Mischief Rule Case Study

THE MISCHIEF RULE

The mischief rule originated from Haydon’s case22 where 4 significant points were laid out to be considered when interpreting statutes. These were to; examine the common law prior to the Act, locate the mischief or defeat in the common law, identify the remedy parliament meant to propose to eliminate the mischief, and finally, give effect to that remedy.

According to the Law Commission this was the most satisfactory of the 3 rules (and the Golden Rule was condemned)

Gardiner v. Sevenoaks23 a cave was premises (although it would not always be - depending on the mischief), since the mischief was the risk of fire which existed in a cave

Smith v. Hughes24, a prostitute solicited from inside a building to the street. A private

Once the court has examined what the intention of parliament was in passing a specific act and “identified the mischief which the statute was seeking to correct” they must then interpret it in a way that covers the gap (mischief). The latter was conveyed in case Smith V Hughes (1960) where Ms Smith acted contrary to S1(1).27 The defendant however argued she was not in breach as she was using her own premises to attract attention to passers by and not physically standing in the street. The judge looked at what the law was intending to remedy and it was held the act’s intentions were to clean up to streets and prevent innocent people being pestered by prostitutes, thus rendering the defendant guilty as

This reduces the risk of statutes being interpreted by the view of one judge which clearly contradicts the view of another.

In conclusion, it would be unqualified to say the rules are without their imperfections, it is clear from the case law under the literal rule that this application can cause absurd and highly unjust results. As evident under the golden rule, the interpretation of a phrase or words absurdity may not coincide with the views of others and again can directly affect the outcome of a case dependant on the judges own view. And finally, the mischief rule, although easily applied to statutes to gain a more appropriate outcome, it may not be clear what the original draftsman’s intentions were and thereby interferes with exactly what the enactment was set to remedy.

It would be unwise to consider the three significant rules to be 100% consistent, however in spite of their minor imperfections; the rules provide a coherent and continuous framework for courts to work from when interpreting statutes to achieve the best possible outcome of a