Mis-chief rule of statutory interpretation in corkery v. carpenter by Johnson Yesaya.

SCENARIO

In the case of Corkery v Carpenter, on 19 January 1951 a man called Shane Corkery was charged and sentenced to one months imprisonment for being Drunk while he was in charge of a bicycle in public, it was about 14:45 pm in the afternoon in Devon, England .The defendant Mr. Shane Corkery was drunk and he was pushing his pedal bicycle along broad street in the area of Ilfracombe. He was in fact found guilty by the court for the offence and charged under section 22 of the licensing Act 1872 with being ‘drunk in charge of a carriage’ , Approach this case using mischief rule of statutory interpretation

ANSWERS

Mischief rule is a principle used for the interpretation of a statute. This principle is used by the courts or judges to determine the intention of the legislature[1]. The goal of this principle is to find mischief and defect in a statute and to implement a remedy for the same. The courts while applying the principle tries to determine the real intention behind the enactment. This rule thus assists the court in identifying the proper construction of statutory wording according to the original intention of the legislature.

This principle was applied for first time in Heydon’s case[2] in the early 16th century, where it was held that, “the mischief rule should only be applied where there is ambiguity in the statute”. The ambiguity of statutes includes more than one meaning of words in a provision or where provision covers other things not clearly stated in a provision. Courts may interpret provision to give clear meaning or to extend scope of a provision to cover all things intended to be covered by provision enacted by legislature[3].

In Corkery v Carpenter[4], defendant was charged under section 12 of the Licensing Act[5] of England, by being drunk in charge of a “carriage” on high way. When you read S.12 between lines, there is no word “bicycle”, there are words like “carriage”, “horse”, “cattle”, or “esteem engine”, but accused was found guilty of the offence because mischief rule of statutory interpretation was used to extend scope of a word “carriage” to include bicycles and other pedal carriages[6].

There are other case laws where a mischief rule of statutory interpretation was used to extend scope of provision to cover the intention of the parliament as hereunder,

In Smith v Hughes[7], the defendants who were prostitutes, were charged under the Street Offences Act[8] for soliciting from their private premises in windows so as public could see them. During hearing, defendants defended themselves that they were not at public, it was their private premise. Defendants were found guilty, court interpretation went far to say that, their activities were within the mischief of Act, it was intended by the legislature to include all prostitute activities in whatever condition and premise.

In Royal College of Nursing v DHSS[9], in this case, The Royal College of Nursing challenged before court of law, the involvement of nurses in carrying out abortions. It was an offence under The Offences Against The Person Act[10] for any person to carry abortion. The Abortion Act[11] came to that “it would be an absolute defence for a medically registered practitioner (ie a doctor) to carry out abortions provided certain conditions were satisfied”. Due to advancement in science and technology, surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses, and their concern was the legality for nurses to get involved in abortion while it was not clear stated in law.

It was held that, it was legal for nurses to carry out abortion, because the 1861 Act intended to prevent street abortion where there was no medical care, but 1967 Act came to establish defence to medical experts who get involved in abortion include nurses in mischief.

In Elliot v Grey[12], defendant was charged with an offence under The Road Traffic Act[13] for using un-insured vehicle on the road. Defendant argued that, he was not using the car as it was said, his car was not actually drive-able, it was parked on the road, jacked up, and without battery.

It was held that, the car was being used as it represented hazard and therefore insurance would be required in the event of an incident. The mischief rule was used to extend the meaning of using a car to include un-drive-able cars since it was an intension of enactment to protect public from incidence involving cars of all types and insurance was necessary.

Some scholars criticized mischief rule by interfering doctrine of separation of power. Scholars argued that, it is a duty of legislature to enact laws, but at the same time, courts may interpret the laws as they wish to cover what they claim, “intention of the parliament”.

A mischief rule in Tanzania has been used in many cases and suits include a case of Mwinyimadi Ramadhani V Republic[14], Republic v Omari s/o Kindamba&Oth[15] and a case of Ali s/o Mapuliko Kailu V. Republic[16]where interpretation of possession of trophies was concerned.

REFERENCE

BOOKS

Terence Ingman, The English Legal Process, 8th Edn.  Blackstone Press Ltd 2000 pp 237-242

Morris & Read, The British Commonwealth:  The Development of Its Laws and Constitution- Uganda chapter 10

Cole & Dennison, Tanganyika:  The Development of Its Laws and Constitution, Steven Sons London 1964 chs 2 & 5

Moris& Read, Indirect Rule and Search for Justice Essays in African Legal History, Clarendon Press Oxford, 1972

CASE LAWS

Republic v Omari s/o Kindamba&Oth[1960] EA 407 (T)

Ali s/o MapulikoKailuv.Republic[1976] LRT.37 at 147 Kisanga J.

ONLINE SOURCES

https://definitions.uslegal.com/m/mischief-rule/

http://e-lawresources.co.uk/Smith-v-Hughes

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[1] https://definitions.uslegal.com/m/mischief-rule/

[2] (1584) 76 ER 637

[3] Ibid

[4] [1951] 1 KB 102

[5] 1872

[6] http://e-lawresources.co.uk/Smith-v-Hughes

[7] [1960] 1 WLR 830

[8] 1959

[9] [1981] 2 WLR 279

[10] 1861

[11] 1967

[12] [1960] 1 QB 367

[13] 1930

[14] Crim. App

[15] [1960] EA 407 (T)

[16][1976] LRT.37 at 147 Kisanga J.