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Advantages
- One advantage of the mischief rule is that it helps avoid injustice and absurd decisions
caused in cases like Berriman by the literal rule. Had the mischief rule been applied in
Berriman, Mrs Berriman would have succeeded in her claim as it was unjust that the court
decided Mr Berriman did not need a look out as oiling the track was not ‘repairing’ or
‘relaying’. Parliament were trying to provide a safer working environment for employees at
work and the court in this case failed to recognize that
- Promoting the original purpose of an Act is a strong advantage of the mischief rule. This
rule can therefore be flexible and produce sensible decisions where technological or
sociological developments have overtaken the original wording used in the Act. In
Royal College of Nursing v DHSS the court considered Parliament’s intention when
passing the Abortion Act 1967. The Act stated only registered medical practitioners
(doctors) could perform abortions. By 1981, (when the case was heard) advances in
medicine meant nurses could safely carry out abortions. The court considered the mischief
the Act was designed to stop was backstreet abortions, not nurses carrying out the
procedure safely so they were acting lawfully.
- Another advantage is that the mischief rule fills in gaps in the law. No law can be drafted
perfectly and there will always be circumstances where a law needs to be applied in a way
the draftsman did not predict. Therefore this rule takes into account that not every Act is
perfectly worded. In Smith v Hughes, a prostitute was accused of soliciting men in the
street, an act forbidden under the Street Offences Act 1959. The defence claimed since she
was on a balcony at the time, and not in the street or any other public place, on a literal
interpretation of the law, she could not be guilty. However, the mischief rule was applied, as
she was harassing men on the street and this was the mischief the Act intended to remedy
and so was found guilty. This can be seen as a sensible decision.
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Disadvantages
- One disadvantage of the mischief rule is that there is a serious risk of judicial law making.
In Royal College of Nursing the judge’s personal views on abortion could have influenced
the decision. Judges should not be making laws (as said by judges such as Lord
Scarman and Lord Simmonds) or policy decisions as they are not elected. Even if a
law leads to an absurd decision it should be for Parliament to change it. The
dissenting judges in Royal College of Nursing v DHSS felt the majority were re writing
the Act. If judges are making law this conflicts with the separation of powers theory
and parliamentary sovereignty.
- One disadvantage is that if an Act is very old it is difficult to find out what Parliament’s
original aim was, or indeed what the problem was that they were trying to solve. Even
though the courts now have access to Hansard (the written reports of Parliamentary
debates) it can be difficult to work out the original intentions of Parliament. In Smith v
Hughes this was not such a problem as the law was passed only a year before. If it had
been passed many years ago, judges could not determine what Parliament intended to do
through a law with as much certainty.
- Along with the golden rule it makes the law uncertain. Lawyers and lay people do not know
how the law will be applied. The mischief rule has been around since 1584 in Heydon’s case
but it has not been consistently applied across that time.
- (If a Q asks for both advs and disadvs then do not choose this one) The mischief rule also doesn’t highlight problems to Parliament. Parliament will not be forced
to amend Acts - like they had to do to the Restriction of Offensive Weapons Act 1959
after the decision in Fisher v Bell as judges will interpret to ensure the mischief that existed
previously is resolved.
The Law Commission, in it’s report, ‘The Interpretation of Statutes’
recommended the purposive approach to statutory interpretation as a better way to
fulfill the goals of ‘legislative purpose’. A key disadvantage of the mischief rule is that it is
not as wide ranging as the purposive approach.
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