What problems are caused for criminal law by mistakes of fact and why are they so difficult to resolve?2004
Should the ‘inexorable logic’ of DPP v. Morgan, that an honest mistake negates the commission of an offence, be extended to a defence such as self defence?2004
How far does comparative law help to clarify the proper scope and rationale of a defence of mistake of law? Test.
How far does comparative law illuminate our understanding of the doctrine of mistake of law in criminal law?2003
How far does comparative law help to clarify the proper scope and rationale of a defence of mistake of law? 2002
‘It is difficult to construct a theory of the offence/defence distinction in criminal law which will account satisfactory for the operation of such central doctrines of liability as mistake of fact and intoxication’. 2001.
What problems are created for criminal law by a defendant’s mistakes of fact or law? How, in the light of comparative law, should such problems be resolved?1999
‘The English law of defences to criminal liability could be much improved if it paid more attention to both theory and comparative law’.
Discuss in relation to mistake of law or necessity.-1998.
‘English law’s treatment of certain defences in criminal law is characterised by muddled theory and an exaggerated preference for policy considerations. Other legal systems offer more coherent and principled approaches to the problems’.- Discuss with reference either to mistake of law or to intoxication. 1997
Compare and contrast German and common law rules regarding mistake of law. What values underlie the rules of German law? Which system do you consider to be superior, and why?1996.
‘mistake as a defence is doctrinally different from Morgan-mistake. That distinction was preserved in DPP v. Morgan by the express refusal of their Lordships to overrule R v. Tolson and its progeny. There are, then, two types of mistake, procedurally, logically, doctrinally, and morally different; yet the subjectivist tendency has sought remorselessly to assimilate all mistake-of –fact cases to one model’-Discuss-1995.
Culpability is depended on the D’s rational choice. D’s knowledge of awareness. The D was a rational actor. Mens rea includes D’s attitudes and reasons for his actions. The contrast between principles and policies. Principles focused on D’s desert and culpability what’s fair to punish the D, issues of liability, the D conduct justify what is it?
Policy concerns- the criminal liability-the problem is that if you only focused on D’s own state of mind, the D’s absence of mind.
The structural questions are (defences and offences). What’s the point to separate these. There are other approaches to distinguish offence and defence. One of the recurring themes about the elements is the burden of proof. This is relevant in evidential issues.
A-6 says, everyone should be presumed the innocence before proving guilty. The right to fair trial is an absolute right. Fair trial can be achieved with assuming that this is a policy reason. Essentially, element of the crime to be proved by the prosecution.
Fletcher- has some discussion on offence and defence-central element.
Mistake could be operative in various ways. Mistake of fact-negative the mens rea, for example, D intended to kill animal instead killed human being.
Foundation for a separate defence: Self defence, duress, necessity- justifications or excuses. Third-general mistake- the questions that whether this is reasonable. The fact that there was a genuine mistake-negative mens rea-an honest mistake will be competitive with that state.
In 19th century- what the judges said- the common law did recognise the defence honest or reasonable mistake-Tolson. An honest believe with reasonable ground always be held good defence. These defences amounted the negative mens rea. It was reasonably clear that judges thought the burden of proof on D- Bank of South Wales.
Theory of mens rea-is very uncertain- the notion of presumption-D has the burden of proof lies. General defence of reasonable and honest mistake- subjectivism has begun to develop. The difference between the subjective and the negative approach. Strict liability doesn’t approve any defence. Australia and Canada- there might be an honest and reasonable mistake.
Sweden parsley-the historical thesis is that there was general defence which was not found in 20th century although there was existence of the mistake.
Procedural issue in 1935 (DPP), where the court discovered the burden of proof –D . the D will have to satisfy the evidential proof. H/L’s restated the law that is the prosecution will have to prove both act and the state. Prosecution will have to disproof the defence-D has to proof the insanity.
DPP v. Morgan: three people have had intercourse with their friend’s wife assuming that she was consenting with that-the test was subjective and the concept was reasonableness- the court directed the jury that has to be reasonable-Ds have lacked the guilty for rape, if they made an honest and reasonable mistake, then they were convicted – the case went to H/L’s- the direction was incorrect- if anything is to concern will have to be genuine believe- it has attracted lot of criticisms.
- they don’t say reasonableness is irrelevant. It would be evidential significant.
- Did the D actually get off if there is a misdirection- the court will quash the decision- no miscarriage of justice and the husband was convicted for abetting.
Why the H/L’s came through this direction-what’s the logic behind it-the judgement proceed that you have to decide what’s the mens rea required for-they were believing that woman was consenting the lawful intercourse- one of the judges said that neither is rape nor they are approving that, but one of them said is an assault.
Subjective- the requirement of reasonableness in wrong place-which should be part of law-you cant say both either D intends or not.
Majority of Lords discussed-Tolson about the law of bigamy-the general defence honest and reasonable mistake. The statutory statement after Tolson-People not to take reasonable care whether the partner has been consented- if you allow people to presume that the partner has been consented the attitudes of people hurt the reason for holding that belief.
What happens in case of the common law development- in situation D makes mistake when someone is under attack (in believing that). There was previous authority that if you want to rely on self defence which will have to be on honest and reasonable belief.
Williams- whether he has used reasonable force. He was under attack. Both cases the court said that belief will not have to be the reasonable one. The mistaken belief has an impact on the mens rea D was not acting lawfully then he wants to apply the mens rea lawfully.
The offence of unlawful act is that the mens rea requires the unlawful act. The concept of unlawful could be kind of signal. If they say that this is a defence then will have to distinguish from Morgan. What’s the reasonable responses are- no question of honest mistake-how do we draw the line between offence and defence.
Was the court justified the arguments they have taken in willing-the HRA was talking about the burden of proof. William was a matter of historical accident.
