1) Why Are Rules Of Interpretation Required By The Courts?
Both drafting and interpreting the law are complex and challenging tasks. The Renton Committee criticised the fact that ‘drafters of legislation tended to adopt a stylised archaic legalism in their language and employed a grammatical structure that was too complex and convoluted to be clear…’ however, draftsmen have to work within several parameters. This may result in poorly drafted and defective provisions. In his article, Francis Bennion, a former parliamentary draftsman provides an insight into the various difficulties faced in drafting legislation and enumerated the parameters which must be taken into consideration by draftsmen.
The fact that legislation has to be drafted within very narrow time limit increases pressure on draftsmen and make them more prone to mistakes. While attempting to ensure certainty in the law, draftsmen try their best to include limiting and refining sub-clauses. The resulting statute might be lengthy, complex, ambiguous and meaningless. A layperson, Member of Parliament and also legal personnel should be able to understand a statute, but unfortunately this is not always achieved.
Legislation should be expressed in indisputable language and acceptable writing style. However, words can often have more than one meaning. In such a situation, the contextual meaning of the word is applied. This is also referred to as ‘lexical ambiguity’, which may result from the evolution of words over time. For example, in Cheeseman v DPP (1990) the defendant was witnessed masturbating in a public toilet by two police officers. according to the Town Police Clauses Act 1847 they had to be passengers, however the Public Health Amendment Act 1902 stated that ‘street could also mean any public place under the control of the local authority and the oxford English dictionary of the time of the Town Police Clauses Act stated that ‘passengers’ could also mean a ‘foot-passenger’ but as the police were not actually travelling at the time the defendant could not be arrested in those circumstances.
Moreover, a clause can have several possible meanings. This is referred to as ‘structural ambiguity’. The combined effect of lexical and structural ambiguity might result in a statutory provision with multiple meanings.
Also, legislative provisions should be as brief as is possible. This may contradict the need for certainty and acceptability though. In addition, new legislation should complement pre-existing provisions. If the new law aims to alter or repeal existing provisions, this should be clearly specified as there may be unforeseen developments.
‘Legislation therefore involves an inescapable measure of uncertainty that can only be ascertained through judicial interpretation’. To assist them in carrying out their task effectively, judges use ‘rules of interpretation’.
2) The Golden (And Purposive) Rules
The golden rule is a modified version of the literal rule which was first stated by Lord Wensleydale in Grey v Pearson (1857) but its operation is better described by Lord Blackburn in River Wear Commissioners v Adamson (1877). He stated that the court must find authentic difficulties before it declines to use the literal rule in preference to the golden rule. He further clarified that the use of golden rule actually involves the judges in finding what they consider the statute should have said or provided rather than what it actually did state or provide. The justification for this judicial activity is based on public policy.
This rule operates in cases in two ways. In the narrow application, where words can have more than one meaning, the case that has the least illogical meaning is used. R v Allen (1872) illustrates the use of s57 of the Offences against the Person Act 1861 dealing with the interpretation of the word ‘marry’. If interpreted literally then the offence could never have been committed, since no one married could ever marry another. The court interpreted the words ‘shall marry’ as if they said ‘shall go through the ceremony of marriage’.
In the wider application, words were modified to avert a repugnant situation in Re Sigsworth (1935). Here common law rules were introduced by the court, into legislative provisions which were ‘silent on the matter to prevent the estate of a murderer from benefiting from the property of the party he had murdered’. Just as it was contrary to public policy to allow a murderer to benefit directly from the proceeds of his offence, similarly it would be contrary to public policy to allow the estate of a murderer to benefit from his offence.
On one hand traditionalist judges favour the passive role of interpretation, on the other hand activist judges favour the purposive approach. The words of Viscount Dilhorne in Kammins Ballroom Co Ltd v Zenith Investments Ltd (1970) clearly favour the traditional role of judges. However, Lord Denning promotes the activist role of the judiciary in Magor and St Mellons RDC v Newport Corporation (1950). In the same case when appealed to the House of Lords, Lord Simonds criticises judicial activism and states that ‘it is a naked usurpation of the legislative function under the thin guise of interpretation.’ However, the purposive approach was endorsed by the Law Commission report in 1969. It has to be acknowledged that such a shift in approach provides the judiciary with additional power in relation to determining the meaning and effect of legislation. Cynics might say that such change merely unveils the power that the judiciary always had, but had previously exercised it in a covert way.
3) Stare Decisis
Stare decisis is a Latin phrase which means to ‘stand by what has been decided’. It is the basis of the doctrine of judicial precedent. All courts are bound to follow decisions made by courts above them in the hierarchy. Appellate courts are normally bound by their own past decisions. The House of Lords can overrule its own past decisions by using the Practice Statement 1966. In Pepper v Hart (1993) where it decided Hansard could be consulted in a case the House of Lords overruled Davis v Johnson (1979) where it had previously decided that Hansard couldn’t be used.
