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bits of law Purposive Approach: Evaluation Model Answer | A Level Discuss the advantages and disadvantages of the operation of the purposive approach

The purposive approach is flexible as noted by Lord Bingham who described it as the. creative process of supplying flesh to a spare and loosely constructed skeleton. ( Samex Case ). In Pepper v Hart Lord Reid stated. to achieve the intent and produce a reasonable result we must do some violence to the words.

The approach allows for scientific advances as illustrated by Quintavalle. a case concerning a new process for creating live human embryos. The court decided if Parliament had wanted to ban cloning it would have said so the new approach was not prohibited.

The approach allows for a decision in the case without referring back to Parliament. This saves time and money and helps ensure justice in individual cases. In Tesco v Brent London Borough Council. a 14 year old was illegally sold a video rated 18, the court held not the company not the checkout operator was liable.

The approach makes interpretation more consistent with Europe. In Pickstone v Freemans the purposive approach was used to decide an equal pay case.

The rule allows for judicial law making which can be argued is undemocratic as it gives power to decide to unelected judges. In Magor and St. Mellons Rural District Council v Newport Corporation Lord Simmons said it was. a naked usurpation of the legislative function under the thin disguise of interpretation. In Fitzpatrick v Sterling Housing Association the purposive approach was used to decide family in the Rent Act 1977 included homosexual relationships. The dissenting judges argued it was public policy matter not for judges to decide.

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Purposive theory — is a theory of statutory interpretation that holds that common law courts should interpret legislation in light of the purpose behind the legislation. Purposive theory stands in contrast to textualism or statutory derogation, two other prominent… … Wikipedia

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pur´pos|ive|ness — pur|pos|ive «PUR puh sihv», adjective. 1. acting with, having, or serving some purpose: »a purposive organ, a purposive structure. 2. purposeful; resolute: »His mental processes were abnormally purposive (Harper s). 3. of or having to do with… … Useful english dictionary

pur´pos|ive|ly — pur|pos|ive «PUR puh sihv», adjective. 1. acting with, having, or serving some purpose: »a purposive organ, a purposive structure. 2. purposeful; resolute: »His mental processes were abnormally purposive (Harper s). 3. of or having to do with… … Useful english dictionary

pur|pos|ive — «PUR puh sihv», adjective. 1. acting with, having, or serving some purpose: »a purposive organ, a purposive structure. 2. purposeful; resolute: »His mental processes were abnormally purposive (Harper s). 3. of or having to do with purpose: »The… … Useful english dictionary

Al-Kateb v Godwin — Infobox Court Case name=Al Kateb v Godwin court=High Court of Australia date decided=6 August 2004 full name=Al Kateb v Godwin Ors citations=Cite Case AU|HCA|37|2004, (2004) 219 CLR 562; 208 ALR 124 transcripts=Cite Case AU|HCATrans|456|2003,… … Wikipedia

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Statutory Interpretation - Free Coursework from, the UK essay, dissertation and coursework writing company

Free Coursework Statutory interpretation Statutory Interpretation

Many statutes are passed by parliament each year. The meaning of the law in these statutes should be clear and explicit but this is not always achieved. Parliament sometimes includes sections defining certain words used in that statute; such sections are called interpretation sections, which define certain words in the act itself.

Despite these aids many cases come before the courts because there is a dispute over the meaning of an Act of Parliament. In such cases the court's task is to decide the exact meaning of a particular word or phrase.

There are many reasons why the meaning may be unclear. There may be words designed to cover several possibilities, which can lead to problems as to how broadly this should be used. This example can be seen in the case of Brock v DPP (1993) where there was a discussion over the word "type," and what exactly was meant by this expression. This paper from studentcentral.co.uk

Another factor, which will strongly affect the meaning of an Act of Parliament, is the change in the use of language. The meaning of a word can change over time which can is illustrated in the case of Cheeseman v DPP (1990) where the defendant "willfully and indecently exposed his person in a street to the annoyance of passengers." The passengers happened to be police officers. He was charged under section 81 of the Public Health Amendment Act 1902.

Another reason why a meaning may be unclear is due to ambiguity. A word may have two or more meanings and it may not be clear on which meaning to use.

