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4 Cards in this Set
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Judges using this rule consider the law before the passing of the Act of Parliament in question so as to discover the 'mischief', the gap in the law that parliament intended to fill. |
Once the gap is identified the judge will then identify the Act in such a way that the 'mischief' is criminalised |
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Mischief Rule was introduced in Heydons case (1584) . There are 4 main points for the court to consider. |
1: What was the common law before the making of the Act? 2: What was the mischief for which the common law did not provide? 3: What was the remedy that parliament hath resolved? 4:What is the true reason for that remedy |
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The Mischief Rule provides the judges with much more discretion than the other rules |
The Mischief Rule is also not concerned with the precise wording of the act |
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Example: Smith vs Hughes (1960) Offence to solicit 'in the street or public place' - prostitutes were soliciting from the windows of their home. |
Outcome: Using the mischief rule, defendants were found guilty despite not technically being in a street or public place. The courts held that this was the type of mischief at which the act was aimed. The conviction filled the gap in the law |
