GoConqr has a new look! Let us know what you think.

Mind map

Mischief Rule

Charlotte Lodge Law AS level English

Map content

Mischief Rule

  1. Advantages

    • Avoids absurd descisions
      • Can ignore strict words in an act and prevent the mischief Parliament wanted to stop
        • Smith v Hughes - would have been absurd to find D's not guilty because they were still doing the thing that Parliament wanted to stop
          • Advantage - justice will be served where D should(n't) be guilty but the wording of the statute would lead to an absurd decision
    • Promotes flexibility
      • Can ignore strict words in an act and use their own legal knowledge to come to a good decision
        • RCN v DHSS - could consider medical advances since nurses could perform safe abortions although they are not registered medical practioners
          • Advantage - means judges are not forced into bad decisions and can consider circumstances and changes in society when coming to a decision
    • Saves Parliament time amending laws
      • Filling the gaps for Parliament and save them time having to re-examine old Acts
        • Corkery v Carpenter - court could identify the problem and come to a sensible decision rather than waiting for Parliament to amend the law
          • Advantage - leads to swifter justice and means Parliament can focus on making new laws instead of fixing old ones
  2. Disadvantages

    • Creates uncertainty in the law
      • Judges may disagree on what mischief Parliament wanted to solve
        • RCN v DHSS, 2 judges felt literal rule should've been used instead - different set of judges would've come to a different decision
          • Disadvantage - leads to inconsistent decisions and lawyers and D won't be able to prepare properly for the case
    • Erodes Parliamentary Supremacy
      • Judges have to decide for themselves what the mischief is and may end up ignoring Parliament's wording
        • RCN v DHSS - 2 judges said other judges were re-drafting the legislation with vengeance, not interpreting the wording like they should
          • Disadvantage - it is Parliament's job to make the law due to them being elected; judges are not supposed to make the law
    • Limited to fixing one problem
      • Judges can only use it to 'fill the gap' in the old law (rather than give rise to Parliament's real purpose)
        • R v RG ex parte Smith - mischief in the Adoption Act wasn't biological mothers being killed by their children in the future, so the mischief rule wouldn't apply
          • Disadvantage - the rule is still limited in its use and may not fulfil Parliament's true intention

Information

Description
AS level Law (Unit 1) Mind Map on Mischief Rule, created by Charlotte Lodge on 06/03/2017.
Created by
Charlotte Lodge
Views
0
Rating

Feedback

What is it about?

What do you think of the new look?

How do you like it?