English legal system – statutory interpretation

Task 1: It can be argued that the role of statutory interpretation is to ‘ensure that judges uphold the intention of Parliament’. With reference to the approaches used by judges, critically assess whether the rules of statutory interpretation fulfil this argument.

While Parliament decides what the law is it is ultimately down to judges to give effect to it in its application in realistic situations.

Words in statutes may be designed to cover all possible contingencies in which case the meaning becomes extremely broad as in Brock v DPP [1993], the phrase: ‘any dog of the type known as the pit bull terrier’ in the Dangerous Dogs Act 1991 was disputed over.

Other situations are where a particular word causes ambiguity and it’s not clear which meaning should be used. There could have been drafting errors and new developments over time make Acts incapable of covering new scenarios or technologies.

For their aid the Interpretation Act 1978 states that: ‘unless the contrary appears, “he” includes “she”, and singular includes plural’ (Martin: 2007: 86).

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Three non-obligatory so-called rules (methods) have been developed by judges.

Under the literal rule words are given their exact and pure dictionary meaning but it is severely criticized for resulting in injustices and absurdity.

In the case of London & North Eastern Railway v Berriman [1946] a claim failed on the grounds that the deceased died while oiling points along the railway line and not while relaying or repairing it. Tindal CJ in the Sussex Peerage Case (1844) stated:

“…the only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act.

If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.”

The golden rule is an alternative, active process where words can be modified only to avoid an absurd or repugnant situation. Applying the narrow version in R v Allen [1872], the court held that the word marry not only covers legal marriage but extends to going through a ceremony of marriage to avoid the absurd situation of the accused circumventing the wishes of the legislature by advancing the literal definition that a second marriage cannot be legal as the first marriage will invalidate it. In its wider application the court in Re Sigsworth [1935] prevented a murderer son benefitting from the proceeds of his crime even though the word could result in one possible outcome and shows that the literal rule, if applied, would have caused public outrage and indecency.

The mischief rule derives from Heydons’s Case (1584) with the aim of finding out what the law was before the passing of an Act and seeks to eliminate the mischief by advancing the remedy (Martin: 2007) and was applied in Royal College of Nursing v DHSS [1981], where the Abortion Act 1967 makes in lawful for a pregnancy to be ‘terminated by a registered medical practitioner’ (Martin: 2007: 91). The court held that it is legitimate for nurses to carry out the second stage of the procedure because the mischief Parliament sought to suppress were dangerous backstreet abortions in unhygienic conditions (Ingman: 2008)

The literal approach is being abandoned in favour of the more modern purposive approach. Since Britain has become a member of the EU judges are becoming accustomed to its methodology, finding themselves obliged to interpret legislation in conformity with Section 3 of the Human Rights Act 1998. While the mischief rule considers contemporary issues the purposive approach goes further in giving effect to the purpose of the Act prospectively. Such a case is R (Quintavalle) v Secretary of State for Health [2003], where CNR could not have been envisaged by Parliament at the time the Act was enacted as it did not exist at the time.

Minor rules of language such as the ejusdem generis maxim means ‘general words which follow specific ones are taken to include things of the same kind’ (Elliott: 2009: 61). This technique was employed in Powell v Kempton Park [1899] where an outdoor place known as Tattersall’s Ring was excluded from the words house, office and room as they were all indoor places.

The expressio unius alterius method means ‘the mention of one thing excludes others’ and can be seen applied in Tempest v Kilner [1846].

The final rule is noscitur a sociiis meaning that ‘a word is known by the company it keeps. In IRC v Frere [1965] it was held that because ‘other annual interest’ was mentioned, interest could only apply annually.

Intrinsic aids suggestive of Parliament’s intentions are the preamble – stating why the Act is being enforced but equally useful are extrinsic sources: previous Acts on the same subject; historical setting, earlier case law and dictionaries of the time.

Pepper v Hart [1993] was a landmark case enabling judges to consult the debates that took place in Parliament prior to the Act being implemented. Lord Browne-Wilkinson:

“…the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature”.

Task 2: In the following situations, use your knowledge of statutory interpretation to explain whether or not the following defendants would be guilty of an offence under section 1 of the Street Offences Act 1959 where: ‘it shall be an offence for a common prostitute to loiter or solicit in a public street or public place for the purposes of prostitution’.

