Using cases to illustrate, explain how and why the courts make use of statutory interpretation and the doctrine of judicial precedent in solving a point of law.
Written by Natalie Harding November 2007.
Introduction
Judicial precedent and statutory interpretation is very important in the English legal system as it allows the courts to apply the law that parliament has established appropriately and fairly to the individual.
Judicial Precedent
Judicial precedent is based in the Latin phrase “stare decisis” which loosely translates to “stand by what has been decided and do not unsettle the established”. With this in mind judicial precedent enables the English legal system to be fair and consistent as a judge must follow a previous decision if a similar case was to emerge.
Judicial precedent is very important within the English legal system as it provides certainty and consistency in the law. As well as this it allows room for flexibility to make room for changes in the law through social and physical changes. judicial precedents also allows less time being spent by parliament in changing minute points of law.
The main principles for judicial precedent are formulated from the judgement at the end of a case. This is the closing speech made by the judge or judges summing up the case in question. In would normally outline the facts of the case, review the argument put to him and then explain the principle of law which brought him to the decision he had made. Within this judgement there are two parts; the “ratio decidendi” and the “obiter dicta”.
Ratio decidendi
The ratio decidendi is what is considered as being the most important part of the judgement as it is this that sets precedent for courts below to follow. Generally it is the legal principle obtained from the judgement. This would be the final decision and how the particular judge reached that decision. Sir Rupert Cross defined the ratio decidendi as “any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion”
Obiter dicta
The remainder of the judgement, after the main legal principles have been extracted, is the obiter dicta. This Latin phrase translates to “other things said” thus implying that it is that it is the bulk of irrelevant material that is not needed when establishing judicial precedent. Although it may not be considered when establishing the judicial precedent, judges may look at the obiter dicta as a source of persuasive precedent. For example in this part of the judgement the judge, in explaining his ruling, may give hypothetical scenarios which could help with cases that have not been put through the court before.
Original Precedent
Original precedent is established when a case comes before the judge which has never been heard before. The decision made would form binding precedent on the courts below in future cases. When a situation like this occurs a judge would not solely make the decision. He would look at cases with similar facts and closest in principle and deduce his decision from it. This is known as “reasoning by analogy”.
An example of the use of “reasoning by analogy” was seen in Hunter and others v Canary Whalf LTD and London Docklands Development Corporation. Part of the decision involved whether the interference with the television reception by a large building was capable of constituting an actionable private nuisance. The facts of the case were that in 1990 a tower known as the canary Whalf tower was built by the first defendant in an enterprise zone in East London. The tower was about 250 metres high and over 50 metres square. The claimant and hundreds of others suing with her, claimed damages from the first defendant for interference over a number of years with reception of television broadcasts at her home in East London. This was claimed to have been caused by the tower. In response to this Lord Justice Pill said that the interference of the television signals was not actionable as “interference of enjoyment of land” therefore the claimant lost as the television signal was seen as being the same as a view and a view was seen as being a delight not a necessity.
The idea of original precedent contradicts the previous illusion that judges were not a law-making body and only enforced the law that statutory instruments had created. As we can establish judicial precedents allows judges to interpret precious law and adapt it to the case in question, which effectively is creating new law.
Binding Precedent
If a case comes before a judge which has already been decided before then the judge must follow this decision even if he opposes it. This is only true for courts lower in the hierarchy as they must follow previous decisions of those above. For example in criminal cases the Magistrates court must follow decisions of the Crown court and similarly in civil cases the Magistrates court must follow previous decisions of the County court. Importantly, the European Court of Justice binds all English courts as European Law is supreme over English Law.
Persuasive precedent
There is some precedent that is not binding on all courts. This is known as persuasive precedent and means that judges do not have to follow it but may follow it if they wish. There are many different sources in which persuasive precedent is formulated. Firstly, one of the major influences would be the obiter dicta part of the statement. As explained above this is the part of the statement in which the judge explains how he accumulated the decision he reached. This would help with cases that have similar facts but not quite the same legal principles. An example of the use of this type of persuasive precedent was seen in the case of R v Howe (1987).
There are many other different sources of persuasive precedent. For one judges can choose to use the decisions made by courts lower in the hierarchy, this was seen in R v R (1991) where the House of Lords agreed to follow the same reasoning as the Court of Appeal.
Secondly the courts can use decisions made outside the court hierarchy as a form of persuasive precedent. This can be from a decision made by the judicial committee of the privy council or decisions made by courts from other countries particularly countries like Australia who have similar law to the United Kingdom.
House of Lords
The House of Lords is the most senior court in our English Legal system. It binds all courts below and up until 1966 it was bound by its own past decisions. Originally the House of Lords was not bound by its own past decisions, however through the nineteenth century this idea disappeared as it was thought that certainty and consistency in the law was more important.
