0.6 - Mischief rule Flashcards
What is the mischief rule?
A rule of statutory interpretation used to prevent the mischief an Act is aimed at.
What does ‘mischief’ refer to?
The trouble/harm Parliament wanted to stop.
What did Lord Diplock say about when the mischief rule should be used?
If it is possible to determine from the Act the precise ‘mischief’ the Act was to remedy (and is) possible to say with certainty what additional words would have been inserted.
What is the mischief rule often referred as?
As judges ‘filling’ in the gaps of the law.
It allows the judge to look beyond what is actually written in the Act and allows them to look at the context in which the Act was passed.
Smith v Hughes
A group of prostitutes were charged with soliciting in a public place. They were actually soliciting from private premises but could be seen by the public.
Street Offences Act 1959 “In a public place.”
Guilty as the Act was intended to prevent the harassment of men by prostitutes.
Royal College of Nursing v DHSS
The Royal College of Nursing brought an action challenging whether it was legal for nurses to carry out abortions. The Abortion Act (1967) states that abortions can be carried out under certain circumstances by registered medical practitioners.
Abortion Act 1967 “Registered medical practitioner”.
Not guilty as the Act was intended to prevent dangerous ‘back street abortions’. The nurses could do this safely.
What are advantages of the mischief rule?
Like the golden rule, the mischief rule helps avoid absurdity and injustice and ‘repairs’ bad laws quickly.
The mischief rule reforms and improves the law as each case is interpreted so as to avoid the mischief behind the Act.
Constitutionally some judges would argue that they are respecting Parliament by giving full effect to their true intentions, despite using a degree of discretion.
What are disadvantages of the mischief rule?
The rule dates back to the 16th century when there were far fewer Acts of Parliament and those that were passed would have been less complex with intentions that were easier to work out. This makes the rule less suited to the quantity and complexity of modern legislation.
It must be possible to discover the mischief. There will be less extrinsic material available for older Acts making it difficult to discover why an Act was passed.
Constitutionally some critics would argue that the mischief rule allows for judicial law-making which is against the doctrines of Separations of Powers and Supremacy of Parliament (RCN v DHSS).
