Flashcards
Mischief Rule
Cards in this deck (6)
- 1Statutory Interpretation - Mischief RuleHeydon's Case - Judges should consider... when interpreting a statute = Common law before the statute? What problem or 'mischief' was the statute trying to remedy? What was the remedy proposed by Parliament? What was the true reason for that remedy? Judges then interpret statute in such a way as to put a stop to the mischief. It looks to see what the law was before the Act in order to discover what gap the Act was intending to cover. The court then interprets this so it is covered.
- 2Smith v Hughes - Used to interpret the offence of a prostitute soliciting 'in a street or public place' under the Street Offences Act 1959. Court considered appeals by 2 women. 1 attracted make customers from a balcony and the other had been at the window of a ground floor room. Court decided that they had been rightly convicted by magistrates as the mischief aimed at by the statute was to enable people to walk along the streets without being harassed by prostitutes. Statute interpreted to stop this mischief. Did not matter that the women were not literally in the street as they could be seen from the street.Royal College of Nursing v DHSS - Was a statute (Abortion Act 1967) which provided that a lawful abortion could be carried out by a 'registered medical practitioner'. Clearly covered doctors, but what about nurses? Advances in medical science meant that from the early 1970s surgical abortions by doctors were largely replaced with abortions using drugs without a doctor being present. On appeal, majority of judges interpreted the relevant statute to stop the mischief of illegal abortions where no medical care was available and allow nurses to carry out abortions in a hospital as they are medically trained.
- 3Corkery v Carpenter - D was found drunk in charge of a bicycle and was charged under the Licensing Act 1872. This allows a person in charge of a 'carriage' on the highway to be arrested without a warrant. D argued that a bicycle did not amount to a carriage but bike is still transport. Trying to deter drunk people for public safety.+ Helps avoid absurd and unjust outcomes to cases such as in Whitely v Chappell. Recognises that to look only at the words of a statute is inadequate. Instead emphasis on making sure the mischief in the law is remedied as more likely to produce a 'just' result in a case.
- 4+ Attempts to follow the will of Parliament rather than the exact words written by Parliament.+ Promotes flexibility in the interpretation of legislation. Enables judges to bring into consideration why the Act was passed when considering what meaning to give words. Judges can interpret Acts in the light of social, economic and technological circumstances.
- 5- Relies on being able to find out what defect in the common law Parliament was trying to remedy. Given the limited amount of external aids that the judges can use to interpret a statute this can be a very difficult task for the judges.- Increases the law-making power of the unelected judges at the expense of Parliament. Happened in DHSS where the judges hearing the appeal disagreed on the use of the mischief rule.
- 6- Dates back to Heydon's Case in the 16th century when there were far fewer Acts of Parliament and those that were passed would have been less complex and thus easier to work out Parliament's intentions. This makes the rule less suited to the quantity and complexity of modern legislation.
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- A level Law Flashcards on Mischief Rule, created by Chloe Green on 09/03/2017.
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- Chloe Green
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