Ignorance of the Criminal Law, and Duties to Avoid it

Date01 January 2011
Published date01 January 2011
DOIhttp://doi.org/10.1111/j.1468-2230.2010.00834.x
THE
MODERN LAW REVIEW
Volume 74 January 2011 No 1
Ignorance of the Criminal Law, and Duties to Avoid it
AndrewAshworth
n
‘Ignorance of the law is no defence,’ so we are told from an early stage in our legal studies. Or,
to be more accurate, ‘ignorance of the criminal law is no defence to a criminal charge.’ That
appears to be the rule in this country, apart from a couple of well-established exceptions and
another possible one. I will argue that it is a preposterous doctrine, resting on insecure founda-
tions within the criminal law and on questionable propositions aboutthe political obligations of
individuals and of the State.In developing these arguments, I will drawattention to the di¡ering
problems of ignorance of the criminal law in three broad areas ^ regulatory o¡ences, serious
crime, and o¡ences of omission ^ with a view to suggesting thatthere i s a great deal more that
the State needs to do if the issue of ignorance of the criminal law is to be dealt with adequately
and fairly.
I begin by scrutinising the relevant rule of Englis h criminal law and the justi¢cations o¡ered
for it. I then go on to situate the ‘ignorance-of-law’ doctrine in the context of the principle of
legality and the rule of law, those bastions of liberal criminal law theory. Part three then explores
the three broad areas of the criminal law, and parts four and ¢vecarry the debate into the political
obligations of individuals andof the State in these matters.
IS IGNORANCE OF THE CRIMINAL LAW NO DEFENCE?
Although there is no codi¢ed or de¢nitive statement of English criminal law,
there is agreement among judges and scholars that at common law the general
principle is that ignorance of the criminal law is no defence.Thus Blackstone sta-
ted that mistake or ignorance of the law‘is in criminal cases no sort of defence.
1
Likewise the current edition of Smith and Hogan contains the proposition that
ignorance of the criminal law‘is no defence evenwhere the crimeis not one com-
monly known to be criminal,’ adding that ‘ignorance of any of the thousands of
regulatory o¡ences is no defence.
2
Similarly, in leading cases such asJo hnson vYo u -
n
Vinerian Professor of English Law,University of Oxford. I am grateful to Beatrice Krebs for rese arch
assistance and, for contributions and comments on drafts, to Petter Asp, James Chalmers, James
Edwards,Jeremy Horder,Doug Husak, Andrew von Hirsch and Lucia Zedner.
14 Bl. Comm.24. For fuller exploration of the history, see E. R. Keedy, ‘Ignorance and Mistake in
the Criminal Law’(1908) 22 Harv L R 75.
2Smith and Hogan, Criminal Law (Oxford: Oxford University Press, 12
th
ed., 2008, by D.
Ormerod), 319; see also A.P. Simester a nd G.R. Sullivan, Criminal Law: Theory and Doctrine
r2011The Author.The Modern Law Review r2011 The ModernLaw Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(1) 1^26
den (1951)
3
and Churchill vWa l t o n (1967),
4
the proposition that ignorance of the
criminal law is no defence was treated as fundamental to the court’s reasoning;
and in Grant vBorg (1982)
5
Lord Bridge delivered the strong statement that:
The principle that ignoranceof the law is no defence in crime is so fundamental that
to construe the word ‘‘knowingly’’ in a criminal statute as requiring not merely
knowledge of the facts material to the o¡ender’s guilt but also knowledge of the
relevant law, would be revolutionaryand to my mind wholly unacceptable.
Although there is no legislative re-statement of the principle, certain statutory
provisions assume it to be the generalposition.
6
When the English Law Commis-
sion reviewed the subject in thecontext of the draft criminalcode, no change was
proposed.
7
There are some recognised exceptions, which will not be examined in detail
here.They include caseswhere a statutory instrument has not been appropriately
publicised,
8
where the making of an expulsion order has not been drawn to the
attention of its subject,
9
and where mistake or ignorance of the (civil) law nega-
tivesthe de¢nition of particularcrimes.
10
It is also possible that reasonable reliance
on an o⁄cial statement of the law may provide either a defence or a procedural
bar to conviction.
11
More signi¢cant for our purposes are the foundations of the doctrine that
ignorance of the criminal law should be no defence. Blackstone followed many
of his predecessors in asserting that every person of discretion . . . is bound and
presumed to know’the law;
12
but, as Austin pointed out, that is merely an asser-
tion without normative force, and as a statement of fact it is plainly an exaggera-
tion.
13
Austin relied on a consequentialist rationale: that allowing a defence of
(Oxford: Hart Publishing, 4th ed., 2010), 680; A. Ashworth, Principles ofCriminal Law (Oxford:
OxfordUniversity Press, 6
th
ed., 2009),220^224.
3[1950] 1KB 544, at 546 per Lord Goddard C.J.
4[1967] 2 AC 224, at 236 per Viscount Dilhorne, followed eg by Lord Taylor C.J. in Attorney-
General’s Reference(No.1 of 1995) [1996]2 Cr App R 320,at 333.
5[1982] 1WLR at 646B.
6For a recent example,relating to the o¡ences of encouraging or assisting a crime, see the Serious
Crime Act20 07, s 47(2), (3) and (4).
7Law Com. No. 177,A Criminal Code forEngland and Wales (London: HMSO,1989), vol. 1, clause 21;
vol.2, paras. 8.29^8.32.
9Lim ChinAik vR. [1963] AC160.For similar exceptions to the principle in the Model Penal Code,
see s. 2.04of the Code and the comments by M.D.Dubber, CriminalLaw: ModelPenal Code (New
York: Foundation Press, 2002), 103^104; in Australia, see Criminal Code Act 1995 (Common-
wealth),s. 9.4.(1)for the rule a nd (2)for the exceptions; in Canada, see s. 19of the Criminal Code
(‘ignorance of the law by a person who commits an o¡ence i s not an excuse for committing that
o¡ence’).
10 eg Smith(D.R.)[1974]QB 354 (knowledge that property ‘belonged to another’),SecretaryofState for
Trade and Industry vHart [1982]1WLR 481 (knowledge that disquali¢ed from auditing company’s
accounts because of positions previously held).
11 Model Penal Code s.2.04 (U.S.A.); the English authorities are reviewed byA. Ashworth,‘Testing
Fidelity to LegalValues:O⁄cial Involvementand Criminal Justice’(20 00) 63 MLR 633, at 635^
642.
12 See n 1 above.
13 J.Austin, Lectures onJurisprudence(2 vols, London: Murray, 5
th
ed by R. Campbell,1885), I,482.
Ignorance of the Criminal Law, a nd Duties toAvoidit
2r2011The Author.The Modern Law Review r2011 The ModernLaw Review Limited.
(2011) 74(1) 1^26

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