Advantages/disadvantages to the 4 rules of Statutory interpretation, Judicial Precedent, Juries and Magistrates (Lay people)

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  • Created on: 11-05-16 17:34

Literal rule- Advantages

Ensures Parliamentary supremecy

- The literal rule respects parliamentary supremecy as it restricts the power of the Courts- Judges just have to interpret the 'plain ordinary dictionary meaning' of an Act - It is quick and easy for Judges 

 DPP v Cheeseman- By using the literal meaning of 'passenger and street', D was acquitted as the police were not considered to be 'passengers'. D was acquitted despite the Town Of Police Clauses Act trying to stop the disturbances of 'passengers' on town 'streets'

Ensures certainty

- There are no alternative expanations to the Law, therefore no alternative interpretations can be used by Judges

-The literal rule is important for: Solicitors- to represent their clients, Judges- to prepare for the trial and its likely outcome (summary), Defendants- to prepare themselves for the trial 

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Literal rule- Disadvantages

Can lead to absurdity and injustice

- If an Act has been drafted incorrectly or without sufficient consideration when the literal rule is applied, it can mean that the literal interpretation does not actually reflect on what Parliament intended

LNER v Berriman-   The court had ruled that Mr Berrriman on the day of his death had been "Oiling and cleaning" not "relaying/reparing" a piece of track. Mr Berriman was therefore not entitled to a lookout, thus proving that D had acted within the law and as a result D was found not liable ( C couldn't claim)

Assumes unatainable perfection in draftsmanship

- This means that Judges will be assuming no drafting errors in the Act, HOWEVER; - It is impossible to anticipate what will happen in the future, as all potential scenarios cannot be provided

Whitely v Chappell- The Pool Law Ammendment Act 1851 said that "no person could impersonate anyone who is entitled to vote" however they didn'y foresee anyone impersonating a dead person- a dead man is not "entitled to vote" and so, D was acquitted

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Golden rule- Advantages

Avoids absurdities and injustices ( made by the literal rule )

- Judges can use their own direction in meanings of ambiguous words ( narrow approach )- Judges can change clear meanings of a word to avoid injustice ( broad approach )

R v Allen- Judges avoided an unfair result by using the narrow approach within the OAPA 1861 to interpret "marry" ( to go through a marriage ceremony ) and find D guilty of bigamy. The literal meaning of marry " to legally marry" would've been impossible for D under the literal rule and D would've been acquitted

Helps the court to put into practice Parliament's intentions

- The golden rule allows Judges to carry out Parliament's intentions into practice - The rule allows Judges to interpret statutes to form sensible outcomes as to achieving absurdity

R v Sigsworth- Parliament did not want D to benefit from his crime ( as could be seen through the literal rule). The golden rule provided an outcome that would've satisfied the intentions of the Act. The decision provided an outcome that Parliament wanted to achieve

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Golden rule- Disadvantages

Undermines Parliamentary supremecy

-Under the broad approach, Judges are allowed to modify meanings of words in an Act to avoid absurdity -Judges can question or even override statutes

Adler v George - Judges changed the Official Secrets Act 1920 by adding in extra words "in/or" "to the vicinity". Despite reaching a sensible outcome, Judges were still undermining Parliament by adding words to the statute

No definition of 'absurd' 

-It is down to individual Judges to decide upon the meaning of 'absurdity' - Different Judges will interpret the word in different ways - Some will use the golden rule more than others- Different outcomes in similar cases, law becomes inconsistant,uncertain and unfair

Bad for:

Lawyers- who cannot prepare their clients for the trial,Defendants- who cannot prepare themselves for the trial, Public- who lack certainty as to what they can/ cannot legally do

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Mischief rule- Advantages

Avoids absurdity and injustices

- It allows Judges to look beyond the literal meanings of words in the Act to find the problem in which Parliament was trying to solve

Smith v Hughes -  6 prostitutes were harassing passers in the street. The problem the Street Offences Act 1959 was trying to solve was "soliciting" and "causing harrassment". The mischief rule interpreted the word "street" and found the prostitutes guilty of soliciting, despite not initially being on a "street", the mischief rule solved Parliament's mischief of public soliciting

Flexibility within the law

- The rule allows literal meanings to be overlooked and Judges use their legal knowledge to reach a more sensible outcome- This is reached byJudges interpreting to stop the problem Parliament was trying to stop (by making the Act)

