Distinction level Constitutional Law (English Legal Systems) notes (overall grade, 84)
Crafted by a recent graduate who received a distinction in the very same course, these notes are tailored to your PGDL program, ensuring they cover the crucial Constitutional Law concepts you need to master.
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Unit 1: Statutory Interpretation
● Statute is the primary source of law in England and Wales
● Although Parliament makes legislation, it is up to the courts to apply it
● When a statute is unclear, it is the job of the courts to discover how Parliament intended
the law to apply and put it into practice
The Rules of Construction:
In a legal context, construction means the same as interpretation
→ There are 4 rules which Courts follow when interpreting statutes (the rules of construction)
● Rules of construction = a method used by lawyers and academics to assist in the
interpretation, understanding and administration of legislation
● How a judge arrives at the use of a particular rule of construction is a matter of choice
● These rules are not binding
The Literal Rule
● Where courts apply the language of a statute, using the ordinary and natural meaning
of the words → if the words are clear, they must be applied
● Based on the principle that the best way to interpret the will of Parliament is to follow
the literal meaning of the words they used
- Helps ensure parliamentary sovereignty → based on the assumption that the
words have been carefully chosen in order to carry out the intention of
Parliament
, Problems with the Literal Rule:
It can result in an absurd or obviously unjust conclusion, going against the initial intention of Parliament
Case Law Example:
○ Whiteley v Chappell (1868): A statute aimed at preventing electoral malpractice made it an offence
to impersonate ‘any person entitled to vote’ at an election. The accused was acquitted because he
impersonated a dead person and a dead person is not entitled to vote
○ London & North Eastern Railway Co v Berriman [1946] a railway worker’s widow was denied
compensation because her husband was killed when oiling points and this was considered
‘maintaining’ the line and not ‘re-laying or repairing it’ as required by the statute
The Golden Rule
The Golden Rule is an adaption of the literal rule
Where there are two meanings to a word or words, they should be given their ordinary
meaning as far as possible, but only to the extent they do not produce an absurd or totally
obnoxious result (Grey v Pearson (1857))
● Grammatical and ordinary sense of the words can be modified to avoid absurdity and
inconsistency
● It is usually applied in a narrow sense, where there is some ambiguity or absurdity in the
words themselves
○ Maddox v Storer (1963): Under the Road Traffic Act 1960, it was an offence to
drive at more than 30mph in a vehicle ‘adapted to carry more than seven
passengers’. The vehicle in the case was a minibus made to carry 11 passengers,
rather than altered to do so. The court held that ‘adapted to’ could be taken to
mean ‘suitable for’
, ● It can also be used in a wider sense, to avoid a result which is obnoxious to the principles
of public policy (even where words have only one meaning) (Re Sigsworth [1935] Ch 89)
The Mischief Rule
Allows judges to interpret a statute so that it effectively tackles the problem that Parliament
wanted to deal with → requires the interpreter of the statute to ascertain the legislator’s
intention
● Helps avoid absurdity and injustice and promotes flexibility
4 stage test:
1) What was the law before the statute was passed
2) What was the ‘mischief and defect’ which was not remedied by the existing law
3) What remedy did Parliament propose to put it right
4) What is the true reason for the remedy
Case Law Example:
○ Corkery v Carpenter [1951]: under the Licensing Act 1872, a person found drunk in
charge of a ‘carriage’ on the highway is guilty of an offence → the court took the view that
a ‘carriage’ could include a bicycle
- Act was aimed at preventing drunk people from being in charge of some form of
transportation
- The mischief that the statute intended to remedy was injury to the public, from
drunk drivers
○ Smith v Hughes (1960): The Street Offences Act 1959 made it a criminal offence for a
prostitute to solicit potential customers in a street or public place. In the case, the
prostitute was soliciting from her window. Judge decided that the aim of the Act was to
enable people to walk along the street without being solicited
, The Purposive Approach
The European approach to statutory interpretation focuses on giving effect to the purpose of
the legislation
● Judges look at the reasons why the statute was passed and its purpose, even if it means
distorting the ordinary meaning of the words
● Used when interpreting retained EU law
● The mischief approach is used to look backwards at the root of the problem. The
purposive approach is used to look forward at the aims of the legislation.
Aids to Interpretation:
→ Judges have a range of materials which can help them to interpret statutes
Internal Aids:
The statute & explanatory notes:
Look at the entire Act, not just the provision, at the title, the subheadings, preamble, punctuation and
headings
● Explanatory notes published at the same time as the Act
Rules of Language:
Technical tools to help use the language in a statute to resolve any ambiguity (usually
involving a list)
Eiusdem Generis - ‘of the same type’:
,If a general word follows two or more specific words, that general word will only apply to items of
the same type as the specific words
● E.g. if an Act used the phrase ‘dogs, cats and other animals’, the phrase ‘and other animals’
would probably include other domestic animals, but not wild ones
Steps for using Eiusdem Generis:
1) Are there general words following a list of specific words?
→ ‘other offensive weapon’ would count as general words, following a list of specifics
2) What are those specific words?
