Mischief Rule

• Mischief Rule:


  The judge looks at the law before the Act, the mischief the Act was meant to remedy then interpret the Act to give effect to this (Heydon’s Case 1584).
• Smith v Hughes 


  offence – solicit clients in street or public place. Even though in private house they were convicted as their behaviour was aimed at men in the street and the aim of the Act was to prevent this intrusion.
• Elliot v Grey

  vehicle ‘used on road’ needs insurance.  Car had no wheel or battery but still interpreted as being ‘used on the road’ as still posed a hazard and aim of Act was to provide insurance for those injured by such hazards.
• Royal College of Nursing v DHSS

  Act stated ‘registered medical practitioners’ could perform abortions.  Are nurses included? Yes, as aim of the Act was to allow access to safe abortions.
• Advantages


  1. Flexible
  2. Avoids absurdity
  3. Avoids injustice
  4. Favoured by the LC
• Flexible 


  allows judges to move from the exact wording and look at the aim of the Act.  E.g. Smith v Hughes
• Avoids absurdity

  Would have been absurd if someone had been injured by the car in Elliot as parliament intended insurance should cover this.
• Avoids injustice 


  e.g. it would have been injustice if nurses were committing an offence by carrying out terminations.
• Favoured by the LC 


  gives judges the power to interpret the Act sensibly and in line with the intent of parliament.
• Disadvantages


  1. Not easy to discover the mischief
  2. Uncertainty
  3. Out of date
  4. Too much power to unelected judges.
• Not easy to discover the mischief

  Act can be long and complex and often it is difficult to work out the problem they were trying to remedy.
• Uncertainty 


  unlike the LR, lawyers may find it difficult to advise their clients as the judges may use this rule which does not apply the plain meaning of the words.
• Out of date


  comes from a 1584 case which is a time when judges had a much more active role in helping make Acts.  This meant they had more knowledge of the intent.  This is not the case today where parliament are the supreme law makers.
• Too much power to unelected judges 


  judges should be applying the law set by parliament.  With the MR, they have been accused of making the law as in Royal College of Nursing.