INTRODUCTION TO LAW: STATUTES AND STATUTORY LAW LECTURE 2 2000

The proportion of parliamentary time spent on legislation has remained constant at approximately 50% but the volume of legislation has increased from approximately 200 [or 300] pages a year at the beginning the century to over 2,000 [or 4,000] pages a year. So what of the need to scrutinise legislation, to protect the citizen from government zeal and to participate in the "grand inquest of the nation" ? Can we conclude that full discussion and ventilation of issues precedes the enacting of legislation ? The sheer volume/time ratio is against this reassuring conclusion. The time spent in scrutinising individual enactments has significantly reduced, despite the increase in time spent in standing committee.



What, then, of alternative modes of scrutiny ? During the drafting stage there is opportunity for consultation and negotiation with outside groups, which though welcomed as a constraint on government, clearly reduces further the role of individual members of parliament and of parliament itself.



So parliament is not wholly effective in the scrutiny of legislation contrary to the view of those who claim that since parliament is the true safeguard of civil liberties, etc and we do not require any Bill of Rights, an argument which did not prevail, given the passage into law of the Human Rights Act 1998. But we should resist thinking that reviewing legislation is the only way that parliament scrutinises government action generally. Indeed, the question remains whether we should be pursuing ways of improving parliamentary scrutiny of draft legislation which is necessarily going to pass into law anyway and of increasing member's participation in the final and least malleable stage of the process. But if the institution of Parliament cannot adequately constrain government, what are the prospects for democracy and what becomes of the notion of the legitimate exercise of power ? One notion of legitimacy is that public bodies act in accordance with rules enacted by the elected representatives of the people and upheld by the judges. So where to go ? Any radical moves within the Westminster Parliament , such as freeing up the time members currently devote to the legislative process would subject government legislation to even less review. There are two radical moves outside the Westminster Parliament: First, Devolution, that is government, and especially legislation, nearer to the people, and therefore more open to prior scrutiny. Secondly, Human Rights. This alternative takes us well beyond an introduction to the nature of statute-based law, involves the implementation of a Bill of Rights, empowering the judiciary to ensure that public powers are exercised not merely in accordance with what nowadays are largely unscrutinised laws but also consistently with notions of fairness and respect for basic human rights as affirmed by many civilised states, at both national and international levels. With the coming into effect of the Human Rights Act 1998 on 2nd October 2000, that is currently a very hot topic in Constitutional and Administrative Law which I have hardly even scratched the surface of here except to suggest that the case for judicial review of primary legislation is advanced if, as I claim to be the fact, there is an ineradicable deficit in prior scrutiny. This invokes the judiciary as protector of the individual against the state



I turn, therefore, to the institution celebrated as a bulwark between the citizen and the executive, namely the courts. First I seek briefly to outline some major approaches to statutory interpretation. Next, I wish to consider the very obvious fact that these canons or guidelines are in painfully obvious conflict. Thirdly, I will reconstruct my own best attempt to reconcile these conflicts. And fourthly, I will illustrate the difficulties with some cases.



FIRST The major approaches to Statutory Interpretation include the following approaches -

1. The Literal Rule

2. The Liberal Rule ... 1+2 = The Golden Rule

3. The Mischief Rule ... but NB Narrow readings of penal or taxative Acts

4. The Purposive Approach.

One remarkable feature of these rules is that they appear to contradict each other and the outcome of a case can therefore depends exclusively upon which maxim a judge founds upon. The most general of these rules of construction and interpretation are the literal rule, the liberal rule, and the mischief rule. I shall now say something about each, in turn.



Literal Rule

(1) "It is very desirable in all cases to adhere to the words of an Act of Parliament, giving to them the sense which is their natural import in the order in which they are placed" R v Inhabitants of Ramsgate (1827) 6 B&C 712, per Bayley, J. (2) "If the words of an Act are clear you must follow them, even though they lead to manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity" R v The Judges of the City of London Court [1892] 1 QB 273, 290. Therefore if absurdity does arise, or if such an interpretation produces injustice, the remedy lies in the hands of Parliament; devotees of the literal rule maintain that it is not for judges to usurp (what they call) the function of Parliament: (3) "It is infinitely better to adhere to the words of an Act of Parliament and leave the legislature to set it right than to alter these words according to one's notion of an absurdity" Hill v East and West India Dock Co (1884)9 App Cas 448, per Lord Bramwell (who, it seems did not always practice what he preaches here !).