The issue of mistaken belief also touched duress to be considered-there was a distinguish made by the court between self-defence and duress.
Sexual offences Act 2003- Is completely new law and the old law has gone-redefinition of rape in s 1, actus reus hasn’t changed- according to s 1- doesn’t reasonably belief other consent of the intercourse. Whether the believe is reasonable-the court or jury should consider the believe is reasonable-the statute add there are some presumption s 75 and 76.
Mistake of civil law and mistake of criminal law:
Mistake of civil law occur in criminal context if D believe that the property his whereas that was someonelse’s- if he damage the property –how he incurs the liability-the property belonging to another the element requires mens rea-if he believes property belongs to you then you lack the necessity mens rea.
Subjective mens rea, D will have to know that exist if it requires that D should know the property is not belonging to him then he incurred mens rea.
Mistake to criminal law: The D was unaware what he was doing-what extent does this effect to the criminal liability? A. mens rea. B. excuse?
- effect of mens rea: the knowledge of the illegality is not an element of the claim b. State of law can be used excuse-Bailey-it involved the criminal liability, where the ship was fired and occurred the criminal damage. Captain doesn’t know what he was doing was not a defence. What the rational for this traditional rule? If you don’t have this rule then law has rule is objectivity. Certainly kind of activity is morally wrong to commit.
A claim you cant reasonably presume-early stage when the criminal law was doing morally wrong-the argument is fair to everyone know the law-both modern people know.
Non publication of the law-that crime did not have make the public. Principle of liability provides strong defence here if its not comply with the state is not entitled to punish the individual. Breach of the primary rule is not published.
Subjectivism is saying is the state to punish the individual who is wrongdoer. Saying that the D, you ought to know the law. The law is fully subjectivist- M’Naughten rule is saying that everyone is presumed to be same the moral quality of law. Each and every case you will have to prove that the D know what the law is then everyone would say that I didn’t know the law.
There can be made distinguish between regulatory offences and the defences. It might create the immoral of the regulatory crime. There are two situations 1. where you rely on the statement 2. where you rely on the official statement.
Brown-later case Willson-where husband made attack in her ass-which was with her consent-the H/L’s followed Brown in this case. Where the two people have been engaged in some sort of illegal or private activity-where harm was caused-A defence of reasonable reliance-what they are doing completely unknown whether is legal or not. The general term reasonable- which is designed to give flexibility in law- the leaflet, was misinterpreted so you should be prosecuted the people who have been generally relied on- what happens can they use it as a defence-if the state itself provides the instinct to breach the law-state going back the advice is given, reasonable reliance. There is a process of remedy-where state cant go back to the original situation. Reliance on officials- what’s the correct procedure if they mislead then which can be a defence.
Would it be reasonable to act with the advice of lawyer-German penal code-the concept of unavoidable mistake of law which provides defence. Legal advice what is from a competent person, which is from official lawyer not the private lawyer.
Consider s17 of the German Penal Code: “Mistake of law: A person who commits an act in the mistaken belief that it is lawful acts without guilt, provided he could not have avoided making the mistake. If he could have avoided it, the punishment may be reduced in accordance with the provisions of s 49 (1)”.
English criminal law fundamentally demands in principle that if a defendant is to be convicted of an offence, he must be culpable for the harm caused. This is demonstrated by proof of a mental element; either that the defendant intended, or was reckless as to, the forbidden harm. Logically, such principles mean that, where the defendant is voluntarily intoxicated at the time of causing the actus reus of an offence, so that he has not formed the required mental element, then no offence has been committed and he should be acquitted. In contrary, public policy demands that some criminal sanction should be available in such circumstances, for otherwise a defendant will escape liability by virtue of being voluntarily intoxicated, and arguably there is culpability in the act of getting intoxicated and causing harm in such a condition.
Mistake: negation of mens rea-honest and reasonable-recent cases: removal of reasonableness requirement except in certain cases.
A mistaken belief held by an accused may be as to fact or as to law (either civil or criminal). It is necessary always to distinguish what particular type of mistake an accused my be labouring under as a mistake of law is usually to be regarded as no defence. In R v. Bailey, the mistaken belief that conduct was not criminal when in fact it was, was held to be no defence, although it went to mitigation. A mistake of fact may be a defence providing it negates the particular mens rea necessary to prove the crime charged.
A mistake which does not preclude the mens rea cannot provide a defence as it is irrelevant.
The difficulty for many years has been in settling what particular type of mistake of fact should enable an accused to be judged according to the position he thought he was in. some early case law, for example R v. Rose (1884), suggested that the mistake had to be both honest and reasonable. However, in DPP v. Morgan (1975), a purely subjective approach was adopted. In that case D had invited three friends to have sexual intercourse with his wife. He told them that she would put up a struggle as this would increase her sexual pleasure. The men had intercourse with the wife and were convicted of rape. The men appealed against conviction to the House of Lords on a question of whether an honest though unreasonable belief in consent to intercourse was a defence. The House of Lords held that since rape required intercourse without consent, if an accused honestly (though unreasonably) believed that his victim was consenting the prosecution had failed to prove the necessary mens rea for the crime.
More recently there have been a number of cases which have suggested that in certain cases a mistake has got to be both honest and reasonable before it enables the accused to be judged on the basis of what he thought. For example in Albert v. Lavin (1981) the Divisional Court considered the question of mistake in relation to a charge arising under s51 of the Police Act 1964. it was held that it was necessary to distinguish between mens rea required for the basic elements of the offence and the mental element required for a defence. In the former case an honest, albeit unreasonable, mistaken belief may negative mens rea; in the latter, only an honest and reasonable mistake would suffice. For example in the case of an assault charge under s51 a mistaken belief by the defendant that the victim had no right to detain him related to the nature of a defence and applying Albert v. Lavin would have needed to have been reasonable as well as honest. However, more recently there has been a move away from this approach. In R v. Kimber (1983) it was stated that, on a charge of indecent assault if an accused honestly believed a victim was consenting then he would be entitled to be acquitted. The question of whether his belief was reasonable or unreasonable was irrelevant save in so far that it might have assisted the jury to decide whether an accused did believe what he said he did. Furthermore in R v. Williams(1984) it was held to be a material misdirection when it was not made clear to the jury that it was for the prosecution to eliminate the possibility that the appellant was acting under a genuine mistake of fact. Once again the Court of Appeal stated that the question of reasonableness of the appellant’s mistaken belief was material only to the question of whether or not the belief was in fact held.
