THE MISCHIEF RULE OF STATUTORY INTERPRETATION

The mischief rule is a principle used by judges when they need to interpret the meaning of a statute (or law). Instead of focusing solely on the literal words of the law, this rule directs judges to look back and identify the specific problem, defect, or mischief that the law was originally created to fix.

The mischief rule originated in Heydon’s case in the year 1584. The case arose from a dispute concerning the interpretation of a statute enacted to suppress religious dissent, specifically targeting Catholic institutions following the Protestant Reformation.

In Heydon’s case, the Court outlined a four-part test to be applied when interpreting statutes:

1. On what was the common law based before the enactment of the Act?
2. What was the mischief that the common law did not take account of?
3. What did parliament intend to remedy?
4. What is the actual reason for the remedy?

Professor Bray highlighted the two main functions of the mischief rule: to provide “a rationale for an interpreter’s choice about how broadly to read a term or provision in a legal text,” and to “allow [] an interpreter to read a legal text a little more broadly to prevent a clever evasion that would perpetuate the mischief.” 

These functions are the stopping point function and the clever-evasion function, respectively. In relation to the bare text, the stopping point function tends to narrow the domain of the statute. The clever-evasion function tends to broaden it.

The stopping point function’s value is apparent, Professor Bray argued, in cases where the statutory text speaks broadly of “animals” in a railroad regulation, of “tangible objects” in a financial fraud statute, and of “sex” in an employment discrimination law.

A pervasive problem in legal interpretation is determining the correct scope for a statutory term or provision. The stopping point function of the mischief rule was widely recognized by older interpreters when they insisted-(1)-that they had a choice about the scope of a statute, and (2) that in making that choice they should consider the mischief to which the statute responds.

A second function of the mischief rule is the thwarting of clever evasions by suggesting a modestly broader scope. As Heydon’s Case puts it, the judge should “suppress subtle inventions and evasions for continuance of the mischief.” This second function of the mischief rule tends to work in the opposite direction from the stopping point function-it usually supports a court’s choice of a broader reading.

HOW DOES ONE IDENTIFY MISCHIEF?

Identifying the mischief necessarily involves placing the statute in a historical context. The mischief is sometimes described as (a) the problem that preceded the legislative act and to which the act was directed, or (b) the deficient state of the law prior to the legislative act. One might say that the problem was the law itself. Or one might say that the law’s failure to remedy the problem was the real problem. Although the problem that preceded the act is central-as the spur to the act-if it is a past event, then it cannot strictly speaking be remedied by the new law. The past cannot be undone. Thus, the mischief has a compound significance: it is the social problem, and it is also the inadequacy in the law that allowed or allows that problem.

CASE LAW

1. Smith v Hughes (1960)-The defendant was a prostitute who lived at No. 39 Curzon Street, London and used the premises for the purposes of prostitution. On 4th November 1959, between 8.50 pm and 9.05 pm the defendant solicited men passing in the street. She solicited them from the balcony and window of the premises. The prostitute was charged under the Street Offences Act, 1959 (which prohibits a common prostitute to loiter or solicit in a street or public place). The defendant argued that since she wasn’t technically in the street, no violation of law had taken place. The Court used the mischief rule to look beyond the literal meaning of “in a street” and consider the purpose of the Act. Parliament’s intent behind passing of the act was to clean up the streets and prevent public solicitation that could be seen and heard by people walking by. The court found that the balconies and windows were extensions of the street for the purpose of the law. The actions of the defendant were a form of public solicitation and therefore were very much within the “mischief” the Act was meant to suppress.
2. Elliot v Grey-The defendant was charged with using an uninsured vehicle on a public road, which was an offence under the Road Traffic Act 1930. The defendant claimed that the car was not being “used” because it was immobile, jacked up, and its battery was removed. The court applied the mischief rule and reasoned that even a stationary vehicle can be a hazard and that the purpose of the insurance requirement was to ensure that people who might be injured by the vehicle could claim compensation. Since the car was on the road and uninsured, it fit the “mischief” the law was designed to prevent. The court found the defendant guilty because the law was meant to apply to any vehicle on the road that could harm, regardless of whether it was actively being driven.
3. Corkery v Carpenter-Shane Corkery was pushing his bicycle while drunk on a public street. He was charged under the Licensing Act 1872, which made it an offence to be drunk in charge of a “carriage” on a highway. The Act did not explicitly mention bicycles. The Court used the mischief rule of interpretation and determined that the mischief the Act intended to remedy was the danger posed by intoxicated people on public roads using any form of transport. Since a bicycle is a form of transport, the court ruled that it fell under the definition of “carriage” for the purposes of the Act.