Lord Justice Godstone

Identify the principal rule of construction that Lord Justice Godstone used

The principal rule of construction that Lord Justice Godstone applied in this case was that of purposive construction. The purposive construction rule is applied in common law courts for the objective of interpreting a statute or part of a statute within the context of the purpose for which the law was enacted in the first place. The court is seen to apply purposive construction where it uses materials from the pre-enactment phase of legislation. These materials may include Hansards, committee reports, early drafts and white papers. In the case, Lord Justice Godstone referred to Hansard, as well as the Government’s Explanatory Notes to the Bill for the Modern Slavery Act 2015. Reading this with the statement made by Lord Justice Godstone that after having understood the purpose behind the Act, the criminality of actions of Mr Marsh could be assessed as per the provisions of the Act. Therefore, purposive construction is used in this case.

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The Human Rights Act 1998 has an important impact on the interpretation of domestic legislation due to the operation of Sections 3 and 4 of the Act. Section 3 requires domestic courts to interpret domestic legislation, as far as possible, compatibly with the provisions of the European Convention of Human Rights (ECHR). If there is an incompatibility between domestic legislation and the ECHR provisions, the courts may issue a declaration of incompatibility under Section 4. An example can be seen in A & Others v. Secretary of the State for the Home Department, wherein the House of Lords made a declaration of incompatibility between domestic anti-terror law and ECHR provisions.

What difficulty did Lord Justice Godstone face…

The difficulty that Lord Justice Godstone faced in trying to decide whether Mr Marsh had held Mr Jones in slavery was that of ambiguity in the statute itself as to what slavery and servitude mean. While the Act makes it an offence to hold someone in slavery, it does not define slavery in the interpretation section of the Act. This means that there is an ambiguity in the definition of slavery. Lord Justice Godstone resolved this difficulty by referring to the Collins English Dictionary for the definition of slavery. Thereafter, he turned to Hansard for understanding whether there were any existing sections to tackle slavery.

The aids that Lord Justice Godstone used were external aids for statutory interpretation. These external aids included the Government’s Explanatory Notes to the Bill for the Modern Slavery Act 2015. Explanatory notes to the Bill is used in statutory interpretation for the purpose of understanding the mischief that the statute was made to counter. Lord Steyn has noted in Westminster City Council v National Asylum Support Service, that explanatory notes are useful for understanding the objective and contextual scene of the statute. Using these explanatory notes, Lord Justice Godstone held that a person may be held in slavery or servitude even if that person is not physically restrained or locked in within a place.

Consider and explain the role of the presumption..

The presumption against criminal liability without mens rea was sought to be applied, but was refused to be applied by Lord Justice Godstone. The presumption against criminal liability in the absence of mens rea is applied to ensure that accused are not convicted of acts that do not satisfy the mens rea element. Crimes of specific intention require a mens rea element, and this refers to the specific mental element required in the commission of the crime. In Sweet v Parsley, Lord Reid laid down the principle that if a section is silent as to mens rea there is a presumption that words importing mens rea must be read into the provision for the purpose of giving effect to the intention of the Parliament where it has created a criminal offence. In Gammon, it was observed by Lord Scarman that there is a presumption of law that a person cannot be held guilty of a criminal offence unless mens rea is proved; however, that presumption can be rebutted under certain circumstances, such as, threatening of public safety. In this case, Lord Justice Godstone held that Mr Marsh was aware that he was forcing Mr Jones to work in a way that was criminal even if he was unaware of new statute on slavery offence. Lord Justice Godstone seems to have taken a public safety approach by saying that people like Mr Jones need to be protected from people like Mr Marsh.

Explain whether and how this case could ever…

The jurisdiction of the Supreme Court includes appellate jurisdiction. The Supreme Court hears cases from the Court of Appeal from both civil and criminal divisions. Supreme Court can also hear appeals from the High Court under a rare procedure called the ‘leapfrog’ procedure, in which the appeal comes from High Court to the Supreme Court by bypassing the Court of Appeal. This is done only in the exceptional cases, such as, where the case involves a point of law of general public importance and also concerns the interpretation of statute.

The decisions of both European Court of Justice (ECJ) as well as European Court of Human Rights (ECtHR) are impactful on the jurisprudence of the UK courts. The ECJ has held that the law of the European Union is directly effective on the national courts. In Von Colson v Land Nordrhein-Westfalen, the national courts have been held responsible for following European community obligations in national jurisdictions. With reference to slavery, ECtHR has made specific references to the problem in important decisions, which have an impact on the jurisprudence of the English courts as well. Slavery under Article 4 of ECHR was explained by the ECtHR in Silidian, wherein the court used the 1930 Forced Labour Convention definition of slavery to explain that slavery is forced or compulsory labour exacted from a person under the menace of any penalty. In Rantsev, the ECtHR held that the traditional concept of slavery needs to be modulated so as to include contemporary contexts.

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List of Cases

  • A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.
  • Costa v Enel (1964) Case 6/64.
  • Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1 (PC) 14B–D.
  • Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.
  • Silidian v France App. No. 73316/01 (Eur. Ct. H.R. 2005).
  • Sweet v Parsley [1970] AC 132.
  • Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/ 62.
  • Von Colson v Land Nordrhein-Westfalen (1984) Case 14/83.
  • Westminster City Council v National Asylum Support Service (2002) UKHL 38.
  • Books

  • Lowe D and Potter C, Understanding Legislation: A Practical Guide to Statutory Interpretation (Bloomsbury 2018).

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