LEGAL RESEARCH AND

WRITING
INTERPRETING STATUTES
SKILLS BASIC TO STATUTORY
ANALYSIS

 Reading the statute

 Identifying the Issues
 Interpreting the statute’s language
THE FIVE Ws OF READING A STATUTE

 WHO? Whose actions are covered?

 WHAT? What kinds of actions are required, prohibited, or permitted?
 WHEN? When was the statute effective?
 WHERE? Where must the actions have taken place to be covered?
 WHAT THEN? What consequences follow?
READ THESE PARTS OF A STATUTE- 1

 The language of the individual provisions that appear to deal directly with the legal issue;
 The language of any other individual provisions expressly cross-referenced by the directly
applicable provisions;
 The titles of these individual provisions and of the entire act;
 Any set of definitions applying to the individual provisions or the act as a whole;
 Any statement of purpose and any preamble to the individual provisions or the act as a
whole;
READ THESE PARTS OF THE
STATUTE- 2

 If length is not prohibitive, read the entire act;

 If the entire act is too long to read, at least read carefully the titles of all other individual
provisions to identify any that might relate to the issue at hand;
 The dates on which the act as a whole and the individual provisions were enacted and
which became effective;
 All of the same information for any amendments to important provisions;
 If available, read the same information for any priot versons of important provisions (to
undersand what changes the legislature intended to make when it enacted the current
version).
WORDS THAT SIGNAL STRUCTURAL
INFORMATION

 And include unless other

 Or limited to outweighs shall
 Either except all may
IDENTIFYING THE ISSUES

The statute:
No cemetery shall be hereafter established within the corporate limits of any city or town;
nor shall any cemetery be established within two hundred and fifty yards of any residence
without the consent of the owner of the legal and equitable title of such residence.
Key Terms:
Cemetery hereafter established corporate limits
City town 250 yards residence
Consent owner legal title equitable title
INTERPRETING THE STATUTES
LANGUAGE

TOOLS OF INTERPRETATION
 The text itself
 The intent of the legislature
 The policies implicated by the possible interpretations
Statutes in derogation of the common law; remedial statutes; penal statutes
 The interpretation of governmental agencies charged with the enforcement of the statute
 The opinions of other courts and of respected commentators
INTERPRETING STATUTES

 T he role of the judiciary in relation to the legislature is to ‘give effect’ to Parliament’s

intention.
 Sussex Peerage Claim (1844) Tidal CJ
“The only rule for construction of Acts of Parliament is that they should be constructed
according to the intent of parliament which passed the Act.”
 Two fundamental complexities: Words may have different meanings depending on
context and the meaning of words may change over time.
 It is not always clear precisely what Parliament did intend when they used a particular
word or phrase in an Act of Parliament,
DIFFICULTIES INTERPRETING
STATUTES

 Francis Bennion, Statute Law (1990)- There are a number of features of statutes that
make interpretation difficult:
 Use of broad terms eg ‘vehicle’, ‘family’
 Unforeseeable developments- social and economic changes that influence the meaning of
words
 Inadequate use of words- printing errors
 Ellipsis- when the draftsperson refrains from using certain words that they regard as
implied automatically
WHY DOES INTERPRETATION MATTER?

 The judge must decide the meaning, scope and applicability of legislation to a particular
fact situation.
 The way in which a judge interprets the meaning of a particular word may make the
difference between a defendant in a criminal trial being found innocent or guilty.
 A.V. Dicey
“Statutes themselves, though manifestly the work of Parliament, often receive more than half
their meaning from judicial decisions”.
(Lectures on the relation between law and public opinion in England during the
nineteenth century. 1905, 2001 edn p486)
BASIC APPROACHES TO
INTERPRETATION

 The Literal Rule or ‘Literalism’

 R v The judge of the city of London [1892] 1 QB 273 Lord Esher MR
“If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court
has nothing to do with the question whether the legislature has committed an absurdity.”
R v Harris (1836) 7 Car & p 446 173 ER 198
“to unlawfully and maliciously stab, cut or wound any person”
R v Brown [1996] 1 All ER 545 (HL)
Data protection Act 1984: “ It is an offence to knowingly or recklessly to use personal data other than for the
purpose describe in the relevant entry in the register of data users.”
The majority opinion reached it’s decision by giving the word “ use” it’s ordinary meaning. The dissenting minority
adopted a more purposive approach in order to achieve the purpose of the Act- the protection of citizens against
invasion of privacy.
THE GOLDEN RULE

 This is a modification of the literal rule. The judge begins by adopting the literal rule but
if this leads to an absurd result the judge may modify the words to some extent.
 Lord Wensleydale, Grey v Pearson (1857) 6 HL Cas 106
“The grammatical and ordinary sense of words 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 the
absurdity and inconsistency, but no further.”
Adler v George [1964] 2 QB 7 S.3 Official Secrets Act 1920- The court applied golden rule to
extend the literal wording of the statute to cover the action committed by the defendant; and
thereby avoiding an absurdity that would have resulted if the literal rule had been applied.
THE MISCHIEF RULE

 Heydon’s Case (1584) 3 Co Rep 7a, 76 ER 637

i. Judge considers the state of the common law before the Act was passed.
ii. Considers the ‘mischief’ or shortcoming that the Act was intended to cover.
iii. Judge interprets the Act in a way that achieves the purpose.
 Smith v Hughes [1960} 2All ER 859, S.1 Street Offences Act 1959
It shall be an offence for a common prostitute to loiter or solicit in a street or public place for
the purposes of prostitution.
Lord Parker CJ- It was the ‘solicitation’ which must take place on the street, not the person
who does the soliciting.
THE PURPOSIVE INTERPRETATION