In Beckford v. R (1987), where the Privy Council described Morgan as ‘a landmark decision in the development of the common law’, the court approved the decision in R v. Williams. That decision was that, in relation to assaults, ‘the mental element necessary …..is the intent to apply unlawful force’ and that if the accused believed, reasonably or otherwise, in the existence of facts which would justify his using that force in self-defence, then he did not have the required mens rea.
Since Beckford v. R then, the distinction made in Albert v. Lavin between elements of the offence and these of a defence has been removed.
It is therefore true to say that mistake generally operates by considering the position the accused thought he was in and on that assumption examines the legal significance of his acts. There do appear to be exceptions to this rule, for example in DPP v. Morgan the House of Lords refused to overrule R v. Tolson (1889). In that case the accused had been deserted by her husband for five years and believed him to be dead. She remarried whereupon her first husband reappeared. Her conviction for bigamy was quashed because her belief was not only an honest one but also based upon reasonable grounds. Lord Hailsham stated in DPP v. Morgan that he viewed R v. Tolson as a narrow decision based on the construction of a statute which prima facie seemed to make an absolute statutory offence with a proviso of the statutory defence. In Lord Hailsham’s view there was a distinction between R v. Tolson and other cases based on statute and the more general situation in DPP v. Morgan.
This view is supported by Westminster City Council v. Croyalgrange (1986)
However, in R v. O’Grady (1987) it was held that where D, because of self-induced intoxication, formed a mistaken belief that he was using force to defend himself his plea (of self defence) failed.
Finally, where a crime is one capable of commission by negligence, the requirement of reasonableness in mistake persists as an unreasonably held mistaken belief is itself negligent.
Mistake in self defence:
In R v. Scarlett (1993), it was held that an honest mistake as to the amount of force required for self-defence would suffice to negate responsibility for an assault. In reaching this conclusion, the court followed the earlier decisions in Williams and Beckford which held that an honest mistake as to the need for self-defence was sufficient. If a mistake as to the necessity for self-defence did not have to be reasonable with regard to proportionality.
Scarlett was quickly followed by the case of Owino, which has been interpreted as neutralizing it and restoring the status quo ante.
While Owino did set out to limit the effect of Scarlett, it is not clear how, in logical terms, it achieves this. It acknowledges that talk in Scarlett of a belief that the circumstances called for the degree of force used is legitimate because clearly you cannot divorce completely the concept of degree of force and the concept of the circumstances as you believe them to be. But, it continues, Scarlett was not saying that the belief, however ill-founded, of the defendant that the degree of force he was using was reasonable, will enable him to do what he did. If such a view were accepted, it would justify a shooting in response to a punch where the defendant honestly believed, although unreasonably and mistakently, that it was justifiable for him to use that degree of force. While such a conclusion may appear morally counter-intuitive, it is not clear that it was not the conclusion reached in Scarlett. Of course, this would be subject to the normal subjectivist stricture that any claim to honest belief must be believed by the jury, who will import their own notions of reasonableness into their finding as to the defendant’s state of mind. Scarlett’s subjectivism is clear cut, and while the court in Owino may not like it, they do not offer a convincing counter-argument or consider the logical progression in Scarlett from the earlier cases. Scarlett may have been marginalized for moral reasons, but its underlying legal rationale, its ‘inexorable logic’ within the law, remains uncontroverted.
The underlying inexorable logic:
The ultimate root of these cases is the subjectivist rule in DPP v. Morgan, that an honest but mistaken belief in a woman’s consent to intercourse is a defence to rape, a rule which was extended by Williams and Beckford to the defence of self-defence. The reasoning in these latter cases follows the inexorable logic of subjectivism that was found so compelling in Morgan: if an offence requires mens rea with regard to the actus reus, then the prosecution must prove that the mens rea existed. This could only be the case where there was actual intention or knowledge with regard to the actus. What was true of the offence of rape was also true of assault, where the actus reus of unlawful force established a mens rea requirement of intent to apply unlawful force to the victim. Beckford follows this argument, citing Morgan as a landmark decision in the development of the common law which, it notes, has the support of the leading academic criminal lawyers and law reform bodies.
In the light of the support for this line of cases, it is hard to understand why Scarlett did not prove a more popular decision. Does it not simply pursue the principled subjectivist logic that has driven the law over the past four decades? The problem is the seemingly counterintuitive moral result that it appears capable of producing, even if its subjectivist logic is unassailable. For Ashworth, the problem with the law’s approach is that it has indeed pursued an inexorable logic based upon the boundaries of the offence, where what is needed is a broader, contextual approach which can take into account the moral position of the defendant. Arguing against the migration of the Morgan rule to the self-defence cases, he writes that irrespective of the definitional boundaries of the actus reus, there is a need to confront the moral issue whether there should not be some duty to reflect before using force against another. Using force is prima facie wrongful, so that a citizen should be put….on notice to examine the grounds for using it.
The judges in R v. Tolson decided that this was not reasonable, and, on general jurisprudential principles, imported into the statutory offence words which created a special defence of honest and reasonable belief of which the evidential but not the probative burden lay on the defence. I do not think it is necessary to decide this conclusively in the present case. But if this is the true view there is a complete distinction between Tolson and the other cases based in statute and the present.
