Statutory interpretation - The Mischief rule

Question 1

Definition

Answer 1

Aims to discover what “mischief” the statute in question was created to eliminate.

Question 2

Heydon’s case

Answer 2

The court said that there are 4 questions to ask when using the mischief rule:

1. What was the common law before the act?
2. What was the mischief and defect for which the common law did not provide?
3. What was the remedy that parliament created to cure the disease of the common wealth?
4. What was the true reason for the remedy?

Question 3

So mischief requires judges to…

Answer 3

1. Identify the mischief that Parliament was trying to stop by making the statute
2. Interpret the statute to stop that mischief.

Question 4

Smith v Hughes

Answer 4

Six prostitutes were charged under the Street Offences Act 1959 which made it illegal to “solicit for the purposes of prostitution in any street or public place”. The prostitutes were in doorways, balconies and hanging out of windows. The mischief was to stop people being verbally molested in the street so the court found them guilty.

Question 5

RCN v DHSS

Answer 5

The Abortion Act 1967 stated that abortion must be performed by “registered medical practitioners”. It was unclear whether nurses were allowed. The court held that the mischief was to stop illegal backstreet abortions and therefore nurses were allowed.

Question 6

Corkery v Carpenter

Answer 6

The Licensing Act 1872 made it an offence to be drunk and in charge of a carriage. D was drunk and riding a bicycle and although he did not literally commit the crime the court held that the mischief was to stop drunk people on the highway and in charge of transport. D was found guilty under the mischief rule.

Question 7

Advantage - Avoids absurdities and injustices

Answer 7

The rule avoids absurdity and injustices by allowing judges to look beyond the literal meaning of words in the Act to find the problem which parliament was trying to solve when it made the Act. E.g. Smith v Hughes the mischief to be solved was to stop prostitutes harassing passers by so the court held that they should find the prostitutes guilty to stop this behaviour.

Question 8

Advantage - Promotes flexibility

Answer 8

Promotes flexibility in the law by interpreting the statute to stop the problem which they believe parliament was trying to stop by creating the Act. E.g. RCN v DHSS judges interpreted the wording “registered medical practitioner” widely to include nurses in order to accommodate medical advances which had taken place since the act was passed.

Question 9

Disadvantage - Judicial law making

Answer 9

Risk of judicial law making by allowing judges to ignore the literal meaning of parliament words in the act and apply a different meaning to them. E.g. RCN v DHSS, 2/5 judges disagreed with the mischief rule as they thought it resulted in making law and they said that the 3 who used the rule were rewriting the law and it was not their place to do so.

Question 10

Disadvantage - Not find/ agree on what mischief is

Answer 10

Judges may not be able to find/ agree on what mischief is which may lead to them speculating about what the mischief of an Act and getting it wrong or if they disagree on the mischief this could result in different outcomes in similar cases making the law inconsistent. This impacts negatively on lawyers, Ds and the public as the latter don’t know what they can/cannot legally do and the two former cannot accurately predict the outcome of a case.