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6 Cards in this Set
- Front
- Back
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Mischief Rule |
It looks back to the gap in the previous law and interprets the Act to provide a remedy (to cover the cap) - Come from Heydon's Case (1584) |
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Smith v Hughes |
Six prostitutes argued that they were not 'in a street or public place' as one was on a balcony and some were in rooms with the window open. Lord Parker did not literally see it as that but saw parliaments intentions of the Act which is why mischeif rule was used |
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Eastbourne Borough Council v Stirling |
Taxi driver 'plying for hire in any street' without a licence. D argues that he was on a taxi rank (private land) however we was likely to get customers from the street. Was guilty and referred to Smith v Hughes as it was the same point. |
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Royal College of Nursing v DHSS |
Abortion Act states that a 'registered medical practitioner' can only terminate pregnancy. Was argued if nurses could do it as they are not a registered medical practitioner. 3 of 5 judges agreed as they used mischeif rule in which they saw parliament trying to fix the illegal abortions which put women at risk. |
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Adv of Mischeif Rule? |
- promotes purpose of the law as it allows judges to look back at the gap. Emphasis is on making sure the gap of the law is filled. Smith v Hughes -stop men being propositioned in the streets - more likely to produce a just result. Judges interpret the law with parliaments intentions in mind - Law commission - only want statutory interpretation to use this rule 1969 |
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Disadvantages of Mischief Rule? |
- Risk of Judicial law making - not democratic - Lord parker in S v H could be seen that it was his view on parliaments intentions. - not clear on when to use it - Royale College of Nursing v DHSS - 3 - 2 majority and is impossible to know when judges will use it and what it might lead to - uncertainty - lawyers cannot advise clients - Narrow approach-can only look at the gap and cannot give a more general consideration of the purpose of the law |
