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LAW / Statutory Interpretation by Csanad Kormos

Golden & Mischief Rule

Statutory Interpretation In General | Literal Rule | Golden & Mischief Rule | The Purposive Approach/The Contextual Approach | Hansard

Golden Rule

It was defined in Grey v. Pearson (1857) 6 HL Cas 1, "the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further."

Luke v. I.R.C. 1963 - Lord Reid "It is only where the words are absolutely incapable of a construction that will accord with the apparent intention of the provision and will avoid a wholly unreasonable result that the words of the enactment must prevail."

R. v. Allen 1872. It was held that bigamy meant go through ceremony even though the Act provided it was illegal to be married twice, even though the second marriage was void, so they had not literally broken the law.

Re Sigsworth 1935, S murdered his mother and tried to claim his inheritance. There is a rule that no-one should profit from their wrong, this overruled a clear statutory right of a son to inherit on intestacy. Hence statutes may be modified on grounds of public policy, as one was in this case (the principle was an existing common law principle that would have applied had she had died having made a will). Although this a clear breach of the rule that clear and unambiguous words cannot be ignored, it surely accorded with Parliament's wishes.

In Whiston v. Whiston 1995, public policy reasons prevented someone who had had a bigamous marriage (and was hence void), claiming money that they were clearly statutorily entitled to.

If the words used are plain, unless the consequences are so absurd that Parliament must have made a drafting mistake" then the meaning must be used.

Keene v. Muncaster 1980. In order to park in a certain way, permission was required from a policeman in uniform; the defendant was a policeman in uniform. It was held that permission had to be requested (i.e. from someone else).

Adler v. George; it was an offence to obstruct the Forces "in the vicinity of", this was modified to avoid the absurdity of it not including "in", hence the Act as changed to "in or in the vicinity of"
The Mischief rule

According to the Law Commission this was the most satisfactory of the 3 rules (and the Golden Rule was condemned)

Gardiner v. Sevenoaks UDC 1950; a cave was premises (although it would not always be - depending on the mischief), since the mischief was the risk of fire which existed in a cave

Smith v. Hughes 1960, a prostitute solicited from inside a building to the street. A private building was held to be a "street or public place" for the purposes of the Act to avoid the mischief of harlotry.

Sussex Peerage Case 1844, only use mischief rule when the statute is ambiguous. "Acts should be construed according to the intent of Parliament. If the words are clear no more can be done than to use their natural meaning. The words alone do declare the intention of the lawgiver."

Corkery v. Carpenter 1951, a bicycle was held to be a "carriage" for drunk in charge of carriage laws, to stop the mischief of drunks on the highway

Magor and St. Mellons R. D. C. v. Newport Corporation 1950 - Denning "We sit here to find out the intention of Parliament and carry it out by filling in the gaps rather than by destructive analysis" - on appeal Lord Simonds this was "a naked usurpation of the legislative function under the thin guise of interpretation" - if there is any omission then it should be remedied by an Act of Parliament.

Heydon's Case 1584 - the criteria for the Mischief Rule:

1. What was common law before the Act?
2. What was the mischief for which the existing law did not provide?
3. What remedy has Parliament decided upon?
4. Judge should make such constructions on the Act to suppress the mischief and subtle inventions and evasions for continuance of the mischief, according to the true intent of the makers of the Act.

The Purposive Approach
The purposive approach is similar to the mischief rule, but emphasising the intention of the legislature instead of the defect in the previous law. Its effect is usually achieved by the literal rule, since Parliament unsurprisingly tends to enact its intention. It was difficult before Pepper v. Hart, and still is, to an extent to determine Parliament's intent, but see the long title, etc.

If judges use a purposive approach, they are engaging in an essentially legislative function, which is a breach of the doctrine of the separation of powers.

"To apply the words literally is to defeat the obvious intent of the legislature. To achieve the intent and produce a reasonable result we must do some violence to the words" Lord Reid

"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." Lord Griffiths - Pepper v. Hart

"And" has been substituted for "or" in Federal Steam Navigation Co. Ltd. v. DTI 1974 and R. v. Oakes

In Re Lockwood, the words of an Act that would have had the effect of favouring distant relatives on intestacy were ignored.

"In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time." - Lord Wilberforce in Royal College of Nursing of the United Kingdom v. Department of Health and Social Security 1981, in ruling that a method of abortion which was clearly not permitted under the Abortion Act 1967 was legal because the method was not in existence when Parliament had passed the Act and the method was in accordance with the policy of the Act (as distinct from the policy of Parliament) However, "there is one course which the courts cannot take; they cannot fill gaps; they cannot by asking the question 'What would Parliament have done in the current case if the facts had been before it?' attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself."

Csanad Kormos, London Metropolitan University, United Kingdom, 2005