→ the specific words included are all of a similar type (items designed to be used as
weapons)
3) What is the interpretation of the general words
→ does it follow the same type as the specific words)?
Case Law Example:
○ Wood v Commissioner of Police of the Metropolis [1986]: defendant was charged for
committing an offence under the Vagrancy Act 1824 after using a piece of broken glass
- Act made it illegal to be armed with ‘any gun, pistol, hanger, cutlass, bludgeon or
other offensive weapon’ with intent to commit a serious offence
- The court used eiusdem generis to decide if the piece of broken glass was an ‘other
offensive weapon’
- Decided that broken glass was not the same type as it was not made or adapted for
causing injury
Expressio unius est exclusio alterius - ‘expressing one thing excludes another’
Any mention of one of more specific things may be taken to exclude others of the same type
● E.g. if an Act specifically mentioned ‘Persian cats’, the term would not include other
breeds of cat
Case Law Example:
, ○ In R v Inhabitants of Sedgley (1831), the court was deciding whether the poor rate levied on
occupiers of ‘lands, houses and coal mines’ (in the Poor Relief Act 1601) could then be
levied on owners of other types of mines
- Using Expressio, found that because it specifically mentioned coal mines and not
just mines, other types were not admissible
Noscitur a sociis - ‘known by the company it keeps’
A word derives meaning from surrounding words
Case Law Example:
○ Helped assist in the interpretation of the Factories Act 1961 which required all ‘floors,
steps, stairs, passageways and gangways’ to be kept free from obstruction.
- In a following court case, ‘Pengelly v Bell Punch Co. Ltd [1964], had to decide
whether a floor used for storage came under the Act
- The court held that as all the other words were used to indicate passage, a floor
used exclusively for storage did not fall within the Act
External Aids:
Examples:
● Historical setting
● Dictionaries → referred when a word has no specific legal meaning (particularly useful
when judges use the literal approach)
● Reports
● Treaties
● Previous statutes
● Hansard → helps identify the ‘mischief’ which an Act was intended to remedy
- Can only be used if the statute is ambiguous and the material consists of clear
statements by a minister or promoter of the Bill
, ● Interpretation Acts → gives definitions of words commonly found in legislation
● Law Commission
● Academic knowhow
● International conventions
Presumptions:
The courts assumes that certain points are inherently implied in most legislation, including
(rebuttable):
1. Statutes do not change the common law
● (Unless a statute expressly states an intention to alter the common law, the
interpretation which does not alter the existing law is preferred)
2. The legislature does not intend to remove any matters from the jurisdiction of the courts
3. Existing rights are not to be interfered with
4. Laws which create crimes should be interpreted in favour of the citizen where there is
ambiguity
5. Legislation does not operate retrospectively: its provisions operate from the day it comes
into force
6. Statutes do not affect the Monarch
7. Against criminal liability without guilty intention → (lack of knowledge in the situation)
, Unit 2: Case Law
The Doctrine of Precedent:
England and Wales follow a common law jurisdiction → judges do not make law, they instead
decide cases in accordance with existing rules (the doctrine of precedent)
Once the decision has been made on how the law applies to a particular set of facts, similar
facts in later cases should be treated in the same way (stare decisis)
● If the facts of a case are sufficiently similar, a judge must follow the precedent set by the
earlier case
A case is binding when:
a) There is a proposition of law
b) That proposition is part of the ratio decidendi of a case
c) The proposition is decided in a court whose decisions are binding on the present court
d) There are no relevant distinctions between the two cases (the facts are sufficiently
different to allow the judge to arrive at an alternative conclusion)
Proposition of Law:
Proposition of Law = a judicial statement confirming a legal principle, derived typically from
statute or case law (can also be from custom or academic commentary)
● Separate to a statement of fact (a statement which depends on the evidence per case)
Ratio Decidendi:
Ratio Decidendi = it is the central legal reasoning of a case, capable of creating precedent
, ● Sir Rupert Cross: ‘the ratio decidendi of a case is any rule of law expressly or impliedly
treated by the judge as a necessary step in reaching his conclusions’
● When there are multiple judges, each individual judge will state a ratio, and there will
also be a ratio of the court as a whole
The ratio:
a) Must be a necessary step to the conclusion
b) Must be directly related to the issue
c) Must come from disputes of law
d) Can come in multiple forms:
i. Common law rules
ii. Interpretation of statute
iii. Interpretation of the common law rules
Narrow v Wide ratios:
Judges never state what the ratio decidendi of a case is → judges in future cases can argue which bits of the
judgement actually form the ratio
● Judgements who do not want to follow precedent can argue that the parts of the judgement which
seemingly apply to their case are not part of the ratio, but are part of the obiter dicta (which they
don’t have to follow)
● The greater the number of material facts, the wider the ratio will be
Obiter Dictum:
Obiter Dicta = ‘other things said’ → legal reasoning that isn’t included in the ratio
● These are not binding on future courts, although they may be persuasive
● The easiest type of obiter dictum to identify occurs when a judge speculates about the decision
they would have made if the facts of the case had been different
● Judgement = ratio + obiter
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