Purposive approach

The purposive approach (sometimes referred to as purposivism,[1] purposive construction,[2] purposive interpretation,[3] or the modern principle in construction)[4] is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (a statute, part of a statute, or a clause of a constitution) within the context of the law's purpose.

Purposive interpretation is a derivation of mischief rule set in Heydon's Case,[5] and intended to replace the mischief rule, the plain meaning rule and the golden rule.[6] Purposive interpretation is used when the courts use extraneous materials from the pre-enactment phase of legislation, including early drafts, hansards, committee reports, and white papers. The purposive interpretation involves a rejection of the exclusionary rule.

Israeli jurist Aharon Barak views purposive interpretation as a legal construction that combines elements of the subjective and objective.[7] Barak states that the subjective elements include the intention of the author of the text, whereas the objective elements include the intent of the reasonable author and the legal system’s fundamental values.[8]

Critics of purposivism argue it fails to separate the powers between the legislator and the judiciary,[9] as it allows more freedom in interpretation by way of extraneous materials in interpreting the law.

Historical origins

Plain meaning rule

The plain meaning rule gained popularity during the 18th and 19th centuries as the courts took an increasingly strict view of the words within statutes. Under the plain meaning rule, the words of the statute are given their natural or ordinary meaning. The plain meaning rule of statutory interpretation should be the first rule applied by judges.

One of the leading statements of the plain meaning rule was made by Chief Justice Sussex Peerage (1844)

Strict application of the plain meaning rule can sometime result in "absurd" outcomes. Examples of the plain meaning rule producing absurd outcomes can be seen in the following cases:

  • In Whitely v Chappel (1868) a statute made it an offence "to impersonate any person entitled to vote". The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living in order to be entitled to vote. The plain meaning rule was applied and the defendant was thus acquitted.
  • In R v Harris (1836) the defendant had bit off his victim's nose. But because the statute made it an offence "to stab cut or wound" the court held that under the plain meaning rule the act of biting did not come within the meaning of stab cut or wound as these words implied an instrument had to be used. The defendant’s conviction was overturned.
  • In Fisher v Bell (1961) the Restriction of Offensive Weapons Act 1958 made it an offence to “offer for sale” an offensive weapon. The defendant had a flick knife displayed in his shop window with a price tag on it. Statute made it a criminal offence to "offer" such flick knives for sale. His conviction was overturned as goods on display in shops are not "offers" in the technical sense but an invitation to treat. The court applied the plain meaning rule of statutory interpretation.

Golden rule

The golden rule permits the courts to depart from the plain meaning rule if the meaning leads to consequences it considers to be absurd or ambiguous.[10]
This was propounded in Grey v Pearson (1857) where Lord Wensleydale stated

The degree of absurdity or ambiguity necessary to exercise the golden rule is determined on a case by case basis by the individual judge in question. There are two general situations in which the golden rule may be employed: narrowly, to take the 'better' reading of two alternatives, or more widely, to broaden a rule that, although unambiguous, leads to an absurd outcome.

The case Maddox v Storer [1963] 1 Q.B. 451 is typical of the more narrow use. In Maddox, the defender had been travelling at over the 30 mph speed limit in a minibus with eleven seats (excluding that of the driver), most of which were unoccupied. Per Road Traffic Act 1960 travelling at over 30 mph in a vehicle ‘adapted to carry more than seven passengers’ was an offence. It was held that adapted to could be taken to mean suitable for.

The court applies the golden rule in a wider sense in Adler v George (1964). Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces 'in the vicinity' of a prohibited place. The defendant was actually in the prohibited place, rather than "in the vicinity" of it, at the time of obstruction. The courts had to determine whether “in [the] vicinity of” included on/in the premises. The court applied the golden rule. The court said that in the vicinity did include on or in as well. It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. The defendant’s conviction was therefore upheld.

In Re Sigsworth (1935), a son had murdered his mother. Under slayer or forfeiture rules of long standing in the United Kingdom, he would have been excluded as beneficiary under her will. She had, however, died intestate, and the Administration of Justice Act 1925 provided that her next of kin would inherit. Although the situation was unambiguous, the absurdity inherent in such a situation meant that forfeiture had to be treated as applicable to intestacy rules taking the place of a will as well as wills themselves.[12]

Mischief rule

In Construction of Statutes, Elmer Driedger defines the mischief rule as follows:

Heydon's Case (1584) laid out the following statement of the principles underlying what would come to be called the "mischief rule":

The mischief rule saw further development in Corkery v Carpenter (1951). In a decision of the Court of King’s Bench, the Court had to decide whether a bicycle could be classified as a carriage. According to S.12 of the Licensing Act 1872, a person found drunk in charge of a carriage on the highway can be arrested without a warrant. A man was arrested drunk in charge of a bicycle. According to the plain meaning rule a bike is not a carriage. Under the Mischief rule the bicycle could constitute a carriage. The mischief the act was attempting to remedy was that of people being on the road on transport while drunk. Therefore a bicycle could be classified as a carriage.

In Smith v Hughes (1960), the defendant was charged under the Street Offences Act 1959 which made it an offence to solicit prostitution in a public place. The defendant was soliciting from within private premises (windows or on balconies) so they could be seen by the public without entering into the streets. The court applied the mischief rule holding that the activities of the defendant was within the mischief of the Act, and soliciting from within a house, is soliciting and molesting of the public. Therefore it is the same as if the defendant was outside on the street.

In Royal College of Nursing of the UK v DHSS (1981), the Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences Against the Person Act 1861 made it an offence for any person to carry out an abortion. The Abortion Act 1967 provides an absolute defence for a medical practitioner provided certain well-known conditions are satisfied. Discoveries in medicine meant surgery has more often been replaced with administration of hormones, commonly by nurses. The courts were responsible for determining whether they were acting unlawfully, not being medical practitioners as defined under the Act. The courts found that the Act was intended to provide for safe abortions and that nurses could carry out such abortions.