Discuss the advantages and disadvantages of the mischief rule

  An advantage of the mischief rule is that application of this rule avoids absurd and unjust outcomes because the judges are looking to remedy the law. This follows Parliaments intent and avoids an absurd result. A case which uses the mischief rule and shows that by applying this rule judges can avoid absurd outcomes is Smith V Hughes (1960). Under the street offences act it was an offence to solicit in the street or a public place. 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? The House of Lords said that the mischief was to stop illegal backstreet abortions and Nurses, rather than Doctors, could supervise.

  A disadvantage of the mischief rule is that it gives far too much power to the judiciary because the judges are making law and not respecting Parliamentary Sovereignty. A case which uses the mischief rule and shows that judges have too much power because they are making law is Smith V Hughes (1960). Under the street offences act it was an offence to solicit in the street or a public place. 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  Another disadvantage of the mischief rule is that the rule is considered to be out of date because it was created in 1584 in Heydon’s case and society has changed drastically since then.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.