ordinary sense of the words" would lead “to some absurdity”.
214
In this case a
court can depart from the grammatical and ordinary sense of the words to
avoid the absurdity, and it does this by resort to implication.
215
This is relevant
to policy in that it is highly unlikely that a legislature would have intended an
absurdity. Hence, resolving an absurdity brings the statute more into line with
the likely policy intention of the legislature.
Actual Legislative Intent
Where a court seeks to justify implication by reference to actual legislative
intent it relies on the words of the statute being either too wide or too narrow
so that its legislative intent is not properly expressed. A statute may be written
too narrowly so that it does not include events that the policy makers wished it
to cover. In other words, “the wording of the text is narrower than the
object”.
216
This is sometimes referred to as the casus omissus
(the omitted
case). A statute may also be too wide. Glanville Williams constructed the Latin
tag casus male inclusus (the case that is inappropriately or wrongly included)
to cover this situation and to provide an expression corresponding to casus
omissus.
217
While the distinction between the two cases is simple with regard to the written
text of a statute, in practice it is not as stark and firm as it might appear. For
example, in criminal statutes “a casus omissus from a defence is a casus male
inclusus in the offence”.
218
Statute Too Wide
A statute can be too wide because, unthinkingly, the legislature includes within
its scope things that it did not really want included so the statute is afflicted
with over-inclusiveness.
219
This happens because provisions in statutes are
often expressed in general terms, that is they are not addressed to specific or
named persons, events and objects. In this case the chances are high that the
makers will not envisage everything that can be caught by the words of the
statute, and among these unforeseen possibilities will be some that the
legislators will clearly not have wanted. Consequently there will be
circumstances that come within the provisions of a statute but which were not
meant to do so.
214
Grey v Pearson (1857) 6 HLC 61, 106 per Lord Wensleydale
215
Grey v Pearson (1857) 6 HLC 61, 106 per Lord Wensleydale
216
Bennion (1980A) at p 1156, or as Bennion puts it at p 1157 “They are equally
within the object of the text but are omitted from its wording”.
217
Williams (1981A) p 1128
218
Williams (1981A) p 1128
219
See for example R v Broadcasting Complaints Commission; Ex parte Owen [1985]
2 All ER 522.
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