Mischief Rule Flashcards
What does the mischief rule give a judge which the other two rules do not?
more discretion
Where does the definition of the mischief rule come from?
Heydon’s Case 1584
How many points were made in Heydon’s Case 1584?
4 points
What were the 4 points made in Heydon’s Case 1584?
1) ‘What was the common law before the making of the Act?’
2) What was the mischief and defect for which the common law did not provide
3) ‘What was the remedy the Parliament passed to cure the mischeif
4) The true reason of the remedy.
Using the 4 questions of Heydon’s case, what must the courts do to to discover what gap or ‘mischief’ the Act was intended to cover?
the court should first look to see what the law was before the Act was passed in order to discover the gap or ‘mischief’
After the gap or ‘mischief’ of the Act is found, what must the courts do?
They must then interpret the Act in such a way that the gap was covered
What 3 cases illustrate use of the mischief rule?
Smith v Hughes 1960
Eastbourne Borough Council v Stirling 2000
Royal College of Nursing v DHSS (1981)
Corkey v Carpenter 1951
In the case Smith v Hughes 1960 what was the Act in which the courts were interpreting and the words in dispute?
the Street Offences Act 1959 s1
“it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution’
What were the facts of the case in Smith v Hughes 1960?
Court was hearing appeals from 6 women who were charged with prostitution under the Street Offences Act 1959
Under the literal rule, what would the outcome have been in Smith v Hughes 1960?
Not guilty, as the women had not been literally “in a street or public place”, one had been on a balcony and the others at windows
Why did the court find the 6 women guilty of prostitution using question 4 of Heydon’s case 1584”What was the true reason for the remedy”?
Lord Parker said the reason for the remedy was in order to enable people (men) to walk along the street without being “solicited” by common prostitutes in order to clean up the streets
What lord justified the use of the mischief rule in Smith V Hughes 1960?
Lord Parker
In Eastbourne Borough Council v Stirling 2000 who was the case concerning
a taxi driver
In Eastbourne Borough Council v Stirling 2000 what was the taxi driver charged with?
“plying for hire in any street”
What were the facts of the case
The taxi diver was parked on a taxi rank on the station forecourt
Why was the taxi driver who was “plying for hire in any street” in the case Eastbourne Borough Council v Stirling 2000 found guilty?
as although he was on private land he was likely to get customers from the street and therefore the offer of services was aimed at people in the street
What case was referred to in Eastbourne Borough Council v Stirling 2000?
Smith v Hughes 1960
What was the Act and words in dispute in the case of Royal College of Nursing V DHSS 1981 ?
Aboriton Act 1967 which provided that a pregnancy should be “terminated by a registered medical practitioner”, nurses are not a “medical practitioner”
Using question 1 of Heydons case 1584, “What was the common law before making the Act”, what was the common law in Royal College of Nursing v DHSS 1981?
Before making the Act abortion was illegal and there was a common use of backstreet butchers and so the common law did not provide a safe way of aborting
Using question 2 of Heydons 1584, “What was the mischief and defect for which the common law did not provide”, what was this in Royal College of Nursing v DHSS 1981?
the mischief that common law did not provide was a safe way of aborting
Using question 3 of Heydon’s case 1584, “What was the remedy Parliament passed to cure the mischief”, what was this in Royal College of Nurses v DHSS 1981?
Parliament passed the Abortion Act 1967
Using question 4 of Heydon’s case 1584, “What was the true reason of the remedy”, what was this in Royal College of Nursing v DHSS 1981?
The true reason was to prevent women undergoing unsafe abortions
Why would the outcome of Royal College of Nurses v DHSS under the literal rule have meant an unjust outcome?
As in the time of this Act in 1967 the procedure to carry out an abortion was such that only a doctor (“medical practitioner”) could do it. However from 1972 improvements in terminating pregnancies include the use of drugs which can be easily performed by nurses.
What did the 5 judges come to the decision of in the case of Royal College of Nursing v DHSS 1981?
3 held that it was lawful
2 held it was not lawful
In the Royal College of Nursing v DHSS 1981 what did the majority of 3 of the 5 judges base their decision on?
the mischief rule pointing out that the mischief Parliament was trying to remedy was the unsatisfactory state of the law before 1967 and the number of illegal abortions and ensure they are carried out with proper skill in hospital
In the Royal College of Nursing v DHSS 1981, what did the minority of 2 out of the 5 judges base their decision on?
based on the literal rule and said that the words of the Act were clear and that terminations could only be carried out by a registered “medical practitioner”
Using question one of Heydon’s case 1584, “What was the common law before making the Act”?, what was this in Smith v Hughes 1960?
Before the s1 of the Street Offences Act 1959 it was legal to be a prostitute in a brothel and solicit men on the street
Using question 2 of Heydon’s case 1584 , “ What was the mischief and defect for which common law did not provide” what was this in Smith v Hughes 1960?
There was no mischief or defect as there was no common law against prostitution
Using question 3 of Heydon’s case 1584”What was the remedy Parliament passed to cure the mischief”, what was this in Smith v Hughes 1960?
Parliament wanted to prevent a common prostitute to “loiter or solicit” men “in a street or public place” under s1 of the Street Offences Act 1959
What was the Act and words in dispute in Corkey v Carpenter 1951?
Licensing Act 1872 which provided that a person drunk in charge of a “carriage” on the highway could be arrested without a warrant
Why were the words “carriage” in dispute in Corkey v Carpenter 1951?
as D argued that a bicycle did not amount to a carriage
Using question 1 of Heydon’s case 1584, “What wast the common law before making the Act?” , what was this in Corkey v Carpenter 1951?
The common law before the Licensing Act 1872 was that it was lawful to drink and use transport
Using question 2 of Heydon’s case 1584,’What was the mischief and defect for which common law did not provide”, in Corkey v Carpenter 1951?
the common law before 1872 did not provide regulations on drinking in transport (driving)
Using question 3 of Heydon’s case 1584,”What was the remedy Parliament passed to cure the mischief?” in Corkey v Carpenter 1951?
Parliament passed the Licensing Act 1872 in order for a person in charge of a “carriage” on the highball to be arrested without a warrant in order to cure the “mischief” of drink driving
Using question 4 of Heydon’s case 1584”What was the true reason for the remedy”, what was this in Corkey v Carpenter 1951?
the true reason was for this remedy was in order to allow the safety of the highway from drink drivers in “carriages” or other transport
How is it an advantage of the mischief rule that it promotes the purpose of the law?
as it allows judges to look back at the gap in the law which the Act was designed to cover and which Parliament intended for it to do
What outcome is likely to come when judges can look at the intention of Parliament using the mischief rule?
a ‘just’ outcome
Who prefers the mischief rule ?
the Law Commission
In what year did the Law Commission recommend that the mischief rule should be the only rule used in statutory interpretation?
1969
What is there a risk of through use of the mischief rule?
judicial law making
How is there a risk of judicial law making when using the mischief rule?
as Judges are trying to fill in the gaps in law with their own views on how the law should remedy the gap
What case illustrates that judges do not always agree on the use of the mischief rule?
Royal College of Nursing v DHSS 1981
How can use of the mischief rule lead to uncertainty in law?
as it is impossible to know when judges will use the rule and also what result it may lead to making it difficult for lawyers to advise their clients on the law
What is a disadvantage of the mischief rule in comparison to the purposive approach?
the purposive approach is wider and so the mischief rule is limited to looking back at the gap
