WHAT IS STATUTORY INTERPRETATION?
STATUTORY INTERPRETATION
Statutory
interpretation concerns the role of judges when trying to apply an Act of
Parliament to an actual case. The wording of the Act may seem to be clear when
it is drafted and checked by Parliament, but it may become problematic in the
future.
There are
statutory and common law rules to assist the judges in the interpretation.
1. STATUTORY
RULES
There are
three statutes:
1.
Interpretation Acts 1948 and 1967 (Act 388)(Consolidated and Revised 1989)
which came into force on 19 October 1989.
2.
Interpretation and General Clauses Enactment of Sabah (No. 3 of 1963)
3.
Interpretation Ordinance of Sarawak 1953 (Cap 1)
In these
statutes the word is defined to make it clear, for example the word ‘man’
includes also woman.
2. COMMON LAW
RULES
There are
three main rules of statutory interpretation that judges use to decide a case:
- The Literal Rule
- The Golden Rule
- The Mischief Rule
1.
Literal Rule
Words are
given their ordinary grammatical meaning. The judges take the ordinary and
natural meaning of the word and apply it, even if doing so creates an absurd
result.
Lord Esher said in 1892:
“If the words
of an act are clear then you must follow them even though they lead to a
manifest absurdity. The court has nothing to do with the question whether the
legislature has committed an absurdity”
In Whiteley v
Chappell D was found
not guilty of “impersonating [someone] entitled to vote” when he impersonated a
dead man, as a dead person is not “entitled to vote”.
London and North Eastern Railway Company v Berriman
C the widow of
a railway worker tried to obtain compensation after her husband was killed by a
train, He had been routine maintenance and oiling not ‘relaying
or repairing‘ tracks. So she was
not entitled to compensation.
PP v. Chin Kim
Foo
The copyright of a sound recording which was first published on
18/7/1988 was infringed in 19/7/1988.
The defendant contended that the copyright only subsisted from 1/1/1989
based on Sec.19 of the Copyright Act 1987 : Copyright of sound recording shall
subsist until 50 years from the beginning of the calendar year following the
year in which the recording was first published. Court accepted the
submission
The literal
rule respects parliamentary sovereignty. It leaves law-making to Parliament / respects democracy BUT
assumes every Act will be perfectly drafted
See case Fisher v Bell:
This case concerned a flick knife displayed in a shop window. Lord
Parker acquitted Bell under the Restriction of Offensive Weapons Act 1959,
even though it was obvious that this was exactly the sort of behaviour that
Parliament intended to stop.
He justified his decision because the draftsmen knew the legal term ‘invitation
to treat’ (which would have been applicable in this case) but failed to
include it. To respect Parliament’s sovereignty he had to infer that they had
left it out on purpose.
2. Golden Rule
The golden
rule is an extension of the literal rule.
The best
interpretation of ambiguous words can be chosen to avoid an absurd result. The golden rule provides a kind of “escape
route” when there is a problem with the literal rule.
If the literal
rule gives an absurd result, which is obviously not what Parliament intended,
the judge should alter the words in the statute in order to produce a
satisfactory result.
Two approaches
under the golden rule:
- Narrow
approach
- Broad approach
a) Narrow Approach
R v Allen is
an example of the narrow approach of the golden rule.
The defendant
was charged with the offence of bigamy under s.57 of the Offences Against the
Person Act 1861. The statute states 'whosoever being married shall marry any
other person during the lifetime of the former husband or wife is guilty of an
offence'. Under a literal interpretation of this section the offence would be
impossible to commit since civil law will not recognise a second marriage any
attempt to marry in such circumstances would not be recognised as a valid
marriage.
Held:
The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld
Held:
The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld
b) Broad Approach
Where there is
only one literal meaning of a word or phrase, but to apply it would cause an
absurdity, then under the broad approach the court will modify this meaning to
avoid absurdity
Adler v George (1964)
Defendant
charged under the Official Secrets Act 1920 which made it an offence to
obstruct a member of the armed forces in the vicinity of a prohibited place (in
this case a RAF station).
Defendant
claimed he was ‘in’ not ‘in the vicinity of’.
Court applied
broad approach and applied the word ‘in’ to mean in the vicinity of and changed
the meaning of the word
Re Sigsworth [1935] 1 Ch 98
A son murdered
his mother. She had not made a will. Under the statute setting the law on
intestacy he was her sole issue and stood to inherit her entire estate.
