Fiat justitia, et pereat mundus
(Let justice be done, though the world perish)
Picture the scene. A wealthy old lady decides to disinherit her only son. So he kills her before she gets the chance to make a Will. What should happen to her estate? Succession law couldn’t be clearer: she died without leaving a valid Will and, under the intestacy rules, her son is entitled to inherit all her wealth. The extended family bring a legal challenge.
You’re the judge: what would you do?
Hold that thought: we’ll return to it shortly.
The SPL Commission’s decision in the Rangers case has proven to be highly controversial. But on one point there appears to be widespread agreement: the Commission had no choice but to apply the SPL’s rules as written – no matter how absurd, perverse or unjust the result. The rule that a player registration is valid unless and until revoked must be applied according to its plain meaning – even if it means that the club in question will benefit from deliberately concealing information that would’ve invalidated the registration.
The purpose of this article is to put some pressure on that widely-held view.
The pressure is generated by one of the three fundamental rules of legal interpretation that every law student has drummed into them at Law School. This is the so-called ‘golden’ rule: that a law should not be applied according to its literal meaning if to do so would lead to an absurdity or a manifest injustice. The rationale behind the ‘golden’ rule is that laws are not simply arbitrary sets of rules – they are expressions of the intentions of the law-maker. And it should be presumed that the law-maker did not intend that the law should have absurd or unjust consequences. As Lord Millett put it in R (oao Edison First Power Ltd.) v Central Valuation Office  4 All ER 209:
“The Courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless.”
The ‘golden’ rule also recognises that the “law” consists not only of specific rules but also general principles e.g. that a person should not benefit from his own wrongdoing (ex turpi causa non oritur actio). This principle was in play in the ‘murderous son’ scenario, which came before the High Court in Re Sigsworth  1 Ch 98 (and also the Court of Appeals of New York in Riggs v Palmer (1889) 115 N.Y. 506). The Courts on both sides of the Atlantic used the ‘golden’ rule and declined to apply the law as written. Allowing the son to profit from his own murderous act would have been so unjust that the High Court invented an exception to the intestacy rules to prevent him from inheriting the estate.
Is that what you would’ve done? Did you think that, as the judge, you were compelled to apply the law literally and therefore had no choice but to let the murderer scoop the lot?
Re Sigsworth is a very vivid example, but cases applying the ‘golden’ rule are legion (at the end of this article, I’ve summarised ten more cases in which Courts used the ‘golden’ rule to prevent an absurd or unjust result). A particularly relevant case, in the context of Rangers, is the recent Supreme Court decision in Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council  UKSC 15. This concerned the application of planning law to a house that was disguised as a barn. Mr Beesley obtained planning permission to construct a barn for grazing and haymaking on open land that he owned. He constructed a building which was (to all external appearances) the permitted barn, but (internally) was a fully fitted-out dwelling house with garage, living room, study, bedrooms, bathrooms and gym. He moved in to the ‘barn’ with his wife and they lived there for many years. When the ruse was discovered, Mr Beesley’s defence was that the 4-year time limit for taking enforcement action against him had expired.
The Supreme Court applied the principle that statutes must be construed so that no one should be allowed to profit from his own wrongdoing. The rationale behind the time limit for enforcement was that 4 years was a reasonable period during which a planning authority would normally be expected to discover an unlawful use. The Supreme Court held that it would frustrate that rationale if someone like Mr Beesley, who had used deliberately false statements to prevent discovery of the illegal use, was allowed to rely on the time limit. The Supreme Court also held that such a result would damage the public’s confidence in the law: any law-abiding citizen would be astonished to think that Mr Beesley’s dishonest scheme, once discovered, would not be subject to enforcement action but rather “crowned with success”. It was unthinkable that Parliament intended such an outcome. Mr Beesley must not be allowed to get away with it.
