Law homework Due 28/11/11
A) The source refers to the literal rule. Describe the literal rule using the source and cases to illustrate your answer (15 Marks) The literal rule is where the courts will give their words a plain, ordinary or literal meaning, even if the result is not very sensible. It involves the judge applying the literal rule even if it results in absurdity.
R v Judge of City of London Court (1892) in which Lord Esher said ‘If the words of an Act are clear then you must follow them even though they lead to a manifest absurdity’.
The literal rule exactly follows the law that Parliament has made and makes the law certain. It also means that unelected judges do no make law. However the literal rule assumes that every act is perfectly drafted. This can also mean that some words may have more than 1 meaning, which means the word will be interpreted and lead to unfair/unjust decisions.
Lines 24 and 25 explain the literal rule and what it is.
There are many examples of the literal rule in real life cases:
In Cheeseman V DPP (1990)- Police were not “passengers” within the meaning of the act so the defendant was not guilty of indecent exposure.
The literal rule was also used in Whiteley V Chappell (1868) where a guy impersonated a dead voter. He was not guilty because dead people cannot vote.
In LNER V Berriman (1946) the oiling of points on line were “maintenance” in terms of “relaying” or “repairing” so the widow was not entitled to compensation of the death. The literal rule was used in interpreting maintenance, repairing and relaying.
B) Using the source, identify and explain the most suitable intrinsic or extrinsic aids that could be used in the following situations:
I) The House of Lords is considering an ambiguous word. The meaning of this word was discussed by the Parliament during the passage of the bill (5 marks) This is an extrinsic aid because it is outside the statute. The most suitable extrinsic aid would be Hansard which will show within the report what was said in Parliament when the Act was debated. In the source lines 32 and 33 talk about Hansard.
However it can only be used if it satisfies the conditions laid down in Pepper V Hart. This case uses Hansard it was decided that SC relaxed rule on use of Hansard and agreed it could be used where words of an Act are ambiguous/obscure or lead to an absurdity.
II) The House of Lords is trying to cover a gap in the law left by an Act. This Act was based on the Law Commission’s recommendations (5 marks) This is an extrinsic aid because it is outside of the statute. The most appropriate extrinsic aid would be law reform reports as the Law commission is a law reform agency. Black Clawson relaxed the rules regarding the use of law reform reports. They decided that Reports by Law Reform agencies can now be used to try to interpret statutes.
III) The House of Lords is considering an ambiguous word inside an Act. There are notes inserted into the Act by a draftsman (5 marks) This is intrinsic aid because it is inside the statute. The most suitable intrinsic aid would be Marginal notes because it will explain why it is there and what it means within the statute. They are not part of the act and are inserted by the draftsman. These were traditionally not regarded as legitimate to use.
C) With reference to the source and other cases:
I) Describe the Mischief Rule (15 marks)
The mischief rule looks at what the act intended to achieve. It looks at what “mischief” or problem the Act was intended to address. I.e. what was the gap/mischief in the law that the act was intended to cover. This is defined in RE Heydon’s Case (1584).
Within the Mischief Rule the judge should look at the gap or mischief that the Act was intended to cover and interpret the Act to cover that gap.
The Mischief rule is also very similar to the purposive approach. They both look at the gap/mischief the act was intended...
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