Definition: Statutory Interpretation

Statutory Interpretation is the process by which judges discover how parliament intended
the law to apply and the means by which they put that into practice.

Why the need to interpret statutes?

Ellipsis:
Deliberate omission of words the draftsman thinks are implied. This causes no problem provided
all the statute’s readers realise what is implied.

Broad terms:
terms:
Where the draftsman uses generic terms, deliberately leaving the decision as to what falls into
that category to the judge of statute user. For example does the word “vehicle” cover a child’s
tricycle and a donkey cart?

Politic uncertainty:
uncertainty:
Where ambiguous words may be used deliberately, where a provision is politically controversial
or the government lacks clear intent.

Unforeseeable developments:
Where novel circumstances arise after the passing of an Act.

Miscellaneous drafting errors:

Including accidental ambiguity and even printing errors.
 The two approaches to interpretation of statutes

The Literalist Approach:

Approach:

This is where the judge approaches the task of discovering the intention of parliament by
searching out the literal meaning of the words in the statute.

The Purposive or Contextual Approach:

This was an approach which was highly favoured by Lord Denning even before its formal
acceptance. Sir Rupert Cross described this approach to statutory interpretation as encompassing
two steps:

Considering the context:

context:
That is looking at the words or phrases which fall for interpretation in the context of the
broader statute.

Modifying statutory language to avoid unreasonableness:

Under this approach, the judge may read in words which are necessarily implied and he has a
limited power to add to, alter or ignore statutory words, to prevent a provision from being
unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the
statute.
statute.
THE THREE RULES OF INTERPRETATION

1. The Literal Rule

2. The Golden Rule

3. The Mischief Rule

The literal rule:

rule:
This rule allows that the words and phrases in a statute should be given their ordinary and literal
meaning, and once the ordinary meaning is clear the court should apply it even if to do so would
result in some injustice.

Cases: Baptiste v Alleyne (1970)

R v Ramsonahai and Duke (1961)

The golden rule:

rule:
This rule provides that if the literal and ordinary meanings of the words of the statute give rise to
ambiguity and/or an absurd result which parliament could not have intended, then the judge may
substitute a reasonable meaning in light of the statute as a whole.
 
Case: Davis v R (1962)

Two applications of the golden rule:

The narrow application:

The word or phrase has two or more possible meanings. Here the most appropriate
meaning is applied.

The Broad application:

application:
The word or phrase has only one possible meaning, but it is not applied because it si
repugnant.

Case: Re Sigsworth

Where the Administration of Estates Act provided for a son to inherit his mother’s estate upon
her death, this was not applied as the son in this case had murdered his mother. To do so would
be repugnant.
The Mischief Rule:
The third rule of statutory interpretation is the mischief or purposive rule. This rule was laid
down in Heydon’s case (1584) and provides that judges when deciding cases must consider three
factors:
 
1. What the law was before the statute was passed.
2. What problem, or ‘mischief’, the statute was trying to remedy.
3. What remedy parliament was trying to provide.
 
Case: R v George Green (1969)

Aids to statutory interpretation

There are certain factors which may assist a judge in discovering the intention of parliament:

Intrinsic (internal) aids

Extrinsic (external) aids
Rules of Language
Rules of presumption

Intrinsic (internal) aids:

The statute itself
Other enacting words
Long title
Short title
Preamble
Headings, side notes and punctuation

Extrinsic (external) aids:

Historical setting of the statute.
Dictionaries and textbooks.
Past practice.
Related statutes.
Subordinate legislation.
Government publications.
Reports.
Treaties and International conventions.

Rules of language
 Expressio unius exclusio alterus

Ejusdem generis rule

Noscitur a sociis

Rules of presumption

Against changing the common law

Against ousting the jurisdiction of the courts

Against retrospective application of the law

Statutes do not bind the crown

Against interference with vested rights and freedoms and that property cannot be taken
away without compensation

SUPPORTING CASES
Baptiste v Alleyne (1970)

The defendant was found outside a house with his hand through a window choking a female
occupant. He was charged and convicted of the offence ‘… found …in a building with intent…’
A provision of section 29(d) of the then Larceny Ordinance allowed that for a person to be
convicted of such an offence, there must be clear and unmistakable evidence that he had been, as
the section says, ‘found in’ the building
In this case the conviction was quashed on appeal as Mr. Justice of Appeal Michael De La
Bastide posited: ‘he cannot in the court’s view be said to have been found in the building on a
literal meaning or ordinary interpretation of the words of section 29(d) of the Larceny
Ordinance.’
 

