Interpretation of Scottish Law - Essay Example

Running head: Scottish Law Scottish Law In APA Format "The United Kingdom of Great Britain and Northern Ireland comprises onestate, four countries and three jurisdictions. The jurisdictions are (i) England and Wales (ii) Scotland and (iii) Northern Ireland. Each jurisdiction has its own courts, its own lawyers, and its own law. The state has a common parliament (the House of Commons and House of Lords), a common executive, and a common Supreme Court (theHouse of Lords), all based in London. But in recent years there has been administrative and legislative devolution both to Scotland and to Northern Ireland. A separate parliament for Scotland was established in 1999, with power to legislate on most areas of private law." (Real Property Law, 16 September 2008). The year 1707 saw the union of Scotland and England; prior to this both the countries were separate states and many similarities in their laws. English Law has a great influence on the Scottish Law; many rules followed by the English were included in the Scottish Law. This paper will throw light upon the Scottish law focusing majorly upon three traditional rules of statutory interpretation which are mischief rule, the golden rule and the literal rule Mischief Rule Mischief rule is applied when the judge can't quite make out whether an act done by a person can be called as a prohibited law, this creates a confused situation and this is exactly when the mischief rule can be applied. "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." (Interpretation of Law 16 September 2008). The case given as an example did not create a big hitch in applying the Mischief Law because the circumstances in which the mischief was committed were well known but in other cases it is often a very difficult task to apply the Mischief Rule. This rule has several benefits over the Golden Rule and the Literal which will be seen in the paper at a later stage. One advantage which this rule provides is that, the Law provides a feeling of satisfaction to the Law commission the Law commission considers this as one of the most satisfying rule to judge a situation because when this rule is applied, the Law commission looks at various things like what does the Law provide before the act is made and numerous other things, this rule is applied with reasoning hence it provides the Law commission with satisfaction. Another advantage of this law is that it provides the convict with what he/she deserves, in the sense that there is room for unjust in this rule, making this as one of the want to bee's for any legislature. 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." (Interpretation of Law 16 September 2008). This rule mainly focuses upon giving an absurd or a silly result, when a judge feels that he/she is about to pass a silly result or verdict this is when the Golden rule plays its part. This rule is also called a compromise between the two other rules which are the mischief rule and the literal rule. This basically means that this rule falls somewhere in the middle of the two other rules and tries to find a way out and the way out differs from the solutions provided by the mischief rule and the literal rule. In this law the meaning of the words play a significant role in deciding the verdict, if a word has duel or more meanings, the judge can choose the meaning which suits the situation the best and the judge tries not to be irrational on the other hand if the key word has just one meaning but the judge feels that going by that meaning will cause unjust, the judge in this case is free to give a verdict without considering that word which gave just one meaning, so the verdict always depends on what sense the word gives. The rule is basically used when ambiguity prevails in a situation and to narrow down the ambiguity the same is used. The Literal Rule "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" (Interpretation of Law 16 September 2008). Many lawyers have shown their disgust towards this rule, many feel that this rule restricts them to putting their intelligence to use and this is rightly justifies too because a rule which restricts someone from using his/her intelligence should not be used. According to this rule, the people who took the literal meaning of some particular thing, failing to understand the real meaning is regarded as a mischief - maker according to this rule. The rule is further divided into two rules, first is the sociis rule. In this the people are expected to understand the meaning depending upon the context. A classic example of the same is the usage of the word Goal, when used is isolation the word makes no sense but when it is said that, he scored a goal, it makes perfect sense. This rule was favored because it made sure that the Law did not take any ones side and this is extremely important because if the Law becomes partial to one particular person or party, the importance of the Law will diminish within no time and the people will lose all hope in Law, considering all these things it is highly important that Law remains neutral and unbiased. The Misuse of Drugs According to the mischief rule, the person in possession of the drug is an offender but this is only when the mischief rule is applied. "An example of the use of the mischief rule is