AO1 - Mischief Rule

• Definition - This rule applies where the act before the court reformed a previous piece of law from the common law or an earlier stature, e.g. it is a piece of law such as the Theft Act 1968 that replaced the Larceny Act 1916
• This rule was created in Heydon's case, the judge must consider:

  1. What was the common law/statute before making the act?
  2. What was the mischief and defect for which the common law/statute did not provide?
  3. Identify the remedy Parliament tried to provide
  4. The court should then interpret the act in such a way that the mischief is covered and a remedy is provided
• Features:

  • Where the words are interpreted to give effect to the intention of Parliament
  • Similar to the purposive approach
  • Judges often rely on extrinsic aids to help identify the intention of Parliament and the mischief with the previous act
  • Gives judges the most flexibility to decide how to resolve the mischief rather than consider the wording
  • The Law Commission described the rule as 'a rather more satisfactory approach'
• Cases:

  • Smith v Hughes - She was found guilty of an offence as she was still causing the mischief of harassing members of the public, which Parliament intended to stop when passing the act
  • Royal College of Nursing v DHSS - The mischief Parliament were trying to get rid of was illegal abortions so it was decided that nurses could legally perform abortions as they were safer