The scope of this paper is limited to a discussion of the role of the ignorantia juris non excusat maxim (hereinafter referred to as the ignorantia maxim) in the criminal law. The most prolific writing on this area has recently been centred in America where this maxim is under close scrutiny. Therefore, this paper will approach the subject from an Anglo-American perspective. The aim of the paper is to identify the inherent difficulties that exist in applying this maxim to the criminal law and to suggest possible strategies for reform of this maxim.
'Twas brillig, and the slithy toves
Did gyre and gimble in the wabe
All mimsy were the borogoves
And the mome rath outgrabe1
Ignorantia legis neminem excusat
Ignorantia eorum, quae quis scire tenetur non-excusat
Ignorantia juris non excusat
Ignorantia juris, quod quisque tenetur neminem excusat
As Alice said, "It seems very pretty, but it's rather hard to understand.2"
The first four lines, are part of the famous poem, The Jabberwocky, which appeared in the book, Through the Looking Glass, by Lewis Caroll. The next four lines are various expressions of a common maxim that has been part and parcel of English criminal law for centuries. But as with the poem, this maxim too has confounded many.
In this paper I propose to examine this maxim from its inception into the common law to its present state. Through a historical analysis I propose to show that this maxim has no proper foundation in that it was incorrectly imported into the common law from its apparent origin in Roman law. It will also be shown that the maxim is not well supported by case law. An excursus into the present state of the law in relation to this maxim will then reveal the attempts made to circumvent this maxim through artificial distinctions and convoluted legal reasoning. It is submitted that these attempts to circumvent this maxim are due to the realization that the indiscriminate application of this maxim is causing more harm than good in current criminal law. The extent to which exceptions to the maxim have been recognized will be investigated. Because of the inherent difficulties of maintaining this maxim in its pristine form it is suggested that the maxim be discarded altogether and a general defence of mistake of law be recognized. A conceptual framework for such a defence will then be outlined. Finally, it will be shown that there is room for reform in this area and such reform can be in a number of directions.
The common source often referred to for this maxim in English law is Blackstone's Commentaries6 where the learned author says, '...often a mistake in point of law which every person of discretion not only may , but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque teneture scire, neminem excusat is as well the maxim of our own law as it was of the Roman.'
There are at least two problems with this statement. Firstly, Blackstone was quite probably in error when he ascribed the origin of this maxim to Roman law. Secondly, it would appear that in BlackstoneÕs formulation, the ignorantia juris maxim does not stand independently. The maxim only exists because of the presumption that everyone is bound and presumed to know the law. This presumption may have been valid at the time Blackstone made his statement. Now, this presumption no longer holds. Therefore, if the maximÕs existence is based on the presumption and that presumption no longer exists, then it follows that the maxim too should no longer exist.
i.) Roman law origin of the ignorantia maxim
In making his pronouncement Blackstone refers to the Digest of Justinian7 as a source and cites the case of Brett v Rigden 8 for authority. It is contended that Blackstone was in error when he ascribed the origin of the maxim to Roman law. Further it is contended that the case of Brett v Rigden does not support the application of the maxim in the criminal law.
Keedy has pointed out that the context and the examples given in the Digest, to illustrate the maxim, show that it was applied solely to civil actions and had no application in criminal law.9 Writers on the Roman Law treat the doctrine of ignorantia set forth in the Digest as applicable solely in civil law.10 Roman Law was an elaborately articulated system of principles abstracted from the detailed rules which constitute the raw material of law.11 It was a very flexible and accommodating system, unlike the English common law. Maxims were indeed suited to such a system for as soon as the maxim became inapplicable because of social, moral, economical or other changes in society, the maxims were adapted to suit the times. In the common law maxims become entrenched in the system and take rigid precedential effect without taking into account social, ethical and legal changes. The ignorantia maxim may have been effective at a time when the laws were not complex and sophisticated and it was possible for everyone to know the laws of the land. Indeed the Digest itself states this as the rationale for the maxim.12 In current times this is no longer the position as is succinctly put by Austin who says, "That any actual system is so knowable, or that any actual system has ever been so knowable, is so notoriously and ridiculously false that I shall not occupy your time with proof of the contrary.13"
As James MacKintosh warns14, the danger of borrowing from Roman law which is constantly developing is Òdue to the persistent vitality of the parent stock, which goes on developing from within , after it has thrown off numerous offshoots.15Ó
We are thus left with an inherited law that is paradoxically incompatible with the modern understanding of the Roman law. Given that the maxim is now firmly established in English jurisprudence, and innumerable cases have apparently been carried through on the basis of this maxim, is it possible for the the courts to challenge this long accepted foundation, or would it be Òheresy to deny the rule?16Ó
Indeed it is not impossible. MacKintosh presents us with two examples, a Scottish case17 and an English case18 where the courts have actually repudiated old doctrine based on Roman Law as once understood. In the English case of Mason v Hill 19, the courts dealt with certain mistaken views of the Roman Law advanced by none other than Blackstone and other authorities. By closer scrutiny of the Roman texts, the courts took pains to correct the erroneous interpretation of the Roman Law. As Hall and Seligman say, "Blackstone was in error in ascribing the origin of the ignorantia rule to the Roman Law.20" It is contended therefore that the courts should correct this error.
ii.) Common Law origin of the ignorantia maxim
The case upon which Blackstone relied upon, Brett v Rigden 21 is of little help in advancing his proposition. That case was a civil, not criminal case. Further the point argued and upon which Blackstone relied on was ruled against by the court.
Modern writers who have adopted Blackstone's position such as Dr.Turner22 cite as authority for the proposition the cases of Esop 23, Barronet & Allen 24 and Sattler. 25 Of these cases only in Esop 26 is the question of ignorance of the law directly argued. Even here there was nothing in the case that showed that the prisoner was ignorant of the law. In any event he was acquitted on the facts. These cases do not even establish or even depend on the doctrine that ignorance or mistake of the law will not excuse. Keedy has collected the earliest cases which considered the doctrine27. All of these cases, except one were civil cases28; in one of them the court refused to apply the maxim29; and most importantly in all of them the court took great pain to state specifically that ignorance of the law may not excuse because every person is bound and presumed to know the law. As O'Connor states, while the ignorantia principle is generally assumed " it is, however, surprising that there seems to be no cases either directly establishing the rule or unreservedly accepting it.30"
B. VALIDITY OF THE IGNORANTIA MAXIM AS AN INDEPENDENT MAXIM
Blackstone and Hale when proposing this maxim that ignorance of the law may not excuse tied it inextricably with the presumption that everyone is bound and presumed to know the law. The argument then is that the maxim ignorance of the law is not an excuse is itself deducible from the general rule that ignorance of that which everyone knows or is bound to know is no excuse. The reason given in the Digest as to why ignorantia juris will not excuse , is that the law is certain and capable of being ascertained.31 It has been established that this paragraph in the Digest was only applicable to civil actions. While Blackstone may have been erroneous in applying the maxim to criminal law he was entirely correct in appreciating the reason for the maxim i.e. ignorance of the law does not excuse only because everyone is bound and presumed to know the law. Blackstone's position can thus be stated as such. Because ignorance of those things which everyone is bound to know, excuses not and because everyone is bound to know the law, therefore ignorance of the law excuses not. Here we have a classic example of Aristotlean logic. We have a major premise - ignorance of what you know excuses not, and a minor premise - everyone is bound and presumed to know the law, thus inviting the inevitable conclusion that ignorance of the law excuses not. However, for such a conclusion to be valid the two premises must first be justified. It is no more a question of debate that the minor premise no longer holds true in this day and age.32 Hence, the above conclusion is no longer possible. Thus the maxim itself can no longer be supported in logic.
We have seen that the maxim suffers from unknown pedigree in that it is historically unsound. The authorities that were used are either civil cases, or do not deal with the principle directly. When they do deal with the principle the decisions are justified on the basis that everyone knows the law. Even as a matter of logic the maxim is not supportable. Yet the maxim is routinely applied in criminal cases. In justifying its continous existence several rationales have been proposed.
CHAPTER II
RATIONALES FOR THE IGNORANTIA MAXIM
i.) Traditional Rationale
The earliest justification for the ignorantia doctrine is given by Blackstone33, whose reliance on Roman Law where the law was 'definite and knowable' compels him to say that 'every person of discretion may know the law. However, it must be noted that the Roman doctrine was one that was not as rigid and inflexible as its offshoot which has implanted itself in English common law. There were large classes of people excepted from the presumption of knowledge of the law such as persons under twenty five years34 , women35, soldiers36 and peasants and other persons of small intelligence37. There was a recognition in Roman law that not everyone could know the law. The maxim was thus limited to the classes of people who truly did know the law or were reasonably expected to38. Therefore this theory for justifying the maxim may be sound in Roman context.