RCN v DHSS - Judges interpreted "registered medical practitioners" to include nurses as medical advances and social advances had taken place since the passing of the Abortion Act of 1967. This enabled nurses to carry out abortions,  considering that the Act was designed to stop backstreet abortions that were being carried out by those who aren't "registered practitioners"

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Mischief rule- Disadvantages

Risk of Judicial law making 

- Rule allows judges to ignore the literal meanings of Parliament's words in the Act and apply a different meaning -Erodes Parliamentary supremecy- implies that Judges ( unelected) are saying Parliament's law is wrong

RCN v DHSS - 2/5 Judges disagreed with the mischief rule as they said that the 3 in favour were rewritting the law and it was that of Parliament's role- not the role of Judges to re-write laws

Judges may not agree what the mischief is

- Judges may get the mischief rule wrong - If they disagree- there would likely be different outcomes on similar cases, making the law absurd,uncertain, inconsistant and unfair

Bad for

Lawyers- who cannot prepare clients on case outcomes,Defendants- who cannot prepare themselves for the outcome,Public- who don't know what they can/ cannot legally do

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Purposive approach-Advantages

Avoids absurdity and injustices

- It allows Judges to ignore the strict literal meaning of words in a statute to find a meaning which achieves what they believe Parliament's purpose was to be- making statutes to become less absurd than if applied under the literal rule

LNER v Berriman - If purposive approach was used, Judges would have decided that Parliaments intention in the Fatals Accidents Act 1846 was to improve the safety of workers- therefore finding D liable instead

Allows for social, econoic and technollogical change

- Beneficial as Judges can interpret a statute widely to accomondate such changes which prevents Parliament from having to accomondate such changes which prevents Parliament from having to make a new statute every time in which changes occur

RCN v DHSS - Taking medical advances into account since the Abortion Act 1967, Judges reinterpreted "registered medical practitioners" to include nurses so they too could carry out abortions, avoiding the need for the passing of a new statute

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Purposive approach-Disadvantages

Risk of Judicial law making

- Lord Simmonds described purposive approach as a "naked usupation of the legislative function", stating that it undermines Parliamentaty supremecy- Judges overtaking law making by calling it "interpretating"

R v Registrar General v ex parte Smith - Judges ignored the clear wording of " shall supply" in the Adoption Act 1976 and interpreted the law to reach the opposing meaning and outcome- ie) to deny Mr Smith of his birth certificate

Judges may not be able to agree what the purpose is

- Judges can refer to extrinsic aids such as the title and explanatory notes but these may not reveal the statutes purpose- this may lead to the law becoming inconsistant, uncertain and unfair as laws may be interpreted differently    This may be bad for: Lawyers- who cannot prepare clients on likely case outcomes, Defendants- who cannot prepare for the outcome, public- who don't know what they can/ cannot legally do

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Judicial Precedent- Advantages


- Judges can avoid precedent - overruling, distinguishing, disapproving, practice statement, COA- 3 exceptions (Young v Bristol Aeorplane Co)-Judges can avoid absurdity and can develop the law

R v Shivpuri overruled Anderton v Ryan - Anderton V Ryan created an absurd precedent that needed to be overruled to make the law certain and fair


- Based on the principle of " Stare- decisis"- everyone recieves the same rights and know where they stand under the law

Grant v Australia Knitting Mills- precedent bound by Donoghue v Stevenson - DvS created tort of negligence

Allows the law to respond to real life situations

- Cases deal with real life situations as oposed to statutes which are based on legal routes, decisions work in practice and are relevent to modern society

Herrington v British Rail Co overruled Addie v Dunbreck- changes in society now expects all to owe a duty of care to child tresspassers 

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Judicial Precedent- Disadvantages

Makes the law rigid and slow to develop

- Similar cases to previous precedents have to work their way through the court hierarchy to a court that can overrule a case- hard to change past decisions- takes a long time

Jones v ** for ** refused to overrule Rv Dowling - HOL refused to use practice statement to preserve the law's certainty and fairness


- So many precedents and judgements to look through- hard to find a relevant case to make a decision

Balfour v Balfour and Merrit v Merrit- Both cases involve same relationship, same case details, same point of law but concluded with different outcomes making no sense

