The Mischief Rule Evaluation Flashcards
ADVANTAGE NO.1
[Gives Judges Flexibility]
One advantage of this rule is that it gives judges flexibility. The judges are given room to consider the ‘mischief’ that Parliament intended to prevent by making the statute.
(Smith v Hughes: if judge had no flexibility, problem would have continued)
ADVANTAGE NO.2
[Practical Law Making]
Another advantage is that it allows for practical law making. This way, the judges can effectively can ignore the often outdated/confusing wording of a statute to reach the desired outcome.
(Smith v Hughes: law respected parliament even more , avoided P having to legislate)
ADVANTAGE NO.3
[Avoids Unfair Results]
Also, the use of the Mischief Rule avoids unfair results. The purpose of this rule is to keep the application in-line with Parliament’s wishes whilst still administering justice.
(Royal College of Nursing v DHSS: penalising capable nurses)
ADVANTAGE NO.4
[Adapt to Technology]
One final advantage is that it allows the law to adapt to technology. Draftspeople cannot foresee what advances may happen in the future.
(Royal College of Nursing: only doctors could carry out procedure att)
Smith v Hughes
Under the Street Offences Act 1959, it was an offence to ‘solicit in a street or public place for the purpose of prostitution’. Although it was argued that they were soliciting from private property, the judge found that the act had attempted to stop prostitutes harassing people and that it doesn’t matter how they actually did that.
Royal College of Nurses v DHSS
Under the Abortion Act 1967, pregnancies should be terminated by ‘registered medical practitioners’. Technological advances now allowed nurses to carry out the procedure and as the court ruled that the aim of the act was to prevent dangerous abortions, nurses were permitted to carry out the procedure.
DISADVANTAGE NO.1
[Too Much Power]
One disadvantage is that it gives too much power to judges. The rule gives unelected judges too much power to interpret the law however they feel fit.
DISADVANTAGE NO.2
[Inconsistent]
Another disadvantage is that it makes the law inconsistent. Due to its partially subjective nature, different judges may interpret the ‘mischief’ in different ways.
(Royal College of Nursing v DHSS: 2 judges disagreed if a case came under those two judges individually, the law may not have changed)
DISADVANATAGE NO.3
[Looks Backwards]
Also, the rule could be said to look backwards. The judge has to look back to the mischief parliament were trying to stop at the time of the statute and not what they intended for the future.
(Quintavalle’s Case: parliament didnt know of CNR att and so law may not have changed)
DISADVANATGE NO.4
[Hard to Find Mischief]
Finally, it might be difficult for judges to find the ‘mischief’ parliament intended to cure. This is because it requires old acts to be researched and not all of the mischief may be cured by statute law, some may be cured by common law.
(Smith v Hughes: if act was passed 100 years before, would have been very hard to find mischief)
Quintavalle’s Case
Under the Human Fertilisation and Embryology Act 1990 there was only one form of fertilisation, IVF, and in the case, the court had to describe whether a new form of fertilisation, Cell Nuclear Replacement, could be covered under the act. The court ruled that the purpose of the act was to encompass all forms of fertilisation and not just the ones around at the time of the act
