Statutory Interpretation: The Mischief Rule Flashcards
What is the definition for the mischief rule?
Act before the court reformed a previous piece of law from the common law/statute
What is an example of a reformed act?
Theft Act 1968 which replaced The Larceny Act 1916
What is a feature of the mischief rule?
Heydon’s case 1584
What did Heydon’s case 1584 state the judge must consider?
Look at common law/old statute before Act
Discover the mischief
Identify the remedy Parliament tried to provide
The court should interpret the Act in such a way that the mischief is covered and a remedy is provided
What did the Law Commission describe the mischief rule as?
‘A rather more satisfactory approach’
What are some cases for the mischief rule?
Smith v Hughes
Royal College of Nursing v DHSS
What happened in Smith v Hughes?
Ilegal to solicit on the street - woman did it from her window
Guilty as she was causing the mischief that Parliament tried to stop
What happened in Royal College of Nursing v DHSS?
Only a ‘registered medical practioner’ could terminate pregnancy - drugs were developed so nurses could alos perform abortions
Mischief that Parliament were trying to get rid of was illegal backstreet abortions which meant nurses could legally perform abortions
AO3 Advantage points
Flexible - can correct errors from Parliament/common law
Achieves P’s intent - have to take steps to find what P wanted to change
Consistent/saves time - clear guidelines under Heydon’s case - avoid need for P to re-legislate
Allows law to develop - can adapt to social and economical change as seen in College v DHSS
AO3 Disadvantage points
Too much reliance on extrinsic aids - takes time
Limited due to purposive approach - only do reformed acts
Judicial creativity
Judges reluctant to use - don’t want to be accused to judicial creativity - In college was a 2-3 majority
