Week 1 – statutory interpretation
Statutes and Acts have the same meaning - written laws passed by parliament
• Focus on the detail of the statute to a large extent, but also you can be creative with
interpretation and application of said statute - convince the judge that your view is the
correct one.
• Cases help us see how statutes have been interpreted in the past
Hypothetical issue - Hipster banned from park (see ppt.)
• Literal interpretation - person has committed an offence as they are "wearing" a beard
• Purposive - intention of the legislature was to limit cultural diversity/ cultural clashes
perhaps. Stop hipsters for social benefit
When the legislature sets out a principle its connotations may ascertain to something different
altogether
Where there is ambiguity, uncertainty or absurdity, the approaches for reading statutes are
employed: purposive, literal, golden (correction to absurdity created by the literal rule), mischief
Literal rule:
Fisher v Bell [1961]
Bell placed a flick knife in his shop window with a price tag on it
S1.1 Restriction of offensive weapons act - illegal to manufacture, sell, hire, or offer for sale or hire
any knife which opens automatically by hand pressure applied to a button, spring or other device
No offence committed as it was merely on display and not offered
Is this absurd? - yes: it could be argued that for what purpose does displaying this knife with a price
tag serve, other than to encourage a contract for the economic benefit of the incumbent owner
No: the knife may have no relation to the items that are actually sold in the shop, and could be
merely a ploy to attract people, essentially only having a potential economic benefit for the shop
owner
Is this ambiguous? - Yes: there is no mention in the statute as to whether the individual is only
passing through or has the intent to stay and loiter
No: The legislature is clear as it states that "any person entering" the park, and does not mention a
specific time period for an offence to be committed
The purposive approach is the predominant method/style of statute interpretation
The Mischief rule:
Smith v Hughes
Street offences act (1959)
S.1 made it an offence for a prostitute to solicit in the streets or public place - aim of the legislation
to clean up the streets
However they decided to solicit from windows - seen as a public place and judge decided yes the
window is a public place as the issue to be remedied was to clean up the streets
With statutory interpretation there is no right or wrong - only strong arguments and weaker ones
Also the teleological approach applied in EU law (wider purposive approach) - wider purposive
approach
Week 2 – constitutional significance of legislation
,The constitutional significance of legislation: it is the moment where parliament, as the voice of the
lords, the crown and the common people speak as one, and in that moment of unity give themselves
their own law
Courts are slow to depart from the words used by parliament:
• So where there is uncertainty about what provision means, or whether it applies to a
particular case, they will use resources within the act:
• Preamble
• Definitions (within the act)
• Other principles of construction - primary (within the relevant section), secondary (extrinsic
to the relevant section)
• Start with the literal rule and move outwards from there
• Secondary aids to construction: title of the act, inclusory words and lists etc.
Expressio Unius Exclusio Alterius - to list one thing is to exclude another
• Fisher v Bell [1961] QB is an example of this: didn’t offer the knife for sale as stated in the
statute. Displaying an offer is merely an 'invitation to treat' not an offer
Eiusdem Generis
A. Licence is required to keep crocodiles, lions, tigers and snakes
B. A licence is required to keep crocodiles, lions, tigers, snakes and other animals
Our client has a leopard and a cat: under the Euisdem Generis rule the client requires a licence for the
leopard and not the cat as they are similar to the other dangerous animals listed. Under the
aforementioned rule, a licence is not required at all as neither are listed
Noscitur a Sociis
• R v Harris (1836) - yes a crime was committed: as the intent was there to mame or wound.
• No: under this act it as teeth are not specified as a weapon
But are there cases where intrinsic aids will not help?
The Royal college of nursing raised the question as to whether it was lawful for nurses to participate
in non-surgical termination. The Act was meant to cover nurses but it didn’t envisage the
development of medical techniques HofL faced with two possibilities:
• Insist upon the terms used by parliament, forcing it to legislate it afresh
• Facilitate the obvious purpose of allowing safe abortions
The lords were split 3:2 in favour of the latter
Extrinsic aids - material outside the Act
Problem of using Hansard: the problem with using parliamentary debates is that you cannot
prioritise the voice of an individual to over the words of parliament in unity. It also takes more time
which may increase the cost of litigation and potentially increase the chances of a miscarriage of
justice
Parliamentary material allowed when:
• Legislation is ambiguous, obscure or leads to absurdity
• The material consists of one ore more statements by the minister/ promoter of the Bill
• The statements relied upon are clear
Ambiguity, absurdity or obscurity: you must show that legislation is one of these things before the
court will allow the admission of Hansard material. This can be done by:
• Internal inconsistencies in the Act
• Demonstrating the consequences of the consequences are problematic for the act itself
• Show the case law interpreting the Act is divided
, The material from Hansard must consist of one ore more statements by the minister who promoted
the Bill, or if a private members Bill the non-ministerial promoter.
