STATUTORY INTERPRETATION

1. The rules of statutory interpretation

Once Parliament has passed an Act, it then falls to the courts to apply the
statute in a particular case. This can lead to difficulties where the facts of
the case may not have been envisaged by Parliament or where there exist
drafting errors or ambiguity in the statute. There exists Interpretation and
General provisions Act cap 2 which provides certain basic definitions such
as singular includes plural and he includes she. In addition the courts have
developed rules to assist judges in interpreting statutes.

In this part we will explore the number of rules developed by the courts to
assist with the interpretation of a statute. These are:

 the literal rule

 the golden rule

 the mischief rule

 the purposive approach.

These rules each take different approaches to interpretation of a statute.

Some judges prefer one rule, while other judges prefer another. Some
judges also feel that their role is to fill the gaps and ambiguities in the law
whilst others think that it should be left to Parliament as the supreme law-
maker. As the rules can result in very different decisions, it is important to
understand each of them and how they may be used.

2. The literal rule

The literal rule of statutory interpretation should be the first rule applied
by judges. Under the literal rule, the words of the statute are given their
natural or ordinary meaning and applied without the judge seeking to put
a gloss on the words or seek to make sense of the statute.

1
Under this rule the judge considers what the statute actually says, rather
than what it might mean. In order to achieve this, the judge will give the
words in the statute a literal meaning, that is, their plain ordinary
everyday meaning, even if the effect of this is to produce what might be
considered as an otherwise unjust or undesirable outcome. The literal rule
says that the intention of Parliament is best found in the ordinary and
natural meaning of the words used. As the legislative democratic part of
the state, Parliament must be taken to want to effect exactly what it says
in its laws. If judges are permitted to give an obvious or non-literal
meaning to the words of parliamentary law, then the will of Parliament,
and thereby the people, is being contradicted. Lord Diplock once noted:

“Where the meaning of the statutory words is plain and

unambiguous it is not then for the judges to invent fancied
ambiguities as an excuse for failing to give effect to its plain
meaning because they consider the consequences for doing so
would be inexpedient, or even unjust or immoral.” Duport Steel v
Sirs (1980)

The use of the literal rule is illustrated by the case of Fisher v Bell (1960).
The Restriction of Offensive Weapons Act 1959 made it an offence to offer
for sale certain offensive weapons including flick knives. James Bell, a
Bristol shopkeeper, displayed a weapon of this type in his shop window in
the arcade at Broadmead. The Divisional Court held that he could not be
convicted because, giving the words in the statute a tight literal meaning,
Mr Bell had not offered the knives for sale. In the law of contract, placing
something in a shop window is not technically an offer for sale; it is
merely an invitation to treat. (An invitation to treat is an invitation to
others to make offers, as by displaying goods in a shop window.) It is the
customer who makes an offer to the shop when he proffers money for an
item on sale. The court upheld that under the literal meaning of offer, the
shopkeeper had not made an offer to sell and so was not guilty of the
offence. Parliament subsequently changed the law to make it clear that
displaying a flick knife in a shop window was an offence.

2
Caselaw

R v Harris (1836) 7 C & P 446

The defendant bit off his victim's nose. The statute made it an offence 'to
stab cut or wound' the court held that under the literal rule the act of
biting did not come within the meaning of stab cut or wound as these
words implied an instrument had to be used. Therefore the defendant's
conviction was quashed.

Fisher v Bell [1961] 1 QB 394

The defendant had a flick knife displayed in his shop window with a price
tag on it. Statute made it a criminal offence to 'offer' such flick knives for
sale. His conviction was quashed as goods on display in shops are not
'offers' in the technical sense but an invitation to treat. The court applied
the literal rule of statutory interpretation.

Whitely v Chappel (1868) LR 4 QB 147

A statute made it an offence 'to impersonate any person entitled to vote.'

The defendant used the vote of a dead man. The statute relating to voting
rights required a person to be living in order to be entitled to vote. Held:
The literal rule was applied and the defendant was thus acquitted.

