Mischief Rule

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