The judges mainly rely on a various principles when interpreting the acts of parliament. These rules include:
- The literal rule.
- The golden rule.
- The mischief rule.
The literal rule
It is the cardinal rule of construction (interpretation) of statutes. In this rule, words must be given their ordinary, literal, grammatical meaning. The literal rule is the first rule to be used in establishing the intention of the legislature.
In many cases, the courts are normally required to interpret the meaning of a given piece of legislation to enable them apply facts to the cases that come before the judges. As such, the courts have continually developed a wide range of rules of interpretation to assist them in reaching their judgment. Normally, when the literal rule is applied, the words that are ina statute are given their ordinary and natural meaning, in the effort of respecting the will ofParliament. For example, the literal rule was applied in the case of Fisher v Bell (1960).
Fisher v Bell (1960), Divisional Court
It was on December 14, 1959, when an information was preferred by Chief Inspector, George Fisher, ofBristol Constabulary, against James Charles Bell, who was the defendant, alleging that the defendant, on October 26, 1959, at his premises in The Arcade, Broadmead, Bristol, unlawfully offered to sale a knife which had a blade which opened automatically by hand pressureapplied to a device attached to the handle of the knife (the knife is commonly referred to as a ‘flickknife’) contrary to section 1 of the Restriction of Offensive Weapons Act, 1959.
Discussion
The major question was whether the exhibition of that knife in the window with the ticket constituted an offer for sale within the statute. I confess that I think most lay people and, indeed, I myself when I first read the papers, would be inclined to the view that to say thatif a knife was displayed in a window like that with a price attached to it was not offering itfor sale was just nonsense. In ordinary language it is there inviting people to buy it, and thus itis for sale; but any statute must of course be looked at in the light of the general law of thecountry. The parliament in its wisdom in passing an Act must be taken to know the general law.
It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is under no circumstance an offerfor sale, the acceptance of which constitutes a contract. That is clearly the general law of thecountry. Not only is that so, but it is to be observed that in many statutes and orders which do prohibit selling and offering for sale of goods, it is very common when it is so desired to insert the words ‘offering or exposing for sale,’ ‘exposing for sale’ being clearly words which would cover the display of goods in a shop window. It is not only that, but it appears that under several existing statutes – in this light, we have been referred in particular to the Prices of Goods Act, 1939, andthe Goods and Services (Price Control) Act, 1941 – Parliament, when it desires to enlargethe ordinary meaning of those words, includes a definition section enlarging the ordinary meaning of ‘offer for sale’ to cover other matters including, be it observed, exposure of goods for sale with the price attached.
Under such circumstances, I am driven to the conclusion, though reluctantly,I confess that no offence was committedhere. At first sight it sounds absurd that knives of this sortcannot be lent,manufactured, hired sold, or even given, but apparently they can be displayedin shop windows; but even if this – and I am by no means saying it is – is a casus omissus, it is therefore not for this court to supply the omission. I am mindful of the strong words of LordSimonds in
Magor and St Mellons Rural District CouncilvNewport Corporation (1952) AC 189. In that particular case, one of the Lords Justices in the Court of Appeal ([1950] 2 All ER 1226,
1236) had, in effect, said that the court having discovered the supposed intention of
Parliament must proceed to fill in the gaps, what the Legislature has not written, the court must write and in answer to that contention Lord Simonds in his speech said ([1952] AC
189, 191): ‘It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation.’Approaching this matter apart from authority, I find it quite impossible to say that anexhibition of goods in a shop window is itself an offer for sale.
We were, however, referredto several cases, one of which isKeatingvHorwood(1926) 28 Cox CC 198, a decision ofthis court. There, a baker’s van was being driven on its rounds. There was bread in it thathad been ordered and bread in it that was for sale, and it was found that that bread was underweight contrary to the Sale of Food Order, 1921. That order was an order of the sort to which I have referred already which prohibited the offering or exposing for sale. In giving his judgment, Lord Hewart CJ said this [at p 201]: ‘the question is whether on the factsthere were, (1) an offering, and (2) an exposure, for sale. In my opinion, there were both.’