Advantages

The literal rule has both advantages and disadvantages. Constitutionally it

respects parliamentary supremacy and the right of Parliament to make
any laws it might wish no matter how absurd they may seem. It also
encourages precision in drafting and ensures that anyone who can read
English can determine the law, which promotes certainty and reduces
litigation. In summary:

Restricts the role of the judge

Provides no scope for judges to use their own opinions or prejudices

Upholds the separation of powers

3
Recognises Parliament as the supreme law maker

Disadvantages

Some disadvantages, however, can also be identified. It fails to recognise

that the English language itself is ambiguous and that words may have
different meanings in different contexts. The use of this rule can
sometimes lead to absurdities and loopholes which can be exploited by an
unmeritorious litigant. Judges have tended to over-emphasise the literal
meaning of statutory provisions without giving due weight to their
meaning in a wider context. Placing emphasis on the literal meaning of
words assumes an unobtainable perfection in draftsmanship. Finally, it
ignores the limitations of language. In summary:

a) There can be disagreement as to what amounts to the ordinary or

natural meaning:

R v Maginnis [1987] AC 303 House of Lords

The defendant was charged with possession of a controlled drug with

intent to supply it to another under s.5(3) of the Misuse of Drugs Act 1971.
A package containing £500 worth of cannabis was found in his car. The
defendant stated the cannabis belonged to a friend and that the friend
was picking it up later. The trial judge ruled that his action in handing the
drugs back to the friend was an action of supply. The defendant then
pleaded guilty and appealed. The Court of Appeal quashed the conviction.

Held:

The conviction was reinstated.

Lord Keith gave the leading speech:

“The word “supply,” in its ordinary natural meaning, conveys the

idea of furnishing or providing to another something which is
wanted or required in order to meet the wants or requirements of
that other, it connotes more than the mere transfer of physical
control of some chattel or object from one person to another... In
my opinion it is not a necessary element in the conception of supply

4
 that the provision should be made out of the personal resources of
the person who does the supplying. Thus if an employee draws from
his employer's store materials or equipment which he requires for
purposes of his work, it involves no straining of language to say that
the storekeeper supplies him with those materials or that
equipment, notwithstanding that they do not form part of the
storekeeper's own resources and that he is merely the custodier of
them.”

Thus, Lord Keith, with whom Lord Brandon, Lord Mackay and Lord Oliver
concurred, claimed to be applying the literal rule.

Lord Goff, however, dissented:

“I do not feel able to say that either the delivery of goods by a

depositor to a depositee, or the redelivery of goods by a depositee
to a depositor, can sensibly be described as an act of supplying
goods to another. I certainly cannot conceive of myself using the
word "supply" in this context in ordinary speech. In ordinary
language the cloakroom attendant, the left luggage officer, the
warehouseman and the shoe mender do not 'supply' to their
customers the articles which those customers have left with them.”

b) Creates loopholes in the law:

R v Harris (1836) 7 C & P 446

The defendant bit off his victim's nose. The statute made it an offence 'to
stab cut or wound' the court held that under the literal rule the act of
biting did not come within the meaning of stab cut or wound as these
words implied an instrument had to be used. Therefore the defendant's
conviction was quashed

Fisher v Bell [1961] 1 QB 394

The defendant had a flick knife displayed in his shop window with a price
tag on it. Statute made it a criminal offence to 'offer' such flick knives for
sale. His conviction was quashed as goods on display in shops are not

5
'offers' in the technical sense but an invitation to treat. The court applied
the literal rule of statutory interpretation.

Partridge v Crittenden (1968) 2 All ER 421

The defendant placed an advert in a classified section of a magazine

offering some bramble finches for sale. S.6 of the Protection of Birds Act
1954 made it an offence to offer such birds for sale. He was charged and
convicted of the offence and appealed against his conviction.

