Mischief Flashcards
Background
Originates from Heydons Case (1584)
Involves an examination of the problem with the common law that existed before the statute was passed in an attempt to work out parliaments intention.
The court then gives effect to that intention
4 parts to the rule
What was the common law before the act was made?
What was the mischief that the common law did not provide for?
What was the remedy proposed by parliament?
What was the true reason for that remedy?
Judges then interpret the words in the spirit of giving effect to the remedy
However the rule has been usefully re-stated in three parts in Jones v Wrotham Park estate (1980)
Possible to determine precisely the mischief that the Act was intended to remedy
Must be apparent that Parliament had failed to deal with the mischief
Must be possible to state the additional words that would have been inserted had the omission been drawn to Parliaments attention
Corkery v Carpenter (1951)
D found drunk on bicycle and was charged under the Licensing Act 1872, which provided that a person in charge of a ‘carriage’ on the highway could be stressed without a warrant.
D said bicycle not carriage.
Court said it was for the purposes of the act.
The relevant mischief was that the Act was intended to prevent drunken people on the highway with any form of transport in order to maintain public order and safety
Smith v Hugh’s (1960)
Prostitutes on balconies and Windows.
S1(1) of the street offences act 1959
“It shall be an offence for a common prostitute to loiter or solicit in the street or public place for the purpose of prostitution”
Not “ in the street”
H. Court found mischief was to ‘clean up the street”.
“Projecting their solicitations to the street”.
Royal college of nurses v DHSS (1981)
Nurses and midwives assist abortions
Abortion act 1967/ carried out in a ‘surgical’ manner by a doctor
Hormone drugs- prostaglandin= nurse can do it
Provides defence to “registered medical practitioner”
Mischief- eliminate back street abortions
So they wanted to widen the grounds for abortion carried out with proper skill and care.
Doctor initiated then nurse is classed as ‘registered medical practitioners’.
Advantages of mischief rule
Avoids absurdity and injustice and “repairs” bad laws quickly
Reforms and improves the law as each case is interpreted as to avoid the mischief behind that act
Respecting parliament by giving effect to their true intentions, despite using a degree of discretion
Disadvantages of the mischief rule
16th century when there were less acts of Parliament. Passed would have been less complex with intentions that were easy to work out
Rule less suited to the quantity and quality of current legislation
Must be possible to discover the mischief. Less extrinsic material available for older acts making it more difficult to see why an act was passed
Allows judicial law making which is against the doctrines of the separation of powers an supremacy of Parliament
RCN v DHSS