R v Ramsonahai and Duke (1961)

The appellants had conspired to and did plant two bottles of bush rum on one Mohamed Ali
whom the police eventually found to have had the rum in his possession.
Charges were laid against the appellants. The indictment charged a conspiracy to prosecute
Mohamed Ali, knowing him to be innocent of the summary conviction offence of being in
unlawful possession of bush rum under section 330 of the Criminal Law Ordinance, Cap.10 of
British Guiana.
Counsel for the appellants argued that an offence under the section is not committed if the
evidence discloses an intention merely to cause a public prosecution to be instituted against
Mohamed Ali.
Counsel said inter alia, ‘The ordinary and primary meaning of the words “to prosecute” is to
commence proceedings by laying an information.’ Counsel further contended that if the
legislature intended the meaning of the words ‘to prosecute’ to be extended to include ‘cause to
be prosecuted’ then Parliament would have said so, as it had in many other enactments.

 
Literal rule: English cases

Fisher v Bell (1961)

After several violent incidents in which the weapon used was a flick-knife, parliament decided
that these knives should be banned. The Restriction of Offensive Weapons Act 1959
consequently made it an offence to ‘sell or offer for sale’ any flick-knife. The defendant had
flick-knives in his shop window and was charged with offering these for sale. The courts held
that ‘offers for sale’ must be given its ordinary meaning in law, and that in contract law this was
not an offer for sale but only an invitation to people to make an offer to buy. The defendant was
therefore not guilty of a crime under the Act, despite the fact that this was obviously just the sort
of behavior the Act was set up to prevent.

London and North Eastern Railway Co.

Co. v Berriman (1946)

A railway worker was knocked down and killed by a train, and his widow attempted to claim
damages. The relevant statute provided that this was available to employees killed while
engaging in ‘relaying or repairing’ tracks; the dead man had been doing routine maintenance and
oiling, which the court held did not come within the meaning of ‘relaying and repairing’.

Whitely V Chapell (1868)

A statute aimed at preventing electoral fraud made it an offence to impersonate ‘any person
entitled to vote’ at an election. The accused was acquitted because he impersonated a dead person
and a dead person was clearly not entitled to vote!

Cases: The Golden Rule

Davis v R (1962)

The defendant was convicted for the offence, which prohibited parking a vehicle ‘…elsewhere
than in a place provided for that purpose and in a manner required by an authorized officer…’
Chief Justice McGregor said:
‘It seems clear that the intention of the Regulation was to create two offences, the one, parking
otherwise than in a place provided by the Minister for that purpose; the other, parking otherwise
than in a manner required by an authorized officer. To obtain this interpretation it is necessary to
insert the words “otherwise than” between the word “and” and “in the manner…”
The dicta in this case provide an excellent example of the court’s exercise of its power to
reinterpret statute thus curing the absurdity that would result from a literal interpretation of a
particular piece of legislation.

The Golden Rule: English Cases

Grey v Pearson (1857)

‘The grammatical and ordinary sense of the word is to be adhered to, unless that would lead to
some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which
case the grammatical and ordinary sense of the words may be modified so as to avoid that
absurdity and inconsistency, but no further.’

R v Allen (1872)

Section 57 of the Offences Against the Person Act 1861 stated that ‘whosoever being married
shall marry any other person during the life of the former husband or wife… shall be guilty of
bigamy.’ it was pointed out that it was impossible for a person already married to ‘marry’
someone else-they might go through a marriage ceremony, but would not actually be married;
using the literal rule would make the statute useless. The courts therefore held that ‘shall marry’
should be interpreted to mean ‘shall go through a marriage ceremony.’

The Mischief Rule

R v George Green (1969)

The appellant was convicted on indictment of the offence of cultivating ganja contrary to section
7 (c) of the Dangerous Drugs Act. At the trial the evidence did not disclose whether the plants
which the appellant was found to be cultivating contained any pistilate known as cannabis sativa.
The court held that the term ‘ganja’ as defined by section 2 of the Act is referable only to the
pistilate known as cannabis sativa and did not include any part of the staminate plant and
therefore the offence of cultivating ganja contrary to section 7 of the law relates only to
cultivating the pistilate plant known as cannabis sativa.
Shelly JA stated:
I gather from the DPP’s quotation from Hansard of March 31st 1942 that one of the reasons for
introducing the Dangerous Drugs Law of 1942 was to follow international standards by
conformity with legislation in other countries and colonies who were signatories to the
international convention on Dangerous Drugs.
In this case, the court went behind the statute in order to discover the reason behind its creation.
 

Smith v Hughes (1960)

The Street Offences Act 1959 made it a Criminal offence for a prostitute to solicit potential
customers in a street or public place. In this case, the prostitute was not actually in the street, but
was sitting in a house, on the first floor, and tapping on the window to attract the attention of
men walking by. The judge decided that the aim of the Act was to enable people to walk along
the street without being solicited, and since the soliciting in question was aimed at people in the
street, even though the prostitute was not in the street herself, the Act should be interpreted to
include this activity.

Elliott v Grey (1960)

The Road Traffic Act 1930 provided that it was an offence for an uninsured car to be ‘used on the
road.’ the car in this case was on the road, but jacked up, with its battery removed, but the court
held that, as it was nevertheless a hazard of the type which the statute was designed to prevent, it
was covered by the phrase ‘used on the road.’