Held:

The defendant's conviction was quashed. The advert was an invitation to

treat not an offer. The literal rule of statutory interpretation was applied.

c) Leads to injustice:

London and North Eastern Railway v Berriman [1946] AC 278

A railway worker was killed whilst oiling the track. No look out man had
been provided. A statute provided compensation payable on death for
those 'relaying or repairing' the track. Under the literal rule oiling did not
come into either of these categories. This result although very harsh could
not to be said to be absurd so the golden rule could not be applied. There
was no ambiguity in the words therefore the mischief rule could not be
applied. Unfortunately the widow was entitled to nothing.

d) Creates awkward precedents which require Parliamentary time to

correct

e) Fails to recognise the complexities and limitations of English language

f) Undermines public confidence in the law

3. The golden rule

The golden rule was developed as a way of circumventing the strict

approach of the literal rule. The judges should start by first applying the
literal rule. The golden rule of statutory interpretation may be applied

6
where an application of the literal rule would lead to an absurdity. The
courts may then apply a secondary meaning. (River Wear Commissioners
v Adamson) (1876-77) L.R. 2 App Cas 743. ‘Absurdity’ is a strong word
and its use suggests that the golden rule should be sparingly used. Judges
cannot simply use the golden rule to get a different outcome. The judges
cannot use it because the application of the literal rule would be unfair or
harsh (See LNER v Berriman Case summary). Under the golden rule, it
falls to the judges to decide if a particular result would be absurd. Judges
may differ in what is and is not absurd.

This rule is a modification of the literal rule. It states that if the literal rule
produces an absurdity, then the court should look for another meaning of
the words to avoid that absurd result. The rule was closely defined by Lord
Wensleydale in Grey v Pearson (1857) HL Cas 61, who stated:

“The grammatical and ordinary sense of the words 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 so as
to avoid the absurdity and inconsistency, but no farther.”

The rule was used in the case of Adler v George (1964) to avoid an absurd
result. Under section 3 of the Official Secrets Act 1920, it was an offence
to obstruct HM Forces in the vicinity of a prohibited place. Mr Frank Adler
had in fact been arrested whilst obstructing such forces within such a
prohibited place (Markham Royal Air Force Station, Norfolk). He argued
that he was not in the vicinity of a prohibited place as he was actually in a
prohibited place. The court applied the golden rule to extend the literal
wording of the statute to cover the action committed by the defendant. If
the literal rule had been applied, it would have produced absurdity, as
someone protesting near the base would be committing an offence whilst
someone protesting in it would not.

Re Sigsworth (1935) concerned a case where a son had murdered his

mother. The mother had not made a will and under the Administration of
Justice Act 1925 her estate would be inherited by her next of kin, i.e. her
7
son. There was no ambiguity in the words of the Act, but the court was not
prepared to let the son who had murdered his mother benefit from his
crime. It was held that the literal rule should not apply and that the golden
rule should be used to prevent the repugnant situation of the son
inheriting.

The golden rule provides no clear means to test the existence or extent of
an absurdity. It seems to depend on the result of each individual case.
Whilst the golden rule has the advantage of avoiding absurdities, it
therefore has the disadvantage that no test exists to determine what is an
absurdity.

R v Allen (1872) LR 1 CCR 367

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.

4. The mischief rule

The mischief rule of statutory interpretation is the oldest of the rules. The
mischief rule was established in Heydon's Case [1584] EWHC Exch J36. In
Re Sussex Peerage, it was held that the mischief rule should only be
applied where there is ambiguity in the statute. Under the mischief rule
the court's role is to suppress the mischief the Act is aimed at and
advance the remedy.

This rule gives a judge more discretion than either the literal or the golden
rule. This rule requires the court to look to what the law was before the

8
statute was passed in order to discover what gap or mischief the statute
was intended to cover. The court is then required to interpret the statute
in such a way to ensure that the gap is covered. The rule is contained in
Heydon's Case (1584), where it was said that for the true interpretation of
a statute, four things have to be considered:

1. What was the common law before the making of the Act.

2. What was the mischief and defect for which the common law did not
provide.

3. What remedy Parliament hath resolved and appointed to cure the

disease of the Commonwealth.