The decision in Morgan promoted the subjectivist view of criminal liability as opposed to the objectivist approach. The extract below presents a critique of Morgan in the context of an article which seeks to identify a more helpful middle ground between the extremes of objectivism and subjectivism.
Richard H.S. Tur, ‘Subjectivism and Objectivism: Towards Synthesis’
The starting point in the moral assessment of any offence must be with the definition of that offence. Prior to the decision in Morgan, the definition of rape in English criminal law was distinctly minimalist. As Humphreys J put it in R v. Turner (1944): ‘on a charge of rape the Crown has to prove two things: intercourse and the non-consent of the woman. On this definition, the intercourse had to be intentional, which of its very nature it is most likely to be, but the defendant’s perception of the victim’s state of mind was relevant, if at all, only at the defence stage of proceedings. On that basis, any mistake about the woman’s consent would be a mistake as to a circumstance not qualified by mens rea – i.e. Tolson-mistake –and therefore the mistake would have to be reasonable. The question to ask of this model of rape-minimalist definition plus external defence-is whether it produces ethically acceptable outcomes and, if so, what, if anything, is unsatisfactory about it?
Consider a hypothetical character, Adonis. He strongly believes that he is irresistible to women. Thus, believing that no woman could say ‘no’ to him, Adonis has sexual intercourse with a non-consenting woman, but such is the strength of his belief that he misinterprets her resistance and does not register her protests. Adonis honestly believes that the woman consented. Given the definition in R v. Turner, together with the Tolson requirement that mistake be reasonable, Adonis would be guilty of rape.
Morgan changed all that: ‘it is no longer disputed that, in England, perception of the woman’s consent is an aspect of the mental element in crimes of rape’. (Pappajohn v. R (1980), Per Dickson J. The effect of this definitional revision is that Adonis must now be acquitted on a charge of rape because, as a matter of inexorable logic, an actual belief in consent is incompatible with the existence in the mind of the accused of the (newly) required mental element and the prosecution must fail because it cannot (now) prove all the definitional elements of the offence. Although an acquittal is logically inescapable given the widened definition, there was no a priori necessity to adopt that definition.
The question to ask of the extended Morgan definition is in what ways, if any, it is preferable to the Turner definition (plus Tolson defence). On moral grounds alone it is difficult to see the Morgan redefinition as other than a retrograde step: ‘it can be argued with force that it is only fair to the woman and not in the least unfair to the man that he should be under a duty to take reasonable care to ascertain that she is consenting to the intercourse and be at the risk of a prosecution if he fails to take care’. Per Lord Cross, powerful reasons might properly be expected from those who would depart from this moral principle.
The judgments in support of this departure are very disappointing. There is little serious consideration of the social and moral merits of the alternative definitions of rape. Lord Cross founded his decision upon the alleged meaning of rape ‘according to the ordinary use of the English language’; Lord Fraser relied on an unargued assertion about ‘forms of immoral conduct…not intended to be struck at by the law against rape’ and Lord Hailsham proceeded on the basis of ‘what seems…abundantly clear, that the progibited act in rape is non-consensual intercourse, and that the guilty state of mind is an intention to commit it’. Per Lord Cross.
If it is allowed that the mental element in rape includes a perception of the woman’s consent, then an honest belief in consent, no matter how unreasonable, necessitates acquittal because it entails the absence of the requisite mental element. The legal argument from that point on is impeccable, but the legal argument for that point is weak and unpersuasive. The House of Lords had a free and unconstrained choice between the two definitions and its adoption of the maximalist approach was not required by logic nor by legal precedent, and is difficult to justify on moral grounds. Ordinarily, on reaching such a conclusion, a commentator on the common law might advocate overruling the unsatisfactory precedent, but that option is foreclosed in England by section 1 of the Sexual Offences Act 1976 which puts the Morgan redefinition on a statutory footing.
In view of the reservations that can legitimately be expressed about its ratio, it is not surprising that Morgan has not been very popular and that various attempts have been made to circumvent it. The Morgan principle actually availed the accused nothing in that the House of Lords applied the proviso, taking the view that the alleged belief was so unreasonable as to be incredible. That move is not a available to secure a conviction of Adonis because ex hypothesi he does believe that the woman is consenting….
The Canadian Supreme Court qualified the Morgan principle in Pappajohn v. R, holding that there was no room nor need for the Morgan direction unless there was extrinsic evidence supportive of the defendant’s claim honestly to have believed that the woman was consenting. In R v. Taylor, the English Court of Criminal Appeal adopted substantially the same reasoning and conclusion, though the Canadian case was not mentioned. The general issue was whether the Morgan direction on honest belief must always be put to the jury and , if not, when it may be dispensed with.
The court held that in cases of conflicting testimony, where the jury finds that there is evidence of non-consent, and there is no extrinsic evidence supportive of the defendant’s claim, there is no room for any socalled defence of honest belief and no need to put the Morgan direction to the jury. Just as honest belief is inconsistent with the mens rea of the offence, as defined in Morgan, so that mens rea is inconsistent with honest belief. Inexorable logic runs both ways. If the jury concludes o all the evidence that any ordinary person in the position of the accused must have realized that the woman was not consenting; that the accused, as an ordinary person, must have so realized and therefore did; then there is no room in the accused’s mind for the logically incompatible belief in consent. The doctrinal question is whether Taylor qualifies Morgan or contradicts it. That is a matter for the House of Lords in the fullness of time. The effect of current English criminal law up to the Court of Appeal would be to convict Adonis so long as his belief in the woman’s consent rested merely on his own wishful thinking and mere ipse dixit.