However, the literal rule seems to assume what is obviously open to question, that words are always clear. Then, of course, the literal rule can be applied: (4) "If the language of the statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed" Vacher & Son v London Society of Compositors [1913] AC 107, 121-2, per Lord Atkinson.



But what, as sometimes, perhaps often, happens, if the meaning is not "plain" ? Well we turn to ... The Golden Rule (5) "It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further" [Becke v Smith (1836) 2 M&W 195 per Parke B].

(6) "... we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance and to justify the court in putting on them some other signification, which though less proper, is one which the court thinks the words will bear" [River Weir Commissioners v Adamson (1877) 2 App Cas 743, 764-5 per Lord Blackburn] These dicta bespeak a readiness on the part of some judges to go beyond or against the plain meaning and that seems to be inconsistent with the classical doctrine of Parliamentary Sovereignty.



The Mischief Rule

Coke reports the decision of the Barons of Exchequer in Heydon's Case, as follows: [7] "and it was resolved by them for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discussed and considered:

1st. What was the common law before the making of the Act ?

2nd. What was the mischief and defect for which the common law did not provide ?

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth ?

And 4th. The true reason of the remedy; and the office of the judge is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico"(1584) 3 Coke Rep 7a. Even 400 years ago judges had to be alert to the possibility that lawyers would offer "subtle inventions and evasions" in the private interest of their clients. As Jean Giradeax puts it in the Mad Woman of Chaillot 2, Adapted by Maurice Valency (1954) [8]: "You are an attorney. It is your duty to lie, conceal and distort everything, and slander everyone".



However, an important point to note about these general "rules" is that they are "guidelines" and not absoluted rules. They allow of conflicting decisions on the same facts and the same statute and that whereas some judges may be literalist and others liberal, other judges, again, might pick and choose their canons of interpretation as suits the case to hand. Thus as Lord Sankey put it in Edwards v AG for Canada [1930] AC 124, 136-7 [9]: "There are statutes and statutes and the strict construction deemed proper in the case, for example, of an a penal or taxative statute [cf Mischief Rule], or one passed to regulate the affairs of an English parish would often be subversive of Parliament's real intent if applied to an Act passed to encourage the peace and good government of a British Colony".



SECOND Although the canons are in obvious conflict sometimes all approaches may produce the same outcome as is illustrated by Lord Simon who in one case (R v Governor of Pentonville prison, ex p Cheng [1973] A C 931) invoked three canons of interpretation - the golden rule, a construction according to historical setting, and the mischief rule, and three presumptions, that against changes in the common law, that of conformity with international law , and that against anomalies or absurdities. He said [10] "English law provides a number of guides to interpretation or 'canons of construction'. A difficulty arises that various canons can return conflicting answers, since English law has not yet authoritatively established any complete hierarchy among the canons. Fortunately this presents no difficulty in the instant case, because all the many canons of construction in question here return the same answer ..." 949-950 and 959.

However, this happy coincidence of outcome is not guaranteed and the capacity to return conflicting answers, has been remarked on and even christened "Normative ambiguity" by Twining and Miers (How To Do Things With Rules p 181 Miers & Page) Let me illustrate with some "proverbial wisdom" and the case of the undergraduate seeking advice about marriage before Mods and the don whose advice takes the form of uttering proverbs.

1. Look before you leap

2. He who hesitates is lost

3. Everything comes to he who waits

4. Strike while the iron is hot

Well, canons of interpretation may be as normatively ambiguous as proverbs ! And as Lord Denning says (The Discipline of Law, p 9) [11] "You will sometimes discover that if you find a maxim or rule on your side, your opponent will find one on his side to counteract it".