4. The true reason of the remedy; and then the office of the Judges is to
make such construction as shall suppress the mischief and advance the
remedy.

This rule gives the court justification for going behind the actual wording
of the statute in order to consider the problem that the particular statute
was aimed at remedying. At one level it is clearly the most flexible rule of
interpretation, but it is limited to using previous common law to determine
what mischief the Act in question was designed to remedy. The case itself
concerned a dispute about legislation passed under Henry VIII in 1540 and
a legal action against Heydon for intruding into certain lands in the county
of Devon.

Caselaw

Corkery v Carpenter [1951] 1 KB 102

In 1951 Shane Corkery was sentenced to one month's imprisonment for

being drunk in charge of a bicycle in public. At about 2.45 p.m. on 18
January 1950, the defendant was drunk and was pushing his pedal bicycle
along Broad Street in Ilfracombe. He was subsequently charged under
section 12 of the Licensing Act 1872 with being drunk in charge of a
carriage. The 1872 Act made no actual reference to bicycles. The court
elected to use the mischief rule to decide the matter. The purpose of the

9
Act was to prevent people from using any form of transport on a public
highway whilst in a state of intoxication. The bicycle was clearly a form of
transport and therefore the user was correctly charged.

Smith v Hughes [1960] 1 WLR 830

The defendants were prostitutes who had been charged under the Street
Offences Act 1959 which made it an offence to solicit in a public place.
The prostitutes were soliciting from private premises in windows or on
balconies so could be seen by the public.

Held:

The court applied the mischief rule holding that the activities of the
defendants were within the mischief the Act was aimed at even though
under a literal interpretation they would be in a private place.

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.

Elliot v Grey [1960] 1 QB 367

The defendant's car was parked on the road. It was jacked up and had its
battery removed. He was charged with an offence under the Road Traffic

10
Act 1930 of using an uninsured vehicle on the road. The defendant argued
he was not 'using' the car on the road as clearly it was not driveable.

Held:

The court applied the mischief rule and held that the car was being used
on the road as it represented a hazard and therefore insurance would be
required in the event of an incident. The statute was aimed at ensuring
people were compensated when injured due to the hazards created by
others.

DPP v Bull [1995] QB 88 Divisional Court of the Queen's Bench Division

A man was charged with an offence under s.1(1) of the Street Offences
Act 1959 which makes it an offence for a 'common prostitute to loiter or
solicit in a public street or public place for the purposes of prostitution'.
The magistrates found him not guilty on the grounds that 'common
prostitute' only related to females and not males. The prosecution
appealed by way of case stated.

The court held that the Act did only apply to females. The word prostitute
was ambiguous and they applied the mischief rule. The Street Offences
Act was introduced as a result of the work of the Wolfenden Report into
homosexuality and prostitution. The Report only referred to female
prostitution and did not mention male prostitutes. The QBD therefore held
the mischief the Act was aimed at was controlling the behaviour of only
female prostitutes.

5. The purposive approach

This approach has emerged in more recent times. Here the court is not
just looking to see what the gap was in the old law, it is making a decision
as to what they felt Parliament meant to achieve. Lord Simon explained
the purposive approach in Maunsell v Olins[1975] AC 373

‘The first task of a court of construction is to put itself in the shoes

of the draftsman – to consider what knowledge he had and,
importantly, what statutory objective he had …being thus placed…

11
 the court proceeds to ascertain the meaning of the statutory
language.’

Lord Denning in the Court of Appeal stated in Magor and St. Mellons Rural
District Council v Newport Corporation (1950),

‘we sit here to find out the intention of Parliament and of ministers
and carry it out, and we do this better by filling in the gaps and
making sense of the enactment by opening it up to destructive
analysis’.

This attitude was criticised on appeal by the House of Lords. Lord

Simmons called this approach ‘a naked usurpation of the legislative
function under the thin disguise of interpretation’. He went on to say that
‘if a gap is disclosed, the remedy lies in an amending Act’.