If, on moral grounds, one believes that Adonis should be convicted, one is committed to conviction in the absence of Morgan mens rea. English criminal law already adopts that position in the case of intoxicated mistake as is illustrated in R v. Fotheringham (1988). If that is morally acceptable then so, too, is conviction of the sober man who makes an unreasonable mistake. That moral commitment calls for restoration of the Turner definition and the Tolson defence, and this discussion of rape illustrates that definition and redefinition of offences is not merely a matter of dry legal technique for committees of lawyers to determine, but one of pressing moral (and public) concern. With respect, moral commitments should determine legal definitions and not vice versa.
Whilst Morgan dealt with the issue of mistakes in relation to the offence of rape, the question which remained to be answered was whether the principle enunciated therein also applied to honest but unreasonable mistakes in respect of definitional elements in other offences. At first, in Phekoo (1981), the Court of Appeal held that Morgan was confined to the offence of rape and mistakes as to definitional elements in other offences had to be based on reasonable grounds if they were to operate to negate liability.
R v. Kimber: the burden of proving lack of consent rests upon the prosecution…..The consequence is that the prosecution has to prove that the defendant intended to lay hands on his victim without her consent. If he did not intend to do this, he is entitled to be found not guilty; and if he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge. It is the defendant’s belief, not the grounds on which it was based, which goes to negative the intent.
Where a defendant has committed the offence charged, having brought about the actus reus with the requisite mens rea, will a claim of justification serve to negate his liability where it is based upon a mistaken belief. For example, if D intentionally wounds X in the mistaken belief that X is about to attack him, will his plea of self defence succeed to negate his liability where it is an honestly held belief or must the belief also be a reasonable one?
Lord Steyn stated : ‘ There has been a general shift from objectivism to subjectivism in this branch of the law. It is now settled as a matter of general principle that mistake, whether reasonable or not, is a defence where it prevents the defendant from having the mens rea which the law requires for the crime with which he is charged. It would be in disharmony with this development now to rule that in respect of a defence under section 1 (1) of the Act of 1960 of the belief must be based on reasonable grounds. Moreover, if such a special solution were to be adopted, it would almost certainly create uncertainty in other parts of the criminal law. It would be difficult to confine it on a principled basis to section 1 (1).’
Tolson appears to be an aberrant decision, limited to bigamy, and awaiting the right circumstances to arise for it to be overruled.
Knowledge and belief:
In some cases of rape the defendant argues that he believed that the victim was consenting, even though it subsequently transpires that she was not. Absence of consent is an element in the definition of rape, and so it must be proved either that D knew that the victim was not consenting or that he was reckless as to the absence of consent, where D argues that he mistakenly believed her to be consenting, and the jury is left in reasonable doubt about this, he should be acquitted of rape as the law stands, ( the changes in the Sexual Offences Bill 2003), because the prosecution has failed to prove that he had the requisite knowledge of absence of consent. This is what is sometimes called the defence of mistake, but it should be clear that it cannot properly be termed a defence in this context. A defendant who argues that he was mistaken about consent may succeed in creating a reasonable doubt in the minds of the jury, but the defendant does not have to prove anything: the prosecution has to establish knowledge or reckless knowledge as to the absence of consent, as the House of Lords has held in three landmark cases (Morgan, B v. DPP and K). lawyers tend to refer loosely to the defence of mistake, but in most cases this means that it will be argued that the prosecution has failed to prove that D had the required knowledge of the elements in the definition of the crime. It is not a defence in the sense that D must prove anything: and mistaken belief is simply an explanation of why knowledge was lacking.
Although it is rare in offences against the person for the defendant to claim that he did not know he was striking another human being, mistaken beliefs are occasionally raised in these cases in a different way. Offences of assault and wounding are defined not just in terms of the use of force against another, but the unlawful use of force. As force may be lawful if it is used in self-defence or the prevention of crime, for example. The logical argument is that, if D used force in the belief that he was preventing a crime, when in reality this was not so, D would lack the knowledge that the use of force was unlawful and should therefore be acquitted of the offence. An example here is Williams: the law requires the prosecution to satisfy the court that D was aware of the facts which made his action unlawful, and he was not. He was mistaken. The Court of Appeal held that his conviction should be quashed: ‘The mental element necessary to constitute guilt is the intent to apply unlawful force to the victim. We do not believe that the mental element can be substantiated by simply showing an intent to apply force and no more’.
The emphasis thus far in the discussion of knowledge and mistake has been upon the inexorable logic, as Lord Hailsham put it, that if an offence requires knowledge of a given circumstance, a person who is mistaken about that circumstance should be acquitted for lack of knowledge. Logic it may be, but that should not be taken to mean that there is no place for objective requirements of reasonableness in this realm of the law. There are two ways of arguing for objective restrictions. First, it can be pointed out that there is a long-standing defence of reasonable mistake, which applies to all criminal offences Tolson. Of course a defence of this kind is unlikely to be found satisfactory by full-blooded subjectivists, who applaud the wider ground of exculpation in Morgan and Williams. They might contend that the reasonableness requirement has historically been little more than a device to overcome difficulties of proof and to prevent bogus defences from succeeding. The reason for mentioning it here is that to some extent the courts had a choice between two approaches. In DPP v. Morgan, the House of Lords could have upheld the doctrine of reasonable mistake: after all, the inexorable logic does not affect the courts’ approach to intoxication DPP v Majewski, and so the House could have declared that mistakes would be treated on a special footing too. Likewise in Williams the Court of Appeal could have reasserted the doctrine of reasonable mistake, adopting the view of earlier years that the existence or implication of the term unlawful in all offences against the person has no particular effect on the law of mistake Albert v. Lavin. A second argument is that the courts should have been more sensitive to the rights and wrongs of the situations to which the inexorable logic was being applied. Thus one could argue that the very offence with which the leading decision of DPP v. Morgan was concerned-rape-should incorporate a requirement of reasonable grounds for the belief in consent: the two parties are physically so close that there is every opportunity for D to find out whether or not the woman is consenting by asking her, and it is reasonable to require him to do so. The appellate courts have taken considerable strides towards subjectivism in cases such as Morgan and Williams, and yet the judges do not seem to be thouroughly convinced. In respect of the defences of duress and necessity, the courts have required D’s belief that dire threats were being made or that circumstances of necessity had arisen to be based on reasonable grounds if it is to excuse. That divergence of approach to mistakes relating to duress and necessity occurred during the same decade (1980s) as the establishment of the principle that mistakes in relation to self defence and prevention of crime must be genuine but need not be reasonable. Whilst it is possible to discern theoretical diffenreces between the two kinds of defence, the difference of legal approaches is more likely to reflect ambivalence about the proper treatment of mistakes. The logical approach was urged on the judges as irresistible when, as the two reasons given in the previous paragraph show, it is not. This may be similar to the ambivalence about the parameters of culpability shown by Caldwell and the ensuing debate. Just as one might argue that there are circumstances in which a person who fails to give thought to an obvious risk of harm is sufficiently blameworthy for criminal liability, so one might argue that there are circumstances in which a person who acts without taking steps to check the facts or circumstances may also deserve criminal conviction.
