Introduction

• if it is not clear whether an act falls within what is prohibited by the statute

  Heydon's Case (1584)

  • defined the mischief rule
  • stated that court must consider the law was before the statute was passed to understand why it was passed
  • then interpret the statute in such a way to ensure that the gap is covered and remedy the mischief

Application

• mischief rule has applied in many cases

  Corkery v Carpenter (1951)

  • D rode a bicycle whilst drunk
  • Licensing Act 1872: offence to be drunk in charge of a carriage on highway
  • held mischief intended to be addressed was drunks on the highway being in charge of transport
  • D guilty

  Electoral Commission v Westminster Magistrates' Court [2011]

  • only persons named on the electoral register may make donations to political parties
  • Political Parties, Elections & Referendums Act 2000 S58(2): The court may, on an application made by the Commission, order the forfeiture by the party of an amount equal to the value of the donation.
  • United Kingdom Independence Party (UKIP) received donations from a person not on the register, although he was entitled to be
  • Court of Appeal: used literal approach & ordered UKIP to repay all the money donated (£349,216)
  • UKIP appealed to Supreme Court
  • Supreme Court held that mischief was to prevent foreign donors from funding UK political parties, so mischief had not occurred
  • to reflect fault (taking money from someone not on register) UKIP ordered to repay only the money received once they knew donor was not on register (£14,481)

Advantages:

Parliamentary supremacy

• looks at why Parliament passed law so gives effect to intention not merely words

Law Commission Report on Interpretation of Statutes (1969)

• endorsed this approach as rather more satisfactory than the literal or golden rules suggested it should be the only rule used

Disadvantages:

Judicial law making

• judicial infringement of role of legislators

  Royal College of Nursing v DHSS (1981)

  • Lord Edmund-Davies: criticised the redrafting with a vengeance of the Abortion Act 1967

Finding mischief

• can be difficult to find the mischief