These comments highlight one issue with the purposive approach. How
Parliament's intentions can be determined and whether judges should
really be refusing to follow the clear words of Parliament. The purposive
approach is one used by most continental European countries when
interpreting their own legislation. It is also the approach which is taken by
the European Court of Justice in interpreting EU law.

Maunsell v Olins [1975] AC 373 House of Lords

The House of Lords had to determine whether a farm cottage attached to

farmhouse constituted ‘premises’ for the purposes of the Rent Act. Lord
Simon set out the two tier test to be taken under the purposive approach.

Lord Simon:

‘The first task of a court of construction is to put itself in the shoes

of the draftsman – to consider what knowledge he had and,
importantly, what statutory objective he had …being thus placed…
the court proceeds to ascertain the meaning of the statutory
language.’

Pepper v Hart [1992] 3 WLR 1032 House of Lords

12
The House of Lords had to decide whether a teacher at a private school
had to pay tax on the perk he received in the form of reduced school fees.
The teacher sought to rely upon a statement in Hansard made at the time
the Finance Act was passed in which the minister gave his exact
circumstance as being where tax would not be payable. Previously the
courts were not allowed to refer to Hansard (See Davis v Johnson).

Held: The House of Lords departed from Davis v Johnson and took a
purposive approach to interpretation holding that Hansard may be
referred to and the teacher was not required to pay tax on the perk he
received.

Lord Griffiths on the purposive approach:

“The days have passed when the courts adopted a literal approach.
The courts use a purposive approach, which seeks to give effect to
the purpose of legislation and are prepared to look at much
extraneous material that bears upon the background against which
the legislation was enacted.”

Lord Brown Wilkinson on reference to Hansard:

“My Lords, I have come to the conclusion that, as a matter of law,

there are sound reasons for making a limited modification to the
existing rule (subject to strict safeguards) unless there are
constitutional or practical reasons which outweigh them. In my
judgment, subject to the questions of the privileges of the House of
Commons, reference to Parliamentary material should be permitted
as an aid to the construction of legislation which is ambiguous or
obscure or the literal meaning of which leads to an absurdity. Even
in such cases references in court to Parliamentary material should
only be permitted where such material clearly discloses the mischief
aimed at or the legislative intention lying behind the ambiguous or
obscure words. In the case of statements made in Parliament, as at
present advised I cannot foresee that any statement other than the

13
 statement of the Minister or other promoter of the Bill is likely to
meet these criteria.”

Pickstone v Freemans plc [1989] AC 66 House of Lords

Miss Pickstone brought a claim against her employer under the Equal Pay
Act 1970. She was employed as a warehouse operative and was paid the
same as male warehouse operatives. However, Miss Pickstone claimed
that the work of the warehouse operatives was of equal value to that done
by male warehouse checkers who were paid £1.22 per week more than
she was.

The House of Lords decided that the literal approach would have left the
United Kingdom in breach of its Treaty obligations to give effect to an EU
directive. It therefore used the purposive approach and stated that Miss
Pickstone was entitled to claim on the basis of work of equal value even
though there was a male employee doing the same work as her.

R v S of S for Health ex parte Quintavalle (on behalf of Pro-Life Alliance)

[2003] 2 WLR 692 House of Lords

The Pro Life Alliance argued that the Human Fertilisation and Embryology
Authority did not have authority to licence research with regards to
cloning. The Human Fertilisation and Embryology Act 1990 granted the
Authority the right to licence research with regards to embryos. An
embryo was defined in the Act as ‘a live human embryo where fertilisation
is complete’. However, embryos created using cloning are not fertilised.

Held:

The House of Lords held that the cloned embryos were covered by the
statute taking a purposive approach to statutory interpretation.

