English Legal System - Statutory Interpretation (Part 2)

The Golden Rule

The golden rule may be seen as an extension or adaptation of the literal rule

If the literal rule gives an absurd result which Parliament has not determined, the judge may substitute a reasonable meaning taking into consideration the statue as whole

This was defined by Lord Wensleydale in Grey v Pearson (1857) 6 HL Cas 61:

“The grammatical and ordinary sense of the word is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified as to avoid that absurdity and inconsistency, but no further.”

The point that the context should aid the interpretation is to be found in the following River Wear Commissioners v Adamson (1876-77) App CA 743 at 764-5 per Lord Blackburn:

“…I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz, that we are to take whole statute together and construe it all together, giving the words their ordinary signification unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear.”

Cases demonstrating the Operation of the Golden Rule:

R v Allen (1872) LR 1 CCR 367

In the case of R v Allen, Mr Allen who was already married, married a woman called Harried Crouch who actually was his close relative. The statute under interpretation said: “…whosoever being married shall marry any other person during the lifetime of his spouse” shall commit bigamy. As Harriet was a close relative of Mr Allen, the marriage was void and therefore Mr Allen claimed that as the marriage was void, he could have committed bigamy, as the second marriage should be legal before it would be possible to commit bigamy. This would have resulted in an absurdity and

Re Sigsworth [1935] Ch 89
Maddox v Storer [1963] 1 Q.B. 451
Adler V George [1964] 2 Q.B. 7
Inco Europe Ltd v First Choice Distribution [2000] 1 W.L.R. 586

The advantage of the golden rule is that it may prevent absurdity and injustice caused by the literal rule

The disadvantage may be that there is no clear meaning provided for the ‘absurd result’

The Mischief Rule

The mischief rule may be used when the golden rule does not achieve a satisfactory result

It was laid down in the Heydon’s Case (1584) Co Rep 7a in the 16th century

It states that the judges should consider four (4) factors

What the law was before the passing of the statute
What problem or ‘mischief’ was tried to be remedied by the passing of the statute
What kind of remedy the Parliament wanted to achieve
What was the true reason for the remedy

After considering these the judge should interpret the statute in such a way as to remedy the problem the Parliament wanted to address

Smith v Hughes [1960] 1 W.L.R. 830

In this case the Streets Offences Act 1958 made it a criminal offence for a prostitute to solicit in a street or a public place potential customers, and as the prostitute in question was sitting on the first floor of a house, tapping on the window to attract the attention of the men passing by, the court took the view that the aim of the Act was to enable people to walk along the streets without being solicited, and since the act by the prostitute was aimed at the people in the streets regardless that she was not actually on the street, the Act should be interpreted in such a way that it would be included.

Elliot v Grey [1960] 1 Q.B. 367

The Road Traffic Act 1930 stated that it was an offence for an uninsured car to be used on the road. The car in question was on the road but had its battery removed, but nevertheless the court took the view that the statute was designed to include such a vehicle as well.

Royal College of Nursing v DHSS [1981] AC 800

This case concerned the interpretation of the Abortion Act 1967 which stated that a termination of pregnancy is only legal if performed by an registered medical practitioner, and it was argued whether nurses come under this term of ‘registered medical practitioners’. The court took the view that the mischief that the Statute wanted to remedy was the uncertain state of the previous law which resulted in the so-called ‘back street abortions’, and therefore nurses were to be included under the term.

The advantage of the mischief rule is that it helps absurdity and injustice as well as it promotes flexibility

Its disadvantage is that at the time it was laid down in the Heydon’s Case statutes were a minor source of law

Purposive Approach

This approach considers the context of the statute, and its purpose. Lord Griffith stated ‘the courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation’. (Pepper v Hart see below).

However the purposive approach is not without problems as Twining and Miers point out “one should not be mislead into thinking that to adopt a purposive approach necessarily means that there is a single purpose to be found, or that different judges will agree on what the purpose(s) of a disputed provision might be, or how formulated”

Aids to Interpretation

There are different materials to help the judges in the statutory interpretation, regardless which approach they take – Internal aids and External aids

Internal aids

The Statute itself - long and short title, interpretation/definition section, subheadings, etc. The judge may compare provisions elsewhere in the statute

Explanatory notes – In Acts passed since the beginning 1999 there are explanatory notes as standard which are published at the same time as the Act

Rules of language -

Ejusdem generic – general words which follow specific ones are taken to include only things of the same kind (‘dogs, cats and other animals’ would probably include other domestic animals but not wild ones)

Ecpressio unius est exclusion alterius – express mention of one thing implies the exclusion of another

Noscitur a sociis – a word draws meaning from the other words around it (e.g. ‘dog basket, toy bones and food’ would probably mean in the case of ‘food’ a dog food )

Presumptions - the courts assume that certain points are implied in all legislation:

Statutes do not change the common law
The legislature does not intend to remove matters from the jurisdiction of the courts
Existing rights are not to be interfered with
Legislation does not operate retrospectively
Laws which create crimes should be interpreted in favour of the citizens in the case of ambiguity
Statutes do not affect the Monarch

Parliament may go against there presumptions
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