Mischief Rule Flashcards
Which case established it
Heydons case
What century was it established
19th
How many questions does heydons case require the judge to ask
4
What are the four questions
1) what did common law say before the act was passed
2) what was the mischief that the common law had not addressed
3) how was parliament trying to remedy that mischief?
4) what is the true reason for the remedy
In the mischief rule courts look for the mischief a statute was trying to correct then does what
Interprets the statute in light of this and the gap is covered in court
Name 3 mischief rule cases
1) smith v Hughes
2) royal college of nursing v dhss
3) corkney v carpenter
Which act was questioned in smith v Hughes
Street offences act which made it an offence to solicit in the street for the purpose of prostitution
What was d doing contrary to that act
Soliciting for the purpose of prostitution
How did d get around the act
Solicited from a shop window
How was the mischief rule used
To plug the gap that left out shop window so d was guilty
In smith v Hughes what would have the literal rule done
Frustrated the intention of parliament as they would have intended for d to be convicted
What is used by judges to help them plug the gaps
Intrinsic aids and common law
In royal college of nursing which act was being interpreted
Abortion act
In royal college case what did the h of l have to decide
If a nurse was included under a registered medical practitioner to be able to carry out abortions
What did the h of l decided the mischief was
The act was trying to plug the number of illegal abortions not restrict the practice as a whole
