This paper describes the culture of corruption that tends to fester within the criminal justice system. The paper specifically examines police perjury and why it is ignored or tolerated in o…Full description
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State State and and explai explain n rule rule of of interpr interpreta etation tion as laid laid down down in Heyd Heydon’ on’ss case. case.
Ans: Introduction to the Mischief Rule
1. The literal literal and golden golden rules are concerne concerned d with finding finding out what what Parlia Parliamen mentt SAID. The mischief rule is applied to find out what Parliament MEANT. It looks for the wrong the !mischief" which the statute is tr#ing to correct. The statute is then interpreted in light of this. The rule is $ased on the %e#don"s &ase '1()*+ , -E/ 0D2 3in which certain steps were identified as a wa# of interpretation. 4. %e#don"s %e#don"s &ase &ase '1()*+ , 5er## 5er## olddd2 olddd2 In this this case it was was stated stated that 6udges 6udges should should 1.&onsider what the law was $efore the Act was passed7 4.Identif# what was wrong with the law7 8.Decide how Parliament intended to impro5e the law through the statute in 9uestion7 *.Appl# that finding to the case $efore the court. 8. This This was a sincere sincere 1: th centur# centur# attempt attempt to disco5e disco5err the intentio intention n of Parliame Parliament nt and to appl# it to cases $efore the courts. c ourts. *. In other words words 1.;hat 1.;hat was the law law $efore $efore the statute< statute< 4.;hat 4.;hat was wrong wrong with that that law< 8.%ow did Parliament intend to correct this< *.Appl # this statute in that conte=t. (. The differen difference ce $etween $etween the rules Although Although it points points to to a kind of middle middle ground $etween $etween the plain meaning >or literal? rule and the mischief rule@ the golden rule is not@ in a strict sense@ a compromise $etween them. ike the plain meaning rule@ the golden rule gi5es the words of a statute their plain@ ordinar# mean ing. :. %owe5er@ %owe5er@ when this this ma# lead lead to an irrational irrational result result that that is unlikel# unlikel# to $e the legisla legislature turess intention@ the golden rule dictates that a 6udge can depart from this meaning. In the case of homographs@ where a word can ha5e more than one meaning@ the 6udge can choose the preferred meaning7 if the word onl# has one meaning@ $ut appl#ing this would lead to a $ad decision@ the 6udge can appl# a completel# different meaning. B. The mischief mischief rule rule aims to interpre interprett statute statute to what it meant meant regardles regardlesss of the wording@ wording@ $# referring to an# pre5ious statutes for the same purpose and how did Parliament intend to impro5e impro5e that statute in the new worded one. It also needs to find out the mischief mischief in the case in order for it to $e used.
Case aws Smith v. v. Hughes Hughes [ii]
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The $rief facts were that the defendant was a common prostitute who li5ed at No. 8C &uron Street@ ondon@ and used the premises for the purposes of prostitution. 0n No5em$er *@ 1C(C@ $etween ).( p.m. and C.( p.m. the defendant solicited men passing in the street@ for the purposes of prostitution@ from a firstFfloor $alcon# of No. 8C &uron Street >the $alcon# $eing some ),1 feet a$o5e street le5el?. The defendant"s method of soliciting the men was >i?
to attract their attention to her $# tapping on the $alcon# railing with some metal o$6ect and $# hissing at them as the# passed in the street
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$eneath her and ha5ing so attracted their attention@ to talk with them and in5ite them to come inside the premises with such words as !;ould #ou like to come up here a little while<" at the same time as she indicated the correct door of the premises.
