Statutory Interpretation - Aids

1. Date:Saturday, 23 August 2014 Statutory Interpretation - Aids • Lesson Outcomes: • State the different intrinsic aids to interpretation • State the different extrinsic aids to interpretation • State the different rules of language Specification Link: Aids to interpretation: rules of language; internal and external aids.  Advantages and disadvantages of the different approaches and aids to statutory interpretation. 1

2. Key Terms • Presumptions • Intrinsic Aids • Extrinsic Aids • The ejusdem generis rule • Expressiouniusestexclusioalterius • Noscitur a sociis

3. Aid One: Presumptions Meaning: Things we assume to be true Common law is not changed unless the act expressly say so R v Shivpuri Criminal Attempts Act 1981 s.1(3) Queen is not bound Human Rights Act 1998 Criminal Offences require mens rea B v DPP 2000 Sweet v Parsley 1970 The law should not act retrospectively Human Rights Act 1998 War Crimes Act 1991

4. Aid Two: Intrinsic Aids Meaning: Things that are internal to the Act itself Look at your Human Organ Transplant Act again – can you find examples of each of the intrinsic aids in the statute? Definition sections Headings Long (& short) titles Schedules Other sections of the Act Draftsmen/side notes 4

5. Intrinsic Aids – Other sections Older statutes may have a preamble serving as a purpose statement Newer acts may have objectives or purposes section - E.g. Climate Change and Sustainable Energy Act 2006

6. Intrinsic Aids – Schedules Most new Acts contain a special interpretation definition section

7. Intrinsic Aids – Punctuation Punctuation is now seen to have an effect `in Hanlon v Law Society (1981) Lord Lowry commented; “To ignore punctuation disregards the reality that literate people, such as parliamentary draftsmen, do punctuate what they write.” In your groups come up with two sentences which use the same words but which have two different possible meanings because of the way you have punctuated it.

8. Aid Two: Extrinsic Aids Meaning: Things that are external to the Act itself Vaughan v Vaughan (1973) Dictionaries Previous Acts The Interpretation Act 1978 Reports of the Law Commission International Treaties • Before you read the facts of the case what do you think the word molest means? • Now check your meaning against a dictionary definition. • Are they the same, close or different? • If I pester my wife to take me back after a marital split does that merit molestation? Hansard Explanatory Notes Textbooks 8

9. Vaughan v Vaughan (1973) 1 WLR 1159 In this case the court had to interpret the word ‘molest’. D had been subject to injunctions in respect of previous violence towards his ex-wife who was afraid of him. D argued that pestering his ex-wife to resume their relationship by going to her home early in the morning and late at night and also calling on her at work, did not amount to molesting her. Principle – The judges consulted the dictionary, which defined molest as ‘to cause trouble, vex, annoy or , to put to inconvenience’ and held that the defendant's behaviour did amount to molestation. 9

10. Extrinsic Aids – Previous Acts Explosives Substances Act 1883 amending the Explosives Act 1875 Wheatley (1979) How can the judge use the 1883 short title to justify applying the previous 1875 Act when he defined the term explosive in Wheatley?

11. R v Wheatley [1979] 1 All ER 954 A man D was found in possession of a metal pipe filled with sodium chlorate and sugar, and was charged with possessing an explosive substance contrary to s.4 of the Explosive Substances Act 1883. He argued that its effects would be pyrotechnic rather than explosive, but the court referred to the Explosives Act 1875, in which "explosive" was defined as including "pyrotechnic". Principle – Since the long title of the 1883 Act referred expressly to the 1875 Act, the definition from the earlier statute could be imported into the later. 11

12. Extrinsic Aids – The Interpretation Act 1978 • How does section 6 assist the Judge when making a decision? • How many other idiosyncrasies of the English language need clearing up to make things easier to interpret? • Can you find 3 more in your groups? • Can you think of any occasion when this may still not make things clear? Extrinsic aids also includes Reports of the Law Commission (e.g. when they highlight what is wrong with old Act) and International Treaties (such as the EU Law)

13. Extrinsic Aids – Hansard Click here or on the image opposite to access the Parliamentary Hansard Page • Take a look around the Hansard web site • When do you think Judges might want to consult Hansard as an extrinsic aid? • What might be the problems using Hansard? Hansard (the Official Report) is the edited verbatim report of proceedings of both the House of Commons and the House of Lords. Davis v Johnson (1979) To Pepper v Hart (1993)

14. Extrinsic Aids – Hansard Davis v Johnson (1979) To Pepper v Hart (1993) Research Task – Take a look at the decisions in the two cases above. What was Lord Denning’s position about the use of Hansard in Davis? What did the House of Lords say? When did the rules change? What do the rules say now?