This doctrine promotes consistency in case law and acts as a time-saving device. A previous decision is binding only if the legal point involved is the same as the case being decided currently. Also the facts of the past and present case should be sufficiently similar. The principles that are essential to the decision are the ratio decidendi and the statements that are irrelevant to the decision are obiter dicta. Where ratio is binding, obiter dicta are only persuasive. In R v Gotts (1992) the Court of Appeal followed the obiter dicta of the House of Lords in R v Howe (1987) regarding the non-availability of duress as a defence to a charge of attempted murder.
Where there is no precedent on a point of law that has to be decided by a court, then the decision made in that case on that point of law is an original precedent. Usually when faced with the situation of having to form an original precedent, the court will reason by analogy. Cases that are nearest to it in principle will be considered though they are not binding. If there is any parallel, the court may decide that the same type of principle should apply. For example in Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995), the claimant and others argued that the erection of a building interfered with their television signal and were claiming damages however the judge stated that a television signal was similar to a view and according to Aldred’s Case (1611) it was stated that a view is a delight not a necessity so the claimant lost.
There are three ways which are rarely used which avoid following judicial precedent in certain circumstances; they are distinguishing, overruling and reversing.
4) The Appeals Procedure From The County Court In Civil Law
If any party to other proceedings in a county court is dissatisfied with the determination of any question of law or fact, he may appeal to the Court of Appeal, civil division (s77(1) County Courts Act 1984).
Permission is required from the court which made the challenged decision, for most appeals since 1 January 1999 or from the Court of Appeal. The test is contained in the Practice Direction for the Court of Appeal (Civil Division), 19 April 1999:
The general rule applied by the Court of Appeal and first instance courts deciding whether to grant permission, is that permission will be given unless an appeal would have no real prospect of success.
Permission may also be given in exceptional circumstances even though the case has no real prospect of success if there is an issue which, in the public interest, should be examined by the Court of Appeal, eg a case raises questions of great public interest or questions of general policy, or where authority binding on the Court of Appeal may call for reconsideration.
- Appeals must, generally, be made on a point of law.
An appeal before the Court of Appeal, civil division, is normally heard by three judges sitting together, although any uneven number of judges not less than three (eg, five or seven) will suffice. However, in the interests of the economic and efficient use of judicial time, certain appeals and applications may be heard by only two judges.
- The hearing of an appeal by the Court of Appeal is not a retrial. The appeal is determined after reading the documents in the case and hearing counsel’s arguments. In the civil division where the court consists of an uneven number of judges, the majority decision prevails. Each judge is entitled to deliver his own separate judgment.
The Court of Appeal has full power to make any order which could have been made in the court below. However, the Court of Appeal is usually reluctant to upset the trial judge’s finding of facts because he saw and heard the witnesses and was in a better position to assess their creditability. Further, the Court of Appeal is usually reluctant to interfere with a judge’s exercise of his discretion where he has used it correctly, and with an award of damages unless it is out of proportion with awards in similar cases.
- In appropriate cases the Court of Appeal may order a new trial on the following grounds: a misdirection of the judge to the jury (in those few civil cases where it is still used); improper rejection of evidence; misconduct at the trial; and judgment obtained by fraud.
5) Secondary Aids To Interpretation
There is a wide range of material that may be considered by a judge both (1) in determining the primary meaning of the statutory words and (2) where there is ambiguity, in pointing the way to the interpretation that is to be preferred. Some of these aids may be found within the statute in question, others are external to the statute. Intrinsic aids include:
- Short title is only descriptive and of restricted value. Long title should be read as part of the context, “as the plainest of all the guides to the general objectives of a statute” (per Lord Simon in The Black-Clawson Case ).
Preamble describes the mischief to be remedied and the scope of the Act. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions.
- Marginal notes can give some general indication of the provision’s purpose (DPP V Johnson)
Punctuation may be used as an aid where there is ambiguity(DPP v Schildkamp )
- Examples illustrate how the Act might work. They carry great persuasive authority, for example Law of Property Act 1925)
Schedules include interpretations and definitions of terms used in the Act and are strongly persuasive.
Extrinsic aids include:
- The historical setting of the provision that is being interpreted.
Dictionaries and textbooks
- Past practice For example, the practice of eminent conveyancers where the technical meaning of a word or phrase used in conveyancing is in issue.
Related statutes dealing with the same subject matter as the provision in question may be considered both as part of the context and to resolve ambiguities. A statute may indeed provide expressly that it should be read as one with an earlier statute or series of statutes.
- Official reports by the Royal Commission, Law Commissions or some other official advisory committee. This kind of material may be considered as evidence of the pre-existing state of the law and the “mischief” with which the legislation was intended to deal.
There is a presumption that Parliament does not legislate in such a way that the UK would be in breach of the treaties and international conventions it has signed
- The Hansard, Parliamentary materials as affirmed in Pepper (Inspector of Taxes) v Hart