Mischief rule

Question 1

Reason

Answer 1

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

Question 2

Comes from heydons case 1584

Answer 2

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

Question 3

Smith v Hughes

Answer 3

Prostitutes soliciting services in public made illegal so women hung out of windows in private residences, mischief rule made guilty as ‘mischief’ was prostitutionR

Question 4

Royal College of Nursing v DHSS

Answer 4

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

Question 5

Corkery v Carpenter

Answer 5

Licensing Act made it offence to be drunk and in charge of a carriage - mischief rule stated this could include a carriage too

Question 6

Adv: Promotes purpose of the law

Answer 6

Allows judges to fill the gap the law was trying to fix so prevents loopholes (Smith v hughes)

Question 7

Adv: More likely to provide justice

Answer 7

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)

Question 8

Adv: Closes loopholes in the law

Answer 8

When writing the law errors may have been made, the mischief rule allows these to be dealt with by judges (corkery v carpenter)

Question 9

Adv: Allows judges to use external aids

Answer 9

Such as Hansard (written record of all debates in parliament) helping judges to find out mischief (Pepper v Hart)

Question 10

Disadv: Allows judges to make law

Answer 10

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)

Question 11

Disadv: Leads to uncertainty in law

Answer 11

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)

Question 12

Disadv: Retrospective effect =

Answer 12

Judges are technically punishing people for doing things which weren’t actually illegal when they did them (smith v Hughes)

Question 13

Disadv: outdated

Answer 13

Rule was made in 1584 so doesn’t reflect how modern laws look, where we would not call it a mischief (Heydons case)