Mischief rule
Encyclopedia
The mischief rule is one of three rules of statutory construction
traditionally applied by English courts. The other two are the “plain meaning rule
” (also known as the “literal rule”) and the “golden rule
.”
The main aim of the rule 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.
The rule was first laid out in a 16th century ruling of the Exchequer Court
.
The Mischief Rule 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.
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.
The way in which the mischief rule can produce more sensible outcomes than those that would result if the literal rule were applied is illustrated by the ruling in Smith v Hughes [1960] 2 All E.R. 859. 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.
[1584]76 ER 637 3 CO REP 7a. where the court ruled that there were four points to be taken into consideration when interpreting a statute:
notes,
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
traditionally applied by English courts. The other two are the “plain meaning rule
Plain Meaning Rule
The Plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts...
” (also known as the “literal rule”) and the “golden rule
Golden rule (law)
In law, the Golden rule, or British rule, is a form of statutory construction traditionally applied by English courts. The other two are the “plain meaning rule” and the “mischief rule.”...
.”
The main aim of the rule 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.
The rule was first laid out in a 16th century ruling of the Exchequer Court
Exchequer of pleas
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law, and common law, in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an...
.
Meaning and use
The Mischief Rule is a rule of construction that judges can apply in statutory interpretation in order to discover Parliament's intention. In applying the rule, the court is essentially asking the question: what was the "mischief" that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court?The Mischief Rule is of narrower application than the golden rule
Golden rule (law)
In law, the Golden rule, or British rule, is a form of statutory construction traditionally applied by English courts. The other two are the “plain meaning rule” and the “mischief 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.
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.
The way in which the mischief rule can produce more sensible outcomes than those that would result if the literal rule were applied is illustrated by the ruling in Smith v Hughes [1960] 2 All E.R. 859. 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.
History
The rule was first set out in Heydon's CaseHeydon's Case
Heydon's Case , Pasch 26 Eliz, plea began 20 Eliz Rot 140, is a landmark case. The case is considered a landmark because it was the first case to use what would come to be called the mischief rule for the interpretation of statutes...
[1584]76 ER 637 3 CO REP 7a. where the court ruled that there were four points to be taken into consideration when interpreting a statute:
Traditional use of the mischief rule
In the century in which it was created, and for some time thereafter, the mischief rule was used in a legislative environment very different than the one which has prevailed in the past two centuries. As Elmer DriedgerElmer Driedger
Elmer A. Driedger, QC, BA, LL.B, LL.D was a Canadian lawyer and a leading authority on statutory interpretation. He worked for the Canadian Department of Justice for over a quarter century, rising to Deputy Minister and later became a professor of law at the University of Ottawa.-Early...
notes,
Modern use of the mischief rule
Modern courts continue to apply the rule in a more restricted manner, and generally with a greater regard for the integrity of the statutes which they are interpreting. Driedger puts it this way: “[T]o this day, ‘’Heydon’s Case’’ is frequently cited. The courts still look for the “mischief” and “remedy”, but now use what they find as aids to discover the meaning of what the legislature has said rather than to change it.” Driedger goes on to argue that this modern use of the mischief rule ought to be understood as one of the components of what he characterized as the "modern" method of statutory construction, rather than a stand-alone rule serving (as it formerly had), as an alternative to the methods of construction proposed by the plain meaning rule and the golden rule.Advantages
- The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules.
- It usually avoids unjust or absurd results in sentencing
- It abides to parliament sovereignty
Disadvantages
- It is seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established.
- It gives too much power to the unelected judiciary which is argued to be undemocratic.
- In the 16th century, the judiciary would often draft acts on behalf of the king and were therefore well qualified in what mischief the act was meant to remedy. This is not often the case in modern legal systems.
- The rule can make the law uncertain, susceptible to the slippery slopeSlippery slopeIn debate or rhetoric, a slippery slope is a classic form of argument, arguably an informal fallacy...
.