found in the case of Corkery v Carpenter (1951). In 1951 Shane Corkery was sentenced to one month's imprisonment for being drunk in charge of a bicycle in public. At about 2.45 p.m. on 18 January 1950, the defendant was drunk and was pushing his pedal bicycle along Broad Street in Ilfracombe. He was subsequently charged under section 12 of the Licensing Act 1872 with being drunk in charge of a carriage. The 1872 Act made no actual reference to bicycles. The court elected to use the mischief rule to decide the matter. The purpose of the Act was to prevent people from using any form of transport on a public highway whilst in a state of intoxication. The bicycle was clearly a form of transport and therefore the user was correctly charged." (Judges and the law, 16 September 2008). Going by the above example, the person in possession of drugs will be severely prosecuted; the mischief rule will not look at how negligible the drug amount was. According to the Literal rule, the judge always takes the literal meaning, paying no attention to the contextual meaning. This case can be better explained by a quote "The majority of their Lordships purported to apply the ordinary, natural meaning of the word 'supply'. Lord Goff of Chieveley, however, dissented on that very point and referred to definitions of the word given in The Shorter Oxford English Dictionary. In his view the word 'supply' was not apt to describe a transaction in which A handed back to B goods which B had previously left with A. Thus the cloakroom attendant, left luggage officer, warehouseman and shoe repairer do not, in ordinary parlance, 'supply' their customers. Lord Goff was further of the opinion that the particular offence in question was aimed at drug 'pushers'; the defendant was not a pusher' and should have been charged with the lesser offence of 'unlawful possession'. If, he said, persons in the position of the defendant were to be convicted of 'possession with intent to supply', it was up to Parliament and not the courts to enlarge the definition of 'supply." (Law Teacher, 16 September 2008). So in literal rule the main focus will be upon the word supply and the case can well go in the favor of the convict. The convict can be saved if the golden rule is applied because the other two rules go against the convict; this is the only rule that can help the situation of the convict. "During a jury trial, an attempt to persuade the jurors to put themselves in the place of the victim or the injured person and deliver the verdict that they would wish to receive if they were in that person's position. For example, if the plaintiff in a personal injury case has suffered severe scarring, the plaintiff's lawyer might ask the jury to come back with the verdict they themselves would want to receive had they been disfigured in such a manner. As a rule, judges frown upon this type of argument, because jurors are supposed to consider the facts of a case in an objective manner." (Golden rule argument, 16 September 2008). So considering all these things it can be said that the convict stands a good chance if the golden rule is applied. Official Secrets act "The golden rule was used in the case of Adler v George (1964) to avoid an absurd result. Under section 3 of the Official Secrets Act 1920, it was an offence to obstruct HM Forces in the vicinity of a prohibited place. Mr. Frank Adler had in fact been arrested whilst obstructing such forces within such a prohibited place (Markham Royal Air Force Station, Norfolk). He argued that he was not in the vicinity of a prohibited place as he was actually in a prohibited place. The court applied the golden rule to extend the literal wording of the statute to cover the action committed by the defendant. If the literal rule had been applied, it would have produced absurdity, as someone protesting near the base would be committing an offence whilst someone protesting in it would not." So from this example it is clear that in the above case the use of the Literal use would have been impossible because that would have produced an absurd result, the same is elucidated further. When applying the literal rule here, the results will surely be absurd, because the word vicinity has to be taken into account, which basically means being near in space. So it is very clear that this rule cannot be applied in this case. The convict was earlier arrested but later on the application of the golden rule was given some relief. References Golden Rule. In Legal Catch. Retrieved on 16 September 2008 from http://legalcatch.wordpress.com/2006/10/23/golden-rule-argument-law-definition/ Judges and the Law. In Open learn. Retrieved on 16 September 2008 from: http://openlearn.open.ac.uk/mod/resource/view.phpid=208916 Interpretation of Law. In Legal - directory. Retrieved on 16 September 2008 from: http://legal-directory.net/english-law/interpretation-literal-rule.htm Law Teacher. In Law Teacher. Retrieved on 16 September 2008 from: http://www.lawteacher.net/AS13.php Mischief Rule. In Legal- directory. Retrieved on 16 September 2008 from: http://legal-directory.net/english-law/interpretation-mischief-rule.htm Real property law. In IEU. IT. Retrieved on 16 September 2008 from: http://www.iue.it/LAW/ResearchTeaching/EuropeanPrivateLaw/Projects/Real%20Property%20Law%20Project/Scotland.PDF Read More