MISTAKE AND IGNORANCE IN CRIMINAL CASES
| Published date | 01 November 1976 |
| Date | 01 November 1976 |
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01477.x |
MISTAKE
AND
IGNORANCE IN
CRIMINAL
CASES
1.
IGNORANCE
OR
MISTAKE
OF
LAW
Early statements
of
the rule
Hale, writing about
1680,
headed Chapter
VI
of his
Historia
Placitorum Coronae:
“Ignorance, and how
it
prevails to excuse
in
Capital Crimes.” Under this heading he asserted the general principle:
“Ignorance of the municipal law of the Kingdom,
or
of the
penalty thereby inflicted upon offenders, doth not excuse any,
that is of the age of discretion and
compos mentis,
from the
penalty
of
the breach of it; because every person of the age
of
discretion and
compos mentis
is bound to know the law, and
presumed
so
to do:
‘
Ignorantia eorum, quae quis scire tenetur,
non excusat.’
”
This statement
of
the law
is
supported
by Foster’s
Discourse
(1762)
which
is
cited
in
later editions
of
Hale.
In
Foster’s text, however, the
matter uscd to illustrate the principle does not
go
to ignorance of law
but to mistake of
fact.
The
case
Foster uses
is
that
of
the stabbing
of an innocent party in mistake for a thief.’
“
This was held Innocent
Mistake and ruled Chance-medley.”
Blackstone stated a
similar
principle but included both ignorance
and mistake within
it
:
“
V.
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 that conjunc-
tion 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.
As
if
a man intending to kill a thief or
house-
breaker
in
his own house, by mistake kills one of
his
own family,
there
is
no criminal action: but
if
a
man thinks he has a right to
kill
a person excommunicated or outlawed, wherever he meets
him,
and does
so;
this
is wilful murder. For 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.
Zgnorantia juris, quod quique tenetur scire, neminem excusat
is
as
well the maxim of our
own
law,
as
it was of the Roman.”
1
Foster’s
Discourse
(1762), p. 299.
2
Commentaries,
Bk.
4,
Chap.
2, p.
27.
3
Ignorance
of
those things which everyone
is
bound to know excuses not.
4
Blackstone was probably wrong in this ascription
of
the
rule
to
Roman law.
The
maxim
error
juris
nocet,
error
facit
non
nocet
from
Digest 22.6
(De
juris
el
facti
ignorantfa)
was not applied
to
criminal law.
See
Binding,
Die Normen
und
ihre
tlbertretung,
Vol.
3
(1918),
pp. 30-79.
644
NOV. 19761
MISTAKE
AND
IGNORANCE IN CRIMINAL CASES
645
This statement
of
the law is probably the first to use the
,two
expressions “,mistake” and “ignorance.”
In
earlier texts the temn
“ignorance” was used to cover both conc~pts.~
Modern statements
of
the rule
Modem writers have adopted Blackstone’s position and generally
assume that the
two
terms, mistake and ignorance have the same
meaning.
Dr. Turner
in
the nineteenth edition
of
Kenny took
the
words to be
synonymous
:
“
(3) The final condition
is
that
the mistake, however reasonable,
must not relate to matters
of
law but matters
of
fact. For it is a
basic legal principle in
this
country that
a
mistake
of
law, even
though inevitable,
is
not allowed
to
afford an excuse
for
crime.
Ignorantia juris neminem excusat.
”
Similarly in the twelfth edition
of
Russell
on
Crime
by Dr. Turner
it is stated:
“It
is
generally held that at common law mistake
of
law,
however inevitable,
is
no defence.”
‘
The authori8ties cited by Dr. Turner for this proposition are Hale
1
P.C.
42; B1.Com. 27 and a number of early cases. These cases are
ESOP
(1836)
7
C.
&
P.
456;
Burronet and Allain
(1852)
1
E.
&
B.
1
and
Suttler
(1858) D.
&
B. 525.
Only in
Esop’s
case
is
the question
of
ignorance or mistake
of
law
directly
argued.
The
case
involved an allegation that a native
of
Baghdad had committed
an
unnatural aot on board a British ship.
It
was
stated in argument that
this
conduct was not
an
offence in the
accused‘s own country, but there is nothing said in the case to show
whether the prisoner knew such conduct
was
prohibited in England.
In the event
the
prisoner was acquitted on the facts.
.
5
In
the
Dialogues between
a
Docror
of
Divinity, and
A
studenr in rhe Laws
of
England (vide
1687
ed.) the term used in relation both to law and fact is
‘‘
ignorance.”
Ignorance
of
the law is distinguished from ignorance of the deed.
6
Kenny’s
Criminal Law,
19th
cd., p.
60.
7
The maxim has been stated
in
many different forms not all of which seem to
carry
$e
same meaning. In
Martindale
v.
Falkner
(1846) 2
C.B.
706, 719
Maulc
J.
said There is no presumption in this country that every person knows the law;
it would be contrary
to
common sense and reason if it were
so.
.
. .
The rule
is
that ignorance
of
the law shall not excuse
a
man or relieve him from the conse-
quences of a crime, or from liability upon
a
contract.” This statcmcnt is cited with
approval by Goddard L.J. in
Bowmaker Lid.
v.
Tabor
[1941] 2
K.B.
1,
5.
Lord
Wcstbury in
Carter
v.
McLaren
(1871)
L.R.
2
H.L.(Sc.)
120
said: “There are two
maxims which must never be weakened:
one
is
that you must ascribe to every subject
a
knowledge of the law-more especially in cases where it prescribes
a
rule of civil
conduct. Tho other maxim
is
that
you
must ascribe
to
every man
a
knowledge of
that which is
a
necessary and inevitable result of an act deliberately done by him.”
In Cooper
v.
Phibbs
(1867)
L.R.
2
H.L.
149,
170
Lord Westbury said:
“
It is said
a
Zgnoranria juris
non
excusat
’;
but in that maxim the word
‘
jus
’
is
used
in
the
sense of denoting general law, the ordinary law
of
the country. But when the word
‘
jus
’
is used in the sense
of
denoting
a
private right, that maxim has
no
application.”
Lush J.
in
The Queen
v.
Mayor Tewkesbury
(1868)
L.R.
3
Q.B.
629, 639
said:
“
The
maxim is
ignoranria legis neminem excusat,
but there
is
no
maxim which says that,
for all intents and purposes, a person must be taken
to
know the legal consequences
of his acts.”
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