Advantages and Disadvantages

Advantages and Disadvantages of the Mischief Rule
Advantages:

• Helps to avoid absurs and unjust results.
• Promotes flexibility in the law
• It allows judges to put into effect the remedy Parliament chose to cure.
• Looks at the gap in the previous law
• Nearest to the purposive approach.a
• Allows the law to develop and change to society.

Disadvantages:

• Judges can re-write statue law which only parliament is permitted to do.
• Does not uphold Parliamentary supremacy
• The "mischief" must be found before it can be remedied.
• Judges can bring their own prejudices.
• Creates a crime after the event.

Eastbourne Borough Council V Stirling 2000

Eastbourne Borough Council V Stirling 2000
The Act said it is an offence for a taxi driver to "ply for hire in any street" without a licence.
Case facts:

• A taxi driver's vehicle was parked on a taxi rank on a station forecourt without a licence
• They were found guilty because although he was on private land he was likely to get customers from the street
• The court referred to Smith V Hughes and said it was the same point
• He was charged with plying for hire in any street without a licence to do so

Therefore, this relates to the Mischief Rule because the courts gathered as much information on the law in question including Smith V Hughes and the Street Offences Act 1959 to stop plying for hire on the street.

Smith V Hughes 1960

Smith V Hughes 1960
Under the Street Offences Act 1959 (S1(1)), it said it should be an "offence to solicit a prostitute on the street or a public place".
Case Facts:

• Six women appealed that they hadn't been "in a street" when attracting customers
• 1 had been on a balcony and the others at a ground floor window which are private premises
• Even though they were advertising prostitution, using the literal rule they would be found not guilty

Therefore, the Street Offences Act 1959 was created by Parliament to stop prostitution services from occurring because there was no previous common law stating that prostitution couldn't take place in private areas.

Definition of Mischief Rule

Definition:
The Mischief rule gives a judge more discretion than the other two rules and the definition of the rule comes from Heydons Case 1584.

This case states there were 4 points the court should consider:

1. What was the Common Law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What was the remedy the Parliament hath resolve and appointed to cure the disease of common wealth?
4. The true reason of the remedy