Disadvantages Of Mischief Rule

Mischief rule is one of the oldest rules of statutory interpretation. This rule focuses on the mischief the statute was originally intended to address and thereafter focuses on interpreting the words in the statute with respect to the mischief. It is subset of intention rule and delves into the intention of legislature. This rule was first established in Heydon’s case where the court laid down 4 major considerations in applying the mischief rule. The court laid down that the common law before the act, the defect and mischief it didn’t provide for and the remedy and true reason behind passing the remedy to cure the mischief had to be considered. This rule is used as the last option when neither literal rule nor plain meaning rule help solve

It addresses the root cause of the problem and immediately delves into the mischief that is to be cured. It closes the loopholes and allows the law to develop and adapt to changing needs. This can be seen in Royal College of Nursing v. DHSS3 where medical abortions which were earlier performed exclusively by doctors, were now administered by nurses due to advances in medical science which replaced surgical abortions with hormonal abortions. Through mischief rule, the nurses were allowed to perform abortions without being held liable. It also gives the courts more flexibility and widens the purview of the act. This can be observed in Corkery v. Carpenter where a bicycle was included under a carriage, and a drunken bicycle driver was held liable under carriage laws that prevent the mischief of drunk driving. In Smith v Hughes the court widened the purview of Street Offences Act 1959 which prohibited prostitutes to solicit in public places and held them liable for soliciting on windows and balconies on private premises which could be seen by the public as the aim of the act was to ensure that people walked in a public place or on a street without the soliciting of

This upsets the balance in the separation of powers. As said by Sir Pollock “the business of the judges is to keep the mischief of interference with Parliament’s lawmaking function within the narrowest bounds”. The rule creates the crime after the act, having a retrospective application. This can be seen in Smith v. Hughs5 where the interpretation by court held the prostitutes liable for an act which prima facie was not actionable . This can also be seen in Elliot v Grey where the defendant was held liable under the Road Traffic Act,1930 for keeping his uninsured car which was not functioning on the road. The act required all vehicles operating on the road to be insured to ensure that people were compensated for injuries due to the hazards created by others. Here, the defendant was not operating the car on the road, but the application of mischief rule had a retrospective effect and the defendant was held liable. The drawback of this rule can be overcome as stated in J.P.Jani, ITO v. Induprasad Bhatt , where the court held that there would be retrospective application only in cases where the usage of words expressly provided and implied such application. It is seen in that due to the wide scope given to the courts, the judges often bring in prejudices, morality and their personal views in many cases. One such case is DPP v. Bull where the judges