409083
| Question | Answer |
| What is the mischief rule? | It allows a court which cannot solve an ambiguity to look at the problem that the Act was designed to resolve. |
| What must the court decide? | 1) What was the law before the statute was passed 2) What problem existed which needed Parliament to step in 3) Which solution Parliament chose in order to solve the problem |
| Which case best describes the mischief rule? | Gorris and Scott Facts - Claimant owned a flock of sheep and made a contract with the defendant to transport the sheep on the deck of his sheep. Statute - St the time 'if you transport live stock on a ship they should be in pens'. Outcome - court said no as statute was unclear, what the statute meant was to stop spread of disease whereas LR would've said yes. |
| What other case describes the MR? | Gardiner v Sevenoaks Facts - About storage of a film (stored in a cave) Statute - Any premises in which you're storing film had to comply with certain regulations. Outcome - Define 'premise' - LR would have said not guilty. MR - courts said the likeliness of films setting a light was high so guilty. |
| What are the advantage of the MR? | Court is seeking the true intention behind the statute rather than resorting to technicalities of language. - The Lae commission have said that they believe the MR is preferable than the LR. |
| Give an example of a case which describes the advantage of the MR seeking the true intention. | Smith v Hughes Facts - 'D' were soliciting from balconies and through ground floor windows . Statute - Street offences Act 1959 ' Offence to solist in the street or other public place'. Outcome - LR - Not guilty as inside public place MR - Guilty as they were trying to clear prostitutes out |
| Give an example of a case which describes the advantage of the MR that it avoids daft results. | McMonagle v WCC Facts - 'D' had a sex encounter establishment without legal authority licence. Statute - 'That it was an offence to operate a live sex encounter establishment without a local authority licence. Outcome - His defence was that the activities in his establishment were so indesent that they were not lawful so he wouldn't need a licence as it was worse - LR - correct, not guilty - MR Guilty as it was act was used to control this activity. |
| What are the disadvantages of the MR? | It allows the courts to get dangerously close to rewriting laws. Difficult to discover what previous laws was and Parliaments reason for interfering. MR is dated as it was developed at a time when statutes were different. |
| Give a case which helps describe the disadvantages that the MR allows the courts to become close to writing new laws. | RCN v DHSS Facts - New abortion procedure (2 stages often hours) doctor was present for first few hours then left. Statute - Abortion Act 1967 ' AN abortion is illegal unless a registered practitioner is present'. Outcome - has to go to the QBD for declaration what law meant, HC said it was lawful as it complied with what Parliament wanted. (MR) 3:2 decision to lawful MR |
Want to create your own Flashcards for free with GoConqr? Learn more.