Avory J said [at p 201]: ‘I agree and have nothing to add.’ Shearman J, however, said [atp 201]: ‘I am of the same opinion. I am quite clear that this bread was exposed for sale, buthavehad some doubt whether it can be said to have been offered for sale until a particularloaf was tendered to a particular customer.’ There are three matters to observe on that case.
The first is that the order plainly contained the words ‘expose for sale,’ and on any view there was an exposing for sale. Therefore the question whether there was an offer for sale was unnecessary for decision. Then secondly, the principles of general contract law were never referred to, and thirdly, albeit all part of the second ground, the respondent was notrepresented and there was in fact no argument. I cannot take that as an authority for theproposition that the display here in a shop window was an offer for sale. Accordingly, I have come to the conclusion in this case that the justices were right, andthis appeal must be dismissed.
Advantages of the literal rule
- It does uphold the separation of powers.
- The literal rule does create certainty.
- The literal rule benefits judges, businesses, lawyers and even individuals.
Disadvantages of the literal rule
- The literal rule assumes perfection in drafting.
- The literal rule can lead to an unfair result or an unjust result.
- Some words can have more than one meaning.
Conclusion
The literal rule respects parliament but also results in injustices and creates a repugnant situation. It, in many cases does not truly reflect parliament’s true intent of passing an act.
The golden rule
This rule was first set out in the case of Grey v Pearson,(1857) 6 HLC 106, an old British case. The major gist of this rule is that if the words are given their ordinary meaning, and it is clear that this meaning does not correspond with the clear intention of the legislature, then one can depart from the ordinary meaning of the statute so as to give effect to the intention of the legislature.
Under the golden rule for statutory interpretation, where the literal rule gives a resultthat is considered absurd, which Parliament could not have intended, the judge can substitute a reasonablemeaning in the light of the statute as a whole. The case of Adler v George (1964) is a classicexample of the courts that apply the golden rule.
Adler v George (1964), Queen’s Bench Division
Discussion
This is an appeal by way of case that is stated from a decision of justices for the Norfolk county sitting at Downham Market who convicted the defendant of an offence contrary to section3 of the Official Secrets Act, 1920, in that, in the vicinity of a prohibited place, namely,
Marham Royal Air Force station, he obstructed a member of Her Majesty’s Forces engaged
in security duty in relation to the said prohibited place.
The Section 3 provides that: ‘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 police officer, or any member of His Majesty’s forces engaged on patrol, guard, sentry, or other similar duty in relation to the prohibited place, and, if any person acts incontravention of, or fails to comply with, this provision, he shall be guilty of a misdemeanor.’ In the present case the defendant had obtained access to, it matters not how, and was on the Air Force station on May 11, 1963, and there and then, it was found,he obstructed a member of Her Majesty’s Royal Air Force.
The major point here, and a point ably argued by the defendant, is that if he was on thestation he could not be in the vicinity of the station, and it is only an offence under thissection to obstruct a member of Her Majesty’s Forces while he is in the vicinity of the station. The defendant here has referred to the natural meaning of ‘vicinity,’ which,quite generally, the state of being near in space, and he says that it is inapt to and does notcover being in fact on the station as in the present case.
a prohibited place such as this station. It would have been extraordinary, I venture to think it wouldbe absurd, if an indictable offence was thereby created when the obstruction took place outside the precincts of the station, albeit in the vicinity, and no offence at all was created if whatsoever the obstruction occurred on the station itself.
It thus is to be observed that if the defendant isright, the only offence committed by him in obstructing such a member of the Air Forcewould be an offence contrary to section 193 of the Air Force Act, 1955, which creates a summary offence, the maximum sentence for which is three months, whereas section 3 of theOfficial Secrets Act, 1920, is, as one would expect, dealing with an offence which can betried on indictment and for which, under section 8, the maximum sentence of imprisonment is one of two years. Of course, there may be many contexts in which ‘vicinity’ mustbe confined to its literal meaning of ‘being near in space’ but under this section, I am quiteclear that the context demands that the words should be construed in the way I have said.I would dismiss this appeal.
Golden Rule Advantages
- The golden rule respects the words of the parliament except in limited situations, and provides an escape route where there is a problem with using the literal meaning.
- The rule allows the judge to choose the most sensible meaning where there is more than one meaning to the words in the Act or Statute.
- It can also provide reasonable decisions in cases where the literal rule would lead to repugnant situations.
