The Mischief Rule

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What is the Mischief Rule?

  • Gives the judge more discretion
  • Definition found in Heydon's Case (1584)-4 points
    • What was the common law before the Act was passed?
    • What was the mishcief for which the common law did not provide?
    • What was Parliament's remedy?
    • The Judge should interpret the Act in such a way that the problem or gap is covered
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Smith v Hughes (1960)

Street Offences Act 1959 S1(1)- 'It shall be an offence for a common prostitue to loiter or solicity in a street or public place for the purpose of prostitution'

  • The court considered appeals against a conviction under S1(1) by 6 different women. In each of these cases the women hadn't been 'in the street': 1 had been on a balcony and others were at windows of ground floor rooms with the window half open or closed
  • Women attracting the attention of men by callung to them or tapping on the window.
  • They argued they were not guilty because they weren't literally 'in a street or public place'
  • Court decided they were guilty
  • Lord Parker saying:
    • 'For my part I approach the matter by considering what is the mischief aimed at by this Act. everybody knows that this was an Act to clean up the streets, to enable people to walk along the streets without being molested ot solicited by common prostitutes. Viewed in this way it can matter little whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony or at a window, or whether the window is shut, open or half open'
  • Before the act there was nothing to stop soliciting in the streets and Parliament wanted to stop this so passed the Street offences Act.
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Eastbourne Borough Council v Stirling (2000)

  • A taxi driver charged with 'plying for hire in any street without license to do so'
  • His vehicle was parked on a taxi rank on the station forecourt
  • Found guilty as although on private land, likely to get customers fromt the street. 
  • Refered to SvH
  • Driver would be plying for hire when vehicle positioned so that the offer of services was aimed at people on the streets
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The Royal College of Nursing v DHSS (1981)

  • Question could nurses carry out an abortion without a doctor present?
  • Act states only a registered medical practiioner can carry out an abortion
  • Developments of a drug meant a doctor could start the process and a nurse could finish it
  • RCoN wanted to protect their nurses and so took it to court. 
  • 3/5 Judges used the mischief rule pointing out that what the Act was trying to remedy had been (illegal abortions)
  • 2/5 Judges used the literal rule ad said judges were 'redrafting with a vengence'-it was out of the judges power to allow it.
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Advantages of the Mischief Rule

  • Allows judges to fill in the gaps in the law
  • Promotes purpose of Act
  • Produces 'just' results
  • In 1969 the Law Commission reccommended that it should be the only rule used in statutory interpretation
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Disadvantages of the Mischief Rule

  • Judges trying to fill in the gaps with their own views of how the law should remedy the gaps
  • Can make the law uncertain so lawyers do not know how to advise clients
  • Not as wide as the purposive approach since it is limited to looking back to the law prior to the Act
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