There Revenue Commissions v Hinchy 5 shows this

There are several factors that can cause one trouble to
decipher a statute. It could be a word with more than one possible meaning, a
term too broad or simply an error in drafting due to a lack of time. When a statute
passed by parliament is unclear or ambiguous it is up to the judges to clarify the
uncertainties. This is known as statutory interpretation and can be approached
in four different ways.

When using the Literal
Rule approach to interpretation the judges must consider the ‘ordinary and
natural meaning of words’ that are used in the legislation. 1  To access the literal meaning of a word a
judge can refer to the Oxford English dictionary or simply state that the
meaning is clear and give one. 2  A suitable description of the literal rule
was provided by Lord Esher. He said that: ‘If the words of an act are clear
then you must follow them even though they lead to a manifest absurdity. The
court has nothing to do with the question of whether the legislature has committed
an absurdity.’3
It is clear a literal approach may bring about strict and unjust outcomes, but it
is a demonstration of the courts recognising ‘their limitations by following
the wishes of parliament as expressed in the words of the legislation.’4  The Principle of Parliamentary sovereignty is
fundamental to the UK constitution thus the courts must seek to closely follow
its intentions, which the literal approach does. However, the case of Inland Revenue Commissions v Hinchy 5 shows this is not always
the case.

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When applying the literal rule to the Civil Disobedience
and curfew act 2017 it must be considered what a ‘public place’ is in regard to
David’s case. According to the Oxford English Dictionary it is ‘open
to or shared by all the people of an area or country’. The car park of a hotel
is clearly open to all the people in the area and is therefore a public place.
Being in the car park in the forbidden hour of 1am will result in David’s
appeal failing. In regard to Ian’s and Brad’s cases it is clear they have been in
the street in the forbidden hours and therefore both of their appeals will fail
as well. It is very unlikely that Brad’s and David’s circumstances will be
considered as a ‘lawful excuse,’ but it is possible that Ian’s sleepwalking can
be. However, with the information available under the literal rule Ian’s
sleepwalking will not quash his conviction.

The Golden Rule is
an approach that takes the literal rule to the next level in situations where
the courts attained an absurd outcome by looking at the literal meaning of
words. Lord Blackburn has said that the courts should interpret legislation
using ordinary meaning of words unless they lead to an absurdity so great ‘as
to convince the Court that the intention could not have been to use them in
their ordinary signification, and to justify the Court in putting them in some
other signification, which, though less proper, is one which the Court thinks
the words will bear.’6 There are two versions of
the golden rule: the narrow meaning and the wider meaning. 7 In the narrow meaning
version legislation will contain words with more than one possible meaning and
the judge will select one which is most appropriate and avoids a manifest absurdity.
The case of R v Allen8 is an example where a
literal interpretation would result in an absurd outcome. This is because a literal
interpretation of S57 of the offences against the person act 1861 would mean
the offence cannot be committed. The wider version of the golden rule involves
words with only one possible meaning, using the literal approach to which will
result in an absurd outcome. The case of R
v National Insurance Commissioner ex parte Connor9 is an example. Here the
legislation was silent about the defendant benefiting from something as a direct
result of their offence, but the courts made a decision the defendant would not
benefit on the grounds of protecting public policy.10

In respect to the golden rule approach and the narrow
version all three appeals will still fail. This is because the two requirements
to commit the offence have no other meaning than the one and only there is. Both
Ian and Brad satisfied S1 (1) by being in the street in the forbidden hours and
David satisfied it by being in a public place in the forbidden hours. Although
the courts may decide to interpret a car park of a hotel not as a public place.
In this case David will succeed. In respect to the wider version of the golden
rule there is no issue of public policy so the convictions will still be upheld
by the Court of Appeal judges. The literal meaning of the statute does not
result in any absurd outcome that would convince the Courts. Once again in
regard to Ian’s sleepwalking more information is needed.

The Mischief Rule
was defined in the case of Heydon.11  The approach is about identifying what
mischief Parliament intended to remove by passing a statute and interpreting
the statute according to that intention. The mischief rule is approached using
four steps that where established in Heydon.