Reasonable mistake and putative defences:
For the first three-quarters of the twentieth century, the approach of the common law to mistake was that if the defendant wished to rely on this defence it must be shown that he had reasonable grounds for his mistaken belief. The leading case was Tolson, where the Court for Crown Cases Reserved held that a mistake of fact on reasonable grounds would be a defence to any criminal charge. Despite being cited as the leading case, the ambit and status of Tolson were never clear, since Stephen J devoted much of his judgment to the proposition that if the mental element of the crime is proved to have been absent, the crime so defined is not committed. Certainly it is authority for the proposition that reasonable mistake is a defence to crimes of strict liability. It is also authority on the crime of bigamy, and was expressly preserved by the House of Lords in Morgan when it introduced the proposition that if the mental element is missing in respect of one of the conduct elements specified in the definition of the crime, then as a matter of inexorable logic D should be acquitted even if the mistake was wholly unreasonable.
The inexorable logic argument was criticized in the previous chapter: this part of the criminal law should be founded on considerations of moral fault rather than dictated by an abstracted logic, as our discussions of intoxication and duress have already shown. When the House of Lords in Morgan opted for the inexorable logic approach, treating the claim of mistake as a mere denial of the required mental element, it expressly left undisturbed two existing rules-the Tolson principle, as applied to bigamy, and the requirement that mistakes relating to a defence should be reasonable. This second requirement relates to defences resting on justification or on consent: if there is a mistake about the circumstances giving rise to the justification or the consent, this makes it a putative defence (i.e. an excuse rather than a justification, because the circumstances for justification were absent and D merely believed they were present). The persistence of this objective approach to mistake owed more to assumption and repetition than to principled argument. Its chief application was in cases of self-defence, where courts had tended to require that any mistake about the circumstances should be based on reasonable grounds. But this reasonable mistake doctrine, left intact in Morgan itself, was swept away by decisions of the Court of Appeal and Privy Council in the 1980s ( Kimber, 1983, followed by Gladstone Williams 1984, Beckford 1988.). thus a putative defence will succeed wherever D raises a reasonable doubt that he actually held the mistaken belief, no matter how outlandish that belief may have been. The courts in Williams and Beckford presented this as an application of the inexorable logic approach in Morgan (Morgan left this aspect of the law unchanged), reasoning as follows: (1) unlawfulness is an element in all crimes of violence; (ii) intent, knowledge, or recklessness must be proved as to that element; and therefore (iii) a person who mistakenly believes in the existence of circumstances which would make the conduct lawful should not be criminally liable. The crucial step is the first: how do we know that unlawfulness is a definitional element in all crimes? Not all crimes are defined explicitly in this way. So it is, rather, a doctrinal question. Andrew Simester has argued that unlawfulness cannot be an ingredient of the actus reus, since only when there is actus reus with mens rea can we conclude that conduct was unlawful. Might this not be a question of terminology? Some would argue that there is no actus reus where the conduct is justified. If absence of justification is substituted for unlawfulness in the above reasoning, does not the difficulty claimed by Simester disappear? Astronger argument is that, irrespective of the definitional boundaries of the actus reus, there is a need to confront the moral issue whether there should not be some duty to reflect before using force against another. Using force is wrongful and should put a citizen on notice to examine the grounds for doing so-if, time and circumstances permit. This distinguishes cases of putative defence from other cases of mistake in which D does not think what he is doing is wrongful or dangerous McCann v. UK. Rather than relying on the logic of steps I, ii, and iii above, the law should adopt this more context-sensitive approach.
Although English judges may seem to be firmly in the embrace of the inexorable logic approach to mistake, B v DPP and K, there have been some deviations which perhaps suggest recognition of the complexity of the issues. In Graham Lord Lane CJ held that, if D is mistaken about the existence or nature of a threat, the mistake must be a reasonable one if the defence of duress is to be available; and in Conway the Court of Appeal held that a defence of duress of circumstances is available only if from an objective standpoint the defendant can be said to be acting in order to avoid a threat of death or serious injury. The reasoning in these two cases appears to be that, since defences of duress and necessity are available only where a person of reasonable steadfastness would have yielded to the threat, it follows that mistakes must be based on reasonable grounds if they are to excuse.