Uncertainty in law - ways of avoiding precedent- bad for lawyers, defendants, publicR v Smith distinguished R v Jordan- despite same cases on same point of law- differemt outcomes

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Juries- Advantages

Public confidence Lord Devlin "Juries- little Parliament"- Jusies are representative of civil society and helo to keep justice, law and order Survey by law society- 80% of those asked support a Jury over a Judge

Fairness  Jurors can decide on a verdict according to what they think is fair and just. Rv Owen- Mr Owen attempted to kill Mr Taylor after death of Mr O's son. Mr O found not guilty by jury

R v Ponting-  D breached the Official Secret's Act 1920 but was found not guilty as it was moral and just for D to confess about the confidential docs surrounding the Falklands war

Secrecy of the Jury room

Contempt of Court Act 1981- Jury is free from pressure which enables them to have full and frank decisions- no one can influence the Jury ( R v Frail )- if Jury discussions were public- less people would want to do Jury service  R v Young- Jurors do appear to follow the evidence and take the standard of proof very seriously

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Juries- Disadvantages

Perverse decisions -Jury are lay people and lack understanding of key points of law- they  can ignore the law & evidence of the trial and can make a peverse (inaccurate) verdict R v Ponting- Jury found D not guilty despite breaching the Official Secret's Act 1920

Secrecy No one is present in a Jury room and no reason has to be given for the verdict-Juries are not legally trained, they may not understand the case or evidence or may have either been influenced by a legal adviser ( Mckenna ) R V Young- Jury secrecy was such a bad thing that an Ouija board was used outside the court room to reach a verdict

Influence of modern technology 

It is now very easy for Jurors to reseach cases and to share the Juries secret decision outside the court. Attourney General v Dallas- A Juror was jailed for 6 months for researching D's previous convitions of **** and sharing case details to the Jury. Rv Frail- Facebook Juror Despite this problem the Criminal Justice And Court's Act 2015 has been successful in lowering the likelyhood of these problems by suspending all Jurors electronics within Court, despite these reforms however Jurors can still research cases outside the Court

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Cross section of society  Magistrates (Mages) bench is balanced in terms of representing gender, age, ethnicity and occupation- Mages havs to live in the local area and so should be aware of local issues and patterns of crime 2015 Judiciary of England and Wales survey- found that 51% of all mags are female (as to 25% Judges) 8% mags are from an ethnic minority background ( as to 4% of all Judges)

Cost (Cheap) Lay Mages deal with the vast majority of criminal cases (97%) Mages is cheaper than a Crown Court (£1,500/£500 guilty plea as to £13,500/£2,500 guilty plea) to replace Mages with Judges would cost £100 million per annum- Mages are cheap and saves the tax payer alot of money

Few appeals

Mages decisions are less likely to be appealed against than those of Juries and Judges in the Crown Court. Out of 2 million cases a year only 0.5% of appeals against conviction/sentences (0.3%) are successful. In 2007- only 72 such appeals on a point of law went to the QBD. Evidence shows that Mages get the decision right- surprising, considering that Mages not trained

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Magistrates- Disadvantages

Middle aged and middle class Mages are from similar backgrounds and are likely to be of a similar age. Most tend to be from the middle class and tend to be in their 50s & 60s where as many defendants are young and are from low working class backgrounds- 2012 Judiciary of England and Wales survey- 54% Mages were over 60, less than 3% under 40, 92% of all mages were white

Inconsistency in sentencing Mages in different areas of the country sentence defendants very differently for the same/similar offences- D's sentence now more of a "post code lottery". Govt's white paper "Justice for all"- 35% of D's in Reading were jailed for stealing goods where as in South London- 48% of all D's jailed- leads to inconsistency as not all defendants are being treated equally which is not fair

Over reliance on Court clerk/ legal advisors Some Mages can rely (heavilly) on the Court clerk/legal adviser to reachtheir verdict as they are not legally qualified to make their own verdicts. However the clerk ( like a Judge) is not meant to influence or play a part in the Mages verdict. R v Eccles Justices Ex Farrelly- D's conviction quashed as clerk influenced the decision. This is not allowed- wouldv'e been equivalent to a Judge intervening with the Juries decision in the Crown Ct- Bushells case/ McKenna

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