The mischief rule of statutory interpretation attempts to determine the legislator's intention.

Lecture 01: Mischief rule of statutory interpretation.

Introduction:

The mischief rule of statutory interpretation is the oldest of the rules. The mischief rule is a rule of statutory interpretation that attempts to determine the legislator's intention. Its main aim is to determine the "mischief and defect" of the statute. The mischief rule was established in Heydon's Case 1584. It was held that the mischief rule should only be applied where there is ambiguity in the statute. Under the mischief rule the court's role is to suppress the mischief and advance the remedy.

Meaning:

The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament's intention. This was set out in Heydon's Case 1584 it defined the mischief rule and declared for the true interpretation of a statute, four points to be taken into consideration.

1. What was common law before the Act was passed?
2. What was the mischief & defect for which the existing law did not provide
3. What remedy does the Act attempt to provide to cure the defect?
4. What is the true reason underlying the remedy?

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.

Case examples of the mischief rule:

    

   (1) Smith v. Hughes (1960)

D was a prostitute who had tapped on a balcony from inside a building at men passing by to attract them. It was an offence for a prostitute to solicit men in a street or public place. In this case the judge applied the Mischief rule to come to the conclusion and they were found guilty as for their intention.

Application of the rule:

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 the mischief approach gave a more sensible outcome than that of the literal approach. 

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. Dredger puts it this way to this day, Heydon 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. Dredger 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:

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
4. Allows the law to develop and adapt to changing needs e.g. (Royal College of Nursing v DHSS).

Disadvantage:

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, susceptible to the slippery slope.

          Interesting quote of Professor Cote on the difference of approach between the literal and Mischief Rules. "The interpreter should it fill the gaps that may have a statute, that is to say, he must supply the omission to provide for certain situations, some cases that the subject of a text logic control for securing.

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