This Student Companion by Christopher Walshaw is from the March 2017 edition of the New Zealand Law Journal [2017] NZLJ 56

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Resist the itch to re-define — R v Golds [2016] UKSC 61

Statutory rules, whether in statutes or regulations, are a combination of mostly ordinary words that establish a standard or norm. Such rules are invoked in civil or criminal litigation and the task of the court is to decide whether or not the facts of the case fall within the scope of the relevant rule or rules. There is a process of assimilating a real-life fact situation with the text of the rule or rules. The task requires the reconstruction of the past by way of narrative. We have an ordinary competence of reconstructing past events. There are well-established evidentiary, procedural and interpretive tools that assist courts in this task and there may be analogous materials. And legislation may contain further text that seeks to define specific words and phrases.

I suggest that it is now well established that the task of the court is not to substitute the text, whether that text is found in the body of the rule or in the interpretive provisions, with a prospective reconstruction of the text. Instead the task is to apply the actual words of the text. There may be two qualifications: (1) when a word or phrase clearly has a special meaning; and (2) when there is an obvious ambiguity.

All the above, including an interesting jurisprudential excursion, are a feature of a very recent judgment of the United Kingdom Supreme Court in R v Golds [2016] UKSC 61, delivered on 30 November 2016. It is of interest to note that seven rather than five members of the Court heard this appeal, presumably because the Court was faced with accumulated judicial exegesis on the meaning of the relevant phrase. There is a single judgment, delivered by Lord Hughes, with whom Lord Neuberger, Lady Hale, and Lords Kerr, Reed, Toulson and Thomas agreed.

The judgment begins with a neat summary (at [1]):

The appellant Mark Golds was convicted by a jury of the murder of his partner. He had admitted in court that he had killed her, and the sole issue at his trial had been whether he had made out the partial defence of diminished responsibility, and so fell to be convicted of manslaughter rather than of murder. The law to be applied was section 2 of the Homicide Act 1957 after its recent revision by the Coroners and Justice Act 2009. The issue is the correct approach to the statutory test of whether his abilities were in specified respects “substantially impaired”: see section 2(1)(b).

The judgment traverses the facts, the legislation (both 1957 and 2009) and many reported English cases in which the phrase “substantially impaired” had been considered. In some of these cases the court had declined to attempt synonyms or redefinition, but in other cases judges had attempted to explain the meaning of the phrase by reference to degrees of triviality or seriousness, an example being “a serious degree of impairment” (at [12]). As Lord Hughes says (at [17]):

Over the years since, a reference of this kind to the extremities of possible impairment has sometimes been thought not simply to be helpful to juries but also to provide a possible definition of the meaning of ‘substantially’.

He goes on to explain the resulting convolutions and confusions [17]–[24].

Under the heading Usage of language Lord Hughes considers an ambiguity in the meaning of “substantial” (at [27]):

… as a matter simply of dictionary definition, ‘substantial’ is capable of meaning either (1) ‘present rather than illusory or fanciful, thus having some substance’ or (2) ‘important or weighty’, as in ‘a substantial meal’ or ‘a substantial salary’. The first meaning could fairly be paraphrased as ‘having any effect more than the merely trivial’, whereas the second meaning cannot. It is also clear that either sense may be used in law making.

Examples referred to are legislation concerning disability discrimination in which “substantial” is expressly defined as “more than minor or trivial”, thus the first sense. Conversely, the expression “significant and substantial” when used to identify which breaches by the police of the Codes of Practice will result in exclusion of evidence uses the word “substantial” in the second sense. As Lord Hughes says: “[i]t is to be accepted that the word may take its meaning from its context” (at [27]).

His Lordship, under the heading “Conclusions: ‘substantially’” says (at [28]):

The foregoing review of the authorities clearly shows that in the context of diminished responsibility the expression ‘substantially’ has always been held, when the issue has been confronted, to be used in the second of the senses identified above.

There follows a further discussion of some of the cases and of the legislative history (nothing about legislative intent) and the unsurprising conclusion (at [35]):

It follows that there is nothing in the change of the formulation of the test for diminished responsibility to cause a different view to be taken now of the sense in which the word ‘substantially’ is used in conjunction with ‘impairment’.

The statutory test is found in the phrase “substantially impaired” in the second sense of “substantial” and not in any words synonymous or by way of redefinition.

It may be of interest to those engaged in jurisprudence to note that Lord Hughes follows this conclusion with a statement of principle, at [36], which appears to echo the ideas of Ronald Dworkin.

This use of the expression accords with principle. Diminished responsibility effects a radical alteration in the offence of which a defendant is convicted. The context is a homicide … It is just that where a substantial impairment is demonstrated, the defendant is convicted of the lesser offence [manslaughter] and not of murder. But it is appropriate, as it always has been, for the reduction to the lesser offence to be occasioned where there is a weighty reason for it and not merely a reason which just passes the trivial.

Under the heading “Directing juries: good practice”, Lord Hughes gives detailed advice of good practice, which can be found at [37]–[43]. He begins with an exposition of the correct approach to ordinary words (at [37], emphasis added):

… there are many examples of ordinary English words incorporating questions of degree, which are left to juries to apply without attempts at further definition. No-one attempts to define “reasonable” in the many contexts in which it appears [There are other examples] … In all these cases the understandable itch of the lawyer to re-define needs to be resisted. Any attempt to find synonyms for such ordinary English expressions, although they involve questions of degree, simply complicates the jury’s exercise, and leads to further semantic debate about the boundaries of meaning of the synonym.

It will be no surprise that good practice requires (at [43], emphasis in original):

The jury should normally be given to understand that the expression is an ordinary English word, that it imports a question of degree, and that whether in the case before it the impairment can properly be described as substantial is for it to resolve … If, however, the jury has been introduced to the question of whether any impairment beyond the merely trivial will suffice, or if it has been introduced [such as by expert evidence] to the concept of a spectrum between the greater than trivial and the total, the judge should explain that whilst the impairment must indeed pass the merely trivial before it need be considered, it is not the law that any impairment beyond the trivial will suffice.

I suggest that this case teaches us that the task of an advocate and of the court is not to re-define or second-guess “a meaning” of the relevant legislation but instead is to develop a narrative in respect of which the words do or do not apply. In Golds (at [8], [30]) an adverb “substantially” is applied to the verb “impaired” and there are other criteria such as mental abnormality; arising from a medical condition; which causes or significantly contributes to the killing; that all work together in establishing a norm. The essential question then is whether or not the real-life fact situation falls beneath the norm.

In response to this question, the arena of advocacy and judgment rightly can be seen as having moved from traditional interpretation per se to a process of application of the text of the norm to the real-life fact situation before the court. This process inevitably requires the construction of a narrative. Consequently, now that we have moved on, we need to be conscious of, and learn more about, the narrative process.

The March 2017 edition of the New Zealand Law Journal is available on the LexisNexis research database.

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