ISIELT Lecture 10.

1:

Rules of Statutory Interpretation:

The Mischief Rule
Readings
Md Abdul Halim, Statutory Interpretation and the
General Clauses Act (2015), pp. 32-34.
Synopsis
Meaning and Definition
Examples
How to apply the rule
Advantages
Disadvantages
Comparative merits
Meaning and Definition
Meaning and Definition
This rule of interpretation aims to determine the
"mischief and defect" that the statute in question was
adopted to remedy, and then to find a way to remove
the mischief/defect and thereby to provide remedy and
justice.
Examples
Examples
Smith v Hughes (1960)
The Street Offences Act 1959 made provision against
loitering or soliciting in public places for the purpose of
prostitution, and for the punishment of those guilty of
certain offences like earning by prostitution. The
defendants were prostitutes who were charged under this
Act for soliciting from private premises in windows or
on balconies.
Held: Soliciting for prostitution was the mischief that
the Act aimed at to abolish. The defendants were doing
this prohibited act, even though not in the public places.
As such, they were liable.
Examples
Corkery v Carpenter [1951]
The defendant drank alcohol and was riding his bicycle.
S.12 of the Licensing Act 1872 made it an offence to be
drunk in a public place in charge of, among other things,
a 'carriage' including mobility scooters.
Held: Riding a bicycle was within the “mischief” the Act
aimed abolish as the defendant represented a danger to
himself and other road users.
How to Apply the Rule?
The rule was first set out in Heydon’s Case [1584],
where the court held that four points should be taken into
consideration:
What was the common law before the making of the
Act?
What was the mischief and defect for which the
common law did not provide?
What remedy the Parliament has resolved and
appointed to cure the disease of the common law?
The true reason of the remedy.
After the getting the answers to the above, the judge
will make such construction as shall suppress the
Advantages
Closes loopholes
allows the law to develop and adapt to changing needs
eg Royal College of Nursing v DHSS
Disadvantages
Gives judges a law making role infringing the
separation of powers.
 Judges can bring their own views, sense of morality
and prejudices to a case eg Smith v Hughes, 
DPP v Bull.
Comparative Merits of the Three Rules
The Literal Rule respects parliamentary sovereignty,
but its strict adherence may cause injustice.
To cure the injustices caused by the literal rule, the
court may use golden rule to give the statutory terms
wider meaning or change the meaning to uphold public
policy.
Mischief rule is apt to address the limitations and
loopholes of both the literal and golden rules. The rule
allows the judges to refine and develop the statutes. Of
course, it may permit judicial interference in the
parliamentary supremacy.
Conclusion
The mischief rule can make the law uncertain. To
address this demerit, the purposive interpretation was
introduced, which is the combination of the literal rule
and the golden rule yielding the best possible result of
a given dispute.
 Thank you