The Mischief Rule

As a lover of High Anglican and Catholic-style worship involving incense, may I offer a potential line of defence against any arbitrary application of the Psychoactive Substances Act 2016 which David Barrett fears criminalises “every Catholic Church in the land” using incense [ FT350:73]?

Fortunately, there is more than one way of reading any Act or regulation. Normally judges apply a literal interpretation, which might impose liability on a strict reading with this Act; but there are two alternatives to such literal readings, known respectively as the ‘Golden Rule’ and the ‘Mischief Rule’. Judges may use these two rules when finding the meaning of an Act and wherever an injustice or an absurdity might result from a literal interpretation.

With respect to the Psychoactive Substances Act 2016, the Mischief Rule clearly provides a route out of the dilemma that Mr Barrett highlights. Dating back to Heydon’s Case (1584) 76 ER 637, in applying the Mischief Rule, the court must identify the harm or ‘mischief’ that Parliament considered should be suppressed and the gap in the existing law, and then proceed to apply the law so as to cover the activity that Parliament wishes to curb.

In the wonderful language of Lord Coke, the task of the judge in applying the Mischief Rule must be to interpret the law in a way that “shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo [for private convenience] and to add force and life to the cure and remedy, according to the true intent of the makers of the Act and pro bono publico [for the public benefit].”

Furthermore, it is a general presumption that penal statutes must always be construed narrowly, in favour of the liberty of the subject (i.e. if there is any ambiguity in the law, the accused should not be convicted). Also, a judge may have recourse to what is written in Hansard (permitted since 1991) as a further aid to finding the intention of Parliament.

Clearly, Parliament was not trying to impose liability upon incense being burned during church services and rituals. In the case of the Psychoactive Substances Act the ‘mischief’ and the ‘subtle inventions and evasions’ were the activities of certain drug pushers providing ‘legal highs’ causing intoxication in users seeking to drug themselves, and which fell outside existing legislative provisions.

And whilst (as Mr Barrett points out) the intention of the government not to prosecute churches is only to be found in guidance, such an official declaration of policy could found the basis for a judicial review of any decision to prosecute a priest or congregation using incense for religious purposes. Alan Murdie Bury St Edmunds, Suffolk