Returning to the Rangers case, there is a powerful argument that applying the player registration rule literally involves absurdity or injustice – principally because it creates three perverse incentives. Firstly, it incentivises clubs to apply for a player to be registered even if they know that the conditions of registration are not satisfied, in the hope that the application will somehow ‘slip through the net’ and be granted anyway (in which case it will be valid until revoked). Secondly, a club which discovers that it has made an error in its application is incentivised to say nothing and to ‘let sleeping dogs lie’ – because it may be in a better position by not confessing its mistake. Thirdly, and most importantly, it incentivises fraud – by deliberately concealing relevant information, a club can ensure that a player who does not satisfy the registration conditions is treated as being eligible – and therefore allowed to play – for as long as a period as possible (potentially his entire spell with the club). And then, if the club is no longer around when the deception is finally discovered, it may be impossible to impose meaningful sanctions.
The Commission would therefore have been justified to (and was, arguably, required to) apply the SPL’s rules so as to prevent Rangers from relying on its own wrongdoing as a defence to the charges. The exception that it should at least have considered reading into the general rule (that a player registration is valid unless and until revoked) may be formulated in a number of different ways, but would go something along the lines of:
“…unless the club knowingly concealed information the disclosure of which would have led to the individual concerned being treated as ineligible to play.”
This exception would remove the second and the third of perverse incentivises, whilst also addressing the SPL Commission’s concerns as to the purpose of the Register. It is indeed very important to ensure a degree of certainty over which individuals are eligible to play; but cases of knowing concealment would presumably be rare, and it seems reasonable that – in those rare cases – the deceitful club should expect to forfeit the benefit of the certainty that the registration system provides.
My claim is not that the Commission ought to have applied the ‘golden’ rule in the Rangers case. I think that it should have – but opinions may legitimately differ on the point. There are many reported cases in which the Court was invited to apply the ‘golden’ rule but declined to do so. Conceptions of absurdity and injustice differ; and the judicial popularity of the ‘golden’ rule has waxed and waned over the course of our legal history (it’s currently rather popular). My claim is more modest: that applying the ‘golden’ rule was an option that was legally available to the Commission, and therefore that the widely-held view (that the Commission had no choice but to apply the rule literally) is simply false.
It’s (unfortunately) a truism that legal disputes are often won not by the party that has the strongest case, but by the one which has the best lawyers. The responsibility for ensuring that this doesn’t happen rests with the judges, who should apply the law as it really is – and not just as the lawyers have presented it to be. In my experience, judges all too often fail in this fundamental task – and the fairness of the legal system suffers as a result. Money does, indeed, talk. If Spartans had been able to afford a QC to represent them at their SFA disciplinary hearing 18 months ago, perhaps they would not have been thrown out of the Scottish Cup for failing to double-date Keith McLeod’s employment contract.
The Commission, in its preliminary judgment, was at pains to insist that Rangers wouldn’t be prejudiced by its declared intention not to participate in the hearing –it would ensure that the case against Rangers was rigorously tested in its absence. However, the Commission seems not to have taken such a benevolent attitude towards the SPL’s presentation of its case. It appears to have forgotten the ‘golden’ rule: that its job is not to apply the rules mindlessly, but to do justice.
Examples of the application of ‘golden’ rule
In R v Allen (1872) LR 1 CCR 367, Mr Allen purported to marry a second wife and was charged with the offence of bigamy: “whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence”. Under a literal interpretation, it was impossible for Mr Allen to commit bigamy – because the purported second marriage was void (as the ‘bride’ was a close relative). The Court applied the ‘golden’ rule: it would be unjust to allow Mr Allen to plead his own wrongdoing as a defence to the charge. The Court therefore rewrote the phrase “shall marry” as ‘shall go through a marriage ceremony’ and the defendant’s conviction was upheld.
Richard Thomas & Baldwins Ltd. v. Cummings  AC 321 concerned the legal duty, under the Factories Act 1937, to fence off dangerous parts of machinery when they are “in motion”. Mr Cummings lost a finger while repairing a broken machine, the repair of which had required him to turn the machine by hand. The House of Lords applied the ‘golden’ rule and rejected Mr Cummings’ claim for compensation. Although the machine had clearly been set “in motion” by Mr Cummings, it would have been “quite unreasonable” to impose a legal requirement that it must therefore have been securely fenced – as it would’ve made the machine impossible to repair in practice.
