MELS Notes PDF

Preview

Summary

Legislation & case lawLegislation Case Law - Passed by the elected representatives - Technical process with various ‘readings’ and debates in the two Houses (Commons & Lords) - Technical language - Limitations of generality Made by judges Discursively applying principles (established...

Description

MELS Notes Legislation & case law Legislation • •

• •

Passed by the elected representatives Technical process with various ‘readings’ and debates in the two Houses (Commons & Lords) Technical language Limitations of generality

Case Law • •

• •

Made by judges Discursively applying principles (established in previous case law or legislation) to new facts Evolving nature But not unbound, judges are bound by precedent

The Hierarchy of Courts

Legal Thinking Formalism

Realism

Law is a self-contained logical discipline. To know law, one must go into the library and read all of the cases and statutes. From these one can extract rules and principles which will then be formally

Law is a social instrument, which has emerged over time, with changing purposes, like:  social order  political stability

MELS Notes applied. Law is a science, judges are machines into which you insert rules and facts and they produce answers. There is no role for considering the effects of a decision on morality, society or the economy. Law is Law, and not these other disciplines.



protection of property  moral goodness To understand the law as it has been it is always necessary to place it in its historical context. To know the law, you can’t just look at all of the decisions & rules. You have to also ask what the law will be tomorrow.

Constitution Codified • • • •

Two levels of law Constitutional review of acts of parliament The constitution is the ‘act of the people’ The constitution empowers parliament

Uncodified • • • •

Single level of law Limited Judicial Review of executive acts The Crown in parliament is the ‘voice of the people’ Parliament is the authority of lawmaking

The rule of law • Restraint of the State • Equality before the law • Austerity Legal System • Interpreting statutes 1. “The core of the existing principle [is that] (i) all (ii) persons and authorities (iii) within the state, whether public or private, should be (iv) bound by and entitled to the benefit of (v) laws publicly promulgated and (vi) publicly administered by the courts.” 2. Lord Bingham The Rule of Law • • • • • • •

Law should be general not particular Due process Procedural rationality Regularity & predictability Equality before the law Access to justice Restraint of the state by law

Critique of the Rule of Law • Decision makers are not really blind to race, religion, gender, class, or sexuality. Instead it makes culturally specific determinations about claimants and defendants. • The apparent neutrality of the law hides the unequal application of some norms.

MELS Notes ‘In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.’ (Anatole France) The law establishes a series of formal and informal barriers to seeking redress •

•

Statutory interpretation Potential Problems? • Language of statutes is formal, technical and not immediately clear, with no inflection or stress as in a conversation • Language is in itself inherently limited • Cases involve specific sets of circumstances, and wording may seem clear at the time but Parliament cannot foresee future cases • Statutes are designed in the same way as the rules of a game, but there is no conversation through which we can ask ‘what did you mean?’ • Reader has to give life to words by interpreting what they mean in particular situations Where there is ambiguity, uncertainty or absurdity, the law has developed a number of techniques of reading statutes (sometimes erroneously called ‘rules’). • The ‘Mischief Rule’ o The court asks what was the mischief (the problem) at common law that the statute sought to remedy o Heydon’s Case (1584 ) o Lord Coke: “For the sure and true interpretation of all statutes in general… four things are to be discerned & considered: o What was the common law before the making of the Act? o What was the mischief and defect for which the common law did not provide. o What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, o The true reason of the remedy; o and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy… and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico [for the public good] Cheeseman v Director of Public Prosecutions [1992] Q.B. 83 The defendant was arrested in a public lavatory in Leicester and charged with wilfully and indecently exposing his person in a street to the annoyance of passengers contrary to section 28 of the Town Police Clauses Act 1847 You are the Judge, which are the most important words: S. 28 said: "Every person who in any street, to the obstruction, annoyance, or danger of the residents or passengers, commits any of the following offences, shall be liable to a penalty. . .” o What does ‘street’ mean for the purpose of the Act?  Remember he was charged under s28 of the Town Police Clauses Act (1847) and for some other purposes in that Act, the term ‘street’ had been extended by s81 of the Public Health Acts Amendment Act (1907), which said:

MELS Notes 

S81 Extending definition of public place and street for certain purposes.  "Any place of public resort or recreation ground belonging to, or under the control of, the local authority, and any unfenced ground adjoining or abutting upon any street in an urban district shall . . . be deemed to be a street for the purposes of . . . so much of section 28 of that Act as relates to the following offences:… Every person who wilfully and indecently exposes his person. o What does ‘passenger’ mean? o Remember s28 of the Town Police Clauses Act (1847) said: "Every person who in any street, to the obstruction, annoyance, or danger of the residents or passengers, commits any of the following offences, shall be liable to a penalty. . .” o “The Oxford English Dictionary shows that in 1847 when the Act was passed "passenger" had a meaning, now unusual except in the expression "footpassenger," of "a passer by or through; a traveller (usually on foot); a wayfarer." Before the meaning of "street" was enlarged in 1907 this dictionary definition of "passenger" was not hard to apply: it clearly covered anyone using the street for ordinary purposes of passage or travel. The dictionary definition cannot be so aptly applied to a place of public resort such as a public lavatory, but on a common sense reading it seems to me that when applied in this context "passenger" must mean anyone resorting in the ordinary way to the place of public resort for one of the purposes for which people normally resort to it. If this is the correct approach, I do not think these two police officers were "passengers." They were stationed in the public lavatory in order to apprehend persons committing acts which had given rise to earlier complaints. They were not resorting to this place of public resort in the ordinary way but for a special purpose and thus, as it seems to me, were not passengers….” (Bingham LJ ) o The offence was outside the mischief of the Act  This is an example of applying the literal rule – do you think the judges were right?  “The mischief at which this part of the Act of 1847 was aimed is in my view clear. It remains fairly clear after the 1907 amendment. It was to protect members of the public pursuing their normal avocations against the annoyance caused by men exposing themselves. If one asks whether  The defendant's conduct (howeverunattractive) falls within that mischief the answer must, I think, be that on this occasion it did not. I do not therefore think that we should strain to uphold this conviction, which I accordingly quash.” (Bingham LJ) •

The Literal Approach o Gives words their plain, literal meaning o Fisher v Bell [1961] 1 QB

MELS Notes 

  

 



Bell placed a flick knife in his shop window with a price tag on it, but as you know from Contract Law, displaying a product is merely an ‘invitation to treat’ and not an ‘offer’. Had he committed an offence? According to the aid: expressio unius exclusio alterius* (to list one thing is to exclude another), the words ‘exposing for sale’ were left out on purpose Applying the narrow literal meaning of the wording of the Statute he has not committed an offence. S1.1 Restriction of Offensive Weapons Act

It is illegal to manufacture, sell, hire, or offer for sale or hire, or lend to any other person, amongst other things, any knife ‘which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife.’ R v Harris (1836) 7 C&P 446  Harris bit off her friends nose in a fight – and then, when he intervened, she bit off a policeman’s finger.  Using the aid to interpretation: Noscitur a sociis (a word is known by its associates):  She was found not guilty, because by reading the provision as a whole, you could see that the statute pointed towards the use of a weapon, and teeth are not a weapon.  ‘If any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person with intent in any of the cases aforesaid to maim, disfigure or disable such person or to do some other grievous bodily harm to such person, …such offender shall be guilty of a felony’

 S1.1 Restriction of Offensive Weapons Act ‘If any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person with intent in any of the cases aforesaid to maim, disfigure or disable such person or to do some other grievous bodily harm to such person, …such offender shall be guilty of a felony’ •

The ‘Golden Rule’ o Legislation to be construed literally unless this would lead to an absurdity which the legislature is unlikely to have intended. o Re Sigsworth [1935] 1 Ch 98  Mrs Sigsworth was found dead. The Inquest found she had been murdered by her son who was also dead. Mrs Sigsworth’s will left everything to her son. By old rules of public policy, the son (and therefore his estate) cannot inherit in these circumstances. Therefore Mrs Sigsworth died intestate.

MELS Notes  

 



S 46 Administration Act 1925 Given that the will was void for public policy reasons, Mrs Sigsworth’s estate was to be distributed through the intestacy provisions. The person entitled on intestacy was her son. Did the son’s estate inherit Mrs Sigsworth’s estate?

Even though there was no ambiguity in the wording of the Act, the court held that the statute could not have been intended to allow murderers to inherit. This would be an absurdity. The literal rule should not apply and the golden approach was adopted to avoid absurdity. ‘…the grammatical and ordinary sense of the 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 that absurdity and inconsistency, but no farther.’ - Lord Wensleydale in Grey v Pearson (1857) 6HL Cas

The Purposive Approach o Asks what was the purpose of the legislation as expressed by the proposer of 8the Bill in parliament o Lord Griffiths: ‘The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted.’ Pepper v Hart (1993) o General will Consider for a moment 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 this moment of unity, they give themselves their own law. When the courts come to apply this general will of the ‘crown in parliament’ to the particular facts of the case, they must try to be faithful to the words, but also they must ‘translate’ them so that they are meaningful in the context. •





o The literal and purposive approaches are really two different ways of finding out parliament’s intentions.  In the literal approach, the courts presume that Parliament expressed its intentions through the plain and ordinary meaning of the actual words used.  The Purposive approach, looks beyond the words of the Act to find out if Parliament’s intentions are different. o Where there is uncertainty as to the meaning of an Act, the Courts may look at the purpose of the legislation. However, this does not mean intuiting or making it up. It means examining what are called ‘extrinsic’ aides in interpretation, aides that are outside the text of the statute. o Over the last five centuries the courts have waivered between more literal and more purposive approaches, with Courts in the 18th and 19th centuries tending more to literal and intrinsic approaches. o Lord Simmons: ‘It is sufficient to say that the general proposition that it is the duty of the court to find out the intention of Parliament – and not only of Parliament but of