In our legal system the maxim is applied indiscriminately.This theory of justification bases on the presumption that everyone knows the law is now regarded as little more than fiction. Even a century ago Maule J. pointed out that the existence of courts of appeal showed that the law is inherently uncertain and that the judges themselves cannot be expected to know it in all its detail.39 The House of Lords recently gave official recognition to the possibility of judicial ignorance of the law when it framed a rule of precedent with an exception for the decisions given per incuriam..40 If judges themselves may be ignorant of the law it is no longer feasible to use this theory to justify the ignorantia maxim.
ii.) Modern rationales
A number of modern theories have been postulated in rationalizing the maxim. I shall deal with three of these theories which have given the most consideration to this maxim. These are the theories postulated by Austin41, Holmes42 and Hall.43
Austin's justification for the ignorantia doctrine was that "if ignorance of law were admitted as a ground of exemption, the courts would be involved in questions which were scarcely possible to solve and which would render the administration of justice next to impracticable.44" As he says, " whether the party was really ignorant of the law, and was so ignorant of the law that he had no surmise of its provisions, could scarcely be determined by any evidence accessible to others.45" His stand is based on a pragmatic approach. According to Austin there are two questions that need to be answered if ignorance of law were used as a defence, (1) Was the party actually ignorant of the law? and (2) Was his ignorance inevitable or was it due to his fault?
Thus, we see that Austin's justification of the ignorantia doctrine is two-fold. It would be virtually impossible to prove that a defendant was actually ignorant of the law and even if that obstacle were overcome it would be almost impossible again to show culpability and not mere negligence. In short, Austin's justification for the maxim stems from practical concerns, not justice or rule of law. It is the difficulty of deciding whether an honest mistake is sufficient or a whether a reasonable mistake is required. Thus, if the defence of mistake of law were allowed "the administration of justice would be arrested.46"
Justice Holmes' reply to Austin is that if justice requires the fact to be ascertained, the difficulty of doing so is no ground for refusing to try.47 His solution to AustinÕs difficulty of proof and question of reasonableness was to throw the burden of proving ignorance on the law-breaker. The theory suggested by Holmes in support of the maxim is that "to admit the excuse at all would be to encourage ignorance where the law maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales.48"
Such a theory is utilitarian in the extreme and not applicable in all situations. A simple illustration would be when a foreigner commits an offence without knowing it was unlawful49 and pleads ignorance of law in defence. Punishment of the offender would not be in the interest of the community because the community is well aware that the act is unlawful by domestic standards and therefore such punishment would not serve an educative purpose. If we accept that that the offender did not intend to commit the crime and indeed was not aware that he had committed a crime, the punishment then would be merely for punishment's sake and serves no other purpose, educative or utilitarian. Also, Holmes' view, that to admit the defence of mistake would encourage ignorance where the law-maker has determined to make men know and obey the law is questionable. The purpose of the penal law is not merely to educate. Even Jeremy Bentham, a strong advocate of utilitarianism could not accept that punishment was a method of making the law known.50 As Bray CJ said, "the criminal law is to punish the wicked not the stupid.51" Thus, Holmes' theory, although rejecting Austin's theory, does rely also on utilitarian considerations and what is pragmatic. Neither of these theories seeks to justify the maxim with regard to its origin, authority or applicability. As Hall says, "neither Austin's nor Holmes' theory cuts to the heart of the problem of ignorantia juris..52"
HallÕs theory in defence of the ignorantia principle is based on the principle of legality. As he says, "If that plea [mistake of law] were valid the consequence would be whenever a defendant in a criminal case thought the law was thus and so he is to be treated as though the law were thus and so i.e. the law actually is thus and so 53 [emphasis in original]." But such a doctrine would contradict the essential requisites of a legal system, the implication of the principle of legality. According to Hall the principle of legality has a number of elements i.e. that rule of law expresses objective meanings; that certain persons declare what those meanings are and that these and only these meanings of the rules are the law. However, Hall himself concedes that "It is ...possible to disagree indefinitely regarding the meanings of these words.54Ó Thus, he seems to contradict himself He chooses to ignore the reality of the situation that the law is not definite, and bases his entire theory on the assumption that the law is definite.
The other problem with his analysis is pointed out by George Fletcher who quite correctly identifies the conceptual difficulty which Hall failed to appreciate in his analysis.55 In the phrase, "whenever the defendant thought the law was thus and so," the word "law' refers to the norms about which the defendant might be mistaken. In the conclusion "the law actually is thus and so," the word "law" no longer refers to a norm or a rule about which the defendant is mistaken, but to an empirical concept of law equivalent to whether the court actually acquits in the particular case.
The norms of the law do not change even if a jury found that defendant was acting in ignorance of the law and acquits.56 In Hall's analysis he has failed to distinguish between wrongdoing and culpability. Ignorance of law may not justify an action committed by a person but it may excuse the person i.e. the act is and will be wrongful but no culpability may be attached to the person.57 Mistake of law leaves the norm intact. It merely denies culpability.
Hall goes on to express another aspect of his rationale in that the criminal law represents certain moral principles i.e. "legality cannot be separated from morality in a sound system of law.58" To allow the defence of ignorance would therefore contradict these values. Putting the two aspects together Hall presents us with his single rationale - "the legally expressed values may not be ignored.59" In this authors view Hall is not presenting a rational but merely analysing the ignorantia rule and simply restating it without justification.
Thus we see that the modern theories so far are utilitarian (Austin and Holmes) i.e. "sacrifices the individual to the common good"; based on the rather circuitous argument of the principle of legality (Hall); or as the courts have put it simply, based on public necessity.60 The doctrine, it appears, has no proper foundation in history; or in law; or, as we have seen, even in theory. The recurrent theme in all these theories is that there is a need for this doctrine to maintain the administration of justice and respect of law. But the reality may well be the converse. Denying a defence of a bona fide mistake of law may do more harm than good to the administration of justice and respect of law. In the words of an American court, "Respect for law which is the most cogent force in prompting orderly conduct in a civilized community is weakened, if men are punished for acts which according to the general consensus of opinion they were justified in believing to be morally right and in accordance with law.....61"
CHAPTER III
PRESENT STATE OF THE LAW
The maxim in current criminal has caused undue harshness through its inflexibility and rigid enforcement. In order to mitigate the harshness of this doctrine courts and commentators have attempted to limit the application of this doctrine through fine distinctions and convoluted legal reasoning. Several exceptions to the doctrine have also been recognized and new ones created.
A. Circumventing the ignorantia maxim
i.) Distinguishing between ignorance and mistake
In the earlier statements of the principle, only the word ignorance was used in relation to the ignorantia doctrine.62 Blackstone, in his statement of the principle was the first to use the two expressions "mistake" and "ignorance". He states:
Ignorance or mistake is another defect of will when a man intending to do a lawful act does that which is unlawful. For here the deed and will acting separately there is not the conjunction between them, which is necessary to form a criminal act. But this must be an ignorance or mistake of fact and not an error in point of law. ..... For a mistake in point of law, which every person of discretion not only may but is bound and presumed to know is in the criminal cases no sort of defence. ignorantia juris, quod quique tenetur scire, neminem excusat. 63
The question that needs to be answered is this:"What meaning did Blackstone intend to ascribe to the word ignorantia in his statement of the ignorantia doctrine?" We see that he uses both ignorance and mistake with regard to defect of will and to questions of fact. In relation to law he seems to limit it to mistake only. He says ".....and not an error in point of law" and "For a mistake in point of law....." Whenever referring to law Blackstone deliberately omits the word ignorance. Hence the word ignorantia according to Blackstone may be interpreted, strictly speaking, to mean mistake only. Thus it is submitted that the word ignorantia in Blackstone's statement may not embrace the concept of ignorance of law. It may be limited to mistakes of law. It is arguable therefore, that ignorance of law falls outside this maxim and should therefore not be denied as a defence. Whether such analysis is desirable is not debated here, but the analysis is defensible and it serves to demonstrate the weakness of the maxim.
There is good reason to distinguish the terms, ignorance and mistake. These terms in legal contemplation do not import the same significance and should not be confounded. Ignorance implies a total want of knowledge in reference to the subject matter.64 Mistake admits a knowledge but implies a wrong conclusion.65 Such distinction is not always easy to make as these terms do overlap. Ignorance may be based on a mistake and conversely a mistake may be born of ignorance. Unfortunately, even if the distinction can be made it is not clear which of them should afford a defence. Some writers have argued that mistake of law should be a defence while others argue for ignorance to be given recognition as a defence.
