Testing Fidelity to Legal Values: Official Involvement and Criminal Justice
| Published date | 01 September 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00285 |
| Author | Andrew Ashworth |
| Date | 01 September 2000 |
THE
MODERN LAW REVIEW
Volume 63 No 5September 2000
Testing Fidelity to Legal Values: Official Involvement
and Criminal Justice
Andrew Ashworth*
The article examines the current criminal law and possible justifications for it
with respect to three areas that are located between prosecutorial discretion and
defences. These areas are officially-induced mistakes of law, entrapment, and
conduct motivated by a desire to bring someone else to justice or to restore
property. Common themes in the justifications for the avoidance of punishment in
these examples suggest an underlying principle of fidelity to legal values, which
should guide procedural and substantive law.
When one considers the range of defences typically open to persons accused of
crime in what might be broadly termed Anglo-American legal systems, they emerge
as diverse and heterogeneous. It is well known that some defences do not rest on the
absence of mens rea or actus reus, such as duress and necessity. It is also well
known that various defences, or ‘defences’, derive their strength chiefly from the
absence of mens rea but have been developed so as to incorporate limiting
conditions from other sources – for example, mistake and intoxication. One of the
more curious aspects of English law, and of some other legal systems, is that a
defence may be rejected as such and yet allowed, in practice, if and to the extent
that it can be regarded as negativing a key fault element for a particular crime. For
example, it is arguable whether there is a general defence of necessity, but if by
chance the offence requires proof of ‘dishonesty’ or includes the phrase ‘without
reasonable excuse’ it may be possible to allow necessity to exculpate.1There is no
general defence of mistake of (civil) law, but if by chance the offence requires proof
that the defendant knew that the property damaged ‘belonged to another’ it should
be possible to allow the mistake of law to exculpate.2This approach has been taken
further – some would say, too far – on some occasions when appellate courts have
been construing the requirement of ‘intention’. Thus in Gillick vWest Norfolk and
Wisbech Area Health Authority3the House of Lords, dealing with a point of
ßThe Modern Law Review Limited 2000 (MLR 63:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 633
* All Souls College, University of Oxford. An early version of this article was given as a paper to a staff
seminar at Nottingham Law School. A more developed version was presented at a seminar at the University
of Birmingham on ‘Criminal Law: Doctrines of the General Part’, organised by Stephen Shute and Andrew
Simester and generously funded by the Modern Law Review. I am grateful to participants at both seminars
for their suggestions, and in particular to Paul Roberts and Andrew von Hirsch for detailed comments.
1 For elaboration and examples, see the classic article by P.R. Glazebrook, ‘The Necessity Plea in
English Criminal Law’ [1972] CLJ 87.
2Smith (D.R.) [1974] QB 354; see further notes 13–14 below.
3 [1986] 1 AC 112.
criminal law incidentally to a non-criminal appeal, held that a doctor would not
have intended a consequence that she knew would follow from her action, if her
purpose was the clinical one of preserving the patient’s health and well-being: this
was, in effect, the creation of a defence of ‘clinical balance of evils’, but it was
wrapped up rather clumsily as a mere interpretation of the term ‘intention’ and
therefore none of the broader questions about such a defence were addressed.4
Similarly, in Steane5the Court of Criminal Appeal held that the defendant did not
intend to assist the enemy if his reason for doing the acts was to save his family
from a concentration camp: this was, in effect, the recognition of an extension to the
defence of duress, but it was presented as an interpretation of the ‘with intent’
requirement and so none of the broader questions of policy were discussed.
These familiar features of the English legal landscape have been revisited in
order to suggest that, at least in uncodified systems of criminal law,6there is
considerable ambiguity about the boundaries of defences to criminal liability and
that this ambiguity has probably been fostered or preserved by the judiciary and
even by law reformers. The advantage, they would claim, is that it enables the
system to respond flexibly to individual cases, without throwing open the doors to
all manner of supposed grounds for exculpation. The corresponding disadvantages
are that the broader issues of principle raised by certain arguments for exculpation
are unlikely to be considered thoroughly, and that the law cannot function properly
as a source of guidance for conduct if the boundaries of permissible conduct are
undefined. Those disadvantages may be particularly weighty in some spheres,
which brings me to the focus of this article. Three topics are to be discussed, with a
view to probing the foundations and the boundaries of the relevant doctrines and
their place in a system of criminal law and, more widely, of criminal justice. The
three topics may be described, in a preliminary fashion, as officially-induced
mistake of law, entrapment, and law enforcement motivation. The first deals with
cases in which a defendant has based conduct on a view of the law, implanted by
an official, that turns out to be erroneous; the second relates to cases in which a
defendant’s conduct has followed instigation by an official, or by someone acting
under the direction of an official; and the third deals with cases in which a
defendant’s conduct was motivated by a desire to bring someone else to justice or
to restore property to its lawful owner or the police.
None of the topics lies in the mainstream, and their links may not be
immediately apparent. I believe that, among the strands of reasoning attached to
each of the three claims for recognition, one common element is fidelity to legal
values – by which I mean, broadly, the importance of recognising that the criminal
justice system ought to welcome conduct that promotes its integrity and ought to
refuse to act upon conduct that undermines its integrity. To take official legal
advice and to follow it is generally the conduct of a good citizen, as is conduct
motivated by the purpose of enforcing the law. These activities demonstrate
fidelity to values that form part of a sensible political morality. Conversely, for the
courts to entertain a prosecution arising from an act of entrapment by an official is
to undermine the integrity of the criminal justice system, as it is for the courts to
entertain the prosecution of a citizen who was reasonably relying on official legal
4 For discussion, see A. Ashworth, ‘Criminal Liability in a Medical Context: the Treatment of Good
Intentions’ in A.P. Simester and A.T.H. Smith (eds), Harm and Culpability (Oxford: OUP, 1996).
6 And probably in some codified systems: see clauses 4(4) and 45(4) of the draft English criminal code,
in Law Com. No. 177, A Criminal Code for England and Wales (London: HMSO, 1989).
The Modern Law Review [Vol. 63
634 ßThe Modern Law Review Limited 2000
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