Mischief Rule Flashcards
What does the mischief rule give a judge which the other two rules do not?
more discretion
Where does the definition of the mischief rule come from?
Heydon’s Case 1584
How many points were made in Heydon’s Case 1584?
4 points
What were the 4 points made in Heydon’s Case 1584?
1) ‘What was the common law before the making of the Act?’
2) What was the mischief and defect for which the common law did not provide
3) ‘What was the remedy the Parliament passed to cure the mischeif
4) The true reason of the remedy.
Using the 4 questions of Heydon’s case, what must the courts do to to discover what gap or ‘mischief’ the Act was intended to cover?
the court should first look to see what the law was before the Act was passed in order to discover the gap or ‘mischief’
After the gap or ‘mischief’ of the Act is found, what must the courts do?
They must then interpret the Act in such a way that the gap was covered
What 3 cases illustrate use of the mischief rule?
Smith v Hughes 1960
Eastbourne Borough Council v Stirling 2000
Royal College of Nursing v DHSS (1981)
Corkey v Carpenter 1951
In the case Smith v Hughes 1960 what was the Act in which the courts were interpreting and the words in dispute?
the Street Offences Act 1959 s1
“it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution’
What were the facts of the case in Smith v Hughes 1960?
Court was hearing appeals from 6 women who were charged with prostitution under the Street Offences Act 1959
Under the literal rule, what would the outcome have been in Smith v Hughes 1960?
Not guilty, as the women had not been literally “in a street or public place”, one had been on a balcony and the others at windows
Why did the court find the 6 women guilty of prostitution using question 4 of Heydon’s case 1584”What was the true reason for the remedy”?
Lord Parker said the reason for the remedy was in order to enable people (men) to walk along the street without being “solicited” by common prostitutes in order to clean up the streets
What lord justified the use of the mischief rule in Smith V Hughes 1960?
Lord Parker
In Eastbourne Borough Council v Stirling 2000 who was the case concerning
a taxi driver
In Eastbourne Borough Council v Stirling 2000 what was the taxi driver charged with?
“plying for hire in any street”
What were the facts of the case
The taxi diver was parked on a taxi rank on the station forecourt
Why was the taxi driver who was “plying for hire in any street” in the case Eastbourne Borough Council v Stirling 2000 found guilty?
as although he was on private land he was likely to get customers from the street and therefore the offer of services was aimed at people in the street
What case was referred to in Eastbourne Borough Council v Stirling 2000?
Smith v Hughes 1960
What was the Act and words in dispute in the case of Royal College of Nursing V DHSS 1981 ?
Aboriton Act 1967 which provided that a pregnancy should be “terminated by a registered medical practitioner”, nurses are not a “medical practitioner”
Using question 1 of Heydons case 1584, “What was the common law before making the Act”, what was the common law in Royal College of Nursing v DHSS 1981?
Before making the Act abortion was illegal and there was a common use of backstreet butchers and so the common law did not provide a safe way of aborting
Using question 2 of Heydons 1584, “What was the mischief and defect for which the common law did not provide”, what was this in Royal College of Nursing v DHSS 1981?
the mischief that common law did not provide was a safe way of aborting
Using question 3 of Heydon’s case 1584, “What was the remedy Parliament passed to cure the mischief”, what was this in Royal College of Nurses v DHSS 1981?
Parliament passed the Abortion Act 1967
Using question 4 of Heydon’s case 1584, “What was the true reason of the remedy”, what was this in Royal College of Nursing v DHSS 1981?
The true reason was to prevent women undergoing unsafe abortions
Why would the outcome of Royal College of Nurses v DHSS under the literal rule have meant an unjust outcome?
As in the time of this Act in 1967 the procedure to carry out an abortion was such that only a doctor (“medical practitioner”) could do it. However from 1972 improvements in terminating pregnancies include the use of drugs which can be easily performed by nurses.
What did the 5 judges come to the decision of in the case of Royal College of Nursing v DHSS 1981?
3 held that it was lawful
2 held it was not lawful