Keedy contends that ignorance of law does not negative the criminal mind, whereas mistake of law does.66 Intending an act which the law has made criminal is the criminal mind. Therefore ignorance is not relevant, because despite the ignorance all the elements of criminality are present. On the other hand, he argues that if a person acts under a mistake of law then there is not the criminal mind if the situation were as the defendant (D) believed. D is in the same position, so far as his state of mind is concerned as though the situation regarding which he was mistaken were one of fact. By applying the test governing mistake of fact D does not have the criminal mind.
Taking the opposite view is Hall. He argues that ignorance of the law should be a defence as it does not contradict the principle of legality.67 there is no mens rea and therefore no criminal act. Mistake of law on the other hand is more dubious. He concedes that a mistaken person is in a 'more meritorious' position than the ignorant one since the former has made an effort to know the law. However, Hall contends that mistake of law should not be a defence.68 The reason he gives is the 'the plea of mistake implies that the penal law in question was actually brought to D's attention.....This places D in a much less favourable position than that of the invincibly ignorant person. ÒFor error implies acquaintance and opportunity to form a correct opinion and that might support a charge of recklessness.69Ó With respect I find this argument to be as circuitous as Hall's rationale for the ignorantia maxim based on the principle of legality. For what Hall appears to be saying with regard to mistake is that a mistaken person,by virtue of his opportunity to know the law should not have made the mistake in the first place. This is punishing a person for the mistake and not the offence.
Thus by drawing a distinction between ignorance and mistake, it is possible to contemplate that the ignorantia doctrine may be abrogated, if not in whole, at least in part. These distinctions have been recognized in Canada. The Statutory Instruments Act, SC 1970-71-72, c38, s11(2) states that ignorance of law owing to non-publication of regulations is a defence. In R v MacDougall 70 it was held that mistake of law resulting from officially induced error may also be a defence.
ii.) Distinguishing between law and fact
Blackstone acknowledges that ignorance or mistake of fact is a recognized defence in criminal law. This principle has been judicially accepted since the seventeenth century in Levett's case.71 Ignorance or mistake of law however is not. It is therefore imperative that a distinction be made between fact and law for the general defence of mistake to work. Unfortunately, as Winfield put it, this task of distinguishing between fact and law is almost a 'practical impossibility'.72
To illustrate the distinction between mistake of fact and mistake of law, let us assume there is a prohibition against killing kangaroos. A person shoots a kangaroo thinking it is a wallaby. This is a mistake of fact. If the person shoots a kangaroo knowing it to be a kangaroo but not knowing there is a prohibition against killing kangaroos , then he is acting in ignorance or mistake of law. However, as Jessel M.R. said, "There is not a single fact connected with personal status that does not, more or less, involve a question of law.73" Bowen LJ gives an example. "Suppose I were to say I have a private Act of Parliament which gives me power to do so and so. Is not that an assertion that I have such an Act of Parliament? It appears to me to be as much a misrepresentation of a matter of fact as if I had said I have a particular bound copy of Johnson's Dictionary.74" The difficulty in distinguishing between a question of law and a question of fact is when it comes to applying law to fact. Previously, a question as to application of law to fact was regarded as a question of law.75 In such cases, ".....there is really an error to the purport and scope of the law.76" Thus, whether a man and a woman are married is a question of law, since the status is determined by the application of the law of marriage to the conduct of the parties.77 This is logical.
The courts however have not followed this line of logic. In Eaglesfield v Marquis of Londonderry Jessel MR gives an example in the context of a civil case where a statement about the marital status of a woman was made. The learned judge concluded that the statement "the lady is single.....is a statement of fact neither more nor less; and it is not the less of a statement of fact, that in order to arrive at it you must know more or less of the law.78" The High Court of Australia has accepted this reasoning in Thomas. 79 It is contended that such reasoning is not entirely satisfactory. Clearly, some legal inferences have been made and classifying the statement either as fact or law according to the degree of detail with which it is accompanied confirms the impossibility of distinguishing between fact and law. The position in Australia for statements that are a mixture of fact and law is that such statements are to be regarded as statements of fact.80 The reason for this anomalous development of regarding questions of mixed fact and law as purely questions of fact is due to the harshness of the ignorantia maxim. The courts can see the injustice of the maxim and are avoiding it by drawing such fine distinctions and artificially rationalizing mixed fact and law cases. The court have also accepted that foreign law and customary law are questions of fact.81 The only reason for this is that it is unfair to punish someone for violating a foreign law which he cannot know. I contend that it is equally unfair to punish someone for violating the domestic laws as well, because in this age of legal sophistication, it is not beyond reason to argue that the bulk of the laws which govern our lives are virtually foreign to the vast majority. Thus, by adhering to this archaic maxim of ignorantia juris the legal system is forced to engage itself in convoluted conceptual gymnastics in order to accommodate this maxim.
B. Erosion of the ignorantia maxim
Despite its problems the ignorantia rule is still applied in criminal law. However, numerous exceptions to the rule have been recognized. Further exceptions are also being urged. As Hall once remarked, Òthe rule enters the arena a roaring lion but is so cut down by case law that it exits as a timid lamb.82Ó In the following sections I will review several areas of the law where inroads into the ignorantia maxim have been made. I suggest also that the law has indirectly created exceptions to this maxim by creating defences which when analyzed can be seen to be mistake of law cases.
(i) Specific mental element
When a specific criminal intent is a requisite element of an a offence, and such intent is negatived by ignorance or mistake, it is held that D shall not be convicted, notwithstanding the maxim.83 ÒIt is a maxim older than the law of England that a man is not guilty unless his mind be guilty.84Ó Examples of offences where a special mental element is required are offences in which the additional requirement is that the deed be done (a) with a specific intent, (b) corruptly, or (c) wilfully or knowingly.
a.) Specific intent - This exception is now generally recognized in prosecutions for theft and associated offences. The specific intent required here is not merely the intent to take the property but an intent to steal, i.e. to dishonestly appropriate property belonging to another person with the intention of permanently depriving that person of that property.85 Ignorance or mistake of law would negative this intention.86 Another example of specific intent would be the requirement of an intent to defraud. This intention may be negatived by a misapprehension of law. In Aberdare Local Board v Hammet, 87 where D was charged with fraud, it was held that he could not be convicted because he had no requisite mens rea as he had believed his act to be right.