It's not permissible to admit general argument to the HofC, nor are they relevant. The court is
searching for the understanding that parliament had when it voted on the Bill
Week 3 – case interpretation
Precedent:
Common law is essentially a structure of precedent - the idea is simply that each case to be decided
is constrained by the principles established in those precede it. When we talk about precedent we
are talking about a system of precedents (or principles established in each of the hundreds of
relevant previous decisions) incrementally built up over the last hundreds of years
In essence:
• A rule comes about to initiate the process
• Interpretations of the rule are used to decide cases
• This helps to develop precedent on this particular legal issue/principle
Binding (1) and Persuasive Reasoning (2):
• Supreme court, CA and high court (sitting as high court) are all capable of making binding
precedents. The weight of their decision is based upon where they are in the hierarchy of
the courts. The CA's decisions bind the High court but not the Supreme court
• Decisions that are not binding are persuasive - senior judges may be persuaded by the
reasoning of the lower courts, or the obiter dictum statements of the higher courts might
persuade the lower court, despite it not being bound to follow that comment
Separation of powers
Common law is often referred to as judge-made law - meant to interpret laws that parliament make.
Legislature:
• Law making power through elected representatives
Judiciary:
• Judges bound by precedent to apply the law - however precedent itself was judge-made law
Executive:
• The government and management of the state
The use of precedent is illustrated in Donoghue v Stevenson:
• The judges created a new law which had retrospective effect (judicial creative theory)
• The judges declared the law as it was in 1928 and always has been, but no one knew this
until the 1932 court discovered it and declared it so. This too has retrospective effect
(declaratory theory)
How to deviate from precedent:
• Distinguish (generally in the same court) different facts
• Overrule (a higher court decides against the decision of a lower one
• Reverse (higher court changes the decision on the same facts, on appeal)
Statutes and Acts have the same meaning - written laws passed by parliament
• Focus on the detail of the statute to a large extent, but also you can be creative with
interpretation and application of said statute - convince the judge that your view is the
correct one.
• Cases help us see how statutes have been interpreted in the past
Hypothetical issue - Hipster banned from park (see ppt.)
• Literal interpretation - person has committed an offence as they are "wearing" a beard
• Purposive - intention of the legislature was to limit cultural diversity/ cultural clashes
perhaps. Stop hipsters for social benefit
When the legislature sets out a principle its connotations may ascertain to something different
altogether
Where there is ambiguity, uncertainty or absurdity, the approaches for reading statutes are
employed: purposive, literal, golden (correction to absurdity created by the literal rule), mischief
Literal rule:
Fisher v Bell [1961]
Bell placed a flick knife in his shop window with a price tag on it
S1.1 Restriction of offensive weapons act - illegal to manufacture, sell, hire, or offer for sale or hire
any knife which opens automatically by hand pressure applied to a button, spring or other device
No offence committed as it was merely on display and not offered
Is this absurd? - yes: it could be argued that for what purpose does displaying this knife with a price
tag serve, other than to encourage a contract for the economic benefit of the incumbent owner
No: the knife may have no relation to the items that are actually sold in the shop, and could be
merely a ploy to attract people, essentially only having a potential economic benefit for the shop
owner
Is this ambiguous? - Yes: there is no mention in the statute as to whether the individual is only
passing through or has the intent to stay and loiter
No: The legislature is clear as it states that "any person entering" the park, and does not mention a
specific time period for an offence to be committed
The purposive approach is the predominant method/style of statute interpretation
The Mischief rule:
Smith v Hughes
Street offences act (1959)
S.1 made it an offence for a prostitute to solicit in the streets or public place - aim of the legislation
to clean up the streets
However they decided to solicit from windows - seen as a public place and judge decided yes the
window is a public place as the issue to be remedied was to clean up the streets
With statutory interpretation there is no right or wrong - only strong arguments and weaker ones
Also the teleological approach applied in EU law (wider purposive approach) - wider purposive
approach
Week 2 – constitutional significance of legislation
,The constitutional significance of legislation: it is the moment where parliament, as the voice of the
lords, the crown and the common people speak as one, and in that moment of unity give themselves
their own law
Courts are slow to depart from the words used by parliament:
• So where there is uncertainty about what provision means, or whether it applies to a
particular case, they will use resources within the act:
• Preamble
• Definitions (within the act)
• Other principles of construction - primary (within the relevant section), secondary (extrinsic
to the relevant section)
• Start with the literal rule and move outwards from there
• Secondary aids to construction: title of the act, inclusory words and lists etc.