 Lord Denning, Magor & St Mellons RDC v Newport Corporation [1950] 2 ALL ER 1226
“We do no sit here to pull the language of Parliament to pieces and to make nonsense of it. That is an easy
thing to do and a thing to which lawyers are too often prone. We sit here to find out the intention of
Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of
the enactment than by opening it up to destructive analysis.”
 The House of Lords severely criticized Lord Denning- “ Denning LJ’s views were a naked usurpation of
the legislative function.”
 Concern was that the further judges moved away from the language of the Act, the more likely they are
engaging in legislative or quasi legislative function.
 Pepper v Hart [1993] 1All ER 421
An approach that seeks to give effect to the ‘true purpose’ of legislation. Effect of European Legislation e.g
Human Rights
PRESUMPTIONS OF INTERPRETATION

 Statutes do not have retrospective effect

 Changes to basic rules of common law must be clear
 The statute was not intended to interfere with vested rights of individuals.
 The statute was not intended to impose liability without fault.
 The statute was not intended to have extra-territorial effect
 Penal laws should be construed in favour of the person whose liberty is threatened.
RULES OF LANGUAGE

 Ejusdem generis rule: ‘ of the same kind, class or nature’

 General words which follow specific words must be read in the light if those specific
words, provided that the specific words are examples of some particular class (genus)
 Where “cars, motor bikes, and motor powered vehicles” are mentioned, the word
‘vehicles’ would be interpreted in a limited sense- will not include airplanes.
 Sunday Observance Act 1677: “…no tradesman, artificier, workman, labourer or other
person whatsoever, (shall work on Sundays)
 Parliament cannot have intended all occupations to be covered by the Act because it
would have been easier to say, ‘ No person whatsoever shall work on a Sunday.’ This is
the justification of the ejusdem generis rule,
RULES OF LANGUAGE

 Noscitur a sociis- (a word is known by the company it keeps)

 This rule is similar to the ejusdem generis rule. It states that all words derive their
meaning from their immediate context.
 Rule is useful when dealing with ambiguities- where the ambiguous word is used in close
proximity to other similar words.
 Pengelley v Bell Punch Co Ltd [1964] 2All ER 945- S.28 Factories Act 1961, “Floors,
steps, stairs, passageways and gangways [must be kept free from obstruction].
 The court held that ‘Floors’ did not include areas designed and used for the storage of
goods.
 Foster v Diphwys Casson (1887) 18 QBD 428; Muir v Keah (1875)
RULES OF LANGUAGE

 Expressio unius est exclusio alterius- (The express mention of a thing is the exclusion of
another)- Expressio unius rule
 If the Legislature had intended to include a particular thing within the ambit of its
legislation it would have referred to that thing expressly.
 The Legislature’s failure to mention the thing becomes ground for inferring that it was
deliberately excluded.
 There is no express exclusion, exclusion is implied.
 When one or more things of a class are expressly mentioned others of the same class are
excluded.- ‘Police, fire and sanitation employees’ would be interpreted to exclude other
public employees not enumerated from the legislation.
INTRINSIC MATERIAL

 All the components of the Act of Parliament can be used to assist in the process of
interpretation:
 The long title of the Act ( containing a brief description and purposes of the Act), the short
title for ease of reference
 The preamble, the enacting sections which are the substance of the Act with their
subdivisions into sections and subsections,
 marginal notes which give a brief explanation of th contents of a section
 Headings which give clues as to the contents.
 Definition section in a particular statute usually S.2
 Interpretation and General Provisions Act (Cap 2)
EXTRINSIC MATERIAL

 The internal context is concerned simply with other parts of the Act under consideration,
the wider context is concerned with all other matters which a court might wish to take
into account in interpreting an Act.
 Reports of debates in Parliament ( Hansard)
 Law Commission Reports and White Papers
 Dictionaries, Legal text books of good standing
 International treaties
 Other Acts of Parliament- other jurisdictions
CANONS OF CONSTRUCTION

 Read the statute as a whole.

 Give effect to the rules of grammar and punctuation.
 Construe technical terms technically and ordinary terms in their ordinary sense.
 When the same language is used in varous parts of an act, the language is presumed to
havce the same meaning.
 Where general words (such as “and any other”) follow a list, the general words should be
construed to refer to things similar to the items in the list. This principle is sometimes
called thie principle of ‘ejusdem generis’, meaning literaly “of the same genus”.
CANONS OF CONSTRUCTION

 Where a statute from state X is adopted by state Y, the construction given the statute by
the courts of state X should be followed by state Y.
 Absent clear indication, the court should presume that the legislature did not intend to
enact a statute that impairs fundamental and commonly held societal values.
 Specific description of one or more situations in the text of a statute implies the exclusion
of other kinds of situations not mentioned.
 Different statutes on the same legal issue (“in pari materia”) should be read consistently,
especially where the legislature intended to create a consistent statutory scheme.
CANONS OF CONSTRUCTION

 Although not technically part of a statute’s text, such items as titles, preambles, and
section headings are persuasive evidence of legislative intent.
 Sometimes courts will have construed the language of a statue in a particular way.
Subsequently the legislature may amend the statute in ways that change or clarify other
issues but do not address the issue the courts have interpreted. A later court might
conclude that the legislature’s lack of action to change the judicial construction is
evidence of the legislature’s approval of the court’s construction.
CANONS OF CONSTRUCTION

 Where courts have relied on these maxims, they are treated as legal principles in and of
themselves.
 If you rely on any one of these canons, as part of the analysis of a rule, cite a persuasive
case opinion that adopts that maxim if possible.
 None of these guidelines for interpreting statutes will provide a certain answer. As a
matter of fact, when you apply several, they might support contradictory results.
 Courts generally will consider these guidelines, so they will help you predict what a court
might decide or persuade a court to interpret a statute favourably for your client.