b.) Corruptly - Certain offences require a deed to be done corruptly. A bona fide belief of propriety, even if induced by ignorance of law will be a defence to such an offence. Perjury, for example, is not merely swearing to that which is not really the fact, but doing this wilfully and corruptly.88 Hence, one who testified to a false fact is not guilty of perjury if the testimony was due to a mistake of law. Another example is extortion, which at common law requires that D must have Òwilfully and corruptly demanded and received other or greater fees than the law allows.89 A misunderstanding of the law which induced a bona fide belief in the lawfulness of the fee charged, has been held to establish innocence.90 Because of the special requirement of corruptness a magistrate who commits a person under a bona fide mistake of law is not guilty of a crime.91
c.) Wilfully - The word wilfully may be taken to imply the need for dishonesty, or at least awareness by D that his behaviour is unlawful.92 In Ianella v French 93 the majority found D to have acted under a mistake of law with respect to the rent controls in question. Barwick CJ observed that D who is not shown in such a case to know that the act is unlawful needs not excuse. The offence has not been proved against him because the wilfulness aspect was not shown.94 The Chief Justice thus avoided the question of mistake of law as a defence, holding it was not relevant. With utmost respect it is contended that it was DÕs mistake of law that negatived the special mental element of wilfulness. The mistake of law here went to the definitional element of the offence.95
ii.) Defence of claim of right
A person who honestly believes himself to be entitled to do what he is doing is acting under an honest claim of right.96 Such a claim of right may be based on ignorance or mistake of law. In Bernhard 97 the conviction of the accused of an offence under the Larceny Act 1916 s30 was quashed on appeal. Charles J in his judgement said, Ò .....a person has a claim of right if he is honestly asserting what he believes to be a lawful claim even though it may be unfounded in law or fact.98Ó The court cited EastÕs Pleas of the Crown, Vol 2 at 659, which dealt with the defence Òthat the goods were taken as a claim of right.99Ó Claim of right based on error of law has been recognized in the case of theft,100 robbery,101 burglary,102 arson,103 malicious damage to property104 and trespass105 as well as to non-property offences. In Tinkler 106 the court allowed a claim of right on a charge of taking a child out of the custody of her guardian. In Barrett 107 the English Court of Appeal accepted in principle that a claim of right based on a reasonable mistake as to private rights might afford a defence to a charge of assault. Glanville Williams discusses the defence of claim of right based on ignorance or mistake of law in the contexts of malicious damage to property;108 crimes requiring knowledge;109 larceny, quasi-larceny and extortion;110 crimes of fraud111 and other crimes.112
iii.) Non-publication of laws as a defence
Although a statute takes effect without promulgation there is authority for saying that, Òbefore a continous act or proceeding, originally not unlawful, can be treated as unlawful.....a reasonable time must be allowed for its discontinuance.....ignorance of law] may.....be taken into account...113Ó In Johnson v Sargant & Sons, 114 Bailhache J held that ignorance due to non-publication of delegated legislation is a defence. In R v Bailey 115 D was out on the high seas and could not possibly have known of the Act passed. D was found guilty but the twelve judges recommended a pardon which was granted. It is arguable that this case does not stand for the commonly cited proposition that ignorance of non-discernible law is not a defence. Rather, as the only way to correct a trial judgeÕs erroneous ruling at that time was by way of pardon, it is suggested that the twelve judges were of the view that BaileyÕs conviction was wrong in law. More recently, in the case of Lim Chin Aik v R 116 L.Evershed held that the ignorantia juris principle cannot apply if there is Òno provision .....for the publicationÓ of a certain type of law or regulation. These remarks appear to be limited to legislative provisions but Ashworth argues that the principle in Lim Chin Aik can be extended to situations where discovery of any law is practically impossible.117
In England the Statutory Instruments Act, 1946 provides that in proceedings for an offence under a statutory instrument, it is a defence to prove that the instrument had not been issued by Her MajestyÕs Stationary Office, unless reasonable steps had been taken to bring its purport to the notice of those affected.118 In two Australian jurisdictions ignorance of a non-published statutory instrument is a defence.119 As Thomas Hobbes wrote, ÒThe want of means to know the law totally excuseth. For the law whereof a man has no means to inform himself, is not obligatory.120"
iv.) Statutory defence of "with lawful excuse"
Where a statute punishes certain acts done without Ôlawful excuseÕ the question arises whether a mistaken belief that the acts concerned are lawful may provide a defence, even if the belief is founded on a mistake of law. In Smith 121 the offence D was charged with was to Ôdestroy .....property.....without lawful excuseÕ The court held that the mistaken belief by D that he had a lawful excuse was a good defence.
v.) Reliance on legal or official advice as a defence
It has been generally held that ignorance of law based on advice will not be a defence. However, some exceptions are being recognized, especially in America.122 For example, in Dodsworth 123 D had acted on advice of an election committee. Lord Denman held that a person should not be convicted if he had acted bona fide and been guided in his conduct in a matter of law by persons who are conversant with the law.
vi.) Reliance upon Òthe lawÓ as a defence
There is a move in America to giving a defence of mistake of law where the legality of D's act has been upheld by a decision of the highest court of the jurisdiction, not overruled until after D had committed the act.124
vii.)Ignorance or mistake through insanity
The test for insanity in McNaughtenÕs case is to ask whether D knew the particular act was right or wrong. Early authorities held this ÒwrongÓ meant moral wrong.125 But later, the Criminal Court of Appeal in Windle 126 held that the question for the jury was confined to DÕs knowledge of the law.127 Therefore, if a person commits an offence labouring under the insane delusion that it accords with the law, he has the defence of insanity.Glanville Williams asks the obvious question. ÒWhy is not the rule ignorantia juris non-excusat applied to the insane?128Ó A possible answer is that the ignorantia rule presupposes a mind capable of knowing right.129 Hence, it appears that there is an exception to the ignorantia rule in that it does not apply to persons incapable of knowing what is right. The defence of insanity appears to embody this exception.
viii.) Complicity
Another indirect manifestation of the defence of mistake of law is found in cases of complicity by performance of a legal duty, where a person who, by performing a legal duty, assists or encourages another to commit an offence may be regarded as an accessory.130 However, in Lomas 131 the appellant who returned a jemmy to the owner at the ownerÕs request, knowing the owner intended to use the jemmy to commit a burglary had his conviction quashed by the Court of Appeal. In N.C.B. v Gamble 132 L.Devlin affirmed the Lomas principle that a person could not be culpable of complicity if he had no lawful right to desist from performance of his legal duty. It was left open whether the defence would protect individuals who merely believe they had no lawful right to desist.133 The Law Commission of England and Wales proposed a broader defence along the line of Gamble. Clause 27(6)(c) of their Draft Criminal Code provides that a person is not guilty of an offence as an accessory by reason of anything he does Ò.....because he believes that he is under an obligation to do it.....134Ó This is in effect a defence of mistake of law in the context of complicity.
Thus we see that the present law has recognized many exceptions to the ignorantia rule. Writers of criminal law have argued for further exceptions. Ashworth argues for exceptions based on a mistaken belief in justification135 and a criminal estoppel.136 OÕConnor and Fairall argue for an exception based on absence of fault.137 Other exceptions argued are in relation to superior orders138 and custom.139 It is clear that the time for reform is here. Such dogmatic adherence to a principle from a bygone era is no longer desirable nor warranted.
CHAPTER IV
A CONCEPTUAL FRAMEWORK FOR THE ANALYSIS OF MISTAKE OF LAW AS A GENERAL DEFENCE
It is proposed that through a conceptual analysis It is possible to create a general defence of mistake of law. The question that needs to be asked is whether mistake of law is an element of the offence or whether it is an element of the defence. In answering this question it is necessary to understand some of the concepts involved and the distinctions that exist between them. It is conceded at the outset that some of these concepts are merely theoretical and some of the distinctions drawn are not yet accepted in our system of criminal law. My analysis will be on the concepts of wrongdoing, culpability, attribution and excuse; the notion of moral involuntariness and the distinction between justification and excuse. The purpose of such an analysis is to show that mistake of law can be a general criminal defence. Such an analysis will also help answer some of the points raised by Austin and Holmes in their rationalization of the doctrine, namely the difficulty of proof and requirement of reasonableness by Austin140 and the utilitarian reasons given by Holmes.141
An analytical framework based on the distinctions between the concepts of wrongdoing, culpability, attribution and excuse
There are two questions that need to be answered in any criminal matter.142 The first question is whether any event has occurred with which the criminal law should concern itself with. The second question is whether anyone can properly be blamed for what has occurred. To answer these questions we have to distinguish between the concepts of wrongdoing, culpability, attribution and excuse. Such distinction already exists in a sophisticated form in German criminal theory.143 The closest analogy to this in our system of law is the well-established demarcation between the analysis of criminal acts, i.e. the definitional elements of an offence and the question of responsibility for those acts. A non-responsible person is one who cannot be properly held accountable for his acts. For example, a person who is guilty but insane, or guilty but an infant. In the German analysis the distinction between wrongdoing and attribution goes far beyond the questions of infancy and insanity. It covers questions such as intention, negligence, duress, necessity, mistake of fact and mistake of law.
The notion of wrongdoing is the doing of an act which is prohibited by the criminal law. Culpability is when the wrongdoing is attributable to the actor. Therefore we can have a wrongdoing and culpability, i.e. when the wrongdoing is attributable to the actor and we can have a wrongdoing but no culpability, i.e. when the wrongdoing is not attributable to the actor. This would be when the wrongdoing is justified. The concept of attribution is broader than that of culpability. We could have a situation where there is wrongdoing and culpability but culpability cannot be attributed to the actor. This is when the wrongdoing is excused.
An example may serve well to illustrate the inter-relation of these distinct concepts. Let us assume that there is a basic norm of law prohibiting a particular act, for example a norm that says 'It is an offence to walk on that lawns of Parliament House without lawful excuse.' If an individual, A walks on the said lawns then he has committed a wrongdoing, and if he has no lawful excuse, then that wrongdoing is attributable to him and he is guilty of a punishable offence. If A's child happens to have wandered onto the lawns and is in some imminent danger, and A goes out onto the lawns to rescue his child, then A as a parent has a lawful duty of care towards his child and therefore has a lawful excuse to be on the lawn. A has committed a wrongdoing but is justified in so doing and therefore no culpability may be attributed to him. If some other person's child,B wanders onto the lawns and faces some imminent danger and A rushes in to rescue B believing that A had a lawful duty of care when in fact A does not, then regardless of any other possible defences, A has committed a wrongdoing and is culpable but A should be excused because of his mistake. Excused conduct is still wrongful, it is just that the individual cannot be fairly held to be liable.144 Bearing these distinctions in mind the task now is to ascertain how mistake of law fits in within these concepts. It will be shown that mistake of law can be a general defence if it is given a flexible operation. This conceptual framework will provide the basis to allow ignorance or mistake of law the flexible operation that is required for it to work as a defence.
