Mischief rule

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Judicial Interpretation
Forms

Constitutional interpretation Statutory interpretation

General Rules of Interpretation

Plain meaning rule

Mischief rule Golden rule

General Theories of Interpretation

Living Constitution/Living tree doctrine

Originalism (Original meaning)

Original intent

(Legislative intent, Legislative history)

Strict constructionism

Textualism

The mischief rule[1] is one of three rules of statutory construction traditionally applied by English courts.[2] 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.

Contents
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1 Meaning and use 2 History 3 Traditional use of the mischief rule 4 Modern use of the mischief rule 5 Advantages 6 Disadvantages 7 References

[edit]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 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.

[edit]History
The rule was first set out in Heydon's Case [1584]76 ER 637 3 CO REP 7a.[3] where the court ruled that there were four points to be taken into consideration when interpreting a statute:

For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1st). What was the common law before the making of the Act? (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, (4th). The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico

[edit]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. AsElmer Driedger notes,

[S]ixteenth-century common law judgeslooked upon statutes as a gloss upon the common law, even as an intrusion into their domain. Hence, statutes were viewed from the point of view of their effect upon the common law, as adding to it, subtracting from it or patching it up. Then also, in the time of Heydons Case, the judges paid more attention to the spirit of the law than to the letter. Having found the mischief they proceeded to make mischief with the words of the statute. They remodeled the statute, by taking things out and putting things in, in order to fit the mischief and defect as they had found them.[4]

[edit]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, Heydons 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.[5] 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.

[edit]Advantages

1. The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules. 2. It usually avoids unjust or absurd results in sentencing 3. It abides to parliament sovereignty

[edit]Disadvantages

1. 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. 2. It gives too much power to the unelected judiciary which is argued to be undemocratic. 3. 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. 4. The rule can make the law uncertain.

The Literal Rule The literal rule simply states that words in the statute must be in their plain, and ordinary meaning. So that if the words of a statute are clear, they must be interpreted accordance with that ordinary meaning however absurd or unfair the conclusion. The basis of this rule is that according to the doctrine of parliamentary supremacy, judges are not allowed to make law. However, this position is regarded as untenable as interpretation could be construed as being the equivalent

as making laws; particularly the interpretation of vague and generally written legislation. Notwithstanding, to avoid allegations of lawmaking, many judges stick to the literal meaning of words. But the too rigid use of this rule has the inherent danger of defeating the intention of Parliament, and may lead to absurd, obnoxious conclusions. A good example of the literal meaning defeating the intent of parliament is Whiteley v. Chappell (1986) LR4 QB 147. In that case the court held that on a literal interpretation of the words of the particular legislation, Whiteley could not be convicted of impersonating any person entitled to vote at an election, as the person he had impersonated was dead. On a plain, or literal interpretation the deceased are not entitled to vote so, Whiteley did not commit that crime. No doubt this was probably not the intent of Parliament in passing the piece of legislation, but is was the logical conclusion if one used the literal. In Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1983] 1 ALL ER 101, Securicor were contracted to provide security for

two fishing boats which happened to sink in Aberdeen Harbour. A clause was written in Securicors contract limiting liability for failure in the provision of services to 1000. The House of Lords held that the clause applied even though Securicor failed to provide any security on that occasion.

2.

The Golden Rule

The Golden Rule is really an elaboration, extension or moderation of the literal rule. It states that words should be used in their literal meaning only to the extent that it those not produce an absurd or intolerable conclusion, or result. The rule can be applied in two ways. Firstly by the narrow meaning whereby if there is ambiguity in the words of the legislation, preference will be given to the meaning of the word, which does not result in absurdity. In Adler v George [1964] 2 QB 7, the defendant had been charged under s.3 of the Official Secrets Act 1920, under which it is an offence to obstruct HM forces in the vicinity of any prohibited place. The defendant carried out the obstruction inside the area. The defendant was found guilty of the charge - the court did not limit

itself to the literal wording of the Act. The second use is the wider or broad approach. It is used to avoid an outcome, which is absurd or obnoxious to principles of public policy even if the word(s) only have one meaning. In the case of Re Sigsworth [1935] Ch 89. This was a case of murder and inheritance. Under s.46 of the Administration of Estates Act 1925, a person, could not inherit the estate of the decease if they had murdered that other person, otherwise the murderer would benefit from his/her crime. To avoid this absurdity the court held that under s.46 of the Administration of Estates Act 1925, a son who had murdered his mother could not profit from that crime even though there was only one literal meaning to the word issue (i.e. blood offspring) in the Act. However, in this case, having killed his mother, the son then committed suicide, thus prevent the sons relatives benefiting on his death for an offence they had nothing to do with. Its debateable that this was Parliaments intention.

3.

The Mischief Rule

The Mischief Rule is a somewhat older rule, and is sometimes referred to as the rule in Heydons case ((1584) 3 Co Rep 7a). It can be by the court used to interpret a statue that was passed to remedy a common law (case law) defect, lacuna or loophole. A look at the dictionary would reveal that the word mischief has numerous meanings, such as harm or wrong. The judges use this rule to decide what mischief, or loophole the statute was intended to correct or close. In so doing the judges go beyond the words of the statute to ascertain what mischief or harm the statute was intended to remedy. In applying this rule the court will consider four principles: 1. What was the (common) law before the rule was passed? 2. What solution was offered by parliament? 3. What is the true reason for the

solution? 4. What was the mischief the law did not solve? Take for example Corkery v Carpenter [1951] 1 KB 102, [1956] 2 ALL ER 745. Under s.12 of the Licensing Act 1872, a person found under the influence of alcohol whilst in charge of a carriage could be arrested without a warrant. In that case the court interpreted carriage to include a bicycle. The court obviously felt that the intention of Parliament in passing the legislation was to protect the public from drunken people in driving vehicles on the roads or public places. A bicycle is clearly a form of carriage or transportation. It would have produced an absurd result had a literal interpretation been used.