Statutory Interpretation The Mischief Rule

Learning Objectives All learners will be able to: Demonstrate understanding of the literal, golden and mischief rule. Most Learners will be able to: Demonstrate understanding of the cases in relation to the rules. Some learners will be able to: Apply the mischief rule to various sources and engage in discussion.

Introduction to the Mischief Rule The literal and golden rules are concerned with finding out what Parliament SAID. The mischief rule is applied to find out what Parliament MEANT. It looks for the wrong, the ‘mischief’ which the statute is trying to correct. The statute is then interpreted in light of this. The rule is based on the Heydon’s Case [1584] – VERY OLD! …in which certain steps were identified as a way of interpretation.

Heydon’s Case [1584] In this case it was stated that judges should: 1.Consider what the law was before the Act was passed; 2.Identify what was wrong with the law; 3.Decide how Parliament intended to improve the law through the statute in question; 4.Apply that finding to the case before the court. This was a sincere 16 th century attempt to discover the intention of Parliament and to apply it to cases before the courts.

In other words 1.What was the law before the statute? 2.What was wrong with that law? 3.How did Parliament intend to correct this? 4.Apply this statute in that context.

The difference between the rules Now we have discussed all three rules of statutory interpretation, it appears that the golden rule is a compromise between the literal rule and the mischief rule. This however is not strictly true. Like the literal rule, the golden rule gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature's intention, the golden rule dictates that a judge can depart from this meaning.

In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning. However if applying the literal rule in this way, would lead to a bad decision, the judge can apply a completely different meaning. The mischief rule aims to interpret statute to what it meant regardless of the wording. It refers to any previous statutes written for the same purpose and how Parliament intended to improve these statutes in the new worded one. It also needs to find out the mischief in the case in order for it to be used.

Magor and St Mellons DC v Newport Corporation [1950] Lord Denning: ‘We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.’ What do you think he meant by this? It was better to interpret statutes in a way which carries out Parliament’s intention than to be so restricted by the exact wording that this is not achieved. In contrast to Fisher v Bell, where the purpose of the legislation was to prevent the sale of offensive weapons was defeated, the courts have been seen on occasions to go out of their way to enable a statute to work.

Smith v Hughes [1960] Law: Street Offences Act 1958: it is an offence to solicit in a street for the purpose of prostitution’. Facts: Some prostitutes were accused of soliciting, contrary to the Act. The defendant along with other prostitutes, sat on a balcony, or inside a building tapping on the window, to attract the attention of men in the street. Apply the literal rule. Will the defendant be guilty of soliciting?

Smith v Hughes cont’d Interpreted literally, there would therefore be no offence. Applying the mischief rule, it did not matter that the women were not on the street themselves, as they were still soliciting men in the street, which was what the Act was designed to prevent. They were therefore found guilty. The mischief was them tapping on the balcony seeking attention from the street. Lord Parker said: ‘Everybody knows that this was an Act intended to clean up the streets… I am content to base my decision on that ground and that ground alone’.

Corkery v Carpenter 1951 Law: S.12 of the Licensing Act 1872 made it an offence to be drunk in charge of a 'carriage' on the highway. Facts: The defendant was riding his bicycle whilst under the influence of alcohol. Apply the mischief rule – what do you think is the mischief? And is the person guilty? Held: The court applied the mischief rule holding that a riding a bicycle is a carriage. This was within the mischief of the Act as the defendant represented a danger to himself and other road users.

Elliot v Grey (1960) Law: s.35(1) Road Traffic Act 1930: it is illegal to use an uninsured vehicle on the road. Facts: The car was parked outside A's house; it had broken down some months before, the engine would not work, and there was no petrol in the tank. A had therefore cancelled his insurance, but said that he would have renewed it before driving the car again. It was jacked up and had its battery removed. The defendant argued he was not 'using' the car on the road as clearly it was not driveable. Apply the mischief rule, do you think he was guilty? Was his actions contrary to what Parliament meant?

Elliot v Grey (1960 )cont’d It was held that the car was being ‘used on a road’ and needed insurance, it was a hazard of the type which the statute aimed to prevent. The High Court affirmed his conviction. Lord Parker CJ said the mischief was the protection of third parties, so "use" should be taken to mean "have the use of". Quite apart from the fact that another vehicle had collided with the stationary car, it was on a hill and could have rolled away if someone had let the brake off.

Task Draw a timeline charting the development of the different rules and a basic explanation of each (10 mins)

Draw the timeline of the Rules 1. Original Mischief Rule - 16 th century – gave the judges a fair amount of scope Change in society’s attitude towards freedom >>> th century - Victorian times trend moved away to the Literal Rule, because the Victorian Courts did not like flexibility in interpreting statute. Very strict – preferred literal approach. Need seen for more flexibility as time passed >>> 3. Golden Rule developed for more flexibility about interpreting what Parliament ‘said’ in statute. Pendulum seems to have swung back to… >>> 4. Mischief Rule/Purposive Rule – for courts to discover the purpose of the statute and making it work if reasonably possible. 5. The Purposive Rule

Criticisms of the rules: Professor Zander Professor Zander described the golden rule as ‘an unpredictable safety valve’ and suggested that for the courts to jump straight in with a literal interpretation is actually wrong, and that the purpose of the statute should always be considered if they are to carry out their task in a reasonable way.

ADVANTAGESDISADVANTAGES The fact that the judge has greater flexibility with this rule. The reliance on extrinsic aids and their associated problems. The fact that this rule helps achieve Parliamentary intent. That the use of this rule is limited due to the purposive approach. Helps avoid absurdity and injusticeIt means that judges can rewrite Statute Law, which only Parliament is allowed to do and it must be possible to discover the mischief in order for the rule to be used. Regarded by most modern commentators as the best of the three rules, giving effect as it does to the true intention of Parliament determining Parliament's supposed intention requires the use of a wide range of aids and presumptions

Revision Task Each group has a set of cards. These cards can be divided into three headings, one for each of the rules we have so far covered. In small groups, sort your cards into the right groups. In addition match the cases, to their facts and quotes within each group.