A. Ignorance or mistake of law as to the definitional elements of the offence
Keedy has advocated giving a defence of mistake of law wherever a mistake of fact would be a defence.145 Following the mistake of fact analogy further, Keedy would give no defence based on mistake of law unless the mistake were reasonable. With respect to Keedy I would go one step further in the case where the mistake of law were one with respect to a definitional element of the offence and I would suggest that even an unreasonable mistake should excuse DÕs criminal liability.
Under Fletcher's analysis, if the mistake is made about the definitional element it need not be reasonable since it negates the violation of the prohibitory norm, whereas if it relates to a matter of justification or excuse it must be reasonable.146 Since the decision in Woolmington 147 placed the legal burden of proof all on the prosecution , it is contended that a mistake about a definitional element denies the prosecution proof of the existence of the that element and therefore no offence can be shown. For example, in the offence of theft a specific intent is required i.e. to permanently deprive the owner of his property.148 An intention to take a chattel where the taker bona fide believes the chattel to be his property which is being wrongly held by another , does not constitute an intention to deprive permanently however erroneous the belief may be.149 Hence, even if the error were due to mistake of law the person is not guilty of theft. A further mental element required in the offence of theft is that of dishonesty.150 The Crimes (Amendment) Act (No.4) 1985 A.C.T. s96(4)(a) provides that D does not act dishonestly if D acts in the belief that D is legally entitled to deprive the other of the property.151 Thus if D is mistaken about whether he is legally entitled to deprive the other of the property then as long as his belief was honest D has not committed the offence of theft.
The above analysis does not apply to all crimes of intent. As a matter of law, an intent to do a certain deed, under circumstances which would amount to a crime if the intended result is achieved, is an intent to commit a crime. As was said in Hoover v State 152".....it is enough if the act be knowingly and intentionally committed. The law makes that act an offence and does not go further and require proof that the offenders intended by the prohibited act, to violate the law" The intention to commit crime "is not the intention to violate the law but the intentional doing the act which is a violation of the law.153" The argument that mistake of law may deny liability is limited to offences "where a specific intent, as distinguished from the criminal mind, is a requisite element of the offence.154"
The analysis so far goes to the first question that has to be asked in a criminal matter i.e. "Has an event occurred with which the criminal law should concern itself?" It has been demonstrated that mistake of law may answer the question in the negative. To answer the second question, "Can anyone be properly blamed for what has occurred?," a good principle of attribution is required....the standard has variety of forms, but it always recurs to the same normative question: could the actor have been fairly expected to avoid the act of wrongdoing? Did he or she have fair opportunity to perceive the risk, to avoid the mistake [ emphasis added], to resist the external pressure or to counteract the effects of mental illness? This is the critical question that renders the assessment of liability just.155
Under the next heading we will examine if mistake of law may negative attribution and exculpate the wrongdoer. In so doing it is necessary to understand the theory of exculpatory defences and the various tensions within it so that it can be appreciated why the ignorantia maxim need no longer apply.
B. Ignorance or mistake of law as an exculpatory defence
Exculpatory defences are defences which negative criminal culpability despite the presence of the definitional elements of an offence.156 Therefore exculpatory defences are quite independent of the definitional elements of offences. It has been demonstrated earlier that the defence of mistake of law may exist in relation to the definitional elements of the offence and it is contended that a defence of mistake of law can also exist as an exculpatory defence with slight modifications.157
There are two main approaches to analyzing the law of exculpatory defences. One is by distinguishing between justifications and excuses158 and the other is to categorize exculpatory defence as defences of contextual permission and defences of mental impairment.159 The main difference between these two approaches is that the categories of justification and excuse are distinguishable by their levels of exculpation whereas the categories of contextual permission and mental impairment have the same level of exculpation. For this reason I would prefer the analysis based on distinguishing between justifications and excuses as it does acknowledge the distinctions between wrongdoing, culpability and attribution thereby providing a more flexible framework to work within.
Unfortunately the terms justification and excuse have been used almost interchangeably and sometimes even regarded as synonymous by some judges160 and writers.161 In reality, justification and excuse are clearly distinct in moral theory and should be accepted to be distinct in legal theory. A claim of justification would concede that there is a wrongdoing but deny culpability. An excuse would concede culpability but deny attribution of culpability. A defence of justification would affect the legal relationship and modify the rules. It is an internal element of the legal relationship. Other people would be entitled to do what is covered by the defence. An excuse on the other hand does not affect the legal relationship. It merely excuses the act because of the circumstances. Therefore the legal rules are not modified and others are not entitled to do what was covered by the defence. An excuse would be an external element of the legal relationship. For these reasons I contend that the defence of mistake of law be categorised as an excuse in the law of exculpatory defences.
The Theory of Excuse
There are two approaches to the theory of excuses. One is based on character and the other is based on voluntariness. Both these approaches can be used in analysing mistake of law as an excuse, but it is submitted that the voluntariness approach provides for a better analysis.
Excuses, Character and Desert - The distinguishing feature of excusing conditions is that they preclude an inference from the act to the actor's character. According to the Kantian theses punishment can only be just if an inference from the wrongful act to the character can be made i.e. punishment is only just if it is measured by the desert of the offender, and because the desert is gauged by his character therefore judgement about character is essential to the just distribution of punishment. Fletcher illustrate this with the example that if someone violates a legal prohibition under an unavoidable mistake about the legality of his conduct we cannot infer anything about his respect for law and the rights of others.162 Therefore punishment would not be just and he should have an excuse.
Excuses and Voluntariness - Another approach is to start with the premise that law should only punish in cases of voluntary wrongdoing.163 The notion of involuntariness here is not the notion of physical involuntariness but the notion of moral or normative involuntariness. In English law the concept of involuntariness is readily accepted when the actor surrenders to external pressure but it does not seem to be so ready to accept moral involuntariness which might arise because of a mistake of law. Although English law appears to have not yet accepted that mistake of law may give rise to involuntariness of conduct, this concept is not alien to French law where there is a distinction between la contrainte physique and la contrainte morale (physical compulsion and moral compulsion).164 These concepts correspond to what we mean by physical and normative involuntariness. The Greek idiom of involuntariness could also readily accept mistakes, for Aristotle had little trouble treating ignorance as the basis for denying the voluntariness of acting.165
Defence of mistake of law as an excuse based on the concept of moral involuntariness
By appreciating the concepts and distinctions that have been discussed I would suggest that we could have a rational defence of mistake of law as an exculpatory defence if it were categorized as an excuse. Consider the general defences that have been recognized as excuses throughout the common law world, i.e. insanity,166 duress167 and necessity.168 The common thread running through these defences is that they all have the element of involuntariness. This 'involuntariness' allows these defences to sit within the concept of excuses. In Perka v R 169 Dickson J endorsed FletcherÕs theory of moral involuntariness the foundation of the defence. It is suggested that mistake of law is also a defence that embodies this element of involuntariness. In Phekoo170 Donaldson J. acknowledged that an ill-founded but completely honest and genuine belief removes all or much of the culpability involved in the offence.
H.L.A. Hart, in his argument for the principle of justice based on the notion of involuntariness and its excusing effect argues that Òit is preferable to live in a society where we have the maximum opportunity to choose whether we shall become the subject of criminal liability.171Ó He goes on to say that Òit is ideologically desirable for a government to treat its citizens as self-actuating, choosing agents.172Ó This principle of respect for individual autonomy is implicitly confirmed whenever those who lack an adequate choice are excused from their offences. I contend that those who act under a genuine mistake of law do not have the 'choice' to be the subject of criminal liability and should be excused.
In recognizing this problem of punishment where the actor acted without choice or morally involuntarily the common law has allowed insanity to be an exculpatory defence. In McNaughten's Case173 Lord Chief Justice Tindal held that the correct test for the criminal law is not whether the actor knows the difference between right and wrong in general, but whether he knows the particular act is right or wrong. This should be the question asked in a mistake of law case. In insanity cases there exists a mental condition that would make it reasonable that the actor may not honestly know if his action were right or wrong. Therefore it is suggested that the mistake of law must be one that is reasonable for it to have an exculpatory effect.
