General view- the function of parliament is to create law, but the role of judiciary is to apply the law. Montesquieu theory of separation of powers: the government has 3 different functions – legislative, executive and judicial – and these functions should be kept apart in order to prevent the centralisation of too much power. * Thus judiciary should only apply the laws that are made by the government, but as government cannot predict all the situations that may arise and the generality when making laws, statutory interpretation by the judges plays a very important role. One of the main requirements of the statues: to be sufficiently general so that they can be applied in a variety of situations. * This can only be achieved at the expense of clarity.
* Thus it can only be made certain through judicial interpretation, inevitably leading to judges creating the law through determining the meaning of the words and effect to be given. There are judges that adopt the restrictive view as Lord Simonds (Magor and St Mellons v Newport Corporation (1951)) - it is the duty of the court to find out the intention of the parliament; to interpret the words that the legislature has used. Some adopt more permissive approach, such as Lord Denning ( Magor and St Mellons v Newport Corporation (1950)) : “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 the parliament 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.” * Very controversial view and judges are quite reluctant to follow it. It seems possible that judges might abuse their powers especially in relation to purposive approach, interpreting the law in such a way to advance their own views. Impossible to stay completely impartial.
Lord Steyn: judge’s task is interpretation not interpolation. “Interpretation is not a science. It is an art. A judge must be guided by external standards in making his choice of the best contextual interpretation. He must out aside his subjective views and consider the matter from the point of view of a reasonable person.” Judges can use a variety of different approaches and they are not bound to state which ones they are following if any at all. The main ones are literal, golden, mischief and purposive. Interpretive Presumptions
When interpreting a statute, courts may make a use of some interpretive presumptions. Courts are generally against a retrospective approach.
They should be in favour of the defendant and against deprivation of liberty and property. Against extra territoriality of act. A presumption against altering the common law: it is the task for the Parliament. Mens Rea is generally required for criminal offences, unless the statute explicitly specifies that it is not needed, for example strict liability offences. * Sweet v Parsley (1970): teacher rented out her house to students who smoked cannabis, but she was merely ever at home and was charged for management of premises for the use of cannabis. Lower courts held that Mens rea was not required but HL overturned the decision. Literal Approach
R v Judge of the City of London Court (1892): “if the words of an Act are clear, then you must follow them, even though they lead to a manifest absurdity”. The words must be given their plain, ordinary and literal meaning, according to Lord Reid in Pinner v Everett (1969) even if it may produce an undesirable outcome because they represent the intention of parliament. * Ex. Whiteley v Chappell (1868) : the D impersonated a dead person in elections and voted. The relevant statute provided that it was an offence to impersonate any person entitled to vote. However, the courts interpreted it rather narrowly by stating that the person was dead and thus not entitled to vote. * Ex. Fisher v Bell (1961) :...
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