1.    What
was the common law before the making of the act

2.    What was
the mischief and defect for which the common law did not provide

3.    What remedy
the parliament hath resolved and appointed to cure the disease

4.    The true
reason for the remedy

Some legislation passed many years would contain archaic
language. Since the legislation was passed some word meanings would have
undergone change and some words would have fallen out of existence. The
mischief rule provides a solution for interpreting old statutes and allows the
judges to depart from the literal meaning of words and simply consider Parliament’s
intentions.12

In Ian’s case it is unlikely Parliament intended to
criminalise sleepwalkers like him as they do not have the required Mens Rea or
any awareness of what they are doing. It is likely a lawful excuse would
include sleepwalkers and people who were on the streets or in other public
places between midnight and 7am against their own will. Another lawful excuse
could be a house on fire forcing one to run out to the street for safety. Based
on this Ian’s conviction can possibly be quashed. Brad, on the other hand, does
not have a lawful excuse to leave his house as an argument with his wife is not
a reasonable ground to break the law. His appeal is not likely to succeed as
Parliament intended for people not to be on the streets without excuse between
midnight and 7am, especially people with a history like Brad’s. David also has
no lawful excuse to be in the car park at 1am and his appeal is likely to fail
as well.

The final way in which statutory interpretation can be
approached is by using the wider version of the mischief rule: the Purposive Approach. All European
legislation will undergo this approach of interpretation. Using this approach
the judges will look beyond the meaning of words and look for the purpose of a
statute. 13
An example of a case where this approach was used is R (Quintavalle) v
Secretary of State for Health14 which showed the
importance of the purposive approach in cases where scientific/technological
change brings about circumstances not considered by Parliament in a statute due
to not existing before.15

The Civil Disobedience and Curfew act 2017 was passed due
to an increase in rioting and looting. Lord Hughes of Blunderland has said the
intention of the act is to ‘prevent trouble makers from causing further damage.’
This case is directly aimed at people like Brad, who has a previous conviction
for violent disorder and criminal damage. He is one of the ‘trouble makers’ in
question. With his conviction history serving as evidence of a tendency towards
violent disorder and criminal damage his appeal is likely to fail under this
approach as the whole purpose of the act was to keep people like him off the
streets at night. In relation to Ian he would very likely be successful with
his appeal under the mischief rule, so it’s especially true for the purposive approach
as the two are very similar. In relation to David the purposive approach may
help his appeal. The purpose of the act is to prevent the trouble makers from
causing more damage, not to criminalise people who are not looking for trouble
and are peacefully dancing in their car.

Overall, the most appropriate approach to Ian’s
sleepwalking would be the mischief rule and/or the purposive approach as it is
an absurdity to convict him. For David it is possible that the purposive approach
would help his appeal as there is a possibility that he unknowingly put himself
in a public place, arguing a car park of a hotel isn’t one. But it is uncertain
as it is difficult to draw a clear line between David and Brad who both had no
lawful excuse. Brad’s case is more relevant to the literal rule as there is no absurdity
in convicting him when he enters the street considering his previous
convictions.

And of course, the courts can use both intrinsic and
extrinsic (like Hansard) aids to interpretation. Intrinsic aids would be found
when reading the full act in things like headings and other sections that may
cover/explain some of the issues in the 3 scenarios. For example, it would be
expected to find an explanation of lawful excuses relevant under the act.

1 See
Ivan Loveland, Constitutional law,
Administrative law, and Human Rights (7th edition, Oxford
University Press 2015) 63

2
See Alisdair Gillespie, The English Legal System (5th edition,
Oxford University Press 2015) 39

3
See R v Judge of the city of London court 1892 1 QB 273 (CA)

4
See Gary Slapper & David Kelly, The
English Legal System (7th edition, Routledge 2016) 102

5  1960 AC 748, 1960 1 ALL ER 505

6
River Wear Commission v Adamson 1877 2 App Cas 743

7
See Gary Slapper & David Kelly, The
English Legal System (7th edition, Routledge 2016) 105

8  1872  LR 1 CCR 367

9 1981 QB
758

 

10 See
Gary Slapper & David Kelly, The
English Legal System (7th edition, Routledge 2016) 106

11 1584 3
Co Rep 7a

12 See
Alisdair Gillespie, The English Legal System (5th edition, Oxford
University Press 2015) 41

13See
Richard Ward & Amanda Akhtar, WALKER
& WALKER’S English Legal System (11th edition, Oxford
University Press 2011) 43

14 2003
2 AC 687

15 See
Gary Slapper & David Kelly, The
English Legal System (7th edition, Routledge 2016) 100

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