Explain the mischief rule

The Mischief Rule gives a judge more discretion than the Golden Rule or the Literal Rule.

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The Mischief Rule gives a judge more discretion than the Golden Rule or the Literal Rule. The definition of the rule comes from Heydon's Case (1584).

Set out below and, in the words of that time, there were four points for the court to consider.

'What was the common law before the making of the Act?

What was the mischief and defect for which the common law did not provide?

What was the remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth?

The true reason of the remedy.

Then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy.'

In more modern terms, under the Mischief Rule the court should look at what the law was before the Act was passed to see what gap or 'mischief' the Act was meant to cover and identify the remedy Parliament intended to propose to stop the mischief. The court can then interpret the Act in such a way that the gap is dealt with.

This makes it quite different to the literal rule.

The language of the time of Heydon's Case is not as helpful as it could be for those trying to define the rule. We are helped a little by the case of Jones v Wrotham Park Settled Estates (1980) in which Lord Diplock set out three limitations or conditions which needed to be met in order for the mischief rule to be applied. These conditions were


1 It must be possible to determine the precise mischief that the Act was intended to remedy;


2 It was apparent that the draftsman and Parliament had by inadvertence overlooked and failed to deal with the mischief;


3 It is possible to say with certainty what additional words would have been inserted by draftsmen and approved by Parliament.


Here are a few examples of cases where the rule was used.


In Gorris v Scott (1874), a claimant claimed in respect of the loss of his sheep. The sheep had been washed overboard and drowned whilst they were on the defendant's boat at sea. No pens for the sheep had been provided in contravention of a statutory duty to do so and the claimant had based his claim on the statutory breach. However, it was held that the purpose of the relevant provision was not to prevent the loss of the livestock overboard but to minimise the spread of contagious diseases by restricting the movement of animals so that they did not come into contact with other animals. The claim related to the loss of the sheep not by disease but by being washed overboard and did not fall within the mischief of the Act and failed accordingly.


In Corkery v Carpenter (1951) the question of what amounted to a 'carriage' for the purposes of the Licensing Act 1872 came into question. The Act provided that a person drunk in charge of a 'carriage' on the highway could be arrested without charge. The defendant was found to be drunk in charge of a bicycle. Generally speaking a bicycle would probably not be considered to be a carriage in the normal meaning of the word, however the court determined that a bicycle was a carriage for the purposes of the Act. The mischief was the possibility of drunken persons being in charge of some form of transport and it was clear that Parliament meant to protect the public from the potential harm.


The court did not use the plain ordinary meaning of a word when it addressed the growing social problem of prostitution in London in Smith v Hughes (1960). The Street Offences Act 1959 made it a criminal offence for a prostitute to solicit potential customers in a street or public place. In this case, the prostitute was not actually in the street, but was sitting in a house, on the first floor, and tapping on the window to attract the attention of the men walking by. The accused claimed that she was not guilty as she was not in the "street." The judge, Parker LCJ decided that the aim of the Act was to enable people to walk along the street without being solicited. Parker LCJ determined that since the soliciting in question was aimed at people in the street, even though the prostitute was not in the street herself and actually inside a building, the Act should be interpreted to give effect to the intentions of Parliament to clean up the streets of the capital.


Parker LCJ made clear his approach when he said‘I approach the matter by considering what is the mischief aimed at by this Act. Everybody (sic) knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony’.

Reference was made to the case of
Smith v Hughes in Eastbourne Borough Council v Stirling & Another (2000) when a taxi driver was charged with ‘plying for hire in any street’ without a licence in contravention of the Town Police Clauses Act 1847 which applied in their area. The defendant's vehicle was parked on a taxi rank on the station forecourt. He was found guilty even though he was on private land. The court took the view that he was there to attract customers from the street. In referring to Smith V Hughes the court said that it was in fact the same point and applied a similar approach.


In Manchester City Council v McCann (1999) the courts had the opportunity to consider the powers of the judge when it came to the matter of threats. The County Courts Act 1984 enabled county courts to deal with anyone who 'wilfully insults the judge ….or any juror or witness, or any officer of the court'. A literal meaning of the word insult may have led a judge to find that the plain ordinary meaning of the word was not necessarily the same as a threat. However the court did find that a threat was an insult for the purposes of the 1984 Act as there was a clear mischief which Parliament intended to address and to find otherwise would not have given effect to Parliament's intentions. As can be seen whilst the willingness of the courts to identify parliament's intentions is seen as a modern approach and in direct conflict with traditional rules such as the literal rule the mischief rule goes back to 1584 but has seen something of a rediscovery with judges adoption of less restrictive and 'spirit of the law' approaches.


The clear identification of the mischief and how this relates to the outcome of a case can be illustrated by the case Kruhlak v Kruhlak (1958). In affiliation proceedings a married woman who had been deserted by her husband and later had an illegitimate child was treated as a single woman for the purposes of the Affiliation Proceedings Act 1957. Apparently the mischief intended to be addressed by the 1957 Act was to discourage illegitimate children with no means of support and in this case it led the magistrates' court to determine that a married woman could be regarded as a single woman. This was in the context of affiliation proceedings which were generally regarded as humiliating and discriminatory for those caught up in such proceedings. Fortunately this type of proceeding was abolished by the Family Law Reform Act 1987. As a result the financial provision for illegitimate and legitimate children are the same so any need for the courts to arrive at such creative interpretations has long since been removed.



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