Mischief Rule Flashcards
Advantages of the Mischief Rule 1
Issue: One advantage is that it avoids absurd decisions.
• Cause: This is because judges can ignore the strict words in an Act and prevent the problem Parliament wanted to stop.
• Example: In Smith v Hughes, it would have been absurd to find D not guilty just because they were on a balcony when they were still doing the thing Parliament wanted to stop (harassing people). By ignoring the word ‘street’, the court were able to actually stop this mischief.
• Consequence: This is an advantage because it means justice will be served in cases where had the literal rule been used there would have been an absurd result.
Advantages of the Mischief Rule 2
Issue: One advantage is that it promotes flexibility in the law.
• Cause: This is because judges can ignore the strict words in an Act and use their own legal knowledge and intuition to come to a sensible and just decision.
• Example: In RCN v DHSS, judges could consider medical advances since the abortion act to allow nurses to help perform safe abortions, despite them not technically being ‘medically registered practitioners’.
• Consequence: This is an advantage because it means judges are not forced to make unjust decisions and can consider the circumstances and changes in society when deciding a case.
Advantages of Mischief Rule 3
Issue:Advantage is it saves Parliament time amending old laws. • Cause: This is because judges are plugging holes in statutes for
Parliament so prevents them having to re-examine old statues.
• Example: In RCN v DHSS, by deciding that it was legal to allow nurses to dispense abortion drugs, this prevented Parliament from having to re-write the Abortion Act 1967 which would have been a lengthy process.
• Consequence: This is an advantage because it leads to swifter justice and means Parliament can focus on making new laws rather than fixing old ones.
Disadvantage of the Mischief Rule 1
Issue: A disadvantage is it creates uncertainty in the law.
• Cause: This is because judges may disagree on what mischief Parliament wanted to solve.
• Example: In RCN v DHSS, 2 judges felt that the literal rule should have been used instead of the mischief rule, which shows a different set of judges may have come to a different decision.
• Consequence: This is bad because it leads to inconsistent decisions and lawyers and defendants will be unable to prepare properly for their cases.
Disadvantage of the Mischief Rule 2
Issue: A disadvantage is that the mischief rule erodes
Parliamentary Supremacy.
• Cause: This is because judges have to decide for themselves what the mischief is and may end up ignoring Parliament’s wording to do so.
• Example: In RCN v DHSS, 2 of the judges said that the other judges were taking over Parliament’s role as supreme law-maker in re-drafting the legislation when they should just be interpreting the statute.
• Consequence: This is bad because it is Parliament’s job, not a judge’s, to make the law due to them being elected.
Disadvantage of the Mischief Rule 3
Issue: A disadvantage is that the mischief rule is limited to
fixing one problem at a time.
• Cause: This is because judges can only use it to ‘fill the gap’ in
the old law (rather than give rise to Parliament’s real purpose).
• Example: In R v RG ex parte Smith, the mischief rule could not be used because the Act was not created to fix the mischief of serial killers murdering their mothers. Instead the purposive approach had to be used.
• Consequence: This is a disadvantage because the rule is still limited in its use and does not go so far as to consider Parliament’s purpose in enacting a statute.
