mischief rule model answer

• The mischief rule requires the judge to take into account the gap in the law the statute was intended to fill - the wrong the Act was intended to remedy.

  The court can then act in such a way that the gap is covered. To identify the mischief the Act was intended to remedy the judge may use internal and external aids. In fact, they can actually ignore the wording of the statute in order to reach the desired outcome.
• The mischief rule was created in Heydon's case 1584. This case sets out guidelines for when the rule should be used. They should consider what the common law was before the Act was passed. What was the mischief the Act was designed to remedy? What was the remedy that Parliament tried to provide? What was the true reason for the remedy? The judge should look at the mischief the Act was intended to remedy and interpret the Act in such a way that the remedy is achieved 'suppress the mischief and advance the remedy.'
• Consequently, when the mischief rule is used, the courts seek out what Parliament intended to stop and they see to it that it is stopped.
• The mischief rule was used in Smith v Hughes. The Street Offences Act 1959 made it an offence to solicit in a 'street or public place.' The prostitutes were behind windows and on balconies and called to men on the street. As they were not in a public place, under the literal rule, they would have been not guilty. However, using the mischief rule, the judges decided the Act was designed to prevent people being harassed by prostitutes, as they had still been harassing people they were found guilty as it did not actually matter how or even where they were doing it.
• The mischief rule was used in Royal College Nursing v DHSS. The Abortion Act 1967 stated that a pregnancy should be 'terminated by a registered medical practitioner'. This referred only to doctors; nurses did not come under this definition, so using the literal rule the nurses would have been acting unlawfully.
• However, the mischief rule was used and as the Act was supposed to stop the problem of backstreet abortions which were endangering women's lives, not nurses carrying out the procedure safely in hospital. They were found to have acted lawfully as they were carrying them out in a safe environment in a hospital so women's health was still being protected.