In Keane v Gallacher, the respondent was found in possession of cannabis resin which was a controlled drug under Section 5(1) and 5(2) of the Misuse of Drugs Act 1971. His solicitor argued that as the cannabis resin was, at 10 miligrammes and approximately 1 milligramme, unusable, that he should not be convicted. His solicitor cited the decision in Regina v Carver as the basis of his argument where the appellant was found in possession in possession of 20 microgrammes and 2 milligrammes of cannabis resin and had his conviction quashed on the basis of the “usability test”. The judge in that case determined that as the quantity was so minute it amounted effectively to nothing and was, in his view, unusable in the way that Act intended to prohibit it, the conviction should be quashed. It is, however, down to the individual judges on how they interpret the legislation and this is an illustration of the mischief rule being applied. This rule requires the court to look at what the legislation was before the law was passed and what loophole or mischief it was intended to cover.
While that decision was not binding on the Sheriff in Keane, he follows it and acquits him. The decision is appealed to the High Court of Justiciary, however, and the decision of the Court as delivered by Lord Justice-Clerk is that it is being in possession of a controlled drug which is unlawful in terms of Sections 5(1) He applies the literal rule to the Act which is considering what the legislation actually says not what they want to it to mean and use the words in the act in a literal sense i.e. use them in their normal everyday meaning, even if this means it produces a result which is immoral or undesirable. Section 5(1) states “it shall not be lawful for a person to have a controlled drug in his possession”. Cannabis resin is a controlled drug under Schedule 2. Section 2 makes it an offence to possess such a drug. Lord Justice-Clerk is satisfied that possession of the cannabis resin was proven, the question of usability is irrelevant as it does not feature in the act and the case was passed back to the Sheriff with a direction to convict.
Regina v Boyeson looked to the both the cases of Regina and Keane in making their decision. They were of the view that Kean was the correct decision, followed that decision and convicted.
A case again illustrating the mischief rule being applied is the Leadbetter v Hutchison. The appellants argued that their motor-bicycle and side car did not fall within the objects that may be seized and forfeited under Section 10 of the Act. Lord Blackburn in delivering the decision said “in my opinion the meaning of the words used should not be restricted so as to exclude methods of conveyance which have been developed by modern science and which were unknown at the date of the act”. Accordingly the Court found that the motor-bicycle and side car fell to be forfeited despite the act not specifically providing for it.
The golden Rule provides that if interpreting the legislation provides a result which is absurd then the court can look for an alternative meaning of the word to avoid that absurd result. This rule gives the court justification for going behind the actual wording of the legislation in order to consider the problem that the particular legislation was aimed at remedying and is illustrated in the case of K v Craig. A community care order was applied for so that K could be released from hospital but continue treatment in the community K petitioned the court to say that Section 35B(8) of the Act said that a patient who did not need to be detained is to be released. However, the Court decided that is not what parliament would have intended when framing the act, that it is necessary to read the conditions together and not separately and by doing that, although there was a linguistic error in the act, the meaning of the act became clear. The appeal was accordingly dismissed.
Ayrshire Employers Mutual Insurance v Inland Revenue is an example of the literal rule being applied. The court decided that, despite being confident that Parliament would have intended surpluses to be considered profits and therefore taxable in terms of the Finance Act 1933, as they were not regarded as profits anywhere in the act, they applied the literal rule and concluded that they were not profits and accordingly not taxable.
The purposive approach is a liberal approach to the mischief rule, however they are not looking just to see what the gap in the old law was but are looking at what the whole point was in passing the legislation in the first place and can now look beyond the legislation to external materials such as parliamentary debates. In Pepper v Hart the court had to make a decision on whether the perk of reduced school fees a teacher at the school received was taxable. Where previously this would not have been permitted, it was decided that as the law was ambiguous on this issue, it would be permitted to look beyond the legislation and refer to Hansard where the situation of the teacher was directly referenced as not eligible to pay and as a result of this it was found in favour of the teacher.
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