It was argued by Hall that allowing the defence of mistake of law would set a precedent and others would rely on the courtÕs decision to commit the same offence in the same manner and rely on the previous decision to provide a defence.174 This, he argues would encourage others to break the law or to deliberately not know the law. However, an excuse, as stated before does not change the law at all. It leaves the norm intact and only exculpates the particular actor in the particular case. It would also not serve anyone who attempts to rely on a previous mistake because mistake of law is based on involuntariness and 'planning, deliberating and relying on legal precedents are incompatible with the uncalculating response essential to 'involuntary' conduct.175 It therefore has an inverse effect in terms of precedents and anyone relying on a previous successful mistake of law defence, will by their very reliance preclude themselves from successfully arguing it.
Another reason in favour of mistake of law being an excuse is the utilitarian argument. J. Bentham first devised the argument as part of his attack on Blackstone's conventional theory that excuses were based on a 'defect of will'176. The principle that punishment should not be inflicted pointlessly derives from the main premises of the utilitarian theory of punishment.177 These premises are, first. that punishment is justified only so far as it furthers the general good, primarily by deterring others from harmful conduct and secondly that if punishment does not contribute to the general good, it inflicts pain without commensurate benefit and therefore is wrong. Earlier in this paper we saw how Holmes defended the ignorantia principle on utilitarian grounds. Here we see that the utilitarian approach would not support the maxim. Thus, there seems to be conflicting results in applying the same theory to the problem.
Fletcher criticized the application of the utilitarian approach as applied by Bentham where Bentham argues that punishment is pointless is a particular class of cases if it inflicts pain without commensurate benefit. Using insanity as an example Fletcher argues that the class of people who may be deterred by the punishment should not be limited to the class to which the actor belongs.178 Therefore, Fletcher contends that Bentham's argument would only work if you accept that punishing an insane person would not affect those who are not insane. Fletcher's argument is that if an insane person is not punished for his crimes then those who are not insane would commit the crime and then seek to dissemble insanity or commit the crime in the same manner as the insane. My response to this is that Bentham's argument is valid because as Fletcher himself says 'planning, deliberation and relying on legal precedents are incompatible with the uncalculating response crucial to involuntary conduct'. Therefore a person who commits a crime and then seeks to argue a defence of mistake of law would be precluded from such a defence because his act is not Ômorally involuntary.Õ
Through such analysis it can be seen that there is a place for a defence of mistake of law. Such an analysis also goes to rebutting some of the reasons raised in blind defence of the maxim and provides a conceptual platform upon which reform of this doctrine can be based.
CHAPTER V
POSSIBLE STRATEGIES FOR REFORM
Having considered the conceptual framework within which reform of the ignorantia maxim can begin to take place I shall now turn to the possible directions for the reform of this doctrine in Australia.
A. Multiculturalism and Mistake of law
Australia has a multicultural policy, the aim of which is to protect the rights of all members as individuals and to allow each to be accepted as an Australian without having to assimilate to some stereotyped model of behaviour.179 The question of whether the law should recognize the defence of justifiable ignorance of law came before the Australian Law Reform Commission.180 The Commission recommended that there should not be such a defence. However, the Commission did recommend that the Crimes Act 1914 (Cth) s16A be amended to include specifically the fact that the accused did not know what he or she did was an offence and could not reasonably be expected to have known, as a matter to be taken into account in deciding what sentence to impose. It also recommended that s19B of the Crimes Act 1914 (Cth) be read so as to include ignorance or mistake of law based on cultural background as a factor in the courtÕs decision to record a conviction. The Commission further recommended that the Commonwealth prosecution guide-lines be amended to require prosecutors to take ignorance of law,based on cultural factors, into account in deciding whether or not to prosecute.
Although the Commission has not recommended that ignorance of law be a general defence it is moving in that direction by watering down the full impact of the ignorantia rule. Thus, the multicultural approach through sentencing and prosecutorial practice may be one way in which the doctrine may be reformed.
B. Petty offences or regulatory offences
The principle of mens rea require the voluntary commission of a harm forbidden by penal law. Accordingly, if there was conduct expressing a mens rea and the relevant penal law has been promulgated, the ethical conditions of modern penal liability are satisfied. But as regards certain criminal offences the accused's knowledge that the relevant conduct is legally forbidden is an essential element of the accused's immorality.181 Thus, we must distinguish between acts that are immoral regardless of the actorÕs ignorance of their being legally forbidden (eg. major offences previously known as felonies and principal misdemeanours) and acts that are immoral only because the actor knows they are legally forbidden (eg. petty offences, regulatory offences).182 Since the only rational basis for finding a criminal intent in the latter cases is knowledge that the act is legally forbidden, a finding of such knowledge is essential. The ignorantia doctrine should not be applied here. This has been recognized to an extent in the United States.183 The problem with reform in this direction is that there are several types of petty offences. Regulatory offences such as parking on kerb painted red should be covered by a defence of mistake of law. Here, unless one knows the significance of 'red' kerbs, such an act is not immoral. However, there are petty offences which are neither new nor technical such as insults and minor assaults. These are merely less serious counterparts of certain major offences Here it may be argued that ignorance or mistake of law should not be a defence. If reform were to proceed along these lines it is submitted that it should be by legislative intervention with clear demarcation as to where the ignorantia rule does not apply and where it continues to apply.
C. Comparative Study - The German Experience
Ignorance or mistake of law has been accepted as a general defence in Germany. It is therefore worth examining the developments that led to this acceptance of such a defence. A similar analysis may then be applied in our system of law.
In recent times two major schools of thought on this matter have emerged. One school of thought worked on the assumption that Òawareness of wrongdoingÓ was an essential condition of intentional conduct. This Òtheory of intentionÓ presupposed that no one should be punished for an intentional commission of an offence unless the violation of the law was also deliberate.184 The conflicting school of thought started on the assumption that the problem of mistake of law should be treated as an aspect of the more general issue of normatively assessing the actorÕs wrongful conduct. This Òtheory of culpabilityÓ focussed on the culpability of the act rather than the intention.185 The theory advocated a defence for mistakes that were free from fault.
Thus, we have one school of thought advocating a defence for any honest mistake that negatived intention and a second school of thought which advocated a defence only for a reasonable mistake which negatived culpability. In 1952 the full bench of the Supreme Court analyzed these theories and committed itself to the theory of culpability.186 This theory of culpability is now entrenched in s.17 of the new criminal code. It reads, ÒIf in the commission of the [criminal] act the actor fails to perceive that he is doing wrong and if he could not have avoided this mistake the actor lacks culpability...Ó
CONCLUSION
The time for reform of the ignorantia maxim is ripe. If not acted upon soon, the maxim will continue to be a major impediment to the development and progress of the criminal law. Instead of piecemeal exceptions and indirect erosion of the maxim, a complete overhaul is necessary.
As we have seen through this paper the maxim's historical foundation is in doubt. Its purported authority derived from case law is not entirely persuasive. Further, the maxim is premised on a presumption that is now little more than fiction. The theories postulated in support of the maxim all echo the same theme, that is, the maxim has been an integral part of the criminal law for centuries and it is now indispensable in the enforcement of the law. This alone is not sufficient reason to retain the maxim.
Over the years, the harshness of the ignorantia maxim has brought about its own erosion as more and more exceptions and limitations to it are being recognized. The present state of the law, is that the maxim is still applied, but with exceptions and qualifications. Rather, it is this authorÕs view that ignorance or mistake of law should be a general defence, subject to exceptions and limitations. Through my conceptual framework for the analysis of a general defence of ignorance or mistake of law it is seen that there is scope for such a general defence to operate. A great part of the criminal law now concerns regulatory or petty offences. It has been shown that a defence of ignorance or mistake of law is appropriate in such cases. Furthermore, Australia is now a multicultural nation. The national policy of adopting a multicultural approach to the law further emphasizes the need for a recognition of a general defence of ignorance or mistake of law.
Recognizing a general defence of ignorance or mistake of law subject to exceptions and limitations would formally acknowledge the reality that in present times not everyone can be presumed to know the law. Such an approach would also conform the fundamental idea that the purpose of the criminal law is to Ôpunish the wicked, not the stupid.Õ It is not intended that a defence be made available for every case of ignorance or mistake of law, for every offence, for then the enforcement of the law would be in jeopardy. It is simply contended that ignorance or mistake of law be recognized as a general defence subject to exceptions, rather than retain the present approach of creating ad hoc exceptions to an archaic and outdated maxim.
