mischief rule

• judges filling in gaps in law, looks at context
• negative approach
• mischief - trouble/harm parliament wanted to stop
• remedy - act created by parliament to prevent problem/behaviour
• wider interpretation
• (heydon's case) 1. what was common law before act of parliament

  2. what was mischief that law did not provide remedy for

  3. what was remedy parliament enacted

  4. judges should interpret act to ensure mischief is actually solved
• (smith v hughes) prostitutes soliciting in public place on private premises (balcony) not guilty as not in public place - guilty, act intended to prevent harassment of men by prostitutes
• (rcn v dhss) challenging whether was legal for nurses to carry out abortions, abortion act 'by medical practitioners', guilty as nurses weren't registered medical practitioners

  - not guilty, act intended to prevent dangerous backstreet abortions, nurses could do this safely
• ++ avoids injustice by filling in gaps promoting just results (smith v hughes)
• ++ flexible, allows law to adapt
• ++ law commission suggested should be only rule of statutory interpretation
• ++ promotes original purpose of act (parliaments intention)
• -- undemocratic, allows judges to make law, undermines parliamentary sovereignty
• -- judges personal views can influence decision
• -- makes law uncertain and inconsistent, different interpretations
• -- difficult to identify intentions of parliament
• -- looks back to mischief parliament intended to stop, than intended for future