Mischief rule Flashcards

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1
Q

Reason

A

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

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2
Q

Comes from heydons case 1584

A

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

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3
Q

Smith v Hughes

A

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

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4
Q

Royal College of Nursing v DHSS

A

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

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5
Q

Corkery v Carpenter

A

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

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6
Q

Adv: Promotes purpose of the law

A

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

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7
Q

Adv: More likely to provide justice

A

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)

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8
Q

Adv: Closes loopholes in the law

A

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

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9
Q

Adv: Allows judges to use external aids

A

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

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10
Q

Disadv: Allows judges to make law

A

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)

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11
Q

Disadv: Leads to uncertainty in law

A

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)

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12
Q

Disadv: Retrospective effect =

A

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

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13
Q

Disadv: outdated

A

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

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