Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

3.3  The mischief rule

This rule gives a judge more discretion than either the literal or the golden rule. This rule requires the court to look to what the law was before the legislation was passed in order to discover what gap or mischief the legislation was intended to cover. The court is then required to interpret the legislation in such a way to ensure that the gap is covered. The rule is contained in Heydon’s Case (1584) 3 Co Rep 7a, where it was said that for the true interpretation of legislation, four things have to be considered.

  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 remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth.
  4. The true reason of the remedy; and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy.

This rule gives the court justification for going behind the actual wording of the legislation in order to consider the problem that the particular legislation was aimed at remedying. At one level it is clearly the most flexible rule of interpretation, but it is limited to using previous common law to determine what mischief the legislation in question was designed to remedy. The case itself concerned a dispute about legislation passed under Henry VIII in 1540 and a legal action against Heydon for intruding into certain lands in the county of Devon. As common law gained influence in Scotland following the Acts of Union, rules and influences from the English legal system began to have an impact. Here is just one example.

Box 9 Example of the mischief rule: Corkery v Carpenter [1951] 1 KB 102

An example of the use of the mischief rule is found in the case of Corkery v Carpenter [1951] 1 KB 102. In 1950 Shane Corkery was sentenced to one month’s imprisonment for being drunk in charge of a bicycle in public. At about 2.45 p.m. on 18 January 1950, the defendant was drunk and was pushing his pedal bicycle along Broad Street in Ilfracombe. He was subsequently charged under Section 12 of the Licensing Act 1872 with being drunk in charge of a carriage. The 1872 Act made no actual reference to bicycles. The court elected to use the mischief rule to decide the matter. The purpose of the Act was to prevent people from using any form of transport on a public highway whilst in a state of intoxication. The bicycle was clearly a form of transport and therefore the user was correctly charged.

Activity 4 The rules of interpretation

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