Approach

Tutorial note:
In order to apply any piece of legislation, judges have to determine its meaning. In other words they are required to interpret the
statute before them in order to give it meaning. The diffi culty, however, is that the words in statutes do not speak for themselves and
interpretation is an active process, and at least potentially a subjective one depending on the situation of the person who is doing
the interpreting.
Judges have considerable power in deciding the actual meaning of statutes, especially when they are able to deploy a number of
competing, not to say contradictory, mechanisms for deciding the meaning of the statute before them. There are, essentially, two
contrasting views as to how judges should go about determining the meaning of a statute – the restrictive, literal approach and the
more permissive, purposive approach.
(a) The literal approach
The literal approach is dominant in the English legal system, although it is not without critics, and devices do exist for
circumventing it when it is seen as too restrictive. This view of judicial interpretation holds that the judge should look primarily
to the words of the legislation in order to construe its meaning and, except in the very limited circumstances considered below,
should not look outside of, or behind, the legislation in an attempt to fi nd its meaning.
Within the context of the literal approach there are two distinct rules:
(i) The literal rule
Under this rule, the judge is required to consider what the legislation actually says rather than considering what it might
mean. In order to achieve this end, the judge should give words in legislation their literal meaning, that is, their plain,
ordinary, everyday meaning, even if the effect of this is to produce what might be considered an otherwise unjust or
undesirable outcome (Fisher v Bell (1961)) in which the court chose to follow the contract law literal interpretation of
the meaning of offer in the Act in question and declined to consider the usual non-legal literal interpretation of the word
(offer).

(ii) The golden rule
This rule is applied in circumstances where the application of the literal rule is likely to result in what appears to the court
to be an obviously absurd result. It should be emphasised, however, that the court is not at liberty to ignore, or replace,
legislative provisions simply on the basis that it considers them absurd; it must fi nd genuine diffi culties before it declines
to use the literal rule in favour of the golden one. As examples, there may be two apparently contradictory meanings to a
particular word used in the statute, or the provision may simply be ambiguous in its effect. In such situations, the golden
rule operates to ensure that preference is given to the meaning that does not result in the provision being an absurdity.
Thus in Adler v George (1964) the defendant was found guilty, under the Offi cial Secrets Act 1920, with obstruction
‘in the vicinity’ of a prohibited area, although she had actually carried out the obstruction ‘inside’ the area.
(b) The purposive approach
The purposive approach rejects the limitation of the judges’ search for meaning to a literal construction of the words of
legislation itself. It suggests that the interpretative role of the judge should include, where necessary, the power to look beyond
the words of statute in pursuit of the reason for its enactment, and that meaning should be construed in the light of that purpose
and so as to give it effect. This purposive approach is typical of civil law systems. In these jurisdictions, legislation tends to set
out general principles and leaves the fi ne details to be fi lled in later by the judges who are expected to make decisions in the
furtherance of those general principles.
European Community (EC) legislation tends to be drafted in the continental manner. Its detailed effect, therefore, can only be
determined on the basis of a purposive approach to its interpretation. This requirement, however, runs counter to the literal
approach that is the dominant approach in the English system. The need to interpret such legislation, however, has forced
a change in that approach in relation to Community legislation and even with respect to domestic legislation designed to
implement Community legislation. Thus, in Pickstone v Freemans plc (1988), the House of Lords held that it was permissible,
and indeed necessary, for the court to read words into inadequate domestic legislation in order to give effect to Community
law in relation to provisions relating to equal pay for work of equal value. (For a similar approach, see also the House of Lords’
decision in Litster v Forth Dry Dock (1989) and the decision in Three Rivers DC v Bank of England (No 2) (1996).) However,
it has to recognise that the purposive rule is not particularly modern and has its precursor in a long established rule of statutory
interpretation, namely the mischief rule.

The mischief rule
This rule permits the court to go behind the actual wording of a statute in order to consider the problem that the statute is
supposed to remedy.
In its traditional expression it is limited by being restricted to using previous common law rules in order to decide the operation
of contemporary legislation. Thus in Heydon’s case (1584) it was stated that in making use of the mischief rule the court
should consider what the mischief in the law was which the common law did not adequately deal with and which statute law
had intervened to remedy. Use of the mischief rule may be seen in Corkery v Carpenter (1950), in which a man was found
guilty of being drunk in charge of a carriage although he was in fact only in charge of a bicycle.