An unclear meaning can also be established if there has been an error in drafting. The Parliamentary Counsel who drafts the original Bill may have made an error, which has not been noticed by Parliament. This essay from studentcentral.co.uk

It is important to note first of all that parliament makes the law and it is the courts job to merely interpret and apply it to particular cases and situations. When interpreting the law, Judges have certain aids and presumptions to assist them in their task. There are no legally binding 'rules' as such to aid the courts but the different approaches used are referred to as rules, evident from Lord Reid's statement in the case of Maunsell v Olins [1975] 1 All ER 16:

"They are aids to construction. Not infrequently one rule contradicts another. In each case we must look at all the relevant circumstances and decide as a matter of judgment what weight to attach to a particular rule. "

It is not in the courts power to interpret in such a way as to thwart the intention of the legislature, even in cases concerning moral, social or ethical issues in doing so. This idea is evident in the case of Magor & St. Mellons RDC v Newport Corporation [1951] 2 All ER 1018, where Lord Denning tried to avoid injustice created when applying the plain meaning to a statute but was overruled in the House of Lords where Lord Simonds stated that this amounted to a "naked usurpation of the legislative function under the thin disguise of statutory interpretation".

The approach taken by judges to interpret statutory provisions is one that requires a lot of thought. However, their approach can only do as much as provide a frame from which they can work. It cannot provide them with a solution to the problem. When a problem regarding statutory interpretation comes before the court, a decision has to be made as to what the language in the statute implies, the purpose of the statute and cases that have already been decided regarding the same issue. Arguments from both counsels are put before the court with respect to these matters. The different interpretations obtained from the statute are then examined to determine which interpretation applies to the statutory scheme.coac acr seacacw orac ack inac foac ac.

The case of Cheeseman, as mentioned earlier, illustrated several of the problems of statutory interpretation. It is an example of the courts taking the words literally. However, it can be argued that the defendant "willfully and indecently exposing his person in a street" and that he was caught doing that. Is it important that the police officers were "passengers?" Some people would argue that the whole purpose of the Act was to prevent this sort of behaviour; this is the purposive approach to statutory interpretation - instead of looking at the precise meaning of the word, a broader approach is taken.

This conflict between the literal approach and purposive approach is one of the major issues in statutory interpretation. Should judges examine each word literally or should it be accepted that an Act of Parliament cannot cover every situation and that the meaning of words cannot always be exact?

In English law the judges have not been able to agree on which approach should be used, but instead, over the years they have developed three different rules of interpretation:cocb cbr secbcbw orcb cbk incb focb cb;

  • The literal rule
  • The golden rule
  • The mischief rule

Each rule take different approaches and some judges prefer to use one rule while other judges prefer another rule.

This means that in English Law the interpretation of a statute may differ according to which judge is hearing the case. However, once an interpretation has been laid down it may then form a precedent for future cases under the normal rules of judicial precedent.coac acr seacacw orac ack inac foac ac.

Professor John Willis analysed these principles in his article "Statute Interpretation in a Nutshell"409 31. He implied that

"a court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another" 409 32 from coursewrok work info

We will now apply these rules or approaches to the cases at hand including the Child Safety Act 2003.

Under this rule, developed in the early nineteenth century, the courts will give words their ordinary or literal meaning, even if the results is not very sensible.

This idea was expressed by Lord Esther in the case of R v Judge of the City of London Court [1892] 1 QB 273 where he stated:

"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 whether the legislature has committed an absurdity."

This rule has been widely used even though the results have made nonsense of the law. This is illustrated in the case of Whitely v Chappell [1868] 4 QB 147 where it was held that the defendant was not guilty since a dead person is not, in the literal meaning of the word, "entitled to vote".

This rule has also bought about harsh decisions due to the way it is applied. In the case of London & North Eastern Railway Company v Berriman (1946) a railway worker was killed doing maintenance work - oiling points along a railway line. His widow tried to claim compensation but failed after the courts took the words, "relaying" and "repairing" in their literal meaning and said that oiling points was maintaining and not replaying or repairing.

Professor Michael Zander has denounced the literal rule as being mechanical and divorced from the realities of the use of language due to such rulings through this approach.

Looking at the Act and case at hand, The Child Safety Act 2003, it can be argued that this is interpreted literally. The broad terms used in the statute such as 'any person' means that it would be applicable to every person. This would therefore include Jemima and any other child younger than her who is likely to be negligent as to such circumstances. However, in contrast with this point, a young person under the age of 10 is not considered in law to be capable of deciding what is a wrong action or a right one and is therefore considered to be too young to be held criminally liable.

Another broad term used in the Act is 'other toys'. Whether the homemade go-kart would construe as a 'toy' is debatable. Although Jemima sold her self-constructed go-kart to Patrick, there was no legal contract of the sale. It can therefore be debated as to whether the statute would be applicable to such circumstances.

