Statutory Interpretation - Whitely V Chappell (1868) , R V Harris (1836), Fisher V Bell (1961)

...

Key roles of mischief rule come from Hayden’s case in 1584

- What was the common law before the act

- What was the mischief and defect for which the common law did not provide

- What was the remedy parliament passed to cure the mischief

- What was the true reason for the remedy?

Smith v Hughes (1960)

In this case the defendants were prostitutes and they’ve been charged under the street offences act 1956, made it an offence to ask for solicit in a public place. They would solicit from balconies so that the public can see them. If you apply the literal rule here even the golden rule you will see that the prostitutes were not solicit in a public place. Judges looked what the mischief was trying to prevent. Parliament was trying to stop prostitution. Prostitution was the mischief. Court applied the mischief rule, holding that the activities of the defendants were within the mischief of the act even though under a literal interpretation they were they would be in a private place. The mischief rule is used to make sure parliaments will is followed

Consequences of the mischief rule

- Oldest rule

- Judicial law making (judge’s discretion) what judge thought the law meant

Purposive Approach – applies to all European law

Aims to produce the decisions which put into practice the spirit of the law

The court looks at the gap in the law that parliament felt necessary to close then interpret the act to fill that gap and remedy the mischief parliament had been aiming to remedy. European communities act 1972 (driven by this)

When interpreting EU Law we must use purposive approach as European judges use this method.

R v Rogers (2007)

Rogers who is an illness, was riding his wheelchair home, there was a verbal fight which took place between three women. Roger pursued them into a local kebab shop where they had run away. Roger called them “bloody foreigners and told them to go back to their country” the lords ruled that not only committed public order offence 1986 using threating insults words or behaviour intending the victims to fear immediate unlawful violence or to provoke it but that he had also committed an aggravated race offense under the crimes and disorder act 1998. Responding to the court of appeals question as to whether those who are not of British origin constitute a racial group under the crime and disorder act baroness hale says the answer is yes as it would be to question whether foreigners constitute such a group. The question you have to ask yourself is with the same problem existed if he used to phrase bloody Spaniards rather than foreigners. The purposive approach is easy to understand.

- What did parliament intend,

- what does the act say,

- what did they,

- what did they mean by the act

- let’s apply that

this focuses on what parliament intends, it’s a modern version of the mischief rule. The judges are allowed to decide what parliament though.

The difference between the two is that the mischief rule focuses on the period before the act, wihile the purposive rule focuses on the act and what it actually says itself.

...