Unit 1 Law making
Topic 3 Statutory Interpretation
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.
Quick recap of last 2 lessons
Write the answers down yourself, you have 10 mins.
1. Reason why statutes may require interpretation?
2. What is the Euisdem Generis rule? Examples?
3. What are Extrinsic/Intrinsic aids?
4. What is the literal rule? – case example?
5. What is the golden rule? Case example?
6. What are the two approaches in golden rule? Define?
7. Case example of wide approach?
8. Case example of narrow approach?
9. What are the ad/dis of literal rule?
10. What are the ad/dis of golden rule?
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] – veryy olddd!
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 16th 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
Although it points to a kind of middle ground between the plain meaning (or literal)
rule and the mischief rule, the golden rule is not, in a strict sense, a compromise
between them.
Like the plain meaning 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; if the word only has one meaning, but applying
this 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,
by referring to any previous statutes for the same purpose and how did Parliament
intend to improve that statute 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 RDC 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.
Draw the timeline of the Rules 
1. Original Mischief Rule 16th century – gave the
judges a fair amount of
scope
3. Golden Rule developed
for more flexibility about
interpreting what
Parliament ‘said’ in
statute.
Change in society’s
attitude towards
freedom >>>
5. The Purposive
Rule
Pendulum seems to have swung
back to… >>>
Need seen for more flexibility
as time passed >>>
2. 19th 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.
4. Mischief Rule/Purposive Rule
– for courts to discover the
purpose of the statute and
making it work if reasonably
possible.
***Criticisms of the rules: Professor
Zander - A02 Marks
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.
What are the dis/advantages of the
mischief rule?
Discuss in pairs/ small groups.
(5 mins)
ADVANTAGES
DISADVANTAGES
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 injustice
It 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 determining Parliament's supposed
as the best of the three rules, giving effect intention requires the use of a wide range
as it does to the true intention of
of aids and presumptions
Parliament
Introducing the purposive approach
The purposive approach is a modern descendant
of the mischief rule, where the court considers
what Parliament intended to be the purpose of
the statute. Therefore it looks at what
Parliament SAID AND MEANT!!!
PURPOSIVE APPROACH
The court looks at the purpose of the
statute and interprets the words to
bring about that purpose.