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Sources of Law. Statutory Interpretation. What do you need to know?. Why we need statutory interpretation How each rule works You should know at least two cases for each rule The strengths and weaknesses of each rule The difference between the mischief rule and the purposive approach

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Sources of law l.jpg

Sources of Law

Statutory Interpretation


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What do you need to know?

  • Why we need statutory interpretation

  • How each rule works

  • You should know at least two cases for each rule

  • The strengths and weaknesses of each rule

  • The difference between the mischief rule and the purposive approach

  • What approach is used most

  • The rules of language

  • Presumptions

  • Intrinsic aids

  • Extrinsic aids (particularly when Hansard can be used)

  • The impact of the Human Rights Act 1998


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Common mistakes

  • Not using the source

  • Only using the source – not knowing any other cases

  • Not answering the question asked

  • In question B only applying one rule or approach to each situation

  • Not answering part of a question

  • Getting intrinsic and extrinsic aids muddled

  • Not being able to distinguish the rules of language

  • Lack of detail

  • Lack of discussion and comment for AO2


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How to avoid these mistakes

  • Revise thoroughly

  • Answer the questions asked

  • Apply all three rules or both approaches to each situation in question B

  • Refer to the source throughout your answer – you can refer to line numbers, you do not have to write out chunks of source

  • Use a highlighter to highlight the source for each question


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The Literal Rule

  • The natural meaning of a word

    • Whitely v Chappell (1869)

    • Berriman (1946)

    • Fisher v Bell (1960)


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Strengths and criticisms

Strengths

  • Simple – just give words their normal meaning

  • Courts do not need to guess what parliament meant

  • Normally works fine

    Criticisms

  • Can lead to unfair and illogical decisions

  • Zander – mechanical and divorced from the realities of language


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The Golden Rule

Two approaches

  • Narrow - If there are two possible meanings choose the the most sensible

    • R v Allen (1872)

  • The broad approach

    • Re Sigsworth (1935)


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Strengths and weaknesses

  • Safety net for the literal rule

  • But hardly ever used

  • Judges don’t like telling parliament they are being absurd

  • Broad approach is really judges making up law


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The Mischief Rule

  • Haydon’s Case (1584)

    1.What was the common law before the act

    2. What was the mischief the common law did not deal with

    3. What was the remedy parliament came up with

    4. The reason for the remedy – suppress the mischief and advance the remedy


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The Mischief Rule –Cases

Smith v Hughes (1960)

Royal College of Nursing (1981)


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Strengths and criticisms

  • Finds the meaning that seems to be what parliament intended

  • Looks at the reason for the law

  • Can be used to extend the meaning of an act to fit new situations

  • Needs the use of extrinsic aids so cases might be more expensive and time consuming


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The Purposive Approach

  • Magor and St Mellons v The Newport Corporation (1950)

  • Royal College of Nursing (1981)

  • How does it differ from the mischief rule?

  • DPP v Bull

  • The European approach

  • Purposive approach has to be

    used for European law


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Rules of Language

  • Ejusdem Generis

  • Noscitur a sociis

  • Expressio unius est exclusio alterius


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Presumptions

  • A presumption against a change in the common law

  • A presumption that mens rea is required in criminal cases

  • A presumption that the crown is not bound by any statute

  • A presumption that legislation does not act retrospectively


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The unified contextual approach

  • A judge should start with the literal approach

  • He may apply the golden rule if necessary

  • He may read in words to make a provision not absurd

  • He may use any aids or presumptions to help

  • Everything should be read in context


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Aids to interpretation

Intrinsic aids

  • Short title

  • Long title

  • Preamble

  • Headings

  • Interpretation section


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Extrinsic Aids

  • Previous Acts of Parliament

  • The historical setting

  • Earlier case law

  • Dictionaries of the time

  • Hansard

  • Reports of law reform bodies

  • International conventions, treaties, or European law


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The use of Hansard

  • Davis v Johnson (1979)

  • Pepper v Hart (1993)


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The Human Rights Act 1998

  • S 3 - All legislation should be read and given effect in a way that is compatible with the European Convention on Human Rights.


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Common Mistakes

  • Not using the source

  • Not using cases to illustrate the answer

  • Lack of discussion in question (c), only giving information.


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How to avoid these mistakes

  • Answer the questions asked

  • Ensure you know at least twocases to illustrate each rule in case the one you know is used as the source.

  • Make sure you comment in question (c)


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