Mischief rule

From Wikipedia, the free encyclopedia

This article or section may require cleanup to meet Wikipedia's quality standards.
Please help improve this article or replace this tag with a more specific message. This article has been tagged since January 2006. (help, talk)

Within the context of law, the mischief rule is a rule of statutory interpretation that attempts to determine the legislator's intention. Originating from a 16th century case in the United Kingdom, its main aim is to determine the "mischief and defect" that the statute in question has set out to remedy, and what ruling would effectively implement this remedy.

[edit] Meaning

The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament's intention. It essentially asks the question: By creating an Act of Parliament what was the "mischief" that the previous law did not cover? The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. It can be argued that this undermines Parliament's supremacy and is undemocratic as it takes law-making decisions away from the legislature.

This was set out in Heydons Case [1584] 3 CO REP 7a. where it was stated that there were four points to be taken into consideration when interpreting a statute:

What was the common law before making the act?
What was the "mischief and defect" for which the common law did not provide?
What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth?
What is the true reason of the remedy?

[1]

In that case, a copyhold was considered equivalent to be an estate even though that was only implicit in the the law.

This was illustrated in the case of Smith v Hughes 1960, where under the Street Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes of prostitution". The defendants were calling to men in the street from balconies and tapping on windows. They claimed they were not guilty as they were not in the "street." The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes.

[edit] Use

This rule of construction is of narrower application than the golden rule or the plain meaning rule, in that it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to remedy a defect in the common law.

Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes.

This rule has often been used to resolve ambiguities in cases in which the literal rule cannot be applied. In Smith v Hughes [1960] ALL ER 161 the mischief approach gave a more sensible outcome than that of the literal approach.

The Street Offences Act 1959 referred to prostitutes soliciting in a street, but in this case the prostitutes were soliciting through a window in a house, the judges took it to be included in the Act as the “Mischief” was the inconvenience to the passers by.