Statutory interpretation, extraneous materials, the rule of lenity: Wooden v United States No 20-5279, March 7, 2022

Judicial approaches to statutory interpretation can be contentious, even among judges of a final appellate court.

This is illustrated in a recent decision of the Supreme Court of the United States, Wooden v United States, No 20-5279, March 7, 2022.

Here, the phrase “committed on occasions different from one another”, used in relation to a series of offences, was said to be ambiguous when applied to ten burglaries committed by Mr Wooden when he had entered a storage facility on one evening (some two decades ago) and had stolen items from ten different units in that building.

The penalty for which he had been sentenced on the present occasion turned on the number of his previous convictions.

Obviously, the burglaries were not committed simultaneously, but were they committed on different occasions?

One thing courts sometimes do in cases of statutory ambiguity is to have a look at what the legislators were considering and saying when the legislation was proposed.

Is that passing the buck? Should the judicial branch call in the aid of legislators in that way? In this case, Barrett J cautions against judicial resort to extraneous materials: “I would impute to Congress only what can fairly be imputed to it: the words of the statute.”

The ordinary meaning of “occasion” applied here led to the conclusion that the ten burglaries were indeed committed on the one occasion.

But if there had been ambiguity, how should that be resolved? Gorsuch J considers in some detail the “rule of lenity”, which is (here) that an interpretation favourable to a defendant in a criminal case should be preferred. This rule should be applied once ambiguity is identified.

However, Kavanaugh J, criticises Gorsuch J’s reference to the rule of lenity, saying that it should only be applied as a last resort, because there are other interpretive techniques (such as, in contexts other than the present, the presumption of mens rea) that can be used to address ambiguity. This means that the rule of lenity will “rarely if ever” have a role.

In Wooden the Court was unanimous as to the reversal of the decision of the Court of Appeals for the Sixth Circuit.

I have previously referred to cases on the rule of lenity: here, and here.

Waving the flag: Pwr v DPP [2022] UKSC 2

Flag waving during a demonstration in public in central London was an offence in Pwr v DPP [2022] UKSC 2 (26 January 2022).

Legislation, described at [2], made it an offence for a person to carry or display an article in a public place “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary only and the maximum penalty is six months’ imprisonment.

Apart from the carrying or displaying having to be done knowingly, which was not in issue here, the prosecutor did not have to prove that the defendants (appellants) intended to arouse the necessary suspicion required for the actus reus.

The judgment illustrates the established approach to statutory interpretation in determining whether an offence is one of strict liability, applying it here to the language of the provision, the statutory context, and the purpose of the provision creating the offence.

Here, if mens rea was required, what would it be? Answering that was a task of “immense difficulty” [37].

A second aspect of the decision is determination of compliance with the law on limitation of the right of free speech. The decision involved consideration of factors (which were not criteria) and their interrelationship in the context of the circumstances of the case. It was not necessary for the defendants to have incited violence before the specific limitation on their flag-waving created by the relevant offence was justified.

How delightful it was to see Smith and Hogan, Criminal Law, 5th and 6th eds referred to at [51]. I can report that the passage quoted there also occurs in my older copy (I have it before me now), the 4th ed (1978) at p 816, discussing s 2(1) of the Prevention of Terrorism (Temporary Provisions) Act 1976.

Also delightful to see Sweet v Parsley [1970] AC 132 cited [29]. Almost makes one nostalgic for law school. Not quite, though.