Advantages and Disadvantages of the Mischief Rule

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Advantages and Disadvantages of the MIschief Rule

Advantages

  • it gives effect to parliament's intentions
  • it allows judges to use their common sense and save parliament time
  • it allows judges to consider social and technological changes
  • it allows judges to look at external aids like Hansard as in 'Pepper v Hart'

Disadvantages

  • finding the intention of Parliament can be difficult
  • it is reasonable to argue that what parliament intended can only be seen in what it actually wrote in the act
  • it is undemocratic
  • the rule is out of date and does not reflect modern needs
  • it might cause uncertainty if a judge changes the meaning of statute

Evaluation

the mischief rule was laid down in 'Heydons' case judges should consider 4 main factorswhat was the common law before the act was passedwhat was the mischief that the act was designed to remedywhat was the remedy that parliament were trying to providewhat was the reason for the remedy

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