The Use and Misuse of Context: Some Examples

In understanding and interpreting legislative action, one goes wrong if one fails to see the depth of the context in which the legislature acts, which makes it possible for the legislature to promulgate its intention to make some particular change or changes to the law. This way of going wrong is made

clear, I suggest, in a recent analysis of an example of Lon Fuller’s, outlined in his famous reply to Hart, who imagined a statute saying:

It shall be a misdemeanour, punishable by a fine of five dollars, to sleep in any railway station.36

How does this provision bear on (1) the tired traveller waiting for a delayed train who nods off in his seat and falls asleep, and (2) the man who is stopped with pillow and blanket bedding down for the night, but not yet asleep? Scott Soames argues that what the legislature says in this statute seems to apply to (1) and not to (2) and yet these outcomes seem wrong.37 He says one can imagine pragmatic enrichment of the sentence (that is, an intended meaning) which provides linguistic content to this effect, yet such enrichment may well be fanciful if in truth the legislature simply did not consider such cases (which, he says, is difficult to determine).38 In such cases, Soames argues,39 as do Marmor and Schauer,40 there is a judicial power to fix minor infelicities or oversights in legislative language use.

This conclusion is overly hasty. The intended meaning of ‘to sleep’ is very likely ‘to sleep

intentionally’, which entails a voluntary act (actus reus) and a guilty mind (mens rea), rather than the mere state of falling or remaining asleep even without fault (if drugged or knocked unconscious). The legislature reasonably takes for granted, and thus intends, that all offences entail mens rea and

voluntary action. This presumption is beaten back when one infers that the legislature intended the relevant offence to impose strict or absolute liability. One draws this inference in part from the semantic content of the statutory text but also from the nature and relative seriousness of the wrong and the prescribed sanction. It is likely then that (1) does not fall afoul the intended meaning. For (2), there are good reasons not to convict for he does not sleep in the station but rather takes acts

preparatory to sleeping in the station, and one presumes that in specifying the criminal law the

legislature speaks precisely, such that preparing to sleep is not a culpable act of sleeping. However, the legislature’s enactment of this principal offence may entail that any such acts, if sufficiently close to the act of sleeping, are culpable attempts, by virtue of the standing proposition, which the

legislature takes advantage of and does not intend to modify or set aside, that attempts are offences. Soames wrongly overlooks the richness of the context, in which the central distinctions about the structure of criminal law, and the operation of ancillary rules (here, about attempts) that turn on one’s lawmaking act, shape the intentions on which the legislature likely acts and make it possible for the legislature to speak with relative precision and concision.

For an analysis fully attentive to legal context, consider this statutory provision:

Criminal Evidence Act 1898, s 4(1): ‘The wife or husband of a person charged with an offence under any enactment mentioned in the schedule to this Act may be called as a witness either for the prosecution or defence and without the consent of the person charged’.

One might utter the italicized words intending to mean that the defendant’s wife or husband is a

competent and compellable witness like any other. However, in Leach v R,41 the appellate court held that the defendant’s wife was competent but not compellable. The judges reasoned that a fundamental change in the common law should not be taken to have been made in the absence of express language. Hence the case is sometimes taken to stand for the presumption that Parliament does not intend to change the common law.

More interesting is the detail of the argument by counsel for the appellant, who carefully outlined the legal context in which Parliament acted, which informed what it is plausible to think the provision meant. At common law the husband and wife were in law one person, which entailed that neither was

competent to testify in any proceedings against the other, subject to three recognized common law exceptions: high treason, personal injuries inflicted by one on the other, and forcible abduction

followed by marriage. That unity could be broken by statute but otherwise the wife was not competent to testify against her husband (or vice versa). Various statutes before the 1898 Act had made

provision for further exceptions, that is for further kinds of case in which the husband or wife was competent but not compellable, including some of the enactments included in the Act’s Schedule.

Section 1 made the wife a competent witness for the defence but recognized the continued unity of husband and wife by way of para (b), which provided that the prosecution can no more comment on her absence than on the defendant’s absence, and para (c), which provided that she cannot be called save upon the defendant’s application. Section 4(1) provided that in relation to certain offences the wife may be a witness for prosecution or defence even without the consent of the husband. The offences concerned neglect, matrimonial property, cruelty to children, rape, and abduction.

Subsection (2) provided that the Act did not change the existing common law exceptions, under which the wife was competent but not compellable even without the consent of the accused. It followed that there is good reason to infer Parliament used the phrase ‘may be called as a witness’ to convey just that the wife was a competent witness. The law prior to the 1898 Act was that the wife was not in general a competent witness. Sections 1 and 4 of the Act partly changed that legal position, making the wife competent for the defence in all cases (but in a way consistent with respect for marital unity) and competent for prosecution and defence, even without the consent of the accused, in relation to some offences, specifically those in which the wife (or husband) was likely to be the victim. The latter change in effect widened the scope of the common law exceptions, extending them to analogous

offences, and doing so in terms that maintained the continuity with the common law, by providing that the wife was in such cases a competent—but not an ordinary, compellable—witness.

This line of argument is, I suggest, closely attentive to the full context of s 4, identifying with care the set of legal propositions, and justifying legal principle, which the legislature acted to change, which closely inform what the legislature was likely to have intended to mean in uttering s 4, which meaning it is reasonable for interpreters to infer.

Nothing in this discussion is intended to suggest that one may infer the legislative intent without very careful attention to the semantic content of the statutory text, for it is this that the legislature utters in the relevant context to make its intended meaning clear. Interpreters fail to infer legislative intent when they are insufficiently attentive to the rationality of uttering the semantic content in question. For example, consider Yemshaw v London Borough of Hounslow,42 which concerned s 177 of the

Housing Act 1996:

(1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him, or against—(a) a person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him.