The court
applied the Golden rule holding that an application of the literal rule would
lead to a repugnant result. He was thus entitled to nothing.
3. Mischief
Rule
The mischief
rule (or purposive approach) gives judges the most flexibility when deciding
what ‘mischief’ Parliament intended to stop.
It was
established in Heydon’s Case (1584).
When using
this rule, a judge should consider:
1. What was
the common law before the Act was made
2. What was
the mischief and defect that the common law did not deal with
3. What was
the remedy parliament came up with
4. What was
the true reason for the remedy
Judge
must interpret the statute to avoid the mischief and to develop the remedy. The
question that the judge must answer is what is the mischief that the statute need to recover?
In Smith
v Hughes:
The defendants
were charged with ‘soliciting in a street or public place for the purposes of
prostitution’ contrary to the Street Offences Act 1959. They were soliciting
from upstairs windows.
Lord Parker
used the mischief rule to convict, as he believed that the ‘mischief’
that Parliament had intended to stop was people in the street being bothered by
prostitutes.
Royal College
of Nursing v DHSS [1981] 2 WLR 279
The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences Against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (ie a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses.
Held:
It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.
The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences Against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (ie a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses.
Held:
It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.
4.3 RULES OF LANGUAGE
1. Ejusdem Generis (of the same
kind)
General words which follow particular and specific words all of one genus
are presumed to be restricted to the same genus as the particular words.
Powell v
Kempton Park Racecourse (1899).
It was an
offence to use a “house, office, room or other place for betting”. The
defendant was operating from a place outdoors. The court held that “other
place” had to refer to other indoor places because the words in the list were
indoor places and so he was not guilty.
Public
Prosecutor v Pengurus Hong Trading & Co (1985),
Where the
relevant part of the statute referred to a prohibition on tea containing any
‘Prussian blue, or lead or any compounds of lead or other matter …’. The
question was as to the interpretation of ‘other matter’. The court applied the
ejusdem generis rule and held that ‘other matter’ referred to things of the
same category as ‘Prussian blue, lead or compounds of lead’.
2. Noscitur a sociis (known
from associates)
A word will be
interpreted in the context of surrounding words. For example:
Muir v Keay
(1875).
All houses
kept open at night for “public refreshment, resort and entertainment” had to be
licensed. The defendant argued that his café did not need a license
because he did not provide entertainment. The court held that
“entertainment” did not mean musical entertainment but the reception and
accommodation of people, so the defendant was guilty.
Foster v
Diphwys Casson (1887), involved a statute which stated that explosives taken
into a mine must be in a “case or canister”. Here the defendant used a cloth
bag. The courts had to consider whether a cloth bag was within the definition.
Under noscitur a sociis, it was held that the bag could not have been within
the statutory definition, because parliament’s intention was refering to a case
or container of the same strength as a canister.
3. Expressio unius est exclusio alterius (the
express mention of one thing is the exclusion of another)
The express
mention of things in a list excludes those things not mentioned. For
example:
Tempest v
Kilner (1846).
A statute
required that contracts for the sale of “goods, wares and merchandise” of £10
or more had to be evidenced in writing. The court had to decide if this
applied to a contract for the sale of stocks and shares. The court held
that the statute did not apply because stocks and shares were not mentioned.
4. AIDS TO
INTERPRETE
The aids will assist the judge to interpret the meaning of word. By
looking these aids judges understand the real intention of the Act. There are two kinds of aids that is Intrinsic
and external aids.
a. Intrinsic /
Internal Aids
Anything within the Act itself:
- Short Title
- Preamble / Long
title
- Definition sections
- Other sections
- Objectives section (if there is one)
- Schedules
- Punctuation, illustrations
b. External
Aids
·
Previous Acts on the same
point – there was act repealed prior introducing of the existing Act, Judges
may refer to the Act to reveal the meaning and intention of legislature.
·
Earlier case law – May be The Act is
introduced as a result of certain case decided by judge which is influenced the
policy of nation or social, judges could refer to this case.
·
Dictionaries, including
those of the time when the act was passed
·
Hansard (the official
record of what is said and done (proceedings and debates) in Parliament)
·
Law Commission reports
·
International treaties, etc.
WHAT IS STATUTORY INTERPRETATION?
Reviewed by Kamaruddin Mahmood
on
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