(a) Fiona was waving and banging on the window of her flat to attract the attention of a friend walking by on the street below. As she live above a busy street, her action caught the attention of people including a police officer called out to investigate complaints under s 1 of the Street Offences Act

Certain presumptions available to judges can be instrumental in deciding cases. These are: a presumption against the change in common law; that the Crown is not bound by any statute unless the statute expressly says so; that legislation does not apply retrospectively and in this case there is a presumption that mens rea is required to convict in criminal cases and when judges construct the intention of legislation they will consider this along with the actus reus. In B (a minor) v DPP [2000], Lord Nicholls emphasised:

“…the common law presumes that, unless Parliament indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence”.

Fiona’s actions might be misconstrued by the public and the officer as that for the purposes of prostitution given the context and public awareness of prostitutes’ manner in gaining attention. It appears this is the case here. At trial the true relationship between Fiona and her friend can be established. If the literal rule is applied and the imperativeness of mens rea is discarded then there is the possibility of her being convicted unjustly. However, in Sweet v Parsley [1970], although the defendant was the proprietor of a house where cannabis was being smoked by the renters, the House of Lords decided the defendant was not guilty since she had no knowledge of the inhabitants’ activities so she lacked mens rea and, therefore, could not be convicted (Martin: 2008). With a purposive approach and reference to the Sweet case the court is bound to acquit her as Fiona’s actions were not for the purposes of prostitution and Parliament will not have intended for the innocent to be punished. Lord Denning advocated this method strenuously, saying:

“…we sit here to find the intention of Parliament… and we do this better by filling in the gaps than opening up enactment to destructive analysis”.

(b) Moji is charged with soliciting from the balcony of her flat

Moji is trying to elude the Street Offences Act by not being in the street when soliciting for clients.

Applying the literal rule Moji will be acquitted and It is obvious parliament could not have intended for their enactments to cause such ineffective results. However, Lord Esher argues:

“…the court has nothing to do with the question whether the legislature has committed an absurdity”

but it is plainly obvious that such an approach is ‘mechanical and divorced from the realities of the use of language’ (Martin: 2007: 88) and negates the true spirit of the law.

In Smith v Hughes [1960] six women were convicted under this Act for soliciting from their flats, windows and balconies and argued their convictions were wrong because, although they accepted they were engaged in prostitution, they did not contravene the legislation’s wording which states ‘in a street or public place for the purposes of prostitution’ (www.opsi.gov.uk on 21/12/09). However, their convictions were upheld, Lord Parker giving judgement:

“Everybody knows this was an Act to clean up the streets…. viewed in this way it can matter little whether the prostitute is standing in the street or in the doorway or on the balcony, or at a window, or whether the window is shut or open or half open.”

In Eastbourne Borough Council v Stirling [Times, 16th November 2000] a taxi driver was convicted because, although he was on private land, he targeted for hire people on the street.

Bound by these judgements Moji will be convicted as the mischief the Act sought to eliminate was prostitution targeted on streets. This effectively re-writes law and criticism follows that it is an encroachment on the sovereignty of parliament; undermines the separation of powers and allows judges to arbitrarily decide cases. However, under the doctrine of judicial precedence this can be restricted (Slapper and Kelly: 2009).

(c) Rosalyn is charged with soliciting from the high street

In some cases application of the literal rule leads to an absurdity such as Whiteley v Chappell [1868] where the defendant was charged in accordance with the words ‘to impersonate any person entitled to vote’. He was acquitted because a dead person is not – literally – entitled to vote. Another case illustrating the problem with the literal rule is Cheeseman v DPP [Times, 2nd November 1990] where a defendant was acquitted because police officers were not ‘passengers’. Had the mischief rule been used it would’ve produced correct verdicts according to common sense and the intentions of Parliament as the Acts aimed to bring to justice those committing fraud and indecency.

In some situations though, the literal rule suffices to deliver the intentions of a statute. The Street Offences Act 1959 section 1(4) defines ‘street’, amongst other definitions, as ‘for the time being open to the public… shall be treated as forming part of the street’. A high street is, according to the Oxford English Dictionary 2005, catering to the needs of the ordinary public. With such an interpretation Rosalyn will be convicted.