Mischief rule Flashcards
Reason
Gives judges more flexibility, instead of focusing on specific words, they look for ‘mischief’ or problem parliament was trying to fix, then make decision that deals with that issue
Usues extrinsic aids to work out mischief
Comes from heydons case 1584
What was the law before making the act
what was the mischief the previous law created
What was the remedy parliament was trying to provice
What was the reason for the remedy
Smith v Hughes
Prostitutes soliciting services in public made illegal so women hung out of windows in private residences, mischief rule made guilty as ‘mischief’ was prostitutionR
Royal College of Nursing v DHSS
Abortion Act 1967 made it legal for abortions to be carried out but only by doctors. Mischief was to prevent backstreet abortions. Court decided nurses could do abortions too as this was safe
Corkery v Carpenter
Licensing Act made it offence to be drunk and in charge of a carriage - mischief rule stated this could include a carriage too
Adv: Promotes purpose of the law
Allows judges to fill the gap the law was trying to fix so prevents loopholes (Smith v hughes)
Adv: More likely to provide justice
Result is more likely to be ‘just’ given the exact circumstances. including if there are advances in technology or medical science (royal college of nursing v DHSS)
Adv: Closes loopholes in the law
When writing the law errors may have been made, the mischief rule allows these to be dealt with by judges (corkery v carpenter)
Adv: Allows judges to use external aids
Such as Hansard (written record of all debates in parliament) helping judges to find out mischief (Pepper v Hart)
Disadv: Allows judges to make law
When judges making decision to fill gaps and close loopholes they are in effect making the law, yet are unelected and shouldnt be allowed as undemocratic (Smith v Hughes)
Disadv: Leads to uncertainty in law
Impossible to know when judges will use this rule and what decision they might make, meanings public arent clear what the law is and lawyers cant advise clients (Corkery v Carpenter)
Disadv: Retrospective effect =
Judges are technically punishing people for doing things which weren’t actually illegal when they did them (smith v Hughes)
Disadv: outdated
Rule was made in 1584 so doesn’t reflect how modern laws look, where we would not call it a mischief (Heydons case)