It was contended on $ehalf of the defendant@ inter alia@ that the $alcon# was not !in a Street" within the meaning of section 1>1? of the Street 0ffences Act@ 1C(C@ and that accordingl# no offence had $een committed. GThe sole 9uestion here is whether in those circumstances the appellant was soliciting in a street or pu$lic place. The words of s. 1>1? of the Act are in this form !It shall $e an offence for a common prostitute to loiter or solicit in a street or pu$lic place for the purpose of prostitution". ord !ar"er C# said &ase that she !$eing a common prostitute@ did solicit in a street for the
purpose of prostitution@ contrar# to section 1>1? of the Street 0ffences Act@ 1C(C." It was found that the defendant was a common prostitute@ that she had solicited and that the solicitation was in a street. The defendants in this case were not themsel5es ph#sicall# in the street $ut were in a house ad6oining the street@ on a $alcon# and she attracted the attention of men in the street $# tapping and calling down to them. At other part the defendants were in groundFfloor windows@ either closed or half open. The sole 9uestion here is whether in those circumstances each defendant was soliciting in a street or pu$lic place. The words of section 1>1? of the Act of 1C(C are in this form !It shall $e an offence for a common prostitute to loiter or solicit in a street or pu$lic place for the purpose of prostitution." 0$ser5e that it does not sa# there specificall# that the person who is doing the soliciting must $e in the street. E9uall#@ it does not sa# that it is
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enough if the person who recei5es the solicitation or to whom it is addressed is in the street. Hor m# part@ I approach the matter $# considering what is the mischief aimed at $# this Act. E5er#$od# knows that this was an Act intended to clean up the streets@ to ena$le people to walk along the streets without $eing molested or solicited $# common prostitutes. -iewed in that wa#@ it can matter little whether the prostitute is soliciting while in the street or is standing in a doorwa# or on a $alcon#@ or at a window@ or whether the window is shut or open or half open7 in each case her solicitation is pro6ected to and addressed to some$od# walking in the street. Hor m# part@ I am content to $ase m# decision on that ground and that ground alone. Royal College of Nursing v DHSS [iii]
The o#al &ollege of Nursing $rought an action challenging the legalit# of the in5ol5ement of nurses in carr#ing out a$ortions. The 0ffences against the Person Act 1):1 makes it an offence for an# person to carr# out an a$ortion. The A$ortion Act 1C:B pro5ided that it would $e an a$solute defence for a medicall# registered practitioner >i.e. a doctor? to carr# out a$ortions pro5ided certain conditions were satisfied. Ad5ances in medical science meant surgical a$ortions were largel# replaced with hormonal a$ortions and it was common for these to $e administered $# nurses it was %eld It was legal for nurses to carr# out such a$ortions. The Act was aimed at doing awa# with $ack street a$ortions where no medical care was a5aila$le. The actions of the nurses were therefore outside the mischief of the Act of 1):1 and within the contemplate defence in the 1C:B Act. Elliot v Grey[iv]
The defendant"s car was parked on the road. It was 6acked up and had its $atter# remo5ed. %e was charged with an offence under the oad Traffic Act 1C8 of using an uninsured 5ehicle on the road. The defendant argued he was not !using" the car on the road as clearl# it was not dri5ea$le. It was held The court applied the mischief rule and held that the car was $eing used on the road as it represented a haard and therefore insurance would $e re9uired in the e5ent of an incident. The statute was aimed at ensuring people were compensated when in6ured due to the haards created $# others. Corkery v Carpenter[v]
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The defendant was riding his $ic#cle whilst under the influence of alcohol. S.14 of the icensing Act 1)B4 made it an offence to $e drunk in charge of a !carriage" on the highwa#. It was held The court applied the mischief rule holding that a riding a $ic#cle was within the mischief of the Act as the defendant represented a danger to himself and other road users. According to S.14 of the icensing Act 1)B4@ a person found drunk in charge of a carriage on the highwa# can $e arrested without a warrant. A man was arrested drunk in charge of a $ic#cle. According to the plain meaning rule a $ike is not a carriage. nder the Mischief rule the $ic#cle could constitute a carriage. The mischief the act was attempting to remed# was that of people $eing on the road on transport while drunk. Therefore a $ic#cle could $e classified as a carriage. DPP v ull[vi]
A man was charged with an offence under s.1>1? of the Street 0ffences Act 1C(C which makes it an offence for a !common prostitute to loiter or solicit in a pu$lic street or pu$lic place for the purposes of prostitution". The magistrates found him not guilt# on the grounds that !common prostitute" onl# related to females and not males. The prosecution appealed $# wa# of case stated. The court held that the Act did onl# appl# to females. The word prostitute was am$iguous and the# applied the mischief rule. The Street 0ffences Act was introduced as a result of the work of the !olfen"en Report into homose=ualit# and prostitution. The eport onl# referred to female prostitution and did not mention male prostitutes. The JKD therefore held the mischief the Act was aimed at was controlling the $eha5iour of onl# female prostitutes.