Of course, ambiguity may be resolved by context and situation. Consider the statement "I like moving pictures". The import would be very different if said (a) after a visit to the cinema; (b) after a visit to an art gallery; (c) while preparing to redecorate. But normative ambiguity is altogether different in that different canons of interpretation legitimate different, perhaps opposing, decisions and because arguments as to meaning arise in contested proceedings. So context may be less helpful in resolving normative ambiguity - that is ambiguity about what ought to be done - than it is in resolving descriptive or factual ambiguity. Furthermore, canons of interpretation, being themselves general formulations in words which require interpretation cannot eliminate, though they can assist the interpretative process.

THIRD the "unless"reconciliation ? [12] "It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further" [Becke v Smith (1836) 2 M&W 195 per Parke B]. The suggestion here is that the letter of the law is not to be applied mechanically but subject to some notions of justice and good sense. Applying a rule strictly according to its meaning may do justice and accord with good sense in many, perhaps - if it is a well formulated rule, built on experience - in most cases; but there is a risk - difficult to qualify - that, in some circumstances, the strict application of statutes according to their literal meaning may work injustice or absurdity.



Riggs v Palmer, a decision of the New York Court of Appeals reported in 1889 is a celebrated example. Here the odious Elmer, aged 16, fatally poisoned his grandfather because he feared that his expectation to inherit under his grandfather's will might be disappointed if, as had become likely, the old man was to remarry. The problem for the Court was that the deceased's will had been made wholly in accordance with the statutory rules which were as silent about felonious beneficiaries as they were, say, about red-haired beneficiaries. The solution for the appellate Court, albeit by a majority, was to subordinate the statutory rules to general principles including the notion that no one should profit from their own wrong. Thus literal interpretation was ousted by what the Court called "rational" or "equitable" interpretation and by application of a counterfactual test about what the legislature would have said had it directed itself to the precise facts of the case.



More recently, Tennessee Valley Authority v Hill 437 US 153 (1978) - the "snail darter case"- [See Dworkin Law's Empire, pp 20 - 23] is also illustrative of difficulties encountered in applying statutes. Recognising environmental concerns the United States Congress enacted, in 1973, the Endangered Species Act. That statute empowered the secretary of the interior to designate species that would be endangered by the destruction of some habitat crucial to their survival and requires all governmental agencies and departments to take [13] "such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species". Meanwhile, some conservationists had been opposing hydroelectric construction works in the Tennessee Valley on general environmental grounds. They discovered that one almost completed dam, costing over one hundred million dollars, would be likely to destroy the only known habitat of the snail darter, [14] "... a three inch fish of no particular beauty or biological interest or general ecological importance" [Dworkin]. These conservationists persuaded the secretary of the interior to designate the snail darter as an endangered species under the Act and then brought proceedings to prevent the dam being completed and used. The Authority argued that the statute should not be construed so as to stop projects begun, or at least substantially completed before the secretary's order had been made. The Supreme Court, however, ordered that the dam be halted, although that involved a great waste of public funds. The majority opinion (Chief Justice Burger) adopted the literalist approach that when the text is clear, the Court has no right to refuse to apply it just because it believes the results silly, nor should the court counter-factually speculate about what Congress's intentions might have been had Congress anticipated the facts of the case. Chief Justice Burger thought that the words "carried out" clearly included continuing with as well as beginning a project and this opinion he thought fortified by the legislative history which indicated that Congress intended to give endangered species very high priority even at great cost to other social goals. Justice Powell (joined by another Justice) dissented. He thought that the majority constructed an absurd real statute out of the Endangered Species Act [15] "It is not our province to rectify policy or political judgments by the Legislative Branch, however egregiously they may disserve the public interest. But where the statutory and legislative history, as in this case, need not be construed to reach such a result, I view it as the duty of this Court to adopt a permissible construction that accords with some modicum of common sense and the public weal" [at196].



