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Essay: Statutory Interpretation: literal, golden and mischief rules

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Statutory interpretation is the generic method which is employed by judges whilst concluding a case within a court. There are three primary ‘rules’ which are used in order to determine how best to deal with the defendant in question and will vary on a case-by-case basis. These are the literal rule, the golden rule and the mischief rule. Each of these rules have their own perspective upon the case and the conclusive verdict which is reached would be determined by these rules, having a slightly different outcome for each of the three. For example, someone who may be acquitted in accordance with the literal rule may however be found guilty with regard to the mischief rule.
These rules are to be used in conjunction with the judge’s own discretion. The rules do not carry any obligation to be utilised within the case. They may be utilised in order to avoid any potential ambiguity or confusion regarding the legislation with regard to language used within the statute which has been applied to the charge of the defendant. They may also be employed in order to resolve the case in the most legally sensible manner. This may be by way of making a judgement of guilt or acquitting the defendant.

Literal Rule

Within the literal rule, the judges will enforce the legislation as it is stated within the Act of Parliament which has been breached. Various arguments have been made in order to specify the efficiency of the literal rule and its use within the English legal system. The literal rule is the preferred rule by the judges themselves and where possible, they try to consistently use this rule. An illustration of the literal rule being applied is in the case of Whitely v Chappell [1868] (LR 4 QB 147). Within this case, the defendant was being tried for voting using a deceased person’s ballot slip. “An Act made it an offence ‘to impersonate any person entitled to vote at an election’” . By the use of the literal rule, the defendant was acquitted because being as the person was deceased and consequently no longer eligible to take part within the democratic voting process.

The first ascendancy of the literal rule being used is that the legislation which was written and passed by Parliament is enforced as it was initially intended. This means there is a higher level of democracy within the legal sector as the Members of Parliament were democratically voted for by the general public. Moreover, It upholds a level of certainty within the law due to the method in which they come to a conclusion within a courtroom. Furthermore, issues which are held within the act can be outlined to Parliament using the literal rule. This is because, upon review, they may feel the judgement made with a certain case returns results which do not conform to their intentions. Nevertheless, conforms to the wording used within the legislation potentially, joined with other relevant legal concepts.

The use of the literal rule may encourage amendments by the Houses of Parliament upon a piece of legislation which they have produced. In order to include consideration of the development of utilities such as the internet amongst other electronic devices. The literal rule carries out the intentions as they are read from the Act, therefore not undermining Parliament in the way of altering the way which, they would like the legislation to be enforced. This shows the judges, acknowledging and respecting the sovereignty which Parliament hold within the legally concerning circumstances. This is because they have been voted for by the civilians and are therefore, democratic bodies who create the law on behalf of the citizens they are representing.

One of the disadvantages of the literal rule is the absence of analysis which means the consideration will not be taken any further than what is written within the Act itself. This would mean that any mitigating circumstances may not be taken into account due to the Act ruling the case with no compromise. An additional weakness of enforcing the Act of Parliament as it is written is the ambiguity which may lie within the words. For example, some of the older legislation such as the word “grievous” may cause confusion to the defendant because this is not a word used within current English Language.

In the case of Fisher v Bell [1961] 1 Q.B 394 “the display of the knife was not an offer of sale but merely an invitation to treat, and as such the defendant had not offered the knife for sale.” This indicates the court had used the literal definition of the term “offers for sale”. It exposes the way in which the use of the literal rule may provide absurd results. This is because it has allowed the defendant to display flick knives within their shop window regardless of the Restriction of The Offensive Weapons Act 1959 which prohibits the offer of sale of flick knives. Due to this rule being employed within this case, it was said to be an invitation to treat and not an offer. Had this rule not have been applied within this case, the defendant would have been found guilty and held liable for the breach of the statute.