ro#n v. ro#n [vii]
In Krown 5 Krown@ Sir Locel#n Simon P said that the disad5antage of the old law on condonation of adulter# was that@ though a resumption of coha$itation might actuall# promote a reconciliation which had #et taken place@ a wronged spouse might $e reluctant to resume coha$itation in case it did not succeed and he or she would then ha5e lost the right to complain of the matrimonial offence. The pro5ision in s 4>1? of the Matrimonial &auses Act 1C:8 >now contained in s *4 of the Matrimonial &auses Act 1C:(? that adulter# shall not $e deemed to $e *
condoned $# reason of a continuation or resumption of coha$itation $etween the parties for a period of up to three months was@ therefore@ limited to cases within this !mischief"F where the coha$itation was with a 5iew to effecting a reconciliation@ and did not e=tend to cases where it was in conse9uence of re8conciliation. So"ra Devi v. Commr. $f %n&ome 'a( [viii]
K# s 1:>8? of the Indian Income Ta= Act 1C44@ !In computing the total income of an# indi5idual for the purpose of assessment@ there shall $e included so much of the income of a wife or minor child of such indi5idual as arises indirectl# or directl#" In &IT 5 Sodra De5i the court o$ser5ed that the legislature was guilt# of using an am$iguous term. There is no knowing with certainl# as to whether the legislature meant to enact these pro5isions with reference onl# to a male of the species using the words !an# indi5idual" or !such indi5idual" in the narrower sense of the term indicated a$o5e or intended to include within the connotation of the words !an# indi5idual" or !such indi5idual" also a female of the species. %olding the words !an# indi5idual" and !such indi5idual" as restricted in their connotation to mean onl# the male of the species@ the court o$ser5ed that the e5il which was sought to $e remedied was the onl# resulting from the widespread practice of hus$ands entering into nominal partnerships with their wi5es@ and fathers admitting their minor children to the $enefits of the partnerships of which the# were mem$ers. This e5il was sought to $e remedied $# the IncomeFta= Act. The onl# intention of the legislature in doing so was to include the income deri5ed $# the wife or a minor child@ in the computation of the total income of the male assessee@ the hus$and or the father as the case ma# $e for the purpose of the assessment. R)DC v. *$% [i(]
In MD& 5 nion of India the definition of !prie competition" under s 4>d? of the Prie competition act 1C((@ was held to $e inclusi5e of onl# those instances in which no su$stanti5e skill is in5ol5ed. Thus@ those prie competitions in which some skill was re9uired were e=empt from the definition of !prie competition" under s 4>d? of the Act. %ence@ in the aforementioned case@ the Supreme &ourt has applied the %e#don"s ule in order to suppress the mischief was
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intended to $e remedied@ as against the literal rule which could ha5e co5ered prie competitions where no su$stantial degree of skill was re9uired for success. engal immunity &o. v State of ihar [(]
;ithin the conte=t of law@ the mischief rule is a rule of statutor# interpretation that attempts to determine the legislator"s intention. 0riginating from a 1:th centur# case in the nited ingdom@ its main aim is to determine the Gmischief and defect that the statute in 9uestion has set out to remed#@ and what ruling would effecti5el# implement this remed#. ;hen material words are capa$le of $earing two or more constructions the most firml# esta$lished rule for construction of such words Gof all statutes in general is the rule laid down in %e#dons case also known as mischief rule. This rule is also known as purposi5e construction. The rules la# down that the court should adopt the construction which shall suppress the mischief and ad5ance the remed#. In Indian conte=t the rule was $est e=plained in the case of Kengal immunit# co. 5 State of Kihar.The appellant compan# is an incorporated compan# carr#ing on the $usiness of manufacturing and selling 5arious sera@ 5accines@ $iological products and medicines. Its registered head office is at &alcutta and its la$orator# and factor# are at Karanagar in the district of 4* , Perganas in ;est Kengal. It is registered as a dealer under the Kengal Hinance >Sales Ta=? Act and its registered num$er is S.. :)8A. Its products ha5e e=tensi5e sales throughout the nion of India and a$road. The goods are dispatched from &alcutta $# rail@ steamer or air against orders accepted $# the appellant compan# in &alcutta. The appellant compan# has neither an# agent or manager in Kihar nor an# office@ godown or la$orator# in that State. 