The Mischief Rule

The Mischief Rule:

• Gives more discretion to judges
• Originated from Heydon's case (1584)
• Means that the court has to consider three questions when making a decision:

1. What was the common law (i.e case law) before the Act?
2. What was the 'mischief' that common law hadn't fixed?
3. What remedy was Parliament trying to provide?

Below are some example cases of when the Mischief Rule has been used:

Smith v Hughes (1960):

• Six women were charged under the Street Offences Act 1959 - "for it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution"
• However, the women were not 'in a street', but on the balcony, attracting the attention of passersby 
• Under the literal rule, the prostitutes would have been found not guilty
• To avoid this 'mischief', the court found them guilty, as they interpreted the Act as being passed to clean up the streets from common prostitutes

Royal College of Nursing v DHSS (1981):

• The law under the Abortion Act 1967 only allowed a doctor (or "registered medical practitioner") to undertake an abortion procedure
• Advances in medicine now meant that nurses could perform part of the procedure instead
• However, they were not "registered medical practitioners"
• The court had to decide if this new procedure was 'lawful'
• The HoL found that it was lawful

Advantages of the Mischief Rule:

• Promotes the purpose of the law
• Fills any gaps in the law, usually producing a 'just' result
• Judges try to interpret the law as Parliament meant it to work
• The Law Commission prefers the Mischief Rule

Disadvantages of the Mischief Rule:

• There's a risk of judicial law-making
• Judges are filling the gap in the law with their own views and not all agree
• Can lead to uncertainty and make it difficult for lawyer to advise clients as to law
• Not as wide as the purposive approach as it is limited to looking at the gap in the old law
• Outdated, approach may be less appropriate now that the legislative process is different to Heydon's case (1584)