The Mischief Rule

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  • Mischief Rule
    • Explanation of the rule
      • The court looks at the gap or defect in the law that Parliament had felt necessary to fill when passing the Act, it then interprets the Act in accordance with this gap
      • Heydon's Case: Consider four questions
        • 1) What was the common law before the act was passed?
          • 2) What is the defect or mischief for which the common law did not provide a remedy?
            • 3) What remedy does the Act attempt to provide so as to cure the defect
              • 4) What is the true reason for the remedy?
      • When the Act has been remedied, this interpretation will be used in future
      • In Smith v Hughes parker LCJ said 'everyone knew this was an Act to clean up the streets' so it wasn't important where the soliciting was coming from
      • Allows a scope for judicial law making
    • Advantages and Disadvantages
      • Avoids absurd or unjust results
        • Corkery v Carpenter, 'carriage' was interpreted to mean any other form of transport
      • Promotes flexibility within the law, meaning it can be suited to a lot of different situations
      • Law Commission: 'A rather more satisfactory approach' and claimed it should be the only approach used
      • Gives far too much power to unelected judiciary which can sometimes overstep their mark
        • Royal College of Nursing of UK v DHSS: courts said a nurse was a 'registered medical practitioner' despite the fact the court of appeal ruled it unlawful
      • Not possible to know what Parliament actually intended to fix when they passed the Act
      • Out of date: Laid down in 16th century before Parliamentary supremacy, no lengthy preamble, drafting not the exact science it is today


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