1
Q
The Literal Rule
A
Case Authority
R v Harris
Defendant bit off victims nose, the statue made it an offense „to stab cut or wound“ the court held that under the literal rule the act of biting did not come within the meaning of stab cut or wound as these words implied and instrument had been used. Therefore the defendants conviction was quashed.
2
Q
Mischief Rule
A
More flexible than golden Rule
Case Authority is:
Heydon’s case
-
In applying the mischief rule the court must consider
- What was the common law before making the act
- what was the mischief and defect for which the common law did not provide ?
- What was the remedy Parliament passed to cure the mischief ?
- what’s was the true reason for the remedy ?
3
Q
Purposive/Golden Rule
A
Lord Denning said: “fill in the gap”
Look at Hansard (official record of parliamental debate)
Case Authorities:
Pepper v Hart
Pickstone v Freeman’s Plc
4
Q
Advantages and Disadvantages of the Purposive approach
A
Advantages:
- Getting closer to Parliaments Intention (Pepper v Hart)
- Allows the courts to get EU directives (Pickstone v Freeman’s)
- Cope with situations unforeseen by parliament
- Allows the law to develop with advances in sciences for example
—
Disadvantages:
- Too much power for the judges
- Judges become lawmakers and infringing the separation of power
- Judicial Bias
- Assumptions about Intention without justification
- Possibility of complicated and more prolonged litigation (Lord MacKay in Pepper v Hart)