0n the 4*th 0cto$er@ 1C(1 the Assistant Superintendent of &ommercial Ta=es@ Kihar wrote a letter to the appellant compan# which concluded as follows F “Necessary action may therefore be taken to get your firm registered under the Bihar Sales Tax Act. Steps may kindly be taken to deposit Bihar Sales Tax dues in any Bihar Treasury at an early date under intimation to this Department”. The principal 9uestion is whether the ta= threatened to $e le5ied on the sales made $# the appellant compan# and implemented $# deli5er# in the circumstances and manner mentioned in its petition is le5ia$le $# the State of Kihar. This was done $# construing article 4): whose
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interpretation came into 9uestion and the meaning granted to it in the case of The State of Kom$a# 5. The nited Motors >India? td: was o5erruled. It raises a 9uestion of construction of article 4): of the &onstitution. It was decided that Kihar Sales Ta= Act@ 1C*B in so far as it purports to ta= sales or purchases that take place in the course of interFState trade or commerce@ is unconstitutional@ illegal and 5oid. The Act imposes ta= on su$6ects di5isi$le in their nature $ut does not e=clude in e=press terms su$6ects e=empted $# the &onstitution. In such a situation the Act need not $e declared wholl# ultra 5ires and 5oid. ntil Parliament $# law pro5ides otherwise@ the State of Kihar do for$ear and a$stain from imposing sales ta= on outFofFState dealers in respect of sales or purchases that ha5e taken place in the course of interFState trade or commerce e5en though the goods ha5e $een deli5ered as a direct result of such sales or purchases for consumption in Kihar. The State must pa# the costs of the appellant in this &ourt and in the court $elow. Khagwati@ L. had agreed to the a$o5e interpretation. Ad5antages and Disad5antages of Mischief ule Ad$anta%es
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The aw &ommission sees it as a far more satisfactor# wa# of
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interpreting acts as opposed to the Oolden or iteral rules. It usuall# a5oids un6ust or a$surd results in sentencing. &loses loopholes Allows the law to de5elop and adapt to changing needs e=ample o#al &ollege of Nursing 5 D%SS
&isad$anta%es 1. It is seen to $e out of date as it has $een in use since the 1:th centur#@ when common law
was the primar# source of law and parliamentar# supremac# was not esta$lished. 4. It gi5es too much power to the unelected 6udiciar# which is argued to $e undemocratic. 8. &reates a crime after the e5ent e=ample Smith 5 %ughes Elliot 5 Ore# thus infringing the rule of law. *. Oi5es 6udges a law making role infringing the separation of powers and Ludges can $ring their own 5iews@ sense of moralit# and pre6udices to a case e=ample Smith 5 %ughes DPP 5 Kull. &onclusion As it can $e seen from the case@ mischief rule can $e applied differentl# $# different 6udges. It is mainl# a$out the discretion and understanding of the person appl#ing it. Though@ it B
as a far more satisfactor# wa# of interpreting acts as opposed to the Oolden or iteral rules. It usuall# a5oids un6ust or a$surd results in sentencing $ut it also seen to $e out of date as it has $een in use since the 1:th centur#@ when common law was the primar# source of law and parliamentar# supremac# was not esta$lished. It gi5es too much power to the unelected 6udiciar# which is argued to $e undemocratic. In the 1:th centur#@ the 6udiciar# would often draft acts on $ehalf of the king and were therefore well 9ualified in what mischief the act was meant to remed#. This is not often the case in modern legal s#stems. The rule can make the law uncertain@ suscepti$le to the slipper# slope. Therefore Purposi5e interpretation was introduced as a form of replacement for the mischief rule@ the plain meaning rule and the golden rule to determine cases. The purposi5e approach is an approach to statutor# and constitutional interpretation under which common law courts interpret an enactment >that is@ a statute@ a part of a statute@ or a clause of a constitution? in light of the purpose for which it was enacted.