In London Street Tramways v London County Council (1898) the House of Lords held that certainty in the law was more important than the individual hardship being caused through having to follow a past decision. From this the House of Lords was completely bound by past decisions unless a decision had been made per incuriam (in error).
This did not allow for room of correction as when society moved on through social conditions or opinions the law stayed the same. The only possibility a law could be changed was through parliament passing a new act. This was seen on the law concerning murder whereby a person could be found guilty of murder if a reasonable man could have foreseen that death or serious injury was a virtual certainty. This meant that a defendant could not be guilty if he had not intended to cause death or serious injury or if his actions might have that effect. This was changed in 1967 by the passing of the Criminal Justice Act.
From this it was found that he House of Lords needed more authority to change their own past decisions as it would take to long for parliament to look at every different case that needed modifying, from this much of the law would not be changed as the probability that a case would reach a parliamentary decision would be very small.
In 1966 the practice statement was introduced by the Lord Chancellor. This basically set out that judicial precedent would still provide certainty and consistency with the difference that it would allow room for growth and change in the law.
Since the practice statement was established it has allowed the House of Lords to change the law if it believes that an earlier case was wrongly decided. The House of Lords can choose not to follow a previous decision if “it appears right to do so”. The first case in which the practice statement was used was Conway v Rimmer (1968) which was sometime after the practice statement was used.
The first major use was in Herrington v British Railways Board (1972). This case involved a duty of care towards a child which in the previous case of Addie v Dumbreck (1929) the occupier of the land only owed a duty of care if the injuries were caused deliberately or recklessly. In Herrington the House of Lords held that physical and social conditions had changed since 1929 and the law should be changed.
This shows that the use of judicial precedent within the House of Lords enabled the law to progress with the current social conditions as children are treated with more importance than they were in 1929. For one, children were allowed to play out and watch trains in this instance, because that was all there was to do. Nowadays children are more interested in being in doors watching television or playing computer games.
However there are certain ways in which judicial precedent can be avoided.
Distinguishing
Distinguishing is used by judges to avoid following a past decision which he would normally have to follow. The concept of distinguishing is based on the judge finding the material facts of the case sufficiently different to those of the previous case and there able to draw a distinction between the two. An example of this was seen in Merritt v Merritt (1971) where the judge distinguished a point of law from the case of Balfour v Balfour (1919).
Overruling
The concept of overruling involves the court in a later case states that the legal rule decided in an earlier case is wrong. This could be when a higher court overrules a decision made in an earlier case by a lower court. An example of this is seen in the case of Pepper v Hart (1993) when the House of Lords ruled that Hansard could be consulted when trying to decide what certain words mean within the Act of Parliament. This overruled a previous decision in Davies and Jones (1979) when the House of Lords had held that it could not be consulted.
Reversing
Reversing is where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case. For example, the Court of Appeal may disagree with the legal ruling of the High Court and come to a different view of the law. In this situation they reverse the decision made by the High Court.
Statutory interpretation
Statutory interpretation helps judges to apply the law where they may be a point of question. There are several reasons as to why statutory interpretation is necessary within the English legal system. Overall it is used to find the exact meaning of a statue. This could emerge in several different ways. Firstly if there was a broad term in the Act. This was seen in a case concerning the Dangerous Dog Act (1991) in which the word “breed” caused confusion.
As well as this ambiguity in the Act may cause some uncertainty as to what it means. This means that there may be two or more meanings to the word making it hard to decide what one to. Similarly a drafting error may cause some confusion, this can occur when the Parliamentary Council has made an error when the Bill was initially drafted. This is more likely to occur when the Act has been Amended several times.
Another factor which would aid the use of statutory interpretation would be new developments as this would make the act out of date and would not be sufficient to cover present day situations. This was seen in the Royal College of Nursing V DHSS (1967) where medical science and methods had changed since the passing of the Abortion Act (1967). In the same way changes in the use of language can create problems. This was seen in Cheeseman v DPP (1990).
There are four main approaches that a judge can take when having to use statutory interpretation to discover the meaning of a word.
The literal approach
In previous time the literal approach was favoured most in judges. This approach very simply means taking the phrase in its plain, ordinary or literal meaning even if the result creates obscurity. This idea was expressed in the case of R v judge of the city of London court, whereby Lord Esher stated that “if the words of the act are clear then you must follow the even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.” This has been the main rule applied since the nineteenth century.
The most important point of the literal is that the result of a case it is applied to can lead to an obscure outcome. This was seen in the case of Whiteley v Chappell (1868) where the defendant was charged under a section which made it an offence to impersonate “any person who is entitled to vote”. The defendant who had pretended to be a person whose name was on the voters list but had died was not found guilty as it was found that a dead person in literal terms cannot be “entitled to vote”.
