Statutory interpretation part 2 Flashcards
What is the mischief rule?
When judges interpret a law by focusing on the problem it was meant to solve, rather than just the exact words in the law.
What is an example of the mischief rule?
Smith v Hughes (1960)
It was an offence to solicit in a ‘public place’ and a prostitute was soliciting on the balcony of a flat.
She was found guilty even though she wasn’t in a public place as she was still bothering people in the streets.
What are advantages of the mischief rule?
It produces more just outcomes than the literal approach
It gives flexibility, as judges are not confined to the literal meaning
What are disadvantages of the mischief rule?
It is impossible to know when judges will use it which creates uncertainty
Leads to judicial law making although judges should only interpret and apply the law
What is the purposive approach?
When judges interpret a law by looking at the purpose behind it, rather than just the literal meaning.
What is an example of the purposive approach?
Pepper v Hart (1993)
The case was about whether a teacher’s discount on school fees should be taxed.
The court looked at Hansard and found that parliament’s intention was not to tax the teacher’s discount.
What are advantages of the purposive approach?
It gives judges more discretion so they can avoid absurd results
Keeps the law up to date with advances in technology so new Acts don’t have to be made
What are disadvantages of the purposive approach?
Can be difficult to find out what parliament’s true intentions were
By using it, judges may refuse to follow the clear words set out by parliament
