Mischief Rule

• Mischief Rule established in Heydons Case 1584 gives the judge a lot more freedom than the literal or golden rules
• Heydons Case laid out a four stage process for applying mischief rule

  1. What was the common law before the Act was passed
  2. What was the problem with that common law and why did parliament decide to pass an Act
  3. What was the remedy that parliament was trying to provide
  4. Judges must interpret the act so that mischief is dealt with and remedy is given
• Mischief rule gives judges the most flexibilty when deciding what mischief Parliament intended to stop this way they can in fact ignore wording of statue in order to reach the desired outcome
• Royal College of Nursing v DHSS

  Legal for nurses to do abortions as purpose of the Abortion Act 1967 was to prevent back street abortion. Court stated mischief parliament was trying to remedy was back street abortions . Court stated that the mischief parliament was trying to remedy was bsa and by legalising is to make them safer
• Extrinsic aids are often required to discern the mischief which preceded the act and the intention of parliament when attempting to remedy it . Often mischief can be found by looking at case law but the use of law commission reposts can also be very useful in determining what the mischief was
• Smith v Hughes

  judges had to interpret the term ‘street or public place ‘ when women were hanging out of balconies to solicit for the purposes of prostitution. Although they were on private property what they were doing was within the mischief that the act was trying to remedy therefore women were liable