Is this a sound course of reasoning? Surely the person of reasonable firmness standard is a form of words designed to ensure that D lived up to the standard reasonably expected of responsible citizens faced with extreme pressures. The issue of mistaken belief concerns perception, and we have seen that the English courts general approach to questions of perception embodies the belief principle-a subjective enquiry, not an objective standard. However, once the confusion between issues of expected standards and perception has been dispelled, we should return to the question whether the belief principle should invariably be regarded as the proper doctrinal solution to these cases. It focuses on D’s attitude of mind at the time, but includes no reference to the circumstances of the act, to D’s responsibilities, or to social expectations of conduct in that situation. As argued above, the law on mistake should be more context-sensitive. Thus in rape cases those considerations militate in favour of a requirement of reasonable grounds for any mistake; it can be argued that reasonable grounds should also be required in respect of age requirements for consensual sexual conduct; B v DPP and K, and a similar argument might be developed in relation to the responsibilities of a police officer with firearms training, as in Beckford v R. of course, any such infusion of objective principles must recognize the exigencies of the moment, and must not expect more of D than society ought to expect in that particular situation. That is a necessary safeguard of individual autonomy. The general point is that there may be good reasons for society to require a certain standard of conduct if the conditions were not such as to preclude it, particularly where the potential harm involved is serous. These arguments may be no less strong in cases of rape, indecent assault, and some cases of self-defence (where the courts have pursued a subjective approach) than they are in many cases of putative defences of duress and necessity (where a reasonableness requirement has been imposed). Any move in the direction of requiring reasonableness may have the effect of raising the question whether cases of mistaken belief in justification are necessarily cases of excuse, or whether they may be treated as forms of justification.
Ignorance or Mistake of law:
a) The English Rules:
English criminal law appears to pursue a relatively strict policy against those who acting ignorance of the true legal position, but the maxim ignorance of the law excuses no one is too strong as a description. Ignorance or mistake as to civil law, rather than criminal law, is capable of forming the basis of a defence; indeed, the crimes of theft and criminal damage explicitly provide for defences where D believes that he has a legal right to take or to damage property. But it would be unsafe to state the rule by reference to a distinction between matters of civil law and criminal law, because offences are often defined in such a way as to blur the two. Whether goods are classified as stolen for the purposes of the offence of handling stolen property seems to be a question of criminal law, so if D knows all the facts but misunderstands their legal effect this is irrelevant. Whether an auditor is disqualified from acting for a certain company seems to be a question of civil law, so where D was unaware of the relevant law, his conviction for acting as an auditor knowing that he was disqualified was quashed. Secretary of State for Trade and Industry v. Hart. One diffenrence between these two offences is that the latter contains the word knowingly, whereas the crime of handling includes the words knowing or believing; it is certainly true that a number of English decisions have allowed mistake or ignorance of the law to negative knowingly, but this cannot explain all the decisions Grant v. Borg. English law does recognizes that the obligations are not all on one side. The state has duties to declare and to publicize laws and regulations, and these appear as exceptions to the general rule. Thus non-publication of a Statutory Instrument will usually afford a defence to any crime under that Instrument to a person unaware of its existence, and failure to publish a government order in respect of a particular person will also afford a defence to that person if he or she is unaware of the order: Lim Chin Aik v. R.
b) Individual fairness and public policy: it could be argued that individual fairness demands the recognition of ignorance or mistake of law as an excuse: a person who acts in the belief that conduct is non-criminal, or without knowing that it is criminal, should not be convicted of an offence. Although ignorance of the law may not negative the fault requirements of a particular offence, respect for individual autonomy supports the excuse in its own right: a person who chooses to engage in conduct without knowing that it is criminal makes a choice which is so ill-informed as to lack a proper basis. The counter arguments are based on conceptions of social welfare. One is the utilitarian argument that it is desirable to encourage knowledge of the law rather than ignorance, and any rule which allowed ignorance as a defence would therefore tend to undermine law enforcement. This does not establish that ignorance of the law is wrong, merely that it is socially harmful. Another is the argument that, if we judge defendants on their particular view of the law rather than on the law as it is, we are contradicting the essential objectivity of the legal system. This is , to say the least, an exaggeration: so long as the court states what the law is, the law’s objectivity remains unimpaired. It would also seem to suggest that for a court to allow any excuse amounts to a denial of the offence. This not only confuses the element of excuse with the element of wrong doing, but also overlooks the value of a publicized trial, where reasonable mistake of law is allowed, as a means of public education.
What is needed here, if the policy is to be supported, is an argument that it is wrong to be ignorant or mistaken about the law. This can be found in the conception of duties of citizenship. Thus, to argue that a person may be convicted despite ignorance of the law is not to attack the priciples of choice and individual autonomy which were identified earlier as fundamental to the principles of fairness; it is to forsake an atomistic view of individuals in favour of a recognition of persons as social beings, with both rights and responsibilities within the society in which they live. It has already been argued that in many situations it is fair to expect citizens to take care to enquire into the surrounding circumstances before they act, and the case for requiring some mistakes to be reasonable has been put. A similar line of argument might support a duty on each citizen to take reasonable steps to become acquainted with the criminal law. There are few problems in making the duty known, since ignorance of the law is no excuse is a widely known principle even now. The duty should not be an absolute one, however. First, there is often uncertainty in the ambit of the law. Sometimes the legislature acknowledges the difficulty of stating the law by allowing D’s own standards as a benchmark of lawfulness, as in the crime of blackmail. Sometimes it resorts to a broad standard such as reasonable or dishonest, leaving the courts to concretize the norm after each event, which goes against the principles of maximum certainty and fair warning. This is not to suggest that every case in which the courts change the law should inevitably give the defendant a defence of ignorance of the law; indeed, the European Court of Human Rights has held not only that judicial extensions of the law conform to A 7 if they are reasonably foreseeable, but also that the application of that test varies according to the subject-matter of the law and that a law might still satisfy the requirement of foreseeability even if the person concerned had to take legal advice to determine its practical scope Cantoni v.France. a second reason for not making the policy absolute is the possibility that the State has not fulfilled its duties in respect of making a new offence known and knowable. The State clearly has this duty when it seeks to impose criminal liability for an omission, the American case of Lambert v. California, and the duty applies generally to the publication of laws. This, indeed, is an aspect of the principle of legality, as embodied in the principle of fair warning.
