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Mischief Rule

person DateMay 13, 2017

Mischief Rule

The mischief rule is a rule of statutory interpretation that attempts to determine the legislator’s intention. Originating from a 16th century case (Heydon’s case) in the United Kingdom, its main aim is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. When the material words are capable of bearing two or more constructions the most firmly established rule or construction of such words “of all statutes in general be they penal or beneficial, restrictive or enlarging of the common law is the rule of Heydon’s case. The rules laid down in this case are also known as Purposive Construction or Mischief Rule.

The mischief rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament’s intention. It essentially asks the question: By creating an Act of Parliament what was the ‘mischief’ that the previous law did not cover?

This is a very important rule as far as the Interpretation of Statute is concerned. It is often referred to as the “rule in Heydon’s Case”. This very important case reported by Lord Coke and decided by the Barons of the Exchequer in the 16th century laid down the following rules:

That for the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law; four things are to be considered –

1)      What was the common law before the passing of the Act?

2)      What was the mischief and defect for which the common law did not provide?

3)      What remedy the Parliament hath resolved and appointed to cure the “disease of the Commonwealth”.

4)      The true reasons for the remedy.

And then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy. Before proceeding any further, a word of warning is appropriate. Uses the exact words – “disease of the Commonwealth” – used by Lord Coke in his report and it is important to bear in mind that words had different meanings. It is necessary to discover their meaning at the time of writing. From the 14th century to the end of the 17th, the meaning of disease was lack of ease, disquiet or distress and Commonwealth, of course, meant the Country. According to an early case, The Longford (1889) 14 P.D34 an Act must be construed as if one were interpreting it on the day it was passed. Thus, we ask ourselves what the word meant on the day it was uttered, if by analogy we argue that the same can be said of a judgment. The importance of the mischief rule in the criminal law can best be shown byconsidering examples. An Act of Parliament will state the purpose for which it was enacted. Ifwe take the case of Parkin v. Norman[1982] 2 All E.R. 583(reserved judgment), it can be seen that the court decided that the Public Order Act 1936 was never designed to deal with homosexual behaviour in public toilets. The long title to the Act reads:

“An Act to prohibit the wearing of uniforms in connexion with political objects and the maintenance by private persons of associations of military or similar characters; and to make further provision for the preservation of public order on the occasion of public processions and meetings and in public places.”

The purposes of the Act and the mischief rule are, therefore, closely connected, and it is very genuine to look at the long title. Another example of the application of the mischief rule is found in Ohison v. Hylton[1975] 2 All E.R. 490. The facts, briefly, were a carpenter was on his way home from work. He boarded a train which was crowded. Another passenger objected and subsequently both finished up on the platform. The defendant, the carpenter, took one of his tools of his trade, a hammer, from his briefcase and struck the other man with it. He was charged under the Prevention of Crime Act 1953. Lord Widgery, CJsaid, inter alia: “This is a case in which the mischief at which the statute is aimed appears to me to be very clear. Immediately prior to the passing of the 1953 Act the criminal law was adequate to deal with the actual use of weapons in the course of a criminal assault. Where it was lacking, however, was that the mere carrying of offensive weapons was not an offence. The long title of the Act reads as follows:

‘An Act to prohibit the carrying of offensive weapons in public places without lawful authority or reasonable excuse’. Parliament is there recognizing the need for preventive justice where, by preventing the carriage of offensive weapons in a public place, it reduced the opportunity for the use of such weapons. If, however, the prosecutor is right, the scope goes far beyond the mischief aimed at, and in every case where an assault is committed with a weapon and in a public place an offence under the 1953 Act can be charged in addition to the charge of assault. Whilst on the subject of offensive weapons, mention must be made of the Divisional Court’s decision in Gibson v. Wales(1983) 147 J. P. 143, which decided that a “flick knife” is an offensive weapon per se.’

Literature Survey: A lot of work has been done on this particular topic which belongs to Interpretation of Statute because of the peculiar nature of its operation as it is considered to discover Parliament’s intention and to give the judge more discretion than any other rule as it allows him to effectively decide on Parliament’s intent. But at the same time It can be argued that this undermines Parliament’s supremacy and is undemocratic as it takes law-making decisions away from the legislature. There’s Judicial Overreach, So this controversy has been considered in favour by many authors in their books of which some are like“Interpretation of Statutes” by Kafaltiya, B.M. Gandhi, Maxwell and “Principles of Statutory Interpretation” by G.P. Singh and many more in this regard and therefore Purposive interpretation was introduced as a form of replacement for the mischief rule, the plain meaning rule and the golden rule to determine cases. Purposive interpretation is exercised when the courts utilize extraneous materials from the pre-enactment phase of legislation, including early drafts, hansards, committee reports, white papers, etc. The purposive interpretation involves a rejection of the exclusionary rule.