In conclusion, we have seen that the ignorantia maxim which determines the role of ignorance or mistake in the criminal law has been riddled with errors from its conception and in its application. It has operated harshly as a rigid legal rule instead of serving the law better by operating as a limitation to a general defence of ignorance or mistake of law. The injustice perpetrated by the present conception of this ignorantia maxim in criminal law is to my mind a crime in itself. Reform is desperately needed if we are not to be plagued by this unfortunate Ôcrime of errorsÕ.
1 Lewis Carroll, Through the Looking Glass. 1970, Penguin Publishers, London, at 70.
2 Ibid.
3 "The fourth ground of the law of England standeth in diverse principles that be called in the law maxims, the which have always been taken for law in this realm; so that it is not lawful for any that is learned [ emphasis added] to deny them; for every one of those maxims is sufficient authority to himself.Ó Doc. & Stud. Dial. 1, c.8.
4 Stephen, History of the Criminal Law, 1883 at 94, n.1.
5 Yarmouth v France 19 Q.B.D. 647 at 653.
6 Bk. 4, ch.2, 27.
7 D.22.6.9.
8 1 Plowd. 342 (1568).
9 Keedy, "Ignorance and Mistake in the Criminal Law" 22 Harv. L. Rev. (1908) 77.
10 Hunter, Roman Law 3ed., 660; Domal, Civil Law 1224-1240; Amos, Roman Civil Law, 133; Curwin, Manual of Civil Law, 2ed., 111; Goudsmit,Pandects (Gould's translation) 52; Sandar, Institutes of Justinian, 388.
11 Barry Nicholas, Roman Law, 1962 at 1.
12 D.22.6.9.; See also Keedy, op.cit. n.9 at 78 for a discussion on this.
13 1 Austin, Jurisprudence, 1689 at 688.
14 James MacKintosh, Roman Law in Modern Practice, 1934.
15 Ibid at 14.
16 Ianella v French per Windeyer and Taylor J.J.
17 Mackintosh v MacKintosh 1 (1864) 2 M. 1357. In this case the court held that a law of Rome may stand in the old institutional books but the courts may not apply it. ; "The law does not demand in any case the vigilance of a superman, an impracticable standard, all it looks for is ordinary and reasonable carefulness." James MacKintosh op.cit. n.14. at 16.
18 Mason v Hill (1835) 5 B & Ad 1.
19 Ibid.
20 L.Hall and S.Seligman, "Mistake of Law" 8 U. Chi. L. Rev. at 641 at 646.
21 op.cit. n.8
22 J.W.C.Turner, Russel on Crime, 12th ed., 1950 at 72.
23 (1836) 7 C&P 456.
24 (1852) 1 E&B 1.
25 (1858) D&B 525.
26 op.cit. n.23.
27 Hilary Term, (1231), reported in Bracton's Note Book, Maitland's ed., pl. 496; Vernon's Case, (1505), Y.B., 20 Hen.vii, f.2,pl.4.; Mildmay's Case, (1584), 2 Co.Rep.. 3; King v Lord Vaux, (1613), 1 Bulst. 197; Levett's Case, (1638), Cro.Car. 538.
28 Levett's Case, (1638), Cro.Car. 538.
29 Ibid. The charge in this case was one of manslaughter. It was held that the defendant was not guilty of manslaughter "for he did it ignorantly without intention of hurt..."
30 D.O'Connor, "Mistake and Ignorance in Criminal Cases", [1970] Crim. L. Rev. 646.
31 D.22.6.9.
32 See text at nn. 39,40.
33 4 Commentaries, 27.
34 D.22.6.9.
35 Ibid.
36 D.22.6.9.1.
37 D.49.14.2.7.
38 Quibus jus ignorare permissum est.
39 Martindale v Faulkner (1846) 2 C.B. 706, 719-20; 135 E.R. 1124, 1129-30.
40 Young v Bristol Aeroplane Co. [1946] A.C. 163 at 169.
41 1 Austin op.cit. n.13 at 498.
42 Holmes, The Common Law 48 (1881).
43 Hall, General Principles of Criminal Law 2nd ed., 1960.
44 Austin, op.cit. n13 at 498.
45 Ibid. at 497.
46 Id. at 500.
47 Holmes, op.cit., n. 42.
48 Ibid.
49 See, for example R v Bailey (1800) Russ. & R. 1 C.C.R. 168.
50 6 The Works of Jeremy Bentham 519-20 (Bowring ed. 1843).
51 Brown (1975) 10 S.A.S.R. 139 at 148.
52 Hall, op.cit. n43 at 381.
53 Ibid. at 383.
54 Id. at 382.
55 George Fletcher, Rethinking Criminal Law , 1978 at 733.
56 See infra at 30 for an explanation as to why a defence of ignorance or mistake does not change the norms of the law.
57 See discussion infra at 24 in support of this proposition.
58 Hall, op.cit. n.43 at 386. cf. this view with the positivist view where morality and law are quite separate.
59 Ibid. at 387.
60 People v O'Brien (1892) 31 Pac. 45 at 47.
61 State v O'Neil (1910) 126 N.W. 454 at 456.
62 In the dialogues between a Doctor of Divinity and A Student in the Law of England (vide 1687 ed.) the term used in relation both to law and fact is ÒignoranceÓ.
63 4 Commentaries 27.
64 See Story, Eq. Jur., 110 and 140, n.2, citing Canal Bank v Bank of Albany, 1 Hill (N.Y.) 287; Hutton v Edgerton 6 S.C. 485 at 489.
65 Hutton v Edgerton, Ibid.
66 Keedy, , op.cit. n.9 at 90.
67 Hall, op.cit. n43 at 406.
68 ÒMistake of law is distinguished from ignorance of law and it is stated that the former should not be a defenceÓ, 2 Molinier, Traite theorique et Pratique de Droit. Penal du Droit Criminal 209, note (trans. Baret).
69 Hall, op.cit. n43 at 407.
70 [1982] 2 S.C.R. 605.
71 (K.B. 1638), Cro.Car. 538, 79 Eng.Rep. 1064.
72 Winfield, ÒMistake of LawÓ, (1943) 59 L.Q.R. 327.
73 Eaglesfield v Marquis of Londonderry (1875) 4 Ch.D. 693 at 703.
74 West London Commercial Bank v Kitson (1884) Q.B.D. 360 at 363.
75 Thayer, Prel.Treat on Ev., 252.; Goudsmit, Pandects (GouldÕs translation) 52n.
76 Goudsmit, Pandects (GouldÕs translation) 52n.
77 Keedy, op.cit. n.9 at 77.
78 Eaglesfield v Marquis of Londonderry op.cit. n73 at 703.
79 (1937) 59 C.L.R. 279 at 306 per Dixon J.
80 Thomas, Ibid.; Power v Huffa (1976) 14 S.A.S.R. 337 per Zelling J. (dissent); Proudman v Dayman (1941) 67 C.L.R. 536 per Dixon J.; He Kaw Teh (1985) 59 A.L.J.R. 620, see especially the judgement of Brennan J.
81 Ianella v French (1967-68) 119 C.L.R. 84 at 115.
82 Hall, op.cit. n.43 at 323.
83 ÒIf A thinking he have title to the horse of B, seiseth it as his own this makes it no felony but a trespass because there is a pretense of title.Ó 1 Hale P.C. 508.
84 Allday (1837) 8 Car. & P. 136 at 139-40; 173 E.R. 431 at 432-3.
85 Crimes (Amendment) Act (no.4) A.C.T. 296.
86 Rex v Knight, 2 East, Pleas of the Crown *510.
87 (1875) L.R. 10 Q.B. 162.
88 Rex v Smith 2 Shower K.B. 165, 890 Eng.Rep.R. 864 (1681). It was held that one who testified that no partnership existed between himself and another man was not guilty of perjury although a legal relation of this nature actually existed, if he gave his testimony in good faith reliance upon advice of counsel that the dealings between the two did not as a matter of law create a partnership.
89 Runnells v Fletcher 15 Mass. 525 (1819).
90 United States v Highleyman 26 Fed.Cas. No.15, 361 (W.D.Mo.1876).
91 Rex v Jackson 1 Term.R. 653, 99 Eng.Rep.R. 1302,1303 (1737).
92 In Fenwick v Boucaut and Hodder [1951] S.A.S.R. 290, Napier J. stated that in cases where wilfulness is required, ignorance or mistake of law may be urged as extenuating the fault, but it does not entirely exculpate.
93 (1967-68) 119 C.L.R. 84.
94 Ibid.
95 See infra at 25 for discussion of mistake of law as to definitional elements of an offence.
96 Pollard [1962] Q.W.N. 13 at 29 per Gibbs J.
97 [1938] 2 All E.R. 140.