More recently still, and much closer to home the case of the "wrong kind of widow", R v National Insurance Commissioner ex parte Conner [1981] 1 All ER 769 exhibits the now familiar opposition of literalism and liberalism in statutory interpretation. The applicant's husband died from a stab wound inflicted by the applicant with a knife. The applicant was charged with murder but asserted at her trial that it was an accident which occurred during a quarrel. On the direction of the trial judge the jury acquitted the applicant of murder but she was convicted of manslaughter, from which it was to be inferred, having regard to the judge's summation that the jury was satisfied that the applicant had used the knife on her husband deliberately and intentionally. The judge placed her on probation for two years. The applicant applied for a widow's allowance under s 24(1) of the Social Security Act, 1975. Although she fulfilled all the conditions laid down in that Act for entitlement to the allowance, a local tribunal decided that public policy disentitled her from receiving the allowance. On appeal this was upheld by the Chief National Insurance Commissioner. Mrs Joanna Connor applied to the Divisional Court to have the Commissioner decision quashed on the grounds that (1) the 1975 Act was a self-contained exhaustive code, not susceptible to override on public policy or any other grounds by officials or judges; and (2) that in any event the circumstances of the manslaughter were such that public policy , even if it could override the closed code in appropriate cases, did not in the facts disentitle this applicant. The Divisional Court dismissed Mrs Connor's application because (1) although the Social Security Act 1975 was a self-contained code, it was to be applied subject to the rules of public policy and (2) the application of public policy to disentitle from a widow's allowance depended not on the label the law attached to the acts but on the nature of the acts themselves and here, where there had been a deliberate, conscious, intention act, public policy did disentitle even though only a probation order had been handed down by the criminal court.



There is a particularly good illustration of judicial reasoning (or sophistry) in this case. Lord Lane CJ argues that [16] "The fact that there is no specific mention in the Act of disentitlement so far as a widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this Act against the background of the law as it stood at the time" [774]. This seems to me to give a disproportionate weight to what is not in an Act of Parliament !



Both the snail darter case and Mrs Connor's case exhibit judicial toughness heroically applying the strict letter of a statute no matter how great the injustice or absurdity and both also provoked a legislative reaction. In America, Congress passed the Endangered Species Act Amendments in 1978, establishing a general procedure for exemption from the Act, based upon findings of a review board. In the United Kingdom perceptions of injustice in Mrs Connor's case led to the passing of the Forfeiture Act, 1982. The full story is told by Professor Cretney in "The Forfeiture Act, 1982: the Private members's Bill as an Instrument of Law Reform" in 10 Oxford Journal of Legal Studies 289 - 306 (1990) which is well worth reading, but for our purposes it is enough to record that by section 2(1) that Act provides [17] "Where a court determines that the forfeiture rule has precluded a person (in this section referred to as "the offender"), who has unlawfully killed another, from acquiring any interest in property mentioned in subsection (4) below, the court may make an order under this section modifying the effect of that rule". Section 2(2) enacts that "The court shall not make an order under this section modifying the effect of the forfeiture rule unless it is satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified in that case. . . .". In the first case under the Act, Re K decd [1985] 1 Ch 85 (Vinelott J.); [1986] 1 Ch 180 (CA), English judges interpreted "modifying the effect" of the forfeiture rule as permitting the total disapplication of the forfeiture rule. Accordingly the widow in this case was relieved from all forfeiture of any of the interests accruing to her on the death of the testator. The widow's circumstances obviously attracted the judges' sympathies. The deceased, a retired Navy commander was subject to bouts of uncontrollable rage during which he assaulted the widow. These assaults increased in frequency and severity and on one occasion, with the intention of frightening him and deterring him from following her she picked up a loaded gin and released the safety catch. The gun went off killing the testator. The widow was charged with murder but the court accepted a plea of guilty to manslaughter and she was placed on probation.



Scottish judges, however, have taken a different view in applying the Forfeiture Act, 1982. In Re Cross 1987 SCLR 356 the petitioner was convicted of the culpable homicide of his father. He presented a petition seeking a waiver of the common law rule of forfeiture and an order in terms of section 2 of the Forfeiture Act 1982 to enable him to succeed to part of his late father's estate. The Lord Advocate entered the process representing the public interest and argued that whatever the merits of the petition it was not open to the court, standing the terms of section 2(2), to exclude the operation of the common law rule completely. The Scottish Court held that on an interpretation of section 2 the word "modify" meant that the court did not have power to exclude completely the common law rule, although on the merits of the petition complete exclusion would have been appropriate and just. Accordingly, an order was pronounced excluding operation of the forfeiture rule completely in respect of the heritable property and 99 per cent in respect of the deceased's moveable estate.