In Smith v Hughes  1 WLR 830, the defendants were prostitutes who were attracting potential customers from the first floor window of a flat. They were convicted of the offence of soliciting in a “street or public place”. They appealed on the ground that they were soliciting in a private property, not a public place. The Divisional Court refused to apply the Act literally and upheld their convictions – it would have been absurd for the law to have permitted the defendants to solicit through the open window of a flat.
In Adler v George  2 QB 7, Mr Adler was convicted of obstructing a member of the armed forces “in the vicinity of” a prohibited place. He appealed on the basis that he was actually in the prohibited place (Norfolk air force base), rather than in the “vicinity” of it, at the time of obstruction. The Court applied the ‘golden’ rule: it would be absurd for a person to be guilty if they were near to a prohibited place but not if they were actually in it. Mr Adler’s conviction was therefore upheld.
In Sweet v Parsley  AC 132, Miss Sweet was a schoolteacher who rented out rooms in her farmhouse – which she didn’t live in herself. One of her tenants was caught smoking cannabis in his room. Miss Sweet was convicted of the offence of ‘managing premises used for the purpose of smoking cannabis’. The House of Lords applied the ‘golden rule’ and quashed the conviction. Lord Reid commented that if the law were to be applied literally then the implications (i.e. that Miss Sweet would be a criminal even though she was entirely blameless) would be “astonishing”.
In R v Chief National Insurance Commissioner, ex parte Connor  QB 758, Mrs Connor deliberately stabbed her husband and was convicted of manslaughter. The Court rejected her claim to be entitled to widow’s allowance, applying the ‘golden’ rule to avoid a perverse result (that she would profit from her own wrongdoing).
In Cooper v Motor Insurance Bureau  QB 575, Mr Cooper injured himself while riding his friend’s (uninsured) motorbike. The Motor Insurance Bureau was required, by law, to pay compensation to “any person” hurt in a collision involving an uninsured vehicle. The Court of Appeal applied the ‘golden’ rule and upheld the MIB’s right to reject Mr Cooper’s claim, by limiting the very general phrase “any person” to third parties only – to prevent the perverse result that the driver of the uninsured vehicle himself would be entitled to compensation for an accident that he himself had caused.
In R v Registrar General, ex parte Smith  2 QB 393, Mr Smith (a psychotic convicted murderer) applied for a copy of his birth certificate. This was refused by the Registrar General, on the ground that it was likely that he would use information contained in it to attempt to murder his mother. The Court of Appeal upheld the Registrar’s decision, in spite of Mr Smith’s clear and absolute legal right to receive the copy, as it would be absurd to endanger his mother by applying the law literally.
Mallinson v Secretary of State for Social Security  1 All ER 295 involved an application for attendance allowance for a blind man, Mr Mallinson, to help pay for someone to assist him with his personal care and mobility needs. Under the relevant Act, he was only entitled to the allowance if he needed “frequent attention…in connection with his bodily functions”. The Court of Appeal upheld the Social Security Commissioners’ decision that, as Mr Mallinson had lost all function in his eyes, the test was not satisfied and he was not entitled to the allowance. The House of Lords applied the ‘golden’ rule and reversed that decision – to avoid the anomalous consequence that a partially-sighted person would be entitled to the allowance but a completely blind person would not be.
Mykoliw v Botterill  CSOH 84 concerned a fatal coach accident in Inverness. Several members of the deceased’s family claimed compensation against the coach driver for grief and emotional distress, including his step-father (with whom the deceased had a close loving relationship). The law entitled the “immediate family” of the deceased to claim compensation, and this had been amended in 2006 to include anyone who had accepted the deceased as a child of their family (even if they were not related by blood). However, the 2006 amendments had inadvertently excluded step-parents from the right to compensation. The Court of Session applied the ‘golden’ rule and upheld the step-father’s claim for compensation. Lord Pentland said that, if the law were to discriminate against marriage by entitling an unmarried cohabitee of the deceased’s mother to compensation but excluding her husband from the right to compensation, it “would be absurd and would give rise to injustice”, would “offend against common sense” and be “devoid of any rationality” and it would have “an entirely anomalous and nonsensical basis”.