As well as obscure decision, the literal approach can lead to harsh outcomes. This was seen in the case of London & North Eastern Railway Co v Berriman (1946). In this case a widow had tried to claim compensation on the fact that her husband died due to the railway company not following the proper regulations. It was decided that the word “relaying and repairing” did not cover oiling points which was seen as maintaining the line. The widower did not receive her compensation.
Many have criticised the literal rule as being too rigid. In particular Professor Michael Zander has denounced the literal rule as being mechanical and divorced from the realities of the use of language.
The golden rule
The second approach to statutory interpretation is the golden rule which in brief is very similar to the literal rule. This particular rule starts by establishing the literal approach with the freedom to avoid this interpretation if the result was to lead to an absurd result. There are two ways in which this can be used; the narrow approach and the wider approach. To start the narrow approach states that it is not mandatory to follow the first meaning however it is compulsory to take one of the meanings stated. This was seen in R v Allen (1872) whereby the word marry was questioned. Marry can be either mean legally binding or the ceremony. It was decided that the second meaning would be taken as only your first marriage can truly be legally binding and therefore no one would be found guilty of bigamy. This would create an absurd situation.
The second approach to the golden rule is much wider. In this approach the word have only one clear meaning that leads to a repugnant situation. In such a case the court will invoke the golden rule and modify the words of the statue in order to avoid this problem. This was seen in the case of Re Sigsworth (1953) which involved a murder of a mother by her son. Under the Administration of Estates Act (1925), if a person had not made a will then the next in kin would inherit her estate. In this case, the murder would inherit her estate. Although there was no ambiguity in the words the court was not prepared to let her murderer of a son receive all her estate and as a result the golden rule was applied instead of the literal.
The mischief rule
The third rule used is the mischief rule. This allows the court more freedom as opposed to the literal and golden rule. The definition of the mischief rule comes from Heydon’s case (1584) where it stated that there were four points to consider when deciding the true meaning of the statue. Unlike the previous two rules, the mischief rule looks at what the law was before the act was established. In doing this it helps to find what parliament meant in establishing the act by finding the “gap” or “mischief” that the act intended to cover.
There are many cases which show how the mischief rule has been applied. To start the case of Smith v Hughes (1960) shows how it is applied. For this case it was necessary to interpret the Street Offences Act (1959) which stated that it would be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution. Several women appealed against there conviction stating that they were either on a balcony or windows of ground floor rooms. It was argued through the mischief rule that the main reason for the act being established was to prevent promoting prostitution on the street and the men they were attracting were on the street. They were found guilty.
Another case where the court has adopted the mischief rule is the case Royal College of Nursing v DHSS (1981). In this case the wording of the Abortion Act (1967) stated that a pregnancy should be “terminated by a registered medical practitioner” this meant that only a doctor could carry out the operation. However as years moved on new developments meant that an abortion could occur without going through surgery. Although the first part of the procedure was carried out by a doctor the second was carried out by a nurse without a doctor present. The court was left to decide whether this was procedure was legal or not. The judges took the mischief view by looking at why the Abortion Act was established and this was to ensure that abortions were carried out correctly with the proper skills of a hospital.
The purposive approach
The final approach used by the courts is known as the purposive approach. Unlike the literal and golden rule, the purposive rule is similar to the mischief rule where the judges are urged to look at what parliament set out to achieve by establishing the act. This is done by looking at past law and finding the gap which the act was meant to fill in. The purposive approach was cleverly summoned up by Lord Denning. He stated that “we sit here to find the intention of parliament and carry it out, and we do this better by filling in the gaps and making sense of enactment than by opening it up to destructive analysis.” However this speech was criticised by Lord Scarmen he stated that “we are governed not by parliament’s intention but by parliament’s enactments.” This speech shows the criticisms involved with the purposive approach in that should judges be allowed to not follow the clear intentions set out by parliament and secondly how do they now what parliament set out to achieve?
This type of approach has been particularly favoured by European countries when interpreting their own legislation. Since the United Kingdom has joined the European Union, the English courts have used the purposive approach a considerable amount more due to having to use it for European law. The purposive approach is used in European law as there are so many different languages and so when it is being translated facts can get misplaced or the general idea can translate to something different.
Conclusion
As we can see the use of statutory interpretation and judicial precedent is very important within the English legal system as it creates fairness and certainty within the law as well as allowing areas of improvement if necessary. As well as this it enabled the process to be quicker and more efficient as points of law do not have to be referred back to parliament. Overall, judicial precedent and statutory interpretation are effective within the English legal system.