The issue of morals and the letter of the law comes up in Professor Smith's discussion of whether judges should retain under a codified criminal law a power to create new defences [18]: "That great judge, Stephen J the author of the draft Criminal Code of 1879 was firmly of the opinion that, while the power of the judges to create new crimes should certainly be taken away, it would be wrong to enact an exclusive definition of circumstances of justification or excuse. To provide that in no other circumstances than those expressly stated should there be a defence, in his opinion - '... would be to run a risk , the extent of which is difficult to estimate, of producing a conflict between the Code and the moral feelings if the public. Such a conflict is upon all possible grounds to be avoided ... If the Code provided that nothing should amount to an excuse or justification which was not within the express words of the Code, it would ... be vain to allege that the conduct of the accused ... was morally justifiable; that, but for the Code, it would have been legally justifiable; that every legal analogy was in its favour; and that the omission of an express provision was probably an oversight. I think such a result would be eminently unsatisfactory'"



Professor Smith seeks to show the [19] "unwisdom ... of an exclusive statement of justification or excuse by reference to the law of abortion and the famous case of Bourne" [1939] 1 KB 687 (Central Criminal Court). A surgeon of the greatest integrity and skill performed an operation of abortion on a 14 year old victim of a vicious rape. He certainly deliberately broke the letter of the law, section 58 of the Offences Against the Person Act, 1861. But he was acquitted by a jury which was directed by the trial judge that it was a defence for the doctor to show that the act was done in good faith for the purpose only of preserving the life of the mother, although at that time there was no provision for such a defence in the statute. Since then Parliament has passed the Abortion Act, 1967 which decriminalises abortions performed in accordance with the conditions laid down in section 1. Section 5(2) provides, [20] "For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section 1 of this Act". Professor Smith sees this as intended to abolish any such common law defence as was applied in Bourne. Now (he says) suppose that a fully qualified doctor, who is not a registered medical practitioner and who cannot therefore satisfy the conditions of the 1967 Act finds that the immediate termination of a pregnancy is necessary in order to save the life of a mother who is in a remote place and beyond the help of any registered practitioner. He is in a position to perform the operation safely. Is it really the law that he must let the woman die, when he could save her by terminating the pregnancy. If that is, as it appears to be, the effect of section 5(2), then we have an instance of the dreaded conflict. Of course it is a very rare and unlikely case; but if the same principle were applied to offences generally, the effect could be far-reaching". Even as staunch an advocate of codification as Professor Smith acknowledges that the letter of statutory law should be tempered by justice and by the moral feelings of the public.



It seems to me, therefore, at least possible and perhaps appropriate to see law as a combination of the literal and formal on the one hand and the liberal and just on the other. For me, the law is a body of formal written and unwritten rules tempered by principles of justice, morality and good sense, at the point of application. Accordingly, there will always be a place for ethical judgment in law studies, and in legal reasoning and legal practice. It follows on such a view that the "unless" reconciliation of apparently contradictory canons of interpretation catches something of the essential inner nature of law.



FOURTH

The prosecution alleged in Kelly that the accused had used a screwdriver as a weapon of offence contrary to Section 10, Theft Act, 1968 [21] (1) A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive; and for this purpose - (a) "firearm" includes an airgun or air pistol, and "imitation firearm" means anything which has the appearance of a firearm, whether capable of being discharged or not; and (b) "weapon of offence" means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use; and (c) "explosive" means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose. (2) ...liable to imprisonment for life". Counsel argued that the mischief here was premeditated use

and that a tool used to break into premises which the burglar has with him was not by that reason alone a "weapon of offence". There had to be some prior intention to use it as such. That legal argument, though not well-founded on the facts alleged by the prosecution which included threatening the householder with the screwdriver, has some basis in Section 1 Prevention of Crimes Act, 1953 [22]: (1) Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence and shall be liable - (a) on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding [the stat max] or both; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both. (2) Where any person is convicted ... the court may make an order for the forfeiture or disposal of any weapon in respect of which the offence was committed. Thus in Ohlson v Hylton [1975] 2 All E R 490 D, a carpenter, took a hammer from his tool bag in the course of a fight and struck P. D was not guilty under the Act. But here in Kelly the Court of Appeal upheld the conviction. The two sections had different purposes. The earlier Act sought to prevent or limit the carrying of weapons with intent to use if the occasion arose; the later Act was directed against the use of articles as weapons which aggravated the normal offence of burglary. So the same or very similar words but different meanings ? Prof Smith expresses some doubt whether the distinction is justifiable and whether, on the facts of Kelly it was necessary to make it and submits that "the better" construction of section 10 is that it is governed by the same principles as operate in respect of the 1953 Act. Nonetheless there are instances where the same or very similar words have different meanings e.g recklessness in Criminal Damage Act 1971.



