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Statutory interpretation

The function of the courts, in relation to both primary and subordinate legislation, is to interpret and apply it; they have no discretion to refuse to apply it even if they feel that it is unjust or causes hardship in any particular case. When legislation is drafted by Parliamentary draftsmen great care is taken to ensure that there is no room for doubt as to the meaning of the legislation, and that it contains no ambiguity. To assist those who may be affected by them, and also to assist the courts, Acts of Parliament often contain an interpretation section in which words and phrases used in the Acts are defined. For example, it provides that words in the singular shall include the plural and words in the plural shall include the singular . Such general rules may, however, be excluded by the express provisions of a particular Act. General ( Clauses Act ).The final statute or statutory instrument should be absolutely clear, so that the task of the judges in applying it should present no problem. This is, however, a counsel of perfection, and in practice ambiguities do creep in, so that it has become necessary for the courts in such circumstances to devise rules of interpretation. There are three rules: the literal rule; the golden rule; and the mischief rule.

The literal rule is the primary rule which takes precedence over the others. Words and phrases should be
construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation shouldbe applied. If, applying this rule, a clear meaning appears, then this must be applied, and the courts will not inquire whether what the statute says represents the intention of the legislature: The intention of Parliament is not to be judged by what is in its mind, but by the expression of that mind in the statute itself . The literal rule is strongly criticised by many lawyers. It has been said to be .a rule against using intelligence in understanding language. Anyone who in ordinary life interpreted words literally, being indifferent to what the speaker or writer meant, would be regarded as a pedant, a mischief-maker or an idiot . Such criticism, it is submitted, is misguided. It is better that the courts interpret statutes strictly, and if this leads to unsatisfactory or inequitable results, then Parliament should pass amending legislation to indicate clearly what its intention was. Whitely v, Chappell (1869). The defendant had voted in the name of a person who had died, but was found not guilty of the offence of personating any person entitled to vote : a dead person is not entitled to vote. R v Harris (1836) 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.

The literal rule involves two subsidiary rules. The first is the noscitur a sociis rule, a high-sounding rule which simply means that the meaning of a word must be determined by its context. For example, the word ring has no specific meaning in isolation, but its meaning becomes clear in a context such as ring the bell , or he bought her an engagement ring . The second subsidiary rule is the ejusdem generis rule, which is that the meaning of any general term is dependent on any specific terms which precede it. A good example is the Betting Act 1853, which prohibited the keeping of a house, office, room or other place for the purposes of betting. How wide is the term or other place in this context? The term is so vague that it is impossible to say, but in Powell v. Kempton Park Racecourse Co. (1899) it was held that it did not include Tattersall s ring at a racecourse; the specific places mentioned in the Act house, office, room are all indoors, whereas Tattersall s ring is not. 1

The Golden Rule Where the meaning of words in a statute, if strictly applied, would lead to an absurdity,
the golden rule is that the courts are entitled to assume that Parliament did not intend such absurdity, and they will construe the Act to give it the meaning which Parliament intended. So, for example, the Offences Against the Person Act 1861 provided that whosoever being married shall marry another person during the life of the former husband or wife is guilty of bigamy. Interpreted literally, this definition is absurd on two counts. First, the phrase shall marry another person is meaningless in the context, as the essence of bi amy is that a g married person cannot marry again while his first marriage subsists. Secondly, the reference to a former husband or wife is quite inappropriate. The word former suggests that the original marriage no longer exists, but if that were the case the person marrying again would not be guilty of bigamy. Despite the slipshod drafting of the Act, however, the intention was clear, and the courts have interpreted the relevant section as meaning that a person who purports to marry another while his or wife or husband is still alive is guilty of bigamy.

The Mischief Rule. When it is not clear whether an act falls within what is prohibited by a particular piece of
legislation, the judges can apply the mischief rule. This means that the courts can take into account the reasons why the legislation was passed; what mischief the legislation was designed to cure, and whether the act in question fell within the mischief . For example, the Street Offences Act 1959 made it an offence for a prostitute to solicit men in a street or public place . In Smith v. Hughes the question was whether a woman who had tapped on a balcony and hissed at men passing by was guilty of an offence under the Act. Parker, L.C.J., found her guilty: I approach the matter by considering what is the mischief aimed at by this Act. Everybody (sic) knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony .