Statutory Interpretation I
When interpreting laws, there are three rules that the courts generally use. They are as follows: -
i) the Literal Rule
ii) the Golden Rule and
iii) the Mischief Rule or Heydon’s Rule
When the literal rule is applied, the courts will give the words their ordinary and natural meaning. Let’s look at a few examples. In Fisher v Bell (1961) – the respondent was the owner of a shop and had displayed in his shop window knives with tags attached that read “ejector knife”.
A policeman entered the shop to examine the weapon and took it back to the station for further investigation. The chief inspector of police, convinced that it was indeed a flick knife charged the owner of the shop.
Under s1.1 of the Restriction of Offensive Weapons Act 1959 it is an offence for anyone to manufacture, sell or hire or offer for sale or hire, a flick knife.
Most people looking at the display would come to the conclusion that the knifes were on sale or were offered for sale but under the ordinary law of contract the display of an item in a shop window with a price tag attached to it is merely an invitation to treat and it must be taken that parliament while legislating knew or was aware of the meaning that is attached to a display of items with a price tag attached in a shop window. Here the courts gave the words their ordinary and natural meaning.
In Partridge v Crittenden (1968) Mr. Partridge took out an advertisement stating that he had either in his possession or access to, Bramblefinch cocks and Bramblefinch hens, without using the words offer for sale. Mr. Crittenden upon reading the advertisement sent Mr. Partridge a cheque and Mr. Partridge in turn sent him a hen. Mr. Crittenden on behalf of the RSPCA brought the matter to the attention of the courts.
Under s. 1 of the Protection of Birds Act 1954 it is an offence, with the exception of those holding a license granted under section 10 of the Act, for any person to sell, to offer for sale or to have in his possession for sale, various species of wild birds.
The operative words here were “offer for sale” or “have in his possession for sale” and the words were not used in the advertisement. In addition to that, in contract law, advertisements in newspapers and catalogues (Grainger & Son v Gough (1896)) are construed as invitations to treat and not offers.
The next rule that is applied is the golden rule and it is applied when the application of the literal rule brings about an absurd result or a result that parliament could not have intended. When using the golden rule, the words have to be construed after taking into account the statute as a whole. However, if so construed, the words lead to an absurd result, the courts may infer an additional meaning (River Wear Commissioners v Adamson (1877).
The judge has to try and determine the intention of parliament and decide what parliament had in mind when it passed the law. In R v Allen the defendant was convicted of bigamy under s57 of the Offences Against the Persons Act (1861) which reads as follows: -
“Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable . . .”
A person who is married cannot marry again and therefore the courts construed the words “shall marry” as “go through the ceremony of marriage”.
In Adler v George (1964), the case concerned s3 of the Official Secrets Act 1920 which reads “No person in the vicinity of any prohibited place shall obstruct, knowingly mislead or otherwise interfere with or impede, the chief officer or a superintendent or other officer of police, or any member of His Majesty’s forces engaged on guard, sentry, patrol, or other similar duty in relation to the prohibited place ….”.
The defendant somehow managed to enter an Air Force base and was charged under the act. While the act made it an offence to be in the vicinity of a prohibited place, it did not mention anything about being in it. The courts applied the golden road and construed “in the vicinity” to include being in a prohibited area.
The third rule that is used to interpret laws or acts of parliament was laid down in Heydon’s case (1584) where the defendant was tried for intruding into certain lands. When applying the rule the courts will take into account three factors: -
i) what was the common law before the making of the act?
ii) what was the mischief or the defect common law did not provide for? and
iii) what remedy has parliament resolved to provide?
In Corkery v Carpenter (1951) the defendant was drunk and was found pushing his bike along a street. He was subsequently charged under s12 of the Licensing Act 1872 which reads “Every person …. who is drunk while in charge on any highway or other public place of any carriage, horse, cattle, or steam engine, or who is drunk when in possession of any loaded firearms, ....”.
The defendant argued that s12 of the Licensing Act 1872 makes no mention of bicycles. The court applied the mischief rule and held that the purpose of the act was to prevent a person from being in charge of a vehicle or a mode of transport while the person was drunk. A bicycle was clearly a vehicle or a mode of transport.
In Elliot v Grey (1960) the defendant’s car was uninsured and he left it parked on a road, jacked up and with the battery removed. Under the Road Traffic Act 1930 it was an offence to use an uninsured car on the road.
The defendant was charged under the Road Traffic Act 1930 and he argued that he was not using his car because it is impossible to use a car without a battery. The courts applied the mischief rule and held that it was being used on the road because it represented a hazard and therefore insurance would be required in case of an accident.
In his dissenting statement, Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security (1981) said that “when a new state of affairs, or a fresh set of facts, come into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated.
Copyright © 2019 by Dyarne Ward