Literal/ Golden/ Mischief Rules
Literal/ Golden/ Mischief Rules
The literal rule is the primary rule which takes precedence over the others. Words and phrases should be construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation should be applied. If, applying this rule, a clear meaning appears, then this must be applied, and the courts will not inquire whether what the statute says represents the intention of the legislature: ‘The intention of Parliament is not to be judged by what is in its mind, but by the expression of that mind in the statute itself’. The literal rule is strongly criticised by many lawyers. It has been said to be ‘….a rule against using intelligence in understanding language. Anyone who in ordinary life interpreted words literally, being indifferent to what the speaker or writer meant, would be regarded as a pedant, a mischief-maker or an idiot’.
Such criticism, it is submitted, is misguided. For example, the Hotel Proprietors Act 1956 provides that in certain circumstances an hotel proprietor is liable for loss of or damage to guests’ property, but that this liability does not usually extend to guests’ motor vehicles or property left ‘therein’. The question arises – is the hotel proprietor liable for property left on, rather than in, a vehicle, for example, on a roof rack. On a literal interpretation, the hotel proprietor is liable, because if Parliament had intended to exclude property left on a vehicle, the Act would have said ‘therein or thereon’. The ‘common-sense’ school would say that it is ridiculous to make a distinction between property left in or on a vehicle.
That may be so in the admittedly trivial example given, but if this line of argument is accepted, it means that the courts would have power to rewrite Acts of Parliament, which many people would consider to be highly dangerous, particularly where it takes the form of assuming that Parliament ‘intended’ something, when in truth it is more than likely that Parliament never gave that matter a moments’ thought. It is better that the courts interpret statutes strictly, and if this leads to unsatisfactory or inequitable results, then Parliament should pass amending legislation to indicate clearly what its intention was. The full force of the literal rule was demonstrated in the case of Whitely v, Chappell (1869). The defendant had voted in the name of a person who had died, but was found not guilty of the offence of personating ‘any person entitled to vote’: a dead person is not entitled to vote.
Where the meaning of words in a statute, if strictly applied, would lead to an absurdity, the golden rule is that the courts are entitled to assume that Parliament did not intend such absurdity, and they will construe the Act to give it the meaning which Parliament intended. So, for example, the Offences Against the Person Act 1861 provided that ‘whosoever being married shall marry another person during the life of the former husband or wife’ is guilty of bigamy. Re Sigsworth 1935 provided that the Defendant was not entitled to inherit because it would be manifestly repugnant to allow a murderer to reap the benefit of his crime even if the Defendant is the only inheritor.
Interpreted literally, this definition is absurd on two counts. First, the phrase ‘shall marry another person’ is meaningless in the context, as the essence of bigamy is that a married person cannot marry again while his first marriage subsists. Secondly, the reference to a ‘former’ husband or wife is quite inappropriate. The word ‘former’ suggests that the original marriage no longer exists, but if that were the case the person marrying again would not be guilty of bigamy. Despite the slipshod draftsmanship of the Act, however, the intention was clear, and the courts have interpreted the relevant section as meaning that a person who purports to marry another while his or wife or husband is still alive is guilty of bigamy.
When it is not clear whether an act falls within what is prohibited by a particular piece of legislation, the judges can apply the mischief rule. This means that the courts can take into account the reasons why the legislation was passed; what ‘mischief’ the legislation was designed to cure, and whether the act in question fell within the ‘mischief’. For example, the Street Offences Act 1959 made it an offence for a prostitute to solicit men ‘in a street or public place’. In Smith v. Hughes the question was whether a woman who had tapped on a balcony and hissed at men passing by was guilty of an offence under the Act. Parker, L.C.J., found her guilty: ‘I approach the matter by considering what is the mischief aimed at by this Act. Everybody (sic) knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes.
Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony’. In the case mentioned, it was comparatively easy to apply the mischief rule as the circumstances which caused the passing of the Act were well known. The rule does, however, have limitations as it is by no means always easy to discover the ‘mischief’ at which particular Act was aimed. The rules of interpretation discussed above do not apply to the interpretation of EEC legislation.
The European Communities Act 1972 provides that questions of interpretation of EEC law must be decided in accordance with the principles laid down by any relevant decision of the European Court. Therefore, although EEC legislation has the force of law in England and thus becomes part of English law, the courts cannot interpret it by the methods which they apply to the main body of English law. In interpreting statutes, the courts make certain presumptions: (a) that the statute is not intended to have retrospective effect; (b) that it applies only to the United Kingdom;
(c) that it is not intended to interfere with existing vested rights; (d) that the property of any person will not be confiscated without compensation; (e) that there is no intention to interfere with existing contractual rights; (f) that there is no intention to interfere with personal liberty; (g) that any person to whom judicial or quasi-judicial power is given will exercise such power in accordance with the rules of natural justice; (h) that the statute is not intended to derogate from the requirements of international law. Any of these presumptions may be overruled by the precise words of the statute. Private Acts (but not public Acts) always have a preamble which sets out the objects of the legislation. Preambles can on occasion be of considerable assistance to the courts in interpreting the Acts.
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 13 October 2016
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