(1A) For this purpose ‘violence’ means—(a) violence from another person; or (b) threats of violence from another person which are likely to be carried out; and violence is ‘domestic violence’ if it is from a person who is associated with the victim.

Lady Hale concluded:

The purpose of the legislation would be achieved if the term ‘domestic violence’ were interpreted [to include] ‘physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise

to the risk of harm’.43

no such conclusion at all, because Lady Hale purports to ‘update’ the statute, which is in truth to amend it by judicial fiat). The interpretation makes no sense of the legislature’s definition of violence as either ‘violence’ or ‘threats of violence … likely to be carried out’. Lady Hale’s interpretation makes the second redundant for any threat of violence would already constitute violence. The

reference to threats likely to be carried out plainly limits the class of threats capable of constituting violence for the purposes of s 177—threats not likely to be carried out, however abusive or injurious they may otherwise be, do not constitute violence. The semantic content the legislature utters limits sharply what it is plausible to infer it intended.

A more complex example is Sellers v Maritime Safety Inspector,44 in which the court had to consider s 21(1) of the Maritime Transport Act 1994 (NZ):

No master of a pleasure craft shall permit that pleasure craft to depart from any port in New Zealand for any place outside New Zealand unless—

(a) the Director [of Maritime Safety] has been notified in writing of the proposed voyage … and

(b) the Director is satisfied that the pleasure craft and its safety equipment are adequate for the voyage …

The Director had ruled that pleasure craft must have a radio and an emergency location beacon before he would grant consent to depart from New Zealand. The court held that it was contrary to the 1982 UN Convention on the Law of the Sea for a port state (as opposed to the flag state) to regulate safety equipment carried by a ship on the high sea. The court rejected the argument that the provision (on its obvious reading) only created an offence in respect of action within New Zealand internal waters and so did not interfere with the freedom of the high seas. For, ‘[t]he effect, if not the purpose, of the provision is to place requirements on the exercise of the freedom to navigate on the high seas by reference to the adequacy of the ship, her crew and her equipment for the voyage’.45 The Director conceded that the point of the requirements was to facilitate New Zealand’s responsibility for search and rescue in some six million square miles of ocean. The court concluded that the position at

international law is ‘that a port state has no general power to unilaterally impose its own

requirements on foreign ships relating to their construction, their safety and other equipment and their crewing if the requirements are to have effect on the high seas’.46

The court then sought to read the provision to avoid any breach of international law. It considered taking ‘a pleasure craft’ in s 21(1) to mean only New Zealand registered ships. However, the court concluded that the context of the Act as a whole made this reading untenable. The Act distinguishes for different purposes between a ship, a New Zealand ship, a foreign ship, and a foreign ship in New Zealand waters. In using ‘pleasure craft’ in s 21 it is clear that Parliament did not intend to refer only to New Zealand ships.

Instead, the court took the powers of the Director to be limited by reference to the relevant rules of international law, such that ‘adequate for the voyage’ is read to mean ‘adequate for the voyage so far as at international law it lies in the power of a port state to regulate this’. The court concedes that the conclusion that the Director’s power differs in respect of foreign and local craft seems difficult to square with the general words of s 21 (and indeed its own argument that pleasure craft cannot mean only New Zealand ships).47 The court relies on the presumption that Parliament legislates consistent with international law. This is unsound. True, there is (defeasible) reason to think it unlikely that Parliament would intend to place New Zealand in breach of international law (at the time of enactment). And true, part of the point of the Maritime Transport Act is to give effect to New

extent that it does (the presumption is defeasible!), by setting out a complex scheme, not by affirming in law the relevant conventions, such that the propositions otherwise chosen in the Act are subject to them. Indeed, at various points the Act does refer to the conventions, directing that rule-making power is to be subject to, or exercised by reference to, such. For example, s 47(2) provides that ‘The

Director shall not grant an exemption … unless he or she is satisfied … that—(a) the granting of the exemption will not breach New Zealand’s obligations under any convention’. Nothing of the kind is to be found in s 21.

It is implausible to infer that the legislature uttered ‘adequate for the voyage’ intending to convey ‘adequate for the voyage so far as at international law it lies in the power of a port state to regulate this’. No reader familiar with the context would infer this was intended. The court refers to cases in which general rules are taken to apply only within jurisdiction (or if outside jurisdiction only to acts of citizens)48 and in which diplomatic immunity is held to preclude civil or criminal prosecution.49 However, cases of this kind are not evidence of a general qualifying rule that domestic law is subject to international law. Rather, that statutes apply within jurisdiction is a proposition taken for granted because the legislature is responsible for this community; that diplomatic personnel enjoy immunity to prosecution for breach of some legal duty is a particular proposition of law which the legislative act does not change unless, by necessary implication, it ousts its continued application.50

It might be unwise for the legislature to authorize action that risks placing New Zealand in breach of its international obligations and it might repent of the legislative choice were that to come to pass. However, the court’s task is to infer, from what was said in context, the choice that was made. The court’s interpretation is unsound because it wrongly fixes on (and distorts) one element of the context and so adopts a highly implausible inference about what Parliament intended in uttering this semantic content. Also, the court’s conclusion that the obvious meaning of s 21 is inconsistent with

international law is dubious, for it only imposes a duty within New Zealand internal waters not to depart port without the consent of the Director. At best, the point is a subtle one. This is significant for the legislature very likely reasoned that the offence pertained only to what took place in New Zealand and hence that enacting the offence helped the authorities exercise their responsibility for search and protection consistent with the freedom of the high seas. The context of enactment leads me to infer that Parliament chose to authorize the Director to require adequate safety equipment, not adequate in so far as consistent with international law.