Golden rule

The golden rule can be defined as a division of the literal rule. This is because the judges will focus their judgement prima facie on the standard definition of the legislation. The golden rule has two separate approaches which may be used. These are the narrow approach and the wide approach. The narrow approach provides the judges with the ability to interpret the definition of the highest clarity in order to avoid a ludicrous outcome. The wide approach, however, allows the judge to decide upon which word(s) he will focus his judgement. These words will be contained in the Act.

An example of the golden rule being applied in which it correctly served justice would be the case of Adler v George [1964] (1 AII ER 628) in which the judge had ruled the defendant to be guilty. The appellant had stated that he was within the grounds of the Marham Royal Air Force Station and could therefore not be “in the vicinity of a prohibited place” . The judge had interpreted this statute using the golden rule. They had then come to the conclusion that the legislation should be “in or in the vicinity of” . In this instance, the literal rule would have rendered the defendant possessing no liability for the offence because, it fails to cover the premises but instead, the surrounding area.

As with any of these rules, there are ascendancies and disservices of the golden rule. One of the strengths, as seen above in the case of Adler v George [1964], it can prevent incongruent outcomes based upon acknowledging the words within the statute and applying them as they see fit. Within this case, the judge had fixated upon the word “in” in order to come to a reasonable judgement. This is since the judge understood Parliament’s full intentions and had applied those intentions. An additional expediency of utilising the golden rule is that it has a higher probability of conveying the anticipations of Parliament than the literal rule. This is because the judges will evaluate the legislation prior to making judgement and will consider their intentions or what should have been, but has failed to be, added into the statute.

Judicial authority can be better manifested with the use of the golden rule as it allows them to make judgements whilst interpreting the legislation but also preserving Parliament’s sovereignty. Additionally, the justice which is handling the case may be able to add some perspicuity to the statute. This is because, they could inspect the legislation for words which cause no preposterousness and are understood by all parties concerned. This method of simplifying the statute would be beneficial to the current case being heard and the future case because it will be orientated more toward the layman’s terms as opposed to the terms which are commonly used by legal professionals which potentially, would not be understood by laymen. This may cause Parliament to review the legislation in order to simplify the terminology used within the statute to amend the word(s) which are recurrently interpreted by those within judicial positions. As a result, it would then be more understandable by the future defendants and hold a higher certainty for lawyers in order for them to advise their clients.

An impediment which may arise from the application of the golden rule is that it may not be able to be predicted because “There is no clear definition of what amounts to an absurd result” . This may be claimed as an unfair trial due to the judge adding their thoughts into the legislation prior to enforcing the statute based upon the contravention of the Act. Furthermore, it may prevent lawyers from being able to advise their client due to the ambivalence which this rule may create. This rule can be viewed as undemocratic on the grounds that judges are not democratically voted into their position and should therefore not make the law or alter it in any way.

This methodical way of concluding a case can, on the contrary to previously stated, lead to a result which Parliament were not intending and may disagree with. In context, it may be perceived as a bias within the legal system in favour of the judges since seemingly, they are allowed to amend the statute at their own free will particularly if they are working within a case which may not be covered fully by the vocabulary utilised within the statute. Judges are seen to be excessive amounts of power because they make the decision as to whether they are of the impression that this method is the most appropriate or not. It may be seen as a judge being legally permitted to act upon some type of prejudice. This may be toward the defendant in question as they are altering the legislation to suit their current needs which would convey an impression to people that they are subject to a miscarriage of justice. It may be claimed by defendants of ethnic minorities, opposite genders to the judge or, ‘working class’ people.

Mischief rule

The mischief rule considers to which mischief the legislation was expected to be a preventative measure. Upon establishing this, they may then proceed to initiate judgement of guilt or innocence.

In the court proceedings of Smith v Hughes , the defendant was charged under the legislation stating “It shall be an offence for a person aged 18 or over (whether male or female) persistently to loiter or solicit in a street or public place for the purpose of prostitution.” The case had consisted of the appeal that they were not in a public place and were as a result not in breach of this statute. However, the judge had applied the mischief rule because they were operating from the publicly visible places of the brothel such as balconies and windows in order to attract ‘customers’. The judge applied section 1 of the Street Offences Act 1959 to the case once the mischief which, Parliament had been attempting to exacerbate had been established.