In Marsh 1996 an accident had occurred in which a pedestrian was injured by a vehicle at the time being driven without the consent of the owner and therefore by one guilty under section 12 of the Theft Act 1968 of the offence of taking a conveyance without authority The accused was charged with aggravated vehicle taking which the Aggravated Vehicle Taking Act 1992 had added to the Theft Act 1968 as section 12A. The Court of Appeal held that the concept of fault was not imported into the offence. The words [23] "...owing to the driving of the vehicle, an accident occurred by which injury was caused to any person" in section 12A(2)(b) of the Theft Act 1968 did not import a requirement of fault in the driving of the vehicle.



The Court of Appeal thus dismissed the appeal of William Marsh against his conviction of aggravated vehicle taking contrary to section 12A of the 1968 Act, on a plea of guilty following a preliminary ruling on a point of law. Mr Justice Laws said that the judge ruled that the appellant was guilty of the offence if he had committed the basic offence of taking a car without consent and thereafter an accident occurred by which injury was caused to any person, whether or not he was in any way to blame for the accident. In this case an accident had occurred in which a pedestrian was injured, but the Crown had not relied on any evidence of fault in the appellant's driving. Applying the ordinary canons of statutory construction it was impossible to say that the words of section 12A(2)(b) imported a requirement of fault in the driving. The ordinary meaning of the words was simple and pointed to a requirement of a causal connection between the driven vehicle and the accident. No word suggesting fault appeared. The judge had construed the subsection correctly.



This may be contrasted with B v DPP [2000] 1All ER 833. The defendant was charged with inciting a girl aged under 14 to commit an act of gross indecency with him contrary to section 1(1) of the Indecency with Children Act 1960. The facts are that a 13 year old girl was a passenger on a bus. The defendant, aged 15, sat next to her. He then asked her, repeatedly for oral sex and she repeatedly refused. He honestly believed that she was over 14. Lord Nicholls said, [24] "Section 1(1) says nothing about the mental element ... In these circumstances the starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that,

unless Parliament indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence." This is a very strong statement of the presumption. It is inconsistent - in my opinion - with how the Court of Appeal decided Marsh and it reveals the power of common law presumptions in the interpretation of statutes. Other such presumptions include that proposition that Parliament would not intend to make anyone judge in their own cause or expropriate property without reasonable compensation, and statutes will not be interpreted so as to have that effect unless there are very clearly expressed words to that effect... and for some judges, as it seems to me, no words could possibly be strong enough. But the single most important presumption for the interpretation of statutes is now section 3 of the Human Rights Act 1998 [25]: "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".



So what are we to say of Statutory Interpretation ? At the very least there are "leeways of choice" or "margins of appreciation" though it is tempting to go beyond that and to conclude that the law is whatever the judges say it is, i.e law as judicial whim or power: [25] "Whosoever has an absolute authority to interpret any written or spoken law is he who is the lawgiver to all intents and purposes and not the person who first wrote or spoke them" (Bishop Hoadley ex Hart 1st edn p 137). Some radical and critical thinkers do not resist this temptation and argue that law is politics and that judge-made law reflects the politics of the judiciary. [26] "At this point students may be ready to fall into despair and wonder if there is any map [other maps are such shapes ...] of the law which shows more than blurred outlines. After recovery from the shock that the construction of statutes is not an automatic [mechanical] process, they may grow too sceptical... they come to learn however that in practice the law is reasonably predictable. The meaning of statutes can be ascertained with as much certainty as one can expect in human affairs" (p 141 ch 9 Derham, Maher & Waller, An Introduction to Law)