Mischief rule is an important rule in interpretation

1. Mischief Rule

2. Mischief Rule
• The literal and golden rules are concerned
with finding out what Parliament SAID. The
mischief rule is applied to find out what
Parliament MEANT.
• It looks for the wrong: the ‘mischief’ which
the statute is trying to correct. The statute is
then interpreted in light of this.
• The rule is based on the Heydon’s Case [1584]
– VERY OLD!…in which certain steps were
identified as a way of interpretation.

3. The mischief rule:
Heydon’s case
1584
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 is the remedy now
provided by the Act of
Parliament to deal with the
mischief or defect for which the
common law did not provide a
cure?
4. The true reason of the
remedy
The court then interprets the Act in such a way as to cure the “mischief”

4. Heydon’s Case [1584]
• In this case it was stated that judges should
(a) What was the common law before the
enactment of the Act?
(b)What was the mischief and defect for which
the common law did not Provide a remedy or
redress?
(c) What is the remedy now provided by the Act
of Parliament to deal with the mischief or
defect for which the common law did not
provide a cure?
(d) What is the rationale for the remedy?

5. • Having answered these questions a judge then
had the duty to construe the Act so as to
(a) suppress the mischief;
(b) advance the remedy;
(c) suppress anything that would lead to the
continuance of the mischief; and
(d) advance the cure and the remedy according
to the true intent of the makers of the Act for
the public benefit.

6. Smith v Hughes (1960) aka Soliciting
Case

7. Facts
• Police officers preferred two information's against
Marie Theresa Smith and four information's
against Christine Tolan alleging that on various
dates, they, being common prostitutes, did solicit
in a street for the purpose of prostitution
contrary to section 1(1) of the Street Offences
Act, 1959.
• 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).

8. • 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.

9. Issue
• 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.

10. Provision
• 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.’

11. • Interpreted literally, there would therefore be no
offence. Applying the mischief rule, it did not matter
that the women were not on the street themselves, as
they were still soliciting men in the street, which was
what the Act was designed to prevent. They were
therefore found guilty. The mischief was them tapping
on the balcony seeking attention from the street.
• Lord Parker said: ‘Everybody knows that this was an Act
intended to clean up the streets… I am content to base
my decision on that ground and that ground alone’.

12. Held
• Interpreted literally, there would therefore be no
offence. Applying the mischief rule, it did not
matter that the women were not on the street
themselves, as they were still soliciting men in
the street, which was what the Act was designed
to prevent. They were therefore found guilty. The
mischief was them tapping on the balcony
seeking attention from the street.
• Lord Parker said: ‘Everybody knows that this was
an Act intended to clean up the streets… I am
content to base my decision on that ground and
that ground alone’.

13. Corkery v Carpenter 1951 aka Drunk n
Ride case

14. Law: S.12 of the Licensing Act 1872 made it an
offence to be drunk in charge of a carriage on
the highway.
Facts: The defendant was riding his bicycle
whilst under the influence of alcohol.
Apply the mischief rule – what do you think is
the mischief? And is the person guilty?

15. • Held: The court applied the mischief rule
holding that a riding a bicycle is a carriage.
This was within the mischief of the Act as the
defendant represented a danger to himself
and other road users.

16. Elliot v Grey 1960

17. Law: S.35(1) Road Traffic Act 1930: it is illegal to use an
uninsured vehicle on the road.
Facts: The car was parked outside A’s house; it had broken
down some months before, the engine would not work,
and there was no petrol in the tank. A had therefore
cancelled his insurance, but said that he would have
renewed it before driving the car again. It was jacked up
and had its battery removed. The defendant argued he was
not using the car on the road as clearly it was not driveable.
Apply the mischief rule, do you think he was guilty? Was
his actions contrary to what Parliament meant?

18. • It was held that the car was being ‘used on a
road’ and needed insurance, it was a hazard of
the type which the statute aimed to prevent. The
High Court affirmed his conviction.
• Lord Parker CJ said the mischief was the
protection of third parties, so "use" should be
taken to mean“ have the use of". Quite apart
from the fact that another vehicle had collided
with the stationary car, it was on a hill and could
have rolled away if someone had let the brake off.

19. DPP v Bull [1995] QB 88

20. Law:s.1(1) of the Street Offences Act 1959; it an
offence for a 'common prostitute to loiter or
solicit in a public street or public place for the
purposes of prostitution'.
Facts: A man was charged with an offence under
above section.

21. • The magistrates found him not guilty on the
grounds that 'common prostitute' only related
to females and not males.
• 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 Act was aimed to
control the behavior of only female
prostitutes.

22. Commissioner of Income-tax. v. Smt.
Sodra Devi, AIR 1957 SC 832

23. LAW: Section 16(3) of the Indian Income-tax Act, 1922
provides:
" In computing the total income of any individual for the
purpose of assessment, there shall be included- (a) so
much of the income of a wife or minor child of such
individual as arises directly or indirectly:
(i)from the membership of the wife in a firm of which her
husband is a partner;
(ii)from the admission of the minor to the benefits of the
partnership in a firm of which such individual is a partner;

24. FACTS:
• one Rai Bahadur Narsingdas Daga (since deceased), his wife
Shrimati Sodradevi (the assessee), and his three major and
three minor sons constituted a joint and undivided Hindu
family.
• There was a severance of joint status between the
erstwhile members of the said joint family on October 18,
1944, and the joint family properties were accordingly
partitioned.
• On such partition, the business of the Spinning and
Weaving Mills and agency shop at Hinganghat fell to the
share of the assessee and her three major and three minor
sons.
• A partnership was entered into between the assessee and
her three major sons for the purpose of carrying on the
business of the Spinning and Weaving Mills and the agency
firm at Hinganghat. The three minor sons of the assessee
were admitted to the benefits of the partnership. The
genuineness of the partnership was not disputed.

25. • Issue: Whether the income falling to the share
of the three minor sons was liable to be
included in the total income of the assessee.

26. • whether the word 'individual ' in s. 16(3) of
the 'Indian Income-tax Act, 1922, as amended
by Act IV of 1937, includes a female and
whether the income of minor sons from a
partnership, to the benefits of which they
were admitted, was liable to be included in
computing the total income of the mother
who was a member of the partnership.

27. • A reference to the Income-Tax Enquiry Report, 1936,
and the Statement of objects and reasons that led to
the passing of the Indian Income-tax (Amendment) Act
IV of 1937 makes it clear beyond doubt that the
mischief the Legislature was seeking to remedy was
one that resulted from a husband entering into a
nominal partnership with his wife or a father admitting
his minor children to the benefits of a partnership, and
the possibility of a mother doing so was not even
thought of.
• Held: The question must be answered in the negative.
The word 'individual' occurring in s. 16(3) of the Indian
Income-tax Act, as amended by Act IV Of 1937, means
only a male and does not include a female.

28. ADVANTAGES DISADVANTAGES
The fact that the judge has greater
flexibility with this rule
The reliance on extrinsic aids and their
associated problems
The fact that this rule helps achieve
Parliamentary intent
That the use of this rule is limited due to
the purposive approach
Helps avoid absurdity and injustice It means that judges can rewrite Statute
Law, which only Parliament is allowed to
do and it must be possible to discover the
mischief in order for the rule to be used
Regarded by most modern commentators
as the best of the three rules, giving effect
as it does to the true intention of
Parliament
Determining Parliaments supposed
intention requires the use of a wide range
of aids and presumptions.