MELS Notes ministers also – cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited.’ Magor and St. Mellons v Newport Corpn [1951] 2 All ER 839 (HL) o Lord Denning: ‘We do not sit here to pull the language of Parliament and of ministers to pieces and make nonsense of it. … 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.’ Magor and St. Mellons v Newport Corpn [1950] 2 All ER 1226 (CA, dissenting) o Royal College of Nursing v DHSS [1981] 2 WLR 279  S58 Offences Against the Person Act 1861: It was an offence (sc. felony) for any person with intent to procure the miscarriage of any woman (i.e. carry out an abortion)  S1 (1) The Abortion Act 1967: This provision created a new defence “when a pregnancy is terminated by a registered medical ‘practitioner’  The RCN were raising the question whether it was lawful for nurses who were not ‘registered medical practitioners’ to participate in non-surgical procedure of medical induction (abortion) by the use of a drug called prostaglandin.  Was ‘treatment for carrying out a termination’ the same as ‘terminating a pregnancy’ as required by the S1(1) defence? •

The Teleological Approach (for EU legislation) o Due to the particular nature of some EU legisation, courts must understand the ends (telos) toward which the legislation was aimed, and understand it in that context Intrinsic aid

A Close Reading 1. The entirety of the statute, particularly the Definition Section 2. The Short and Long titles 3. Section headings 4. The Schedule and preamble Principles of Constructions  Ejusdem generis - general words at the end of a list can be read in the context of any specific words around them: e.g. ‘A licence is required to keep, crocodiles, lions, tigers, snakes and other animals’. Does one need a licence for a cat or a sheep?  Noscitur a sociis – See R v Harris (above), where teeth were not a

1. 2. 3. 4. 5. 6.

Extrinsic aid – material outside the case White Papers (Black-Clawson Case (1975) Explanatory Notes The Interpretation Act 1978 Academic Articles Other Statutes in pari materia Hansard

Hansard is the record of the speeches in the Houses of Parliament. Historically, the rule was that the courts were not allowed look at the parliamentary debates at all. This was overturned in Pepper v Hart [1992] 3 WLR 1032 , where the House of Lords decided that the courts could look at the Second Reading speech* by the proposer of the Bill. Please note that not all of the parliamentary debate is

MELS Notes



weapon… Expressio unius exclusio alterius – to list one thing is to exclude another e.g. ‘A licence is required to keep , crocodiles, lions, tigers, and snakes.’

relevant.

Precedent o o o o o o o o o

‘precedent’ has two meanings: The process by which judges follow previously decided cases The case itself is ‘a precedent’ which may be relied upon in the future Each case is to be decided is constrained by the principles established in the cases that precede it The process by which judges follow previously decided cases A system of precedents incrementally built up over the past hundreds of years Stare Decisis Ratio Decidendi (binding)  The ratio is the reasoning as applied to the facts OR Precedent = the material facts + the decision made in relation to those facts o Donoghue v Stevenson  “A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products is likely to result in injury to the consumer’s life or property owes a duty to the consumer to take that reasonable care” (Per Lord Atkin) o Grant v Australian Knitting Mills [1935] UKPC 2 o D bought some underpants manufactured by E from F’s shop in Australia. After wearing them once he contracted severe contact dermatitis, as a chemical used to bleach the fabric had not been properly washed out in manufacture. This would not have been apparent in any normal examination of the garment. o “The presence of the deleterious chemical in the pants, due to negligence in manufacture, was a hidden and latent defect, just as much as were the remains of the snail in the opaque bottle: it could not be detected by any examination that could reasonably be made. Nothing happened between the making of the garments and their being worn to change their condition. The garments were made by the manufacturers for the purpose of being worn exactly as they were worn in fact by the appellant: it was not contemplated that they should be first washed. It is immaterial that the appellant has a claim in contract against the retailers, because that is a quite independent cause of action… even though the damage may be the same. Equally irrelevant is any question of liability between the retailers and the manufacturers on the contract…. The tort liability is independent of any question of contract.”

MELS Notes 1.

Obiter Dictum

Reasoning by analogy  we see whether there is a similarity in the material facts of the precedent and the new case  we look for the statement of principle in the precedent  we decide whether there are sufficient similarities between the cases so that the precedent should apply  

 

If in a certain case 1, facts A, B and C exist. The Court finds facts B and C are material, fact A is immaterial, and so they find in favour of the claimant. This then means (in theory) that in a future case in which B and C exist, or in which A, B and C exist, the conclusion must be the same – they must find in favour of the claimant. If in a future case, Case 2, A, B, C and D exist, and D is held to be material, then Case 1 will not be direct authority, though it might be of use as a similar example So, Case 1 might be distinguished from Case 2, or the precedent might be extended

 To apply a precedent:  Where a court accepts that the reasoning of a previous decisi...