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LAW / Statutory Interpretation by Csanad Kormos

The Purposive Approach/The Contextual Approach

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

1. The judge should give effect to the ordinary (or technical where appropriate) meaning of words in context of statute. Determine extent of words by the context of the Act.
2. If wording would give an absurd result then apply any secondary meaning.
3. Judge may read in the implied (ellipsis). Limited power to add/alter/remove words to avoid unintelligible/absurd/unworkable/unreasonable clauses or those that are irreconcilable with the rest of statue. Lord Stockton "If words have been inadvertently used, it is legitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated."
4. In applying rules judge may use interpretative aids and presumptions.

INTERPRETATIVE RULES AND PRESUMPTIONS

1. All unrepealed statutes remain law
1. Prince of Hanover v. Attorney General, all issue of the person were British citizens, the law was unrepealed, so it was still law that applied to a person with whose country we were at war.
2. Ejusdem Generis = 'things that are the same'. This is used when a statute includes list of items and an 'and similar items' clause. It should be noted that it may be ignored to achieve the intent of Parliament.
1. There must be more than one similar item for ejusdem generis to be applied (Allen v. Emmerson 1944).
2. The listed items must all be of the same type for ejusdem generis to apply (R. v. Payne 1866).
3. An example of the rules application was in Evan v. Cross, where the defendant was charged with not heeding a law that referred to a list of road signs and similar things. It was held that white lines as road markings rather than road signs were not ejusdem generis with the signs.
4. Lane v. London Electricity Board "shock, burn or other injury" excluded a fall as it was not ejusdem generis, with these ailments.
5. In Flack v. Baldry, electricity was held to be a "noxious liquid, gas or other thing". The rule of ejusdem generis was clearly ignored here, but this only so that the Mischief Rule would prevail.
6. In R. v. Cleworth, it was held for the purposes of the Sunday Observance Act 1677 that a farmer was not "a tradesman, artificer, workman, labourer or other person", and in Sandeman v. Beach it was held that a coach proprietor was not one either.
7. In Powell v. Kempton Park Racecourse it was held that a clause referring to a "house, office, room or other place" excluded a ring at a racecourse.
8. In DPP v. Jordan [1977] AC 699 it was held that the publication of 'obscene' material, which was legal if it was done "in the interests of science, literature, art or learning, or of other objects of general concern", that the defence that the material provided sexual deviants with an outlet for their frustrations was not ejusdem generis with science, literature, art or learning.
9. In Wood v. Commissioner of Police of the Metropolis 1986 it was held that an accidentally broken glass was not ejusdem generis with "any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon"
3. 3. Expressio Unius Est Exclusio Alterius = 'The expression of one thing implies the exclusion of others'
1. In R. v. Inhabitant of Sedgley it was held that "lands and coalmines" implicitly excluded other types of mines from the scope of 'lands'.
2. In Tempet v. Kilner 1846 it was held that "goods, wares and merchandise" did not include stocks and shares.
4. Noscitur A Sociis - the context rule
1. Muir v. Keay - entertainment need not be revelry, but by the context of the Act could be just the consumption of food and drink
5. There is a presumption against altering the common law (even though many statutes have that express intention) or statute law unless express provision is made, or the new law is irreconcilable with the statute or common law.
6. Judges may not decide that a law is illegal or unconstitutional:
1. Chenny v. Conn: the production of nuclear weapons under an Act allegedly contravened a treaty prohibiting their manufacturer. This did not matter, since judges have no power to determine the legality of an Act.
7. There is a presumption against the imposition of a penalty without fault
8. There is a presumption that mens rea (guilty mind) is required for criminal offences
9. Acts only apply to the UK unless contrary intention is expressed.
10. There is a presumption against binding the Crown, e.g., where the rules on health & safety did not apply to NHS kitchens.
11. There is a presumption against excluding the court from determining the case.
12. There is a presumption against violating international law
13. There is a presumption that standard common law defences are available for new crimes, e.g., duress, self-defence, etc.
14. There is a presumption that statutes do not apply to offences committed abroad.
15. There is a presumption of compensation being paid where a statute deprives a person of property.
16. There is a presumption of not granting officials arbitrary discretion.
17. There is a presumption that Acts do not interfere with rights to private property.
18. There is a presumption against retrospective legislation.
19. Penal laws should be construed in favour of the person whose liberty is threatened.
20. In construing a consolidating Act, where "the actual words are clear and unambiguous it is not permissible to have recourse to the corresponding provisions in the earlier statute and to treat any difference in their wording as capable of casting doubt upon what is clear and unambiguous language in the consolidation Act" - Lord Diplock in R. v. Curran 1976 - even though such Acts are intended to restate old Acts!

Csanad Kormos, London Metropolitan University, United Kingdom, 2005