Mistake of Law—A Mistake?
| Date | 01 August 1987 |
| Published date | 01 August 1987 |
| DOI | 10.1177/002201838705100308 |
| Subject Matter | Article |
MISTAKE
OF
LAW-A MISTAKE?
I.
H.
E.
Patient’
The criminal law relating to mistake is in a confused state. There
can, however, be traced in recent cases a development which is
capable
of
solving some
of
the present apparent problems. The
main shortcoming
of
the traditional approach has been an attempt
to distinguish between a “mistake
of
fact” and a so-called “mistake
of
law”. This distinction is an illusory one as, it is hoped, will be
shown. Worse, the term “mistake
of
law”
is
used in at least three
different senses which, not surprisingly, leads to certain avoidable
difficulties.
Firstly, the term “mistake
of
law” is frequently used as a synonym
for “ignorance
of
the law”. This relates to the situation where
someone is mistaken about the fact that the conduct he indulges in
amounts to an offence.
To
illustrate this, let us use an example
based on the facts in
R.
v.
Tolson.’
Mrs. Tolson committed bigamy,
but did
so
unwittingly for she honestly (and reasonably) believed
that her husband had died at sea and that therefore she was now
single. Mrs. Tolson’s misapprehension might have been
of
a
different kind. Let us assume that she was a native
of
Ruritania
under the law
of
which country a woman is permitted to take several
husbands. Having settled in England she goes through a second
ceremony
of
marriage while her first spouse is still alive, believing
that English law, like Ruritanian law, permits her to.do
so.
This
would be a mistake
of
law in the sense
of
ignorance
of
the law, and
it
is,
of
course, an established principle that “ignorance
of
the law is
no defence”. You are supposed to know (or make yourself
acquainted with) the law
of
the country where you live and operate.
To
revert, by contrast, to the factsin
Tolson
itself, the mistake there
was not a mistake
of
law, but related to the
actus reus
of
the offence.
Mrs Tolson was fully aware that bigamy wadis an offence under
English law, but she was unaware that she implemented the
actus
*
Faculty
of
Laws,
Queen
Mary College, University
of
London.
’
(1889)
23
Q.B.D.
168.
326
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