Case Laws

Smith v. Hughes 

The brief facts were that the defendant was a common prostitute who lived at No. 39 Curzon Street, London, and used the premises for the purposes of prostitution. On November 4, 1959, between 8.50 p.m. and 9.05 p.m. the defendant solicited men passing in the street, for the purposes of prostitution, from a first-floor balcony of No. 39 Curzon Street (the balcony being some 8–10 feet above street level). The defendant’s method of soliciting the men was

(i)  to attract their attention to her by tapping on the balcony railing with some metal object and by hissing at them as they passed in the street beneath her and

(ii) having so attracted their attention, to talk with them and invite them to come inside the premises with such words as ‘Would you like to come up here a little while?’ at the same time as she indicated the correct door of the premises.

It was contended on behalf of the defendant, inter alia, that the balcony was not ‘in a Street’ within the meaning of section 1(1) of the Street Offences Act, 1959, and that accordingly no offence had been committed. “The sole question here is whether in those circumstances the appellant was soliciting in a street or public place. The words of s. 1(1) of the Act are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution’.

Lord Parker CJ said Case that she ‘being a common prostitute, did solicit in a street for the purpose of prostitution, contrary to section 1(1) of the Street Offences Act, 1959.’ It was found that the defendant was a common prostitute, that she had solicited and that the solicitation was in a street. The defendants in this case were not themselves physically in the street but were in a house adjoining the street, on a balcony and she attracted the attention of men in the street by tapping and calling down to them. At other part the defendants were in ground-floor windows, either closed or half open. The sole question here is whether in those circumstances each defendant was soliciting in a street or public place. The words of section 1(1) of the Act of 1959 are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.’ Observe that it does not say there specifically that the person who is doing the soliciting must be in the street. Equally, it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street. For

my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street. For my part, I am content to base my decision on that ground and that ground alone.

Royal College of Nursing v. DHSS

The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (i.e. a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses it was Held: It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.

Elliot v. Grey

The defendant’s car was parked on the road. It was jacked up and had its battery removed. He was charged with an offence under the Road Traffic Act 1930 of using an uninsured vehicle on the road. The defendant argued he was not ‘using’ the car on the road as clearly it was not driveable. It was held: The court applied the mischief rule and held that the car was being used on the road as it represented a hazard and therefore insurance would be required in the event of an incident. The statute was aimed at ensuring people were compensated when injured due to the hazards created by others.

Corkery v. Carpenter

The defendant was riding his bicycle whilst under the influence of alcohol. S.12 of the Licensing Act 1872 made it an offence to be drunk in charge of a ‘carriage’ on the highway. It was held: The court applied the mischief rule holding that a riding a bicycle was within the mischief of the Act as the defendant represented a danger to himself and other road users.  According to S.12 of the Licensing Act 1872, a person found drunk in charge of a carriage on the highway can be arrested without a warrant. A man was arrested drunk in charge of a bicycle. According to the plain meaning rule a bike is not a carriage. Under the Mischief rule the bicycle could constitute a carriage. The mischief the act was attempting to remedy was that of people being on the road on transport while drunk. Therefore a bicycle could be classified as a carriage.

DPP v. Bull

A man was charged with an offence under s.1(1) of the Street Offences Act 1959 which makes it an offence for a ‘common prostitute to loiter or solicit in a public street or public place for the purposes of prostitution’. The magistrates found him not guilty on the grounds that ‘common prostitute’ only related to females and not males. The prosecution appealed by way of case stated. The court held that the Act did only apply to females. The word prostitute was ambiguous and they applied the mischief rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report into homosexuality and prostitution. The Report only referred to female prostitution and did not mention male prostitutes. The QBD therefore held the mischief the Act was aimed at was controlling the behaviour of only female prostitutes.

Brown v. Brown 

In Brown v Brown, Sir Jocelyn Simon P said that the disadvantage of the old law on condonation of adultery was that, though a resumption of cohabitation might actually promote a reconciliation which had yet taken place, a wronged spouse might be reluctant to resume cohabitation in case it did not succeed and he or she would then have lost the right to complain of the matrimonial offence. The provision in s 2(1) of the Matrimonial Causes Act 1963 (now contained in s 42 of the Matrimonial Causes Act 1965) that adultery shall not be deemed to be condoned by reason of a continuation or resumption of cohabitation between the parties for a period of up to three months was, therefore, limited to cases within this ‘mischief’- where the cohabitation was with a view to effecting a reconciliation, and did not extend to cases where it was in consequence of reconciliation.

