Learning the Law - Assignment Example

188210     It has been argued that the golden, mischief and literal rules of the sta y interpretation as used by the courts are simply "tools" for the judges to do their job efficiently. It matters not which rule they use. Do you agree with this observation? In order to be able to make a comment on whether it makes any difference as to which rule the judges use to do their job it is necessary to look at each of the different rules and explain how these are used. The mischief rule is so named as it is the rule that has been created to cure a mischief in the statute. Using the mischief rule the statute is construed so as to prevent the mischief and provide a remedy. When the words of the statute are applied in the ordinary and natural sense of the words this is the literal rule. Using the literal rule can sometimes produce an immoral or unfair outcome as there is no leeway to interpret the statute other than by the normal meaning of the words. Where the literal rule is likely to provide an unjust remedy the judges will often consider using the golden rule to interpret the statute as using this rule can assist in avoiding anomalies by giving the words a secondary meaning. With the golden rule the judge can include words which he is of the opinion are implied by the statute. In some cases the judge can even alter or ignore statutory words in order to make a provision in the statute intelligible. Having looked at the three different rules and the application of each it is possible to consider the assertion above that it does not matter which of the rules the judge adopts. The Official Languages Ordinance (Cap 5) which was passed in Hong Kong in 1974 gives guidance on statutory interpretation. Under s19 the court is reminded that statutes should be construed in such a way as to give effect to the intention of the legislature. This could mean that the statute might be very restrictive or too extensive in interpretation. It could be argued that s19 insists on a strict literal interpretation of statute. In recent times the courts have adopted a combination of the 3 rules in order to avoid anomalous decisions. It has become accepted policy now that there is no definitive rule that must be used in order to interpret statute. Each case has to be judged separately and although the intention of the legislation has to be adhered to there is a flexible approach to how the interpretation is put into effect. The use of the rules is best explained through examination of cases in which the 3 rules have been applied. In the case of R v Judge of the City of London Court 18921 Lord Esther stated "If the words of an Act are clear then you must follow them even if they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity." At the time of this case the literal rule was the most widely used rule and therefore Lord Esther had to resort to a literal interpretation. Similarly in Whiteley v Chappell 18682 the courts found the defendant not guilty as the defendant had pretended to be a person someone that had died. In this case the defendant was charged with impersonating a person entitled to vote. The court’s stated that using the literal rule the defendant could not be found guilty as a dead person is not entitled to vote as the literal meaning of the Act required. In 1962 Lord Reid argued that a narrow application of the golden rule should be applied. In Jones v DPP [1962]3 he said "It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that statute cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond that you cannot go." In Re Sigsworth (1935)4 the court adopted the golden rule as a means of interpretation because if they had used a literal interpretation then a murderer would have benefited from his crime. The mischief rule was established by Heydon’s case (1584)5. In this case the court was asked to consider what the common law was before the Act was made, the mischief or defect that the common law did not provide for, the remedy resolved by Parliament and the true reason for that remedy. This rule was applied in the case of Smith v Hughes [1960]6 when Lord Parker said “For my part I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows this was an Act to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in this way it can matter little whether the prostitute is standing in the street or in the doorway or on the balcony, or at a window, or whether the window is shut or open or half open." The case of Pepper v Hart [1993]7 gave rise to the introduction of a purposive approach to statutory interpretation. The Law Commission’s report The Interpretation of Statute in 1969 recommended the use of the purposive approach. Under this approach the courts construe statutes in line with the overall purpose of the legislation rather than relying on the literal words of the statute. The use of this approach has widened the interpretation of statute and is more inclusive and just. From examining the above it could be argued that the method used by the judge for interpreting statute is very important. If the judge only uses a literal approach then the result might not always be fair or moral. Using the golden rule too liberally could mean that the true purpose of the Act is not achieved. The purposive approach is very similar to the mischief rule and as such is more likely to produce a fair result that fits with the true intention of the legislation. Bibliography Bennion, F A R, Statutory Interpretation: A Code Butterworths, 1997, 3rd edn Carroll, A, Constitutional and Administrative Law, Revised Ed, 1998, Pitman Publishing Glanville Williams, Learning the Law London: Stevens 11th edn Slapper, G & Kelly, D The English Legal System, 4th Ed, 1999, Cavendish Publishing Ltd Wesley-Smith, P, An Introduction to the Hong Kong Legal System OUP, 2nd edn, p.77 ff. Wesley-Smith, P, The Sources of Hong Kong Law Hong Kong University Press, 1994, pp. 216-7. Table of Cases Heydon’s case (1584) 76 Eng. Rep. 637 Jones v DPP [1962] A.C. 635 Pepper v Hart [1993] AC 593 R v Judge of the City of London Court 1892 1 QB 273 Re Sigsworth (1935) Ch. 89. 41 Smith v Hughes [1960] 1 WLR 830. Whiteley v Chappell 1868 LR 4. QB 147 Read More