Mischief rule: the mischief rule requires the court to take into account the gap in the law that states that the statute was intended to fill, and interprets it to “suppress the mischief” parliament intended to re. This rule was laid down in Heydons in the sixteenth century, and provides that judges should consider these factors.
- What the law was before the statute was passed
- What problem or mischief the statute was trying to remedy.
- What remedy parliament was trying to provide.
The judge should interpret the statute in such a way as to put a stop to the problem that parli8ament is addressing e.g. Elliot v Grey (1960). The road traffic acts 1930 provided that it was an offence for an unregistered car to be used on the road but in this case was on the road. The car in this case was on the road, but jacked up, with its battery removed, but the court in this case held that as it was never the less a hazard of the type which the statute was designed to prevent. It was covered by the phrase “used on the road”.
1b) Advantage of literal rule
- It respects parliamentary sovereignty, giving the courts a restricted role and leaving law making to those elected for the job.
Disadvantage of literal rule
- Where use of literal rule does lead to an absurd or obviously unjust conclusion, it can hardly be said to be enacting the will of parliament is unlikely to have intended absurdity and injustice.
- The literal rule is useless when the answer to the problem cannot be found in the words of the sentence.
Advantages of golden rule
- The golden rule can prevent the absurdity and injustice caused by the literal rule, and helps courts put in to practice what parliament really means.
Disadvantages of golden rule
- This rule provides no clear meaning of “absurd result”. As in practice that was judged by the reference to whether a particular interpretation was irreconcilable the general policy the legislature, the golden rule turns out to be a less explicit form of a mischief rule.
PART 2: RESEARCH PIECE
1.) Describe the work of a
Barrister: the work of a barrister includes receiving instructions from\ solicitors in form of breach. Barristers are self employed. Advocacy is the main function of barristers, and much of their time will be spent in court or preparing for it. Barristers also do some paper work, drafting legal documents and giving written opinions on legal problems. They don’t directly deal with members of the public. Barristers do not work in firms but work in chambers and are known as tenants. As tenants they pay tenancy which covers the running cost of the accommodation and clerk’s wages. The clerk is responsible for negotiating and finding work for the barristers. Barristers may also be directly hired by a certain professional such as accountants and since 1996, members of the public whose cases have been prepared by suitable trained members of the citizens advice Bureaux staff. Not all qualified barristers work as advocates at the Bar. Like solicitors, some are employed by law centres and other advice agencies, government departments or private industries, and some teach.
Bar council: the Bar council is the governing body of England and Wales. It deals with training qualifications and complaints regarding barristers. The Bar council also keeps an up to date register of all practicing barristers.
Solicitors: there are approximately 80,000 solicitors in the UK most work for firm and partnerships. A solicitor’s work is made up of conveyance (buying and selling houses) wills, divorce partitions, contract and leases, immigration and employment. Solicitors also do a bit of advocacy in lower courts, consumer laws and legal matters concerning motor. Most solicitors are on fixed salaries and limit their practice area to a particular specialty e.g. in family law. When the matters get complicated and has a possibility of preceding to a higher court the solicitor may choose to instruct a barrister.
Law society: the law society governs the solicitor’s profession in England and Wales. It is also responsible for entering solicitors onto the register. This is known as the “roll”. In 1996 the law society set up the office for the supervision of solicitors (OSS). The OSS is responsible for dealing with complaints against solicitors have an enormous number of complaints against them each year. A survey showed the following statistics.
2.) The access to justice act 1999 the law chancellor is working towards changing the nature of the legal profession. More and more solicitors are now seeking the right to advocate in the higher court. Some senior executives are also trying to do the same. The access to justice act 199 has created a new hybrid progression is known as solicitors advocate. Solicitors and senior legal executives can now get extra training and apply for an advocacy certificate. The access to justice act was the subject of much opposition and though some of the criticisms were addresses during the passing of the act some of this opposition remains.
PART THREE: RESEARCH SURVEY
Q1 is the legal profession equally represented by gender, and social class.
The most significant change in the legal profession in the last 15yrs is a proportional increase in the number of female solicitors. In 1984 13.4% of practicing solicitors were women, in 2002, 30.6% of practicing solicitors were women, and in 2002, 32.1%. Generally female solicitors have earned and continued earning less than male solicitors. The 2002/3 practicing certificate surveyed found that 48% of female solicitors against 30% of male solicitors reported incomes of £50,000 or less while only 11% of female solicitors compared to 27% of male solicitors reportedly earned incomes of £100,000 or more.
No. %
Female solicitors are continually under represented in the private profession. While 65% of female solicitors work in private practice only 7.2% of female solicitors are partners.
ETHNIC MINORITIES
The 2001/2 statistics show a slight increase in the percentage of applications received from applicants who have declared themselves of minority ethnic origin 8.2% of all applicants compared to 7.1% in 2000/1.
Proportion of ethnic minorities since 1999
Year %minorities
BIBLIOGRAPHY
AS and A2 level Constitution law text book
Jeffery Hill
Publisher: Old bailey press
Law for AQA
Cathrine Elliot
Frances Quinn
