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

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.

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.