Literal rule

The literal rule involves applying the ’plain, ordinary literal meaning’ of words – even if this could lead to a manifest absurdity.

The literal rule involves applying the ’plain, ordinary literal meaning’ of words – even if this could lead to a manifest absurdity.  (Lord Esher in R v City of London Court).  The judge will be assisted by references to a dictionary as these will give the plain ordinary meaning of words.  It is likely that reference will be made to a dictionary in common use such as the Oxford English Dictionary.

In addition some care will need to be taken to use a dictionary in use at the time the legislation was passed.  This is because the courts recognise that the meaning of words may change with the passing of time.  Once the meaning of the particular word has been ascertained at the time the Act was passed, the court will then need to consider how this meaning relates to present day usage and circumstances.  This was so in the case of R v Cheeseman which involved acts of indecency in some public toilets which is an offence under the Town Police Clauses Act 1847.  The court had to determine the meaning of the words ‘street’ and ‘passenger’. It  found that the meaning of 'passenger' did not extend to include police officers who, acting upon complaint, were waiting for the defendant at the scene, and were therefore not passengers in the sense of persons using the toilets. Whilst this may be the case some would argue that such a literal and narrow approach fails to look at the wider picture and purpose for the legislation.

Despite such criticisms the literal rule has been in use since the nineteenth century and has been the most commonly applied rule up until recent times when more modern approaches such as the purposive approach have been found to be more appropriate.

The literal rule can be further illustrated by such cases as IRC v Hinchy (1960), LNER v Berriman (1946)Fisher v Bell (1960), Whiteley v Chappell (1868) and Cutter v Eagle Star Insurance co Ltd (1997).   In such cases the apparent harshness of the rule can be seen together with the tendency for the rule to be used even in circumstances when an absurd result came about.

In the Berriman case , a railway worker was killed when carrying out maintenance work which consisted of oiling the points on the railway track. A look out had not been provided in accordance with a requirement under the Fatal Accidents Act and his wife claimed compensation.  The Act referred to providing a lookout for men when 'relaying or  repairing’.  The court used the literal rule and decided that oiling the points amounted to maintenance work and not relaying or repairing and therefore Mrs Berriman’s claim failed. The rule has been criticised for such harsh decisions.

In Whiteley v Chappell which concerned an offence of impersonating a person entitled to vote, the accused had used the identity of a dead person whose name was on the voters list.  The court decided that no offence had been committed because the dead person was not in the literal sense entitled to vote.  Clearly had, for example, the mischief rule been used then the court may well have come to a different conclusion.  Such decisions have led to the literal rule being heavily criticised for making a nonsense of the law. It is probably fair to say that the decision in this case went against what Parliament intended.

 

In Cutter v Eagle Star Insurance Co Ltd (1997) the claimant a Stuart Cutter Stuart Cutter was sitting in the front passenger seat of a motor car parked in a parking space in a multi-storey car-park in Tunbridge Wells. A can of lighter fuel in the rear of the car had leaked inflammable gas into the car. The driver entered the car and before driving off lit a cigarette. The gas was ignited and Cutter sustained injury. The case turned on whether the car park was a road for the purposes of the road Traffic Act 1988. The House of Lords took the view that the purpose of a road was to provide a means for cars reach a destination; the purpose of a car park is for cars to park. The fact that there was a road across the car park did not make it a road.

The golden rule is a modification of the literal rule.  In the event that an unreasonable or absurd result is arrived at when interpreting the words used in the Act, the golden rule allows the judge to modify the interpretation so as to bring about a fair and just decision.  The rule is seen as having limited use in the sense that it only comes into play if it is necessary to use the rule to avoid an absurdity.  The rule embraces two approaches, a narrow approach and a broad approach.  The narrow approach is used where a word has more than one meaning. The narrow approach under the golden rule uses the  most acceptable meaning.  The broad approach is used when there is only one meaning of a word but an absurd result needs to be avoided such as in the case of Adler v George (1964).

Under section 3 of the Official Secrets Act 1920, it was an offence to obstruct HM Forces in the vicinity of a prohibited place. Mr Frank Adler had been arrested whilst obstructing such forces within such a prohibited place (Markham Royal Air Force Station, Norfolk). His argument was that he was not in the vicinity of a prohibited place as he was actually in a prohibited place. The court applied the golden rule to extend the literal wording of the statute to cover the action committed by the defendant. Had the literal rule been applied, it would have produced an absurd result, as someone protesting near the base would be committing an offence whilst someone protesting in it would not.

 

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