly, it is a modern approach that saves parliament time as the PA is closer to a European model where judges can arrive at the decision parliament would make if it were considering the case. For Example in Jones/RG parliament didn't have to make a new statute to address the issues in these cases, judges could recognise what parliament would want and fix the law for them. This is good as it saves time creating new Act and fixing old ones and allows parliament to better spend its time, whilst judges make sensible decisions.]]> 2018-01-03 21:46:20 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218648430 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218650062 Firstly, it creates uncertainty in the law as judges may disagree on what the purpose of an Act parliaments intention actually was. For example in R v RG ex parte Smith some judges may have felt parliament's clear wording meant that they wanted D to get his birth certificate in all circumstances. This is bad as it leads to inconsistent decisions and lawyers and defendants will be unable to prepare properly for their cases. Secondly, it erodes parliamentary supremacy as it doesn't follow parliaments words. For example in RG ex parte Smith the judge decided to not give the birth certificate despite the wording 'shall supply' being very clear that D should have it in all circumstances. This is bad as it ignores elected parliament and so may make unrepresentative decisions and undermines democracy. Lastly, the judiciary is too powerful as there are no guidelines on how to use it really. For example in R v Clinton the judges went against statute and may in fact have been wrong in their conclusion. This is bad as the best people to decide parliament's intention/what is best for society is parliament, and so judges may not make the right decision.]]> 2018-01-03 22:02:01 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218650062 hharding_75136 https://padlet.com/hharding_75136/egkmrvovkr89/wish/218650817 The advantages are that firstly, it avoids absurd decisions as judges can ignore the strict words in an Act and choose sensible wording which puts parliaments true intention into effect. For example in Jones v TBC it would be absurd for D to not be liable for the racism in his workplace due to a technicality about being in the 'course of emplyment'. By ignoring words of the Act, the court prevented discrimination as parliament wanted. This is good as justice will be served in situations where D really should be guilty and secondly, it is a modern approach that saves parliament time as the PA is closer to a European model where judges can arrive at the decision parliament would make if it were considering the case. For Example in Jones/RG parliament didn't have to make a new statute to address the issues in these cases, judges could recognise what parliament would want and fix the law for them. This is good as it saves time creating new Act and fixing old ones and allows parliament to better spend its time, whilst judges make sensible decisions. Then the disadvantages are firstly, it erodes parliamentary supremacy as it doesn't follow parliaments words. For example in RG ex parte Smith the judge decided to not give the birth certificate despite the wording 'shall supply' being very clear that D should have it in all circumstances. This is bad as it ignores elected parliament and so may make unrepresentative decisions and undermines democracy and secondly, ]]> 2018-01-03 22:11:23 UTC https://padlet.com/hharding_75136/egkmrvovkr89/wish/218650817