Expressio Unius Exclusio Alterius - to list one thing is to exclude another
• Fisher v Bell [1961] QB is an example of this: didn’t offer the knife for sale as stated in the
statute. Displaying an offer is merely an 'invitation to treat' not an offer
Eiusdem Generis
A. Licence is required to keep crocodiles, lions, tigers and snakes
B. A licence is required to keep crocodiles, lions, tigers, snakes and other animals
Our client has a leopard and a cat: under the Euisdem Generis rule the client requires a licence for the
leopard and not the cat as they are similar to the other dangerous animals listed. Under the
aforementioned rule, a licence is not required at all as neither are listed
Noscitur a Sociis
• R v Harris (1836) - yes a crime was committed: as the intent was there to mame or wound.
• No: under this act it as teeth are not specified as a weapon
But are there cases where intrinsic aids will not help?
The Royal college of nursing raised the question as to whether it was lawful for nurses to participate
in non-surgical termination. The Act was meant to cover nurses but it didn’t envisage the
development of medical techniques HofL faced with two possibilities:
• Insist upon the terms used by parliament, forcing it to legislate it afresh
• Facilitate the obvious purpose of allowing safe abortions
The lords were split 3:2 in favour of the latter
Extrinsic aids - material outside the Act
Problem of using Hansard: the problem with using parliamentary debates is that you cannot
prioritise the voice of an individual to over the words of parliament in unity. It also takes more time
which may increase the cost of litigation and potentially increase the chances of a miscarriage of
justice
Parliamentary material allowed when:
• Legislation is ambiguous, obscure or leads to absurdity
• The material consists of one ore more statements by the minister/ promoter of the Bill
• The statements relied upon are clear
Ambiguity, absurdity or obscurity: you must show that legislation is one of these things before the
court will allow the admission of Hansard material. This can be done by:
• Internal inconsistencies in the Act
• Demonstrating the consequences of the consequences are problematic for the act itself
• Show the case law interpreting the Act is divided
, The material from Hansard must consist of one ore more statements by the minister who promoted
the Bill, or if a private members Bill the non-ministerial promoter.
It's not permissible to admit general argument to the HofC, nor are they relevant. The court is
searching for the understanding that parliament had when it voted on the Bill
Week 3 – case interpretation
Precedent:
Common law is essentially a structure of precedent - the idea is simply that each case to be decided
is constrained by the principles established in those precede it. When we talk about precedent we
are talking about a system of precedents (or principles established in each of the hundreds of
relevant previous decisions) incrementally built up over the last hundreds of years
In essence:
• A rule comes about to initiate the process
• Interpretations of the rule are used to decide cases
• This helps to develop precedent on this particular legal issue/principle
Binding (1) and Persuasive Reasoning (2):
• Supreme court, CA and high court (sitting as high court) are all capable of making binding
precedents. The weight of their decision is based upon where they are in the hierarchy of
the courts. The CA's decisions bind the High court but not the Supreme court
• Decisions that are not binding are persuasive - senior judges may be persuaded by the
reasoning of the lower courts, or the obiter dictum statements of the higher courts might
persuade the lower court, despite it not being bound to follow that comment
Separation of powers
Common law is often referred to as judge-made law - meant to interpret laws that parliament make.
Legislature:
• Law making power through elected representatives
Judiciary:
• Judges bound by precedent to apply the law - however precedent itself was judge-made law
Executive:
• The government and management of the state
The use of precedent is illustrated in Donoghue v Stevenson:
• The judges created a new law which had retrospective effect (judicial creative theory)
• The judges declared the law as it was in 1928 and always has been, but no one knew this
until the 1932 court discovered it and declared it so. This too has retrospective effect
(declaratory theory)
How to deviate from precedent:
• Distinguish (generally in the same court) different facts
• Overrule (a higher court decides against the decision of a lower one
• Reverse (higher court changes the decision on the same facts, on appeal)