If the literal rule is used regarding the situation where a pogo stick was being purchased from a toy store, although it would be a valid contract of sale, and it is regarded as a toy; the statute refers to wheeled toys. The report published by the Institutes of Casualty Consultants issued that casualties resulted from 'poorly constructed wheeled toys'. A pogo stick doesn't consist of any wheels, so it can be debated as to whether the statutory provision would apply to this case.

However, it all depends on the literal extent to which the statute is interpreted. 'Other toys' could refer to every object regarded as a toy or on the other hand it could refer to all other wheeled toys.

This rule is a modification of the literal rule looking at the literal meaning but then the court is allowed to avoid an interpretation which would lead to an absurd decision. There are two views showing how far this rule should be taken. The first rule is shown by Lord Reid's comment in Jones v DPP (1962) when he said:

"It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more then one meaning, then you can choose between those meaning, but beyond this you cannot go."

The second and wider application of the golden rule is where the words have only one clear meaning, but that meaning would lead to a repugnant situation. In such a case the court will invoke the golden rule to modify the words of the statute in order to avoid this problem. This can be seen in the case of Re Sigsworth (1935) where the court was not prepared to let the defendant, a murderer, benefit for the crime he had committed so it was held that the literal rule should not apply and instead the golden rule was used to prevent the repugnant situation in the case.

It is in the context of the golden rule that some academics have stated that the courts are said to have made certain presumptions that a wrongdoer should not be able to derive from their crime. Thus in the context of the Child Safety Act with regards to the fact that aside from the question of whether the pogo stick was intended to be included within the term 'other toys', the toy did in fact fail to be compliant with safety standards laid down by regulations therefore the shop should be prosecuted

This rules gives judges more discretion compared to the other two rules. Arising from the case of Haydon (1584).

This rule is also known as the gap rule and is concerned when the words of an act are ambiguous, it allows the courts to take into account previous common law and identify what was the mischief that was not covered by the common law. Once identified it would be possible for courts to read the statute in the light of the mischief. The courts are also permitted to look at material outside the statute, e.g. reports. So in the light of the statute in question the defect in common law could be that there may have not been enough emphasis on the protection of children getting hurt whilst casually playing. The courts here would take into account the report published by the Institute of Casualty Consultants and their findings. There have been significant changes in judicial attitudes to statutory interpretation in the past two to three decades after the HL landmark decision in the case of Pepper v Hart [1993], the courts are now permitted in certain circumstances to consider parliamentary material

Here the judges are deciding what they believe Parliament meant to achieve. The champion of this approach in English law was Lord Denning in the case of Magor and St Mellons v Newport Corporation (1950):

"We sit here to find out the intention of 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."

But many judges in the House of Lords have criticized Lord Denning's view saying, if a gap is disclosed the remedy lies in an amending Act and if Parliament do say one thing but mean another it is not in the judges interest to correct it.

Many questions arise therefore - should the judges refuse to follow the clear words of Parliament, how do they know what parliament's intentions were?

To apply this rule to the Act in hand, Child Safety Act 2003, the purpose or intention of parliament shall need to be enlightened first. Loosely, the protection of children from accidents occurring from the named "toys." This may be able to shed light on the meaning of "other toys." Any toy that can be harmful to children, or cause accidents due to the poor construction of the toy wheels.

A pogo stick, for which the shop faces prosecution for, may be included under the category of "other toys" due to this reasoning above. Although it does not have "poorly constructed" wheels, it is still a toy, which can cause harm to children and therefore the shop was rightly prosecuted.

It is important for judges to read the statute at hand as a whole and to read the words they are trying to interpret in the light of other parts of the Act which may explain or modify them. The Ejusdem Generis Rule is one application of this general rule. The rule here is that where general words follow particular words, the general words are to be restricted to things of the same kind as those, which are specified. An illustration of this can be seen in the case of Powell v Kempton Park Racecourse Company (1899) where the court were trying to decide whether an Tattersal Ring, an open air enclosure, came under "other places." Other place were general words, "house, office" were the particular words. It was held that "other places" were indoor environment and therefore Tattersal's Ring; an outdoor plain was not included under that category.

Thus in the context of the Child Safety Act with regards to the above rule, "other toys" as stated by the act are general words whereas "skateboard, roller-skates, roller blades bicycle," are particular words. The meaning of the general words has to be limited to something similar to the meaning of the particular word. A "pogo stick" therefore, although arguable, may not come under this category, as all the other particular words are "wheeled toys," whereas a pogo stick does not have wheels.

It would be helpful if there was one specific method of statutory interpretation that was always used in cases. At the moment it is entirely up to the individual judge who is hearing the case to use whichever rule or approach he wants. This can sometime make it hard for lawyers to advice on what meaning will be used on a disputed phrase of an Act of Parliament

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