One way of maintaining the general duty to know the law, whilst allowing exceptions based on respect for individual autonomy, would be to provide that a mistake of law may excuse if it is reasonable. This would have the advantage of narrowing the present gulf, wide and difficult to defend, between the effects of ignorance of law (no general defence) and ignorance of fact (frequently negativing liability). Ignorance of the law would clearly be reasonable if fair warning of a progibition had not been given: this would accommodate the second point above. Mistake or ignorance of law might also be reasonable if D had no cause to suspect that certain conduct was criminal, or if D had been misinformed or wrongly advised about the law, or perhaps in other circumstances. Ignorance and mistake would be unlikely to be held reasonable if D was engaging in a business or an activity (such as driving a car) that is known to have changing rules; but the merit of a reasonableness requirement is that it would not absolutely rule the defence out. A defendant would be able to argue that there were special circumstances warranting exculpation. To rebut the claim that such an excuse might be raised so often as to impede the administration of the criminal law, one has only to refer to the lengthy experience of Scandinavian countries in providing for defences of this kind.
The draft Criminal Code states that ignorance or mistake as to a matter of law does not affect liability to conviction for an offence except a) where so provided, or b) where it negatives the fault element of the offence. This is traditional, inflexible, and unsatisfactory: it would prevent the courts from developing a wider defence, and would relegate most of these matters to mitigation of sentence. Moreover, exception b) hardly corresponds with any general moral distinction. The legislature has not pursued a consistent policy in deciding whether or not knowingly should form part of the definitions of offences, and it certainly cannot be assumed that parliament had considered whether particular offences justify an exception in favour of ignorance or mistakes of criminal law. In recent years courts have veered between allowing ignorance of law to negative knowingly and declaring that this approach would be wholly unacceptable. Secretary of State for Trade and Industry v. Hart. There is a need to adopt a clear, autonomy based principle and then to interpret statutory offences in the light of it. The same approach should be adopted where the offence includes a phrase such as without lawful excuse or without reasonable excuse.
c) The reliance cases:
Another benefit of moving away from the relatively strict English policy against defences based on mistake or ignorance of criminal law towards a reasonable grounds defence would be to deal more fairly with the reliance cases. In Cooper v. Simmons an apprentice absented himself from his apprenticeship after the death of his master, having sought the advice of an attorney and having been counselled that he was no longer bound. The Court nevertheless convicted him of unlawfully absenting himself from his apprenticeship, and Pollock CB stated that it would be dangerous if we were to substitute the opinion of the person charged…for the law itself. In Arrowsmith D had on occasions distributed leaflets urging British soldiers not to serve in Northern Ireland. In the past the Director of Public Prosecutions had declined to prosecute her under the Incitement to Disaffection Act 1934, but now she was charged with an offence under that Act. One line of defence was that she reasonably believed, as a result of a letter from the Director, that her conduct did not contravene the Act. The Court of Appeal upheld her conviction, stating that a mistake as to the law would not avail the appellant except perhaps in mitigation of sentence. Both these cases would surely be better analysed in terms of reasonable reliance. If it is established that D relied on advice from officials with regard to the lawfulness of the proposed conduct, that ought to be sufficient to support reasonable grounds for the mistake of law. Confusion may arise about the entitlement of a particular agency or official to advise a member of public about the law, as one English case vividly demonstrates, Cambridgeshire and Isle of Ely CC v. Rust, but since reasonable mistake of law would be an excuse, the key question is whether D reasonably assumed that the person giving the advice was duly authorized. In the element of reliance, these cases can call upon a kind of estoppel reasoning-the State and the courts should not convict a person whom they or their officers have advised otherwise. Thus the Control of Pollution Act 1974, s 3(4), specifically creates a defence to the crime of unlicensed waste-disposal where D took care to inform himself from persons who were in a position to provide information, recognizing both individual fairness and an estoppel on officials. Thus, even if one were persuaded by the argument that allowing mistake of law as a general defence would encourage ignorance of the law, the reverse of that argument applies here: to recognize officially-induced error as a defence would signal the value of citizens checking on the lawfulness of their proposed activities. Indeed, all the values that support the principle of fair warning militate in favour of recognizing officially induced error.
One reason there have been relatively few appellate cases on mistake of law may be that it is often accommodated in other ways. An appeal is unlikely if a person receives substantial mitigation of sentence, perhaps an absolute or conditional discharge. On some occasions a person who acted on a mistaken view of the law might not be prosecuted at all, or the prosecution might be discontinued. In one case a company was advised by members of the local council’s planning department that the erection of advertising boards would not require planning consent. The company erected the boards, and the council then brought a prosecution. The Divisional Court held that the prosecution should have been stayed as an abuse of process, Postermobile v.Brent LBC, Schiemann LJ stating that it is important that the citizen should be able to rely on the statements of public officials. The council had argued that these were junior officials and that the company was wrong to rely on their opinion, but the Divisional Court replied that it was not as though they had requested planning advice from one of the council’s gardeners. This is a significant decision, employing the powerful procedural approach of staying the prosecution where a mistaken view of the law has been implanted by an official. The courts might well decline to recognize a substantive defence of officially induced error of law, as in Kingston, but it can be argued that staying the prosecution is amore appropriate remedy inasmuch as D might not have brought himself within the offence definition at all if the official advice had not been given.
Should the doctrine extend to acting on the advice of a lawyer? Glanville Williams, although a strong supporter of a defence of reasonable reliance on official statements, pointed out the danger that allowing reliance on a lawyer’s advice (rather than official advice) might open up a broad route to exculpation for corporate defendants in particular. On the other hand, for an individual to take legal advice might be even more reasonable, in terms of citizenship duties, than to rely on the advice of a junior official.