Mischief Rule Flashcards
Advantages
Avoids absurd decisions
Promotes flexibility in law
Achieves parliaments true intentions
Allows for judicial creativity
Avoids absurd decisions
Cause: judges can ignore the strict words in an act and prevent the problem parliament wanted to stop
Example: smith v Hughes it would’ve been absurd to find D not guilty just because they were on a balcony when they were doing the thing that parliament wanted to stop (harassing people). By ignoring the word ‘street’ the court were able to stop the mischief
Consequence: + because it means justice will be served in cases where had the literal rule been used there would have been an absurd result
Promotes flexibility in the law
Cause: judges can ignore strict words in an act and use their own legal knowledge to come to a sensible decision
Example: RCN v DHSS judges could consider medical advances since the abortion act to allow nurses to help preform safe abortions despite them not technically being ‘medically registered practitioner’
Consequence + as judges are not forced to make unjust decisions and can consider the circumstances anc changes in society
Achieves parliaments true intentions
Cause: judges are fixing the problems for P rather than sticking to the strict wording
Example : in smith v Hughes the court identify the problem of people being harassed and come to the decision P would have wanted. Rather than making one against their wishes due to the word ‘street’
Consequence: + as it ensures the law works as intended
Allows for judicial creativity
Cause: judges can alter the law if a problem is still being caused despite the wording of the act
Example: in smith v Hughes P wording of ‘street’ or ‘public place’ did not fully solve the problem of prostitutes but judges were able to achieve this by focusing on the problem rather than the wording
Consequence: + as P do not need to update wording of their acts because judges can solve any issues that arise
Disadvantages
Creates uncertainty in law
Erodes parliamentary supremacy
Limited to fixing one problem at a time
Goes against the separation of powers
Creates uncertainty in law
Cause: judges may disagree on what mischief P wanted to solve
Example: in RCN v DHSS 2 judges felt that the literal rule should have been used instead which shows a different set of judges may have come to a different decision
Consequence: - as it leads to inconsistent decisions and lawyers and judges are not able to prepare properly for their cases
Erodes parliamentary supremacy
Cause: judges have to decide for themselves what the mischief is and may end up ignoring P wording to do so
Example: in RCN v DHSS 2 of the judges said that the other judges were taking over P role as supreme law maker in re drafting the legislation when they should just be interpreting the statue
Consequence: - because it’s P job not a judges to make the law due to them being elected
Limited to fixing one problem at a time
Cause: because judges can only use it to “fill the gap” in the old law
Example : in R v RG ex parte smith, the mischief rule couldn’t be used as the act was not created to fix the mischief of serial killers murdering their mothers. Instead the purposive approach had to be used.
Consequence: - as the rule is still limited in its use and does not go so far as to consider P purpose in enacting a statute
Goes against the separation of powers
Cause: judges are changing the law rather than taking P words exactly
Example: in smith v Hughes, the judges made it illegal to solicit fro, a private place even though the act clearly specified public places
Consequence: - as judges may be going beyond their role and powers of interpreting and applying the law