Lord Bingham:

“The court's task, within the permissible bounds of interpretation, is

to give effect to Parliament's purpose. So the controversial
provisions should be read in the context of the statute as a whole,
and the statute as a whole should be read in the historical context

14
 of the situation which led to its enactment….While it is
impermissible to ask what Parliament would have done if the facts
had been before it, there is one important question which may
permissibly be asked: it is whether Parliament, faced with the taxing
task of enacting a legislative solution to the difficult religious, moral
and scientific issues mentioned above, could rationally have
intended to leave live human embryos created by CNR outside the
scope of regulation had it known of them as a scientific possibility.
There is only one possible answer to this question and it is
negative.”

When using one of the rules of statutory interpretation the courts may
rely on a presumption or secondary aids to assist them in making their
decision.

6. Presumptions

When determining the meaning of particular words the courts will make
certain presumptions about the law. If the statute clearly states the
opposite, then a presumption will not apply and it is said that the
presumption is rebutted. The main presumptions are:

1. A presumption against change in the common law.

It is assumed that the common law will apply unless Parliament has made
it plain in the Act that the common law has been altered.

2. A presumption that mens rea (‘guilty mind’) is required in criminal

cases.

Mens rea is one of the elements that has to be proved for a successful
criminal prosecution. There is a common law rule that no one can be
convicted of a crime unless it is shown they had the required intention to
commit it.

3. A presumption that the Crown is not bound by any statute unless the
statute expressly says so.

15
4. A presumption that a statute does not apply retrospectively. No statute
will apply to past happenings. Each statute will normally only apply from
the date it comes into effect. This is, however, only a presumption and
Parliament can choose to pass a statute with retrospective effect. This
must, however, be expressly stated in the statutes, for example, the 1965
War Damage Act, the 1991 War Crimes Act and the 1976 Adoption Act.

Aids to statutory interpretation

To assist judges in interpreting statutes there exist various aids that they
may refer to. Aids to statutory interpretation are divided into internal aids
and external aids. These are sometimes referred to as intrinsic aids and
extrinsic aids to interpretation.

Internal aids

Internal aids are those contained in the statute itself and consist of:

The long title of the Act

Explanatory notes

Other sections of the Act

Definition sections in the Act

Dictionaries

text books

Academic writings

Law Commission Reports

Case law from other jurisdictions

Hansard

Previously reference to Hansard was not allowed by the courts:

Davis v Johnson [1978] 2 WLR 553Davis v Johnson [1978] 2 WLR 553

House of Lords

16
This case concerned the interpretation of the Domestic Violence and
Matrimonial Proceedings Act 1976. At the Court of Appeal Lord Denning
referred to Hansard stating, that not to do so would be like 'groping in the
dark without switching on the light'. On appeal to the House of Lords the
Lords reprimanded Denning for referring to Hansard and restated the rule
that Hansard must not be referred to.

Lord Kilbrandon

“It has always been a well established and salutary rule that
Hansard can never be referred to by counsel in court and therefore
can never be relied on by the court in construing a statute or for any
other purpose.”

Lord Scarman:

“There are two good reasons why the courts should refuse to have
regard to what is said in Parliament or by Ministers as aids to the
interpretation of a statute. First, such material is an unreliable guide
to the meaning of what is enacted. It promotes confusion, not
clarity. The cut and thrust of debate and the pressures of executive
responsibility, essential features of open and responsible
government, are not always conducive to a clear and unbiased
explanation of the meaning of statutory language. And the volume
of Parliamentary and ministerial utterances can confuse by its very
size. Secondly, counsel are not permitted to refer to Hansard in
argument. So long as this rule is maintained by Parliament (it is not
the creation of the judges), it must be wrong for the judge to make
any judicial use of proceedings in Parliament for the purpose of
interpreting statutes.”

Viscount Dilhorne:

“While, of course, anyone can look at Hansard, I venture to think

that it would be improper for a judge to do so before arriving at his
decision and before this case I have never known that done. It
cannot be right that a judicial decision should be affected by matter

17
which a judge has seen but to which counsel could not refer and on
which counsel had no opportunity to comment.”

18