15. Davis v Johnson [1978] 2 WLR 553 House of Lords This case concerned the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976. At the Court of Appeal Lord Denning referred to Hansard stating, that not to do so would be like 'groping in the dark without switching on the light'. On appeal to the House of Lords the Lords reprimanded Denning for referring to Hansard and restated the rule that Hansard must not be referred to. Lord Kilbrandon - "It has always been a well established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose.” Viscount Dilhorne: - "While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment.” 15

16. Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42 • The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard. • The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and that the teacher was not required to pay tax on the perk he received. The rules were however: • The wording in the Act must be ambiguous or obscure, or a literal interpretation would lead to an absurdity. • Judges may look only at the statement as made by a minister or other promoter of the bill. • The statements must be clear in order for them to be relied upon. 16

17. Extrinsic Aids – Texts and Notes Explanatory notes are not part of Act so not an internal aid Re Castioni (1891) – J. F. Stephen referred to his own book History of the Criminal Law of England to define ‘political crime’ Task You have 200 words. Explain the difference between intrinsic and extrinsic aids to statutory interpretation using examples. You have a +/- 10% margin on your word count.

18. The Rules of Language These are all about lists – often referred to as subsidiary rules The courts may also choose to look at other words in the statute to ascertain the meaning of specific words. To enable them to do this they have developed a number of rules of language to help make the meaning of words and phrases clear. There are three main rules of language. The first is Ejusdem generis. There is also Expressio unius est exclusio alterius -where there is a list of words which is not followed by general words, then the Act applies only to the items in the list and Noscitur a sociis which means the words must be looked at in the context and interpreted accordingly. This involves considering other words in the same section of the Act.

19. The Rules of Language - ejusdem generis Where general words follow particular words the general words are interpreted to be of the same kind as the particular words: Dogs cats and other animals Particular words General words Under this rule ‘other animals’ interpreted like ‘cats and dogs.’ They are domestic animals so this means other domestic animals

20. Powell v Kempton Park Race Course (1899) AC 143 D’s company kept an open-air enclosure used by bookmakers and race-goers who wished to place bets. Under a Regulation it was prohibited to keep a ‘house, office, room or other place’ for betting purposes. Held – The court applied the ejusdem generis rule and held the defendant was not guilty because the enclosure was not a relevant place. The general words of ‘or other place’ following the specific words ‘house,’ ‘office,’ and ‘room’ referred to any defined spaces used for betting which their enclosure was not. 20

21. The Rules of Language - Expressio unius est exclusio alterius Expression of one thing implies the exclusion of another. Where ‘particular’ words are used and not followed by ‘general words’ the Act applies only to the particular words Inhabitants of Sedgley (1837) • Rates were charged on ‘land, titles and coal mines’ – therefore rates could not charged on any mine other than coal mines. Q - So what if I bite off your nose and the Act says its an offence to ‘stab, cut or wound.’

22. R v Harris (1836) 7 C & P 446 The defendant bit off his victim's nose. The statute made it an offence 'to stab cut or wound'. Held – under the literal rule the act of biting does not mean that it comes within the act of stabbing, cutting or wounding as these words implied an instrument had to be used. Therefore the defendant's conviction was made void. 22

23. The Rules of Language - Noscitur a sociis Meaning of word is to be gathered from the context in which it is written. Using the definition above if a café stays open during the night without a licence do they break the law under the Refreshment House Act? If so why? Refreshment Houses Act 1860 – all houses, rooms, shops or buildings kept open for ‘entertainment’ during certain hours of the night must be licensed.

24. Muir v Keay (1875) QBD D ran premises called The Café; it was found open during the night, and seventeen women and twenty men were there. They had been supplied with cigars, coffee, and ginger beer, which they consumed.. Held – The Court applied noscitur a sociis rule and implied that ‘entertainment’ did not only mean music and theatre, but meant other form of entertainment including drinking coffee.e house was kept open for public refreshment, resort, and entertainment, and required a licence. 24

25. Apply the Rules of Language Consider all three rules of language and explain (using case examples) which rule is likely to be applied to each situation An Act uses the phrase ‘hamsters, dogs, cats and other animals’ and the animal in question is a pig. An Act states that it specifically applied to ‘hamsters, dogs and cats’ and the animal in question is a pig. An Act mentions tigers, cages and food’ and the food in question is domestic cat food.

26. Consolidate your understanding of Statutory Interpretation Choose a question appropriate to your level of understanding – try and push yourself. Prepare an answer that you will have to explain to other members of the class

27. Can you apply all you have learnt? • Apply the law to the following scenarios, using the rules or aids to interpretation • Bob owns a very large house with a long, windy drive. He has placed a wreath at the gate at the top of the drive. • The Smiths decide to purchase a holly bush to celebrate • Louise has decided to paint the noses of the deer in the local park red for Christmas • Carol does some research and discovers that Jesus was born in March. She decides to celebrate Christmas then. • James does not like mince pies and takes a in turkey as his free food. • Pick two cards from the act which you think will cause problems, and come up with a better definition! • The Christmas Day Act 2010 • This is an act to encourage the celebration of Christmas as a national holiday and time of charity • This Act provides that: • Christmas shall only be celebrated in Christmas the month of December • Every household shall buy a tree, wreath or other greenery. • Every household shall display a wreath at the entrance to their house • All deer shall be given a red nose for the occasion. • All adults shall be entitled to a free mince pie, Christmas cake or food in celebration • Breach of the sections will result in a summary conviction punishable by a maximum of £200 fine