Free «Courts in England and Wales» Essay Paper

Courts in England and Wales

Statutory interpretation is defined as the process by which courts construe and apply legislation. Interpretation of some amount is always necessary where cases involve statutes. Interpretation is not necessary when the statute has a plain and straightforward meaning. However, many cases have vagueness or ambiguity in the words of the statute, hence, must be resolved by the judge. Judges use various methods and tools of statutory interpretation in order to find the meanings of statutes. They include legislative history, traditional canons of statutory interpretation and purpose. Under common law, the courts may apply rules of statutory interpretation to delegated legislation such as the administrative agency or to legislation enacted by the legislature (Adams, 1965).

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The judiciary determines how legislation should apply in a particular case. Legislation may, however, contain uncertainties for a variety of reasons, like uncertainties added to the statute during enactment, such as the need for compromise or cater for special interest groups; unanticipated situations are inevitable, e.g., cultures and new technologies, and make application of existing laws complex, ambiguous words that change in meaning over time (Beattie,1986).

The courts, therefore, must try to establish how a statute should be imposed. This requires statutory building. The principle of statutory construction requires the legislature to be supreme when creating law and that the courts are just an interpreter of the law. In practice, however, the court can make comprehensive changes in the operation of the law, by performing the statutory construction.

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The Rules of Statutory Interpretations Include:

The mischief rule: this rule gives judges the most prudence of all. It intends to resolve mischief in the statute and understand the statute rightly. This rule determines how the statute is interpreted using common law. In Smith (1960) for example, Mischief Rule was used to interpret that the prostitutes were doing what the law statute was trying to ban abolish, so they were convicted.

The literal rule: it forms the foundation of all court decisions relating to statues. Judges use the exact phrasing of the statute for the case. There is no interpretation of meanings. An example of this rule was the Fisher v Bell case (1960) where the law of the contract was applied literally, and Bell could was not convicted. Main advantages of this rule are that it compliments parliamentary supremacy and upholds division of power; there is no scope for the judges’ personal prejudices to interfere, and it encourages drafting precision, promotes certainty and reduces litigation. A disadvantage, however, is that it can undermine public confidence in the law.

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The Golden Rule: this rule was defined as the application of ordinary and grammatical logic of the words it would lead to inconsistency, repugnance, or some absurdity with the rest of the instrument. It is an adjustment of the literal rule to be used to avoid an absurd outcome. Its chief advantage is that drafting errors in the statutes can be corrected instantly. A key disadvantage is that judges can change the law technically by changing the denotation of words in statutes. They can lead to separation of powers between legal and legislature.

The three rules have similarities and differences. The literal rule provides no scope for the judges input, but being inflexible can also create injustices. The golden rule compliments the literal rule by allowing judges to adjust statutes in order to give justice. This, however, infringes the separation of powers. The mischief rule gives the most judgment to judges, but these prejudices can influence the final decision.

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Rule of language is simply the way people speak in certain contexts. The rules include ejusdem generis (of the same class or genus), noscitur a sociis. This  refers to the fact that words derive color from those that encircle them, and expressio unius est exclusio alterius, where mention of things of a particular class may be regarded as silently, not including all other members of the class (Karlen,1963).

Resources Available to Judges When Making Statutory Interpretations

There are internal and external aids to interpretation. Wide range of materials may be utilized by a judge both where there is uncertainty, in pointing the way to the preferred interpretation, and in determining the main meaning of the statutory words. Internal aids may be found within the statute, while the external aids are not within the statute. Internal aids include:

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Other enacting words: an examination of those parts of the statute which deal with the subject matter or the whole statute to be interpreted that should give some clue of the overall rationale of the legislation. It might confirm that a given interpretation of that provision will lead to illogicality when taken with another section.

Long title: in the nineteenth century, the long title was recognized to help in interpretation. The long title should be analyzed to be part of the framework, and as a plain guide to the overall objectives of a statute.

Preamble: when there is a preamble it is common in its recital that the waywardness is corrected and the scope of the Act is explained. It is, hence, clearly acceptable to have recourse to it as an aid to construing the enacting provisions.

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Short Title: the use of short title to resolve doubt is still questionable.  Headings, side-notes and punctuation - they may be considered as part of the context.

External aids include:

Historical setting: judges may consider the historical setting of the provision that is under interpretation.

Dictionaries and other literary materials: dictionaries, textbooks and other literature sources are commonly consulted as a guide to the meaning of statutory words

Practice: past practice followed may be a guide to interpretation. For example, the practice of renowned conveyances where the practical meaning of a phrase or word is used in conveyance is in issue.

Other related statutes: statutes dealing with matching the subject matter as the provision in issue may be considered both to resolve ambiguities and as part of the context. A statute may, in fact, provide explicitly that it should be read as one with an earlier series of statutes.

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Official reports: legislation may be preceded by an official report like the Law Commissions, Royal Commission or official advisory committee. This material may be measured as the mischief with which the legislation was intended to deal and evidence of the pre-existing state of the law. However, its recommendations may not be regarded as confirmation of parliamentary purpose as parliament may not have accepted those recommendations and acted upon them.

International conventions and Treaties: there is a presumption that parliament does not carry out legislation in ways which the United Kingdom would be in violation of its global obligations.

Parliamentary materials: initially, courts were prohibited to refer to parliamentary materials for any purpose to interpret the statutes. The materials covered by the prohibition include explanatory memoranda attached to Bills and reports of debates in the House and in committee.

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Judicial Precedent

The doctrine is based on the standing by of previous decisions (stare decisis). A law, once decided in a particular case, must be applied in all future cases with the same facts. In order for this doctrine to apply, it is necessary to be able to determine the point of law. Judges have to set out their reasons for reaching a decision while delivering a judgment. Ratio decidendi of the case refers to the amount of reasons necessary for them to reach their decision. The ratio decidendi forms a binding precedent which must be followed in future cases with the same material facts. Ratio decidendi should be distinguished from obiter dicta. Obiter dicta are things which are not necessary for the decision that are stated in the course of a judgment (Ingram, 1987).











Persuasive precedents exist in addition to binding precedents. These are the judicial statements which are not obligatory but may be taken into consideration. Obiter dicta are a form of persuasive precedent. Persuasive precedents also consist of the Privy Council decisions and case law from other powers on the English courts (Easton, 2012).

There is a hierarchy of the courts (Conway, 2012).  It is a basic rule that courts must follow a higher court’s precedents, but they are not obligated to follow decisions from the courts that are lower in jurisdiction. The hierarchy is outlined as European Court of Justice-Supreme Court (formerly house of lords) the Court of Appeal- The Divisional Courts- All other courts (County, Crown, Magistrates, tribunals - they have no power to create precedents)

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Where a precedent is set by a court of the same jurisdiction, the court is normally bound by the earlier decision, but this is subject to exceptions. Each level of court applies different considerations depending on whether the court may head off a previous decision of a court of the same level. The highest court (European Court of Justice) does not identify the doctrine of precedent and can differ from its own preceding decisions.

Ways of avoiding precedent include: overruling where a court with higher jurisdiction in a later case overturns a standard set by a lower court; reversing where a higher court overturns the decision of a lower court on appeal and distinguishing where a case on its facts or on the point of law is involved, therefore, does not need precedence. Judges use this to avoid a previous inconvenient decision.

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