Golden Rule Disadvantages
- The golden rule has no real guidelines as to when it can be used, what normally seems to be absurd to one judge may not be to another - this means a cases outcome is decided upon the judge, rather than the law.
- The rule is very limited in its use, so it is only used on rare occasions.
- It is not always possible to predict when courts will use the golden rule, making it difficult for lawyers and people who are advising their clients.
The mischief rule
This rule was fiarst formulated by Lord Coke in theHeydon’s case (3 Co. Rep. 7b). It was then formulated by the Judges who were called upon to advise the House of Lords in the Sussex Peerage case (8 E.R. 1057): When any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute. The mischief rule for interpreting statutes was laid down inHeydon’s casein the sixteenthcentury and requires judges to consider three factors:
- What the law was before the statute was passed;
- What problem (or mischief) the statute was trying to remedy;
- What remedy Parliament was trying to provide.
Below is an example of the mischief rule being applied by the courts.
Smith v Hughes (1960), High Court
The Police officers preferred two information against Marie Theresa Smith and four information against Christine Tolan alleging that on various dates, they, being common prostitutes,did solicit in a street for the purpose of prostitution contrary to section 1(1) of the StreetOffences Act, 1959. The magistrate found the following facts in relation to the first information againstSmith.
The defendant was a common prostitute who lived at No. 39 Curzon Street, London, and did use the premises for the purposes of prostitution. It was on November 4, 1959, between8.50 p.m. and 9.05 p.m. that the defendant solicited men passing in the street, for the purposesof prostitution, from a first-floor balcony of No. 39 Curzon Street (the balcony being some8–10 feet above street level). The defendant’s method of soliciting the men was (i) Attracting their attention to her by tapping on the balcony railing with some metal object and byhissing at them as they passed in the street beneath her and (ii) having so attracted theirattention, to talk with them and invite them to come inside the premises with such wordsas ‘Would you like to come up here a little while?’ at the same time as she indicated thecorrect door of the premises.
It was contended on behalf of the defendant, inter alia, that the balcony was not ‘in astreet’ within the meaning of section 1(1) of the Street Offences Act, 1959, and that accordingly no offence had been committed.
Discussion
These six appeals are by way of case stated by one of the stipendiary magistrates sitting at Bow Street, before whom information were preferred by police officers against the defendants, in each case that she ‘being a common prostitute, did solicit in a street for the purpose of prostitution, contrary to section 1(1) of the Street Offences Act, 1959.’ The magistrate in each case found that the defendant was a common prostitute, that she had solicited and that the solicitation was in a street, and in each case fined the defendant.
The facts, to all intents and purposes, raise the same point in each case; there are minute differences. The defendants in each case were not themselves physically in the street but were in a house adjoining the street. In one of the cases the defendant was on a balcony and she attracted the attention of men in the street by tapping and calling down to them. In other cases the defendants were in ground-floor windows, either closed or half open, and in another case in a first-floor window.
The major question here is whether in those circumstances each defendant was soliciting in a street or public place. The words of section 1(1) of the Act of 1959 are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.’ Observe that it does not say there specifically that the person who is doing the soliciting must be in the street.
Also, it does not say that it is enoughif the person who receives the solicitation or to whom it is addressed is in the street. Formy part, I approach the matter by considering what the mischief is aimed at by this Act.Everybody knows that this was an Act intended to clean up the streets, to enable people towalk along the streets without being molested or solicited by common prostitutes. Viewedin that way, it can matter little whether the prostitute is soliciting while in the street or isstanding in a doorway or on a balcony, or at a window, or whether the window is shut oropen or half open; in each case her solicitation is projected to and addressed to somebody walking in the street. For my part, I am content to base my decision on that ground and that ground alone. I think the magistrate came to a correct conclusion in each case, and that these appeals ought to be dismissed.
Advantages:
- The rule helps to avoid absurd and unjust results.
- The rule does promote flexibility in the law
- The rule allows judges to put into effect the remedy Parliament chose to cure.
- The mischief looks at the gap in the previous law
Disadvantages:
- The Judges can re-write statue law which only parliament is permitted to do.
- The rule does not uphold Parliamentary supremacy.
- The judges can bring their own prejudices.
- The rule creates a crime after the event.
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