Sodra Devi v. Commr. Of Income Tax 

By s 16(3) of the Indian Income Tax Act 1922, ‘In computing the total income of any individual for the purpose of assessment, there shall be included so much of the income of a wife or minor child of such individual as arises indirectly or directly’ In CIT v. Sodra Devi the court observed that the legislature was guilty of using an ambiguous term. There is no knowing with certainly as to whether the legislature meant to enact these provisions with reference only to a male of the species using the words ‘any individual’ or ‘such individual’ in the narrower sense of the term indicated above or intended to include within the connotation of the words ‘any individual’ or ‘such individual’ also a female of the species. Holding the words ‘any individual’ and ‘such individual’ as restricted in their connotation to mean only the male of the species, the court observed that the evil which was sought to be remedied was the only resulting from the widespread practice of husbands entering into nominal partnerships with their wives, and fathers admitting their minor children to the benefits of the partnerships of which they were members. This evil was sought to be remedied by the Income-tax Act. The only intention of the legislature in doing so was to include the income derived by the wife or a minor child, in the computation of the total income of the male assessee, the husband or the father as the case may be for the purpose of the assessment.

RMDC v. UOI 

In RMDC v Union of India the definition of ‘prize competition’ under s 2(d) of the Prize competition act 1955, was held to be inclusive of only those instances in which no substantive skill is involved. Thus, those prize competitions in which some skill was required were exempt from the definition of ‘prize competition’ under s 2(d) of the Act. Hence, in the aforementioned case, the Supreme Court has applied the Heydon’s Rule in order to suppress the mischief was intended to be remedied, as against the literal rule which could have covered prize competitions where no substantial degree of skill was required for success.

In the case of Thomson v. Lord Clan Morris, Lord Lindley M.R. stated that in interpreting any statutory enactment regard must be had not only to the words used, but also to the history of the Act and the reasons which lead to its being passed.

In the case of CIT v. Sundaradevi (1957) (32 ITR 615) (SC), it was held by the Apex Court that unless there is an ambiguity, it would not be open to the Court to depart from the normal rule of construction which is that the intention of the legislature should be primarily to gather from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and considered on surrounding circumstances and constitutionally proposed practices.

The Supreme Court in Bengal Immunity Co. v. State of Bihar, (AIR 1995 SC 661) applied the mischief rule in construction of Article 286 of the Constitution of India. After referring to the state of law prevailing in the province prior to the constitution as also to the chaos and confusion that was brought about in inter-state trade and commerce by indiscriminate exercise of taxing powers by the different Provincial Legislatures founded on the theory of territorial nexus, Chief Justice S.R.Das, stated “It was to cure this mischief of multiple taxation and to preserve the free flow of interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the constitution maker adopted Article 286 in the constitution”.

Advantages and Disadvantages of Mischief Rule

Advantages:

1)      The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules.

2)      It usually avoids unjust or absurd results in sentencing.

3)      Closes loopholes

4)      Allows the law to develop and adapt to changing needs example Royal College of Nursing v DHSS

Disadvantages:

1)      It is seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established.

2)      It gives too much power to the unelected judiciary which is argued to be undemocratic.

3)      Creates a crime after the event example Smith v HughesElliot v Grey thus infringing the rule of law.

4)      Gives judges a law making role infringing the separation of powers and Judges can bring their own views, sense of morality and prejudices to a case example Smith v HughesDPP v Bull.

Conclusion

As it can be seen from the case, mischief rule can be applied differently by different judges. It is mainly about the discretion and understanding of the person applying it. Though, it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules. It usually avoids unjust or absurd results in sentencing but it also seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established. It gives too much power to the unelected judiciary which is argued to be undemocratic. In the 16th century, the judiciary would often draft acts on behalf of the king and were therefore well qualified in what mischief the act was meant to remedy. This is not often the case in modern legal systems. The rule can make the law uncertain, susceptible to the slippery slope. Therefore Purposive interpretation was introduced as a form of replacement for the mischief rule, the plain meaning rule and the golden rule to determine cases. The purposive approach is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (that is, a statute, a part of a statute, or a clause of a constitution) in light of the purpose for which it was enacted.

 

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