The Mischief Rule

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  • Created by: _laurenb
  • Created on: 19-05-15 17:47

The Literal Approach - The Mischief Rule

DEFINITION

  • considers 4 points

1. What was the common law before the act was passed?

2. What was the mischief that the act was designed to remedy?

3. What was the remedy that Parliament was trying to provide?

4. What was the reason for the remedy?

  • these were set out in Heydon's Case in 1584
  • judges must look for the 'mischief' that the Act was designed to remedy
  • they then must interpret the words in a way that means the remedy is achieved
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The Literal Approach - The Mischief Rule

CASE

SMITH V HUGHES

  • 'soliciting in the street' is an offence under the Street Offences Act 1959
  • women solicited from windows and balconies
  • they stated that they were not 'in the street' and so they could not be found guilty
  • using the mischief rule, judges decided that the Act was designed to remedy the mischief of people being pestered when walking on the streets
  • and so they found the women guilty
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The Literal Approach - The Mischief Rule

ADVANTAGES 

  • views the intentions of Parliament
  • ensures that 'gaps' in the law are filled
  • allows judges to use their experience and common sense
  • prevents an amending act having to be passed by Parliament
  • allows judges to consider social and technological changes that have occured since the Act was made
  • allows the judges to use external aids such as Hansard and dictionaries
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The Literal Approach - The Mischief Rule

DISADVANTAGES

  • risk of judicial law-making, who have not been elected to produce Acts
  • finding the intentions of parliament can be difficult
  • can lead to uncertainty in the law as words are not taken exactly as they are written
  • its use is unpredictable
  • its use is inconsistent
  • was made in 1584! It does not reflect modern needs
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