Mischief Rule

• What does the mischief rule do?

  Gives judges more flexibility as they look for the overall mischief or problem in society that Parliament was trying to fix when they brought in the law

  
  

  Then they make the decision that deals with that issue

  
  

  Usually requires use of extrinsic aids to work out the mischief in society
• Haydon's Case


  • What was the law before making the Act
  • What was the mischief/gap the previous law created
  • What was the remedy Parliament was trying to provide
  • What was the reason the remedy

  Case Law-

  Smith v Hughes - prostitutes in public, women hung out of windows/balconies in private residences. Mischief = prostitution

  
  

  Royal College of Nursing v DHSS - Abortion Act 1967 made abortions legal only for doctors. Mischief = prevent unsafe abortions
• Advantage of Mischief Rule

  P- Promotes the purpose of the law

  
  

  DEV- Allows judges to fill the gap the law was trying to fix. This prevents people using loopholes to get out of punishment

  • Smith v Hughes

  E- However, this can give judges too much power as they apply their own understanding of what the law should of meant which could differ from Parliaments intention
• Advantage of Mischief Rule

  P- More likely to provide justice

  
  

  DEV- outcome of case is more likely to be just given the exact circumstance. It allows for advances in technology or medicine to be put into context of original law made by Parliament

  • Royal College of Nursing v DHSS

  E- However, this can undermine Parliaments job as it allows judges to interpret law in ways that may not reflect the original law. Which could lead to inconsistency
• Advantage of Mischief Rule

  P- Closes loopholes in law

  
  

  DEV- If Parliament made an error when writing the law and has left a loophole this rule allows it to be closed which prevents people from escaping punishment

  • Smith v Hughes

  E- However, this rule makes law making undemocratic as it enables judges to interpret law whereas Parliament should do this
• Disadvantage of Mischief Rule

  P- Allows judges to make law

  
  

  DEV- When judges fill in the gaps and close loopholes they are making laws. This shouldn't be allowed as they are unelected and it's Parliaments job making law making undemocratic

  • Smith v Hughes

  E- However, this can save time for Parliament as they may be busy with other serious matters
• Disadvantage of Mischief Rule

  P- Leads to uncertainty in law

  
  

  DEV- Impossible to know when judges will use this rule and what decision they may make. Making it difficult for lawyers to advise their clients and for public to know what the laws are

  • Corkery v Carpenter

  E- However, judges use this rule to fill gaps to ensure fairness meaning it doesnt disregard the law but it interprets it in a way that reflects its intended purpose
• Disadvantage of Mischief Rule

  P- Outdated

  
  

  DEV- Rule was made in 1584 meaning it doesnt reflect modern laws, where we in modern society wouldn't call it a mischief. Not every Act starts due to a problem

  • Heydon's case

  E- However, rules purpose is still useful as it allows judges to interpret laws in ways that fix issues that weren't expected when it was written