98 Ibid.
99 The passage cited by the court was:
And here it may be proper to remark that in any case if there be any fair pretense of property or right in the prisoner, or if it be brought into doubt at all the court shall acquit the prisoner.
Some of the cases cited by the court were R v Leppard (1864) 4 F&F 41; R v Wade (1896) 11 Cox C.C. 549; R v Clayton (1920) 15 Cr.App.R. 45.
100 Turner (No.2) [1971] 2 All E.R. 441; Bernhard [1938] 2 All.E.R. 140.
101 Hemmerly (1976) 30 C.C.C. (2d.) 141 Cont.Ct.A.; Carroll (1975) 31 C.R.N.S. 398.
102 Collins [1973] Q.B. 100; [1972] 2 All E.R. 1105.
103 Twose (1879) 14 Cox C.C.327; Hakiwai [1931] N.Z.L.R. 405.
104 Smith [1974] 1 All E.R. 632.
105 Police v Cunard [1975] 1 N.Z.L.R. 511.
106 (1859) 1 F&F 513; 175 E.R. 832.
107 (1980) 72 Cr.App.R. 212.
108 Williams, Criminal Law - The General Part, 2nd.ed., 1961at 305.
109 Ibid. at 320.
110 Id. at 327.
111 Id. at 329.
112 Id. at 332.
113 Burns v Nowell (1880) 5 Q.B.D. at 454 (C.A.)
114 [1918] 1 K.B. 101.
115 (1800) Russ. and R. 1 C.C.R. 168.
116 [1963] A.C. 160.
117 Ashworth, ÒExcusable Mistake of Law,Ó [1974] Crim. L. Rev. 654.
118 See Simmonds v Newell, Defiant Cycle Co. v Same [1953] 1 W.L.R. 826; 2 All E.R. 38, 117 J.P. 324.
119 See Criminal Code 1983 (N.T.) s30 and Criminal Code (Qld.) s22(3).
120 Hobbes, Leviathon (ed. Oakeshott, 1947) at 196.
121 [1974] 1 All E.R. 632.
122 See People v Fergusen (1983) 24 P.2d., 965 at 970; State v White 237 Mo. 208, 140 S.W. 896 (1911); Long v State (1949) 65 A.2d. 489 at 497-9.
123 (1837) 8 Car. & P. 218; 173 E.R. 467.
124 State v OÕNeil 147 Iowa 513, 126 N.W. 454 (1910) raises the issue in context of a mistake as to the constitutionally of a statute; State v Longiro, 109 Miss. 125, 67 So. 902 (1915) raises the issue in context of a mistake as to the interpretation of a stature; Stinnett v Commonwealth 55F. (2d.) 644 (C.C.A. 4th 1932) raises the issue in context of a mistake as to a previous decision of a court. Also see Stumberg, ÒMistake of Law in Texas Criminal CasesÓ, 15 Tex.L.Rev. 287 at 295 (1937).
125 Bellingham (1812) quoted in Offord (1831) 5 C.*P. 168n.; 172 E.R. 925n.
126 [1952] 2 Q.B. 826 (C.C.A.)
127 Australian courts have adopted a broader approach by including moral wrong. Porter (1933) 55 C.L.R. 182 at 189 per Dixon J.
128 Williams, op.cit. n.108 at 495.
129 Ibid.
130 This situation is more likely to occur in England where the mental state for complicity is recklessness. In Australia such scope for liability has been restricted by the High CourtÕs decision in Giorgianni (1985) 156 C.L.R. 473 which narrowed the mental scope for complicity to include purpose.
131 (1913) 9 Cr.App.R. 220.
132 [1959] 1 Q.B. 11
133 Ibid. at 25.
134 Criminal Law: A Criminal Code for England and Wales (1989) Law. Com.No.77.
135 Ashworth, op.cit. n.117 at 654.
136 Ibid. at 659.
137 OÕConnor and Fairall, Criminal Defences, 2nd.ed.,1988, at 73.
138 Williams, op.cit.n. 108, at 293.
139 Hall & Seligman, op.cit. n.20 at 653.
140 See discussion at 9 supra.
141 See discussion at 9-10 supra.
142 Strict liability offences may be an exception.
143 See Artz, ÒIgnorance or MistakeÓ, (1976) 24 Amer. J. Comp. 646 and George Fletcher op.cit.n.55 at 736 for an analysis of German criminal theory in relation to mistakes of law.
144 Fletcher, Ibid. at 704.
145 Keedy, op.cit.n. 9 at 91.
146 Fletcher, op.cit.n.55 at 704.
147 [1935] A.C.462.
148 Crimes (Amendment) Act (No.4) 1985 A.C.T. s94
149 Rex v Knight op.cit.n.86.
150 Ghosh [19482] 2 All E.R. 689. The English Court of Appeal in this case stressed to the jury that to convict of theft, Òthey must make a finding regarding DÕs state of mind,Ó emphasising that dishonesty is an essential element of the offence.
151 See Turner (N0.2) [11971] 2 All E.R. 442.
152 59 Ala. 57, 60 (1877).
153 State v Downs 116 N.C. 1064, 1066 21 S.E. 689 (1895).
154 Keedy, op.cit.n. 9 at 89.
155 Ibid.
156 Eric Colvin, ÒExculpatory Defences in Criminal Law,Ó 10 Oxford Journal of Legal Studies 381.
157 For ignorance or mistake of law to operate as an exculpatory defence it must be reasonable and it does not negative the offence, but merely excuses the defendant.
158 Fletcher, op.cit. n.55.
159 Colvin, op.cit. n.157.
160 See, for example, Zecevic v D.P.P. (1987) 61 A.L.J.R. 375 at 381-3.
161 See, for example, Stuart, Canadian Criminal Law, 2nd.ed., 1987 at 391.
162 Fletcher, op.cit. n.55 at 800.
163 H.L.A. Hart, Punishment and Responsibility, 1968, at 22-4.
164 1 Bouzat & Pinatel 262 at 343.
165 Ethica Nicomachea, 111o (W.D. Ross trans., 1925).
166 See, for example, McNaughtenÕs Case 8 (1843) Eng.Rep. 718.
167 See, for example, Lynch v D.P.P. [1975] A.C. 635 at 668.
168 See, for example, Perka v R (1984) 42 C.R. 3d. 113 (S.C.G.)
169 Ibid.
170 [1981] 3 All E.R. 84.
171 Hart, op.cit. n.164 at 23-4.
172 Ibid. at 23.
173 op.cit. n.167.
174 Hall, op.cit. n.43 at 383.
175 Fletcher, op.cit. n.55 at 805.
176 Blackstone, 4 Commentaries at 22.
177 Jeremy Bentham, ÒIntroduction to the Principles of Morals and Legislation, (La Fleur ed. 1970) at 173-5.
178 Fletcher, op.cit. n.55 at 814-17.
179 Department of the Prime Minister and Cabinet, Office of Multicultural Affairs, National Agenda for a Multicultural Australia, A.G.P.S., Canberra, 1989,15.
180 D.P. 48; Ethnic Affairs Commission of New South Wales Submission June 1990; Barnsfield Somerville, Barristers & Solicitors Submission April 1990; M.Allen Submission July 1990.
181 ÒKnowingly and intentionally to break a statute must.....always be morally wrong.....Ó Queen v Tolson (1889) 23 Q.B. 168 at 172.
182 ÒThis rule [ignorantia juris] essential to the orderly administration of justice is harsh when applied to what is only malum prohibitum.Ó 1 Bishop, Criminal Law, 9th ed., 1923 at 198. See Glaser, Ignorantia juris dans Le Droit Penal, Rev. Dr. Penal et de Crim. et. Arch IntnÕl. Med. Leg. (1931) at 133.
183 Lambert v California 355 U.S. 225, 2L. ed. 2d. 228, 78 S.Ct. 240 (1957)
184 Prior to the enactment of the new German Code the leading advocate of this theory was Jurgen Baumann. See J.Baumann, Strafrecht: Allgetneiner Teil 408-11 (4th ed. 1966) for an early expression of the theory. See 2K.Binding, Die Normens Und Ihre Ubertretung (intent presupposes a decision to reject the statutory norm.).
185 Hans Welzel was one of the early and consistent partisans of this theory. See Welzel 164-76; Welzel Schuld und Bewusstsein der Rechtswidrigkeit, 5 M.D.R. 65 (1951).
186 Resolution of March 18, 1952 , 2 B.G.H.St. 194.
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