This rule allows the court to closely inspect any voids in the Act’s vocabulary and allows the judges to fill it. Whilst the judges are considering using this, they must discount their personal views and think about the mischief from the perception of Parliament to ensure this is correctly carried out.

The mischief rule has many positives. One of which, being that the legislation can be examined further in order to apply it correctly. It allows the judges to add certainty to the law up to a certain extent. This is because they will fill any voids in the statute which, are present in the vocabulary of the Act. In addition, it exposes flexibility within the country’s legislation as it would be reviewed based upon the individual case to which it relates. This method of interpreting legislation may prevent farcical results or those which are inequitable. This is because the judge can apply the legislation as they see fit once it has been denoted as to what the initial forethought of the statute was.

Furthermore, the mischief rule allows legislation to alter from when it was written in order for it to be adapted and account for current lifestyles such as electronics and the development of autonomous vehicles. This would consequently not render it necessary for Parliament to constantly update the legislation. Through statutory interpretation and judicial precedent, it is being updated with every relevant case, therefore saving Parliamentary time. This can additionally be seen as reinforcing Parliament’s wishes because the mischief which they are intending to abolish will then be further examined and will begin to be abolished in the form of the judges using this method to deal with each case individually. The reason for this is not every circumstance can be covered within the Act. Therefore, they publish the most general circumstances and would then expect the judges to make a decision as to what they feel would be correct in the enforcing of this piece of legislation.

However, there are some negatives. The first being judges are presented with an excess amount of powers to which they should not be entitled. This is because it is undemocratic as they were not voted in by the public as Politicians are. In addition, it may be seen by the general public that it allows judges to express prejudice upon a defendant since they may feel it becomes a case of one law for one defendant and a contradictory law for another. Furthermore, the uncertainty within the legislation can be perceived as high because defendants and legal professionals are not aware of how the statute will be enforced until the case is in court which prevents the legal professional from advising their client beforehand. This can prevent legal professionals from accurately carry out the task to which they are assigned.
A further shortcoming is that it may be difficult to forecast the intentions of Parliament in order to remedy the mischief which they intended. It may be seen that the judge could exploit this power in order to reduce the mischief which they want to reduce and not the true intent of Parliament. An additional factor is that one judge may be more lenient than another, leading to differing results for different cases regarding the same infringement being committed. This may be thought to alter dependent upon the frame of mind in which the judge is at the current time of the case hearing. The case, thus fore, may be hinged by the mood of the judge. The reasoning behind this is that their judgement could be thought to alter based upon their current disposition. This rule may also be perceived as the statute is created after the offence is committed and should, therefore, not apply to the case in hand. This is because prior to the case, the statute did not exist in the form which it is being enforced.

In conclusion:

The literal rule has merits but also possesses some very strong demerits as not every eventuality can be outlined within the Act. This is since circumstances change as life changes and from the time when the majority of the statutes were created, we have been exposed to electric cars, social media, internet amongst other very significant changes to the lifestyle as opposed to the duration at which some of the statutes were made. The golden rule does have its own attributes, and some highly valid ones. However, it additionally can produce a result which could be seen as a miscarriage of justice because it is oriented solely on the legislation itself and a select amount of the words within it. Whereas, the mischief rule closely examines the statute to determine the mischief which was intended to be exacerbated by it in order to then apply it to the case. Although it also possesses its disadvantages.

Personally, I believe the mischief rule, regardless of its flaws, is the most effective. This is due to the judge being able to predict the intentions of Parliament to then enforce it. This means that the Members of Parliament are not required to pass a new version of the legislation on every occasion that lifestyle changes and therefore alters potential circumstances. This has been supported by the review of all of the advantages and disadvantages within this document, alongside the variables based upon viewing cases, some of which are outlined within their designated relatability to the discussion at hand.

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