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Discuss the advantages and disadvantages of the mischief rule

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Introduction

Discuss the advantages and disadvantages of the mischief rule (10 marks) The mischief rule is where judges look for as mischief or gap in the law that Parliament designed an Act to remedy. The judges must interpret the act as to fill the gap and to remedy the mischief that Parliament had been aiming to remedy. The mischief rule originates from Heydon's case (1584), here the judges said that the court should consider four things when attempting to interpret a statutory provision: common law before the act; what was the defect or mischief; what does the act try to do; what is the real reason for the act. ...read more.

Middle

So prostitutes solicited men from their balconies. Lord Parker looked at the mischief that the Act came to remedy, this was to clean up the streets, so the court found the defendants guilty as it didn't matter where the soliciting originated from. Another advantage of the mischief rule is that it promotes flexibility because the judges decide what Parliaments intent is, they change and adapt the law to suit this. A case which uses the mischief rule and shows that it promotes flexibility is Royal College of Nursing V DHSS (1981). The wording of the Abortion Act stated that pregnancies must be terminated by a medical professional, did this include Nurses? ...read more.

Conclusion

So prostitutes solicited men from their balconies. Lord Parker looked at the mischief that the Act came to remedy, this was to clean up the streets, so the court found the defendants guilty as it didn't matter where the soliciting originated from. The judges modified the law to make the defendants guilty of the crime, which is making law. Another disadvantage of the mischief rule is that the rule is considered to be out of date because it was created in 1584 in Heydon's case and society has changed drastically since then. In Heydon's case the judges said that the court should consider four things when attempting to interpret a statutory provision: common law before the act; what was the defect or mischief; what does the act try to do; what is the real reason for the act. ...read more.

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Here's what a teacher thought of this essay

3 star(s)

Two valid advantage points made but only one valid point as a disadvantage. It is good to see that each valid point is supported by a case illustration.
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Marked by teacher Nick Price 18/03/2012

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