The third rules are simply the process of adding more meaning or definitions to fill the gaps in the statue. This rule requires the court to look at what the law was before the statue was passed, in order to discover what gap or mischief the statute was intended to cover. The court is then required to interpret the statue in such a way as to ensure that the gap is covered.
An example of the use of the mischief rule is found in the case of Corkery versus Carpenter in 1951 Shane Corkery was sentenced to one month’s imprisonment for being drunk in charge of a bicycle in public. Atr about 2045p.m. on 18 January 1950, the defendant was drunk and was pushing his pedal bicycle alo0ng 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. The court elected to use 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.
Advantages of Mischief Rule
Mischief rule has a couple of advantages:
- The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules; and
- It usually avoids unjust or absurd results in sentencing.
Disadvantages of Mischief Rule
With a couple of advantages the disadvantages are of mischief rule are:
- It is seen to be out of date as it has been used since the 16th century when common law was the primary source of law and parliamentary supremacy was not established.
- It gives too much power to the unelected judiciary which is argued to be undemocratic.
- In the 16th century, the judiciary would often act on behalf of the king and was therefore well qualified in what mischief the act was meant to remedy, however, such is not the case anymore.