mischief rule disadvantages - model answer

• Firstly, the mischief rule can be seen to be giving too much power to unelected judges to decide what the law should be. This allows Judges a lot of flexibility in HOW they deal with the mischief. This shows a lack of respect to parliament sovereignty and allows judges to create law. For example, in Royal College of Nursing v DHSS the mischief rule led to significant changes in the availability of abortions. This was done without a new law being passed by parliament and without proper scrutiny of how these changes would work.
• Evaluation 2:

  Another disadvantage the results can be inconsistent. Different judges apply the mischief rule in different ways. This can lead to inconsistent decisions which means that there may not be the same outcome in similar cases. This undermines justice as it means that the outcome may vary based on the judge and their interpretation rather than the facts of the case.
• Evaluation 2:

  In the case of DPP v Bull, the defendant was a male prostitute who was charged under the Street Offences Act 1959, the judge reached a different decision to Smith v Hughes. The court decided that the act didn't apply to male prostitutes as earlier reports hadn't mentioned this.
• Some argue that the mischief rule is retrospective, focusing on earlier debates and ideas which led to an Act of parliament. This leads to Judges trying to remedy a mischief using a law which is outdated. For example, in R v Registrar-General Ex Parte Smith, if the mischief rule had been used, the mischief that the Adoption Act 1975 was trying to remedy was providing a legal channel to contact birth parents. Under the mischief rule, Smith might have been allowed to contact his mother. Arguably this is the wrong decision.
• A final disadvantage is unanimity. The mischief rule gives judges the opportunity to discuss the Law and make their decision on what they think parliaments intentions were. The problem is, only parliament know their intention and Judges can try to establish this, but can often disagree. In Royal College of Nursing v DHSS, there was a split decision with only the majority of judges agreeing on the outcome, with a majority disagreeing.