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In criminal law, a mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the mental element. [1] This is unlike a mistake of law, which is not usually a defense; law enforcement may or may not take for granted that individuals know what the law is.
Most criminal law systems in developed states exclude mistake of law as a defense, because allowing defendants to invoke their own ignorance of the law would breach the public policy represented by the Latin maxim: ignorantia legis neminem excusat . But someone operating under a mistake of fact will not generally be liable, because, although the defendant has committed the actus reus of the offense, the defendant may honestly believe in a set of facts that would prevent him or her from forming the requisite mens rea required to constitute the crime.[ citation needed ]
For example: A defendant goes into a supermarket and places eight items in a basket which is presented to the cashier for payment in the usual way. Both honestly believe that all eight items have been scanned, and the defendant pays the sum shown on the bill. A store detective, however, notices that a mistake was made by the cashier so that only seven items were priced. This detective arrests the defendant after leaving the store. Since the defendant honestly believes that he has become the owner of goods in a sale transaction, he cannot form the mens rea for theft (which is usually dishonesty) when he physically removes them from the store.
There is a complex question as to whether the defense of 'mistake' applies to crimes that do not specify a mental element – such as strict liability offences and manslaughter by criminal negligence. In Australia, the High Court's 2005 ruling in R v Lavender [2] prevents the use of any 'reasonable mistake of fact' defense in cases of involuntary manslaughter. [3] However, the defense of mistake is available to offences of strict liability such as drunk driving: see DPP v Bone [2005] NSWSC 1239. And it is the very availability of the defense of 'mistake' that distinguishes between offences of strict and absolute liability. Mistake of fact is unavailable in respect to absolute liability offences. [4]
The Australian federal law's Criminal Code [5] [6] describes most Federal crimes, many of which were transferred from the Crimes Act 1914 (Cth). [7] However, the Crimes Act does still define some Federal crimes and others have been added in separate legislation for a variety of reason. [8] For example, to override State or Territory laws, as with the Human Rights (Sexual Conduct) Act 1994 (Cth) [9] that used the external affairs power to override the sodomy laws of the State of Tasmania, or with the Euthanasia Laws Act 1997 (Cth) [10] that recriminalised euthanasia in the Northern Territory. [8] Separate legislation has also been used when powers have been transferred from the States to the Commonwealth, such as with the Corporations Act 2001 (Cth) [11] that includes penalties for misconduct by company directors, and in implementing international treaties, such as with the International Criminal Court Act 2002 (Cth) [12] that implemented the Rome Statute into Australian law. [8]
The Criminal Code contains specific provisions dealing with ignorance and mistakes, which permits acquittal in cases of mistakes of fact but not of law. Further, it mandates that a mistake of fact need not be reasonable for the defense to be available, but allows a jury to consider whether a fact is unreasonable in determining whether the person did actually believe the mistake being claimed. [5] [6]
The leading Supreme Court of Canada case on the mistaken belief is R v Park , [13] in which it was held that even unreasonable beliefs must be left to a jury to consider. The issue in most states is the extent to which the test of belief should be subjective or objective.
Mistake of fact may be a defense in criminal law if it is genuine, whether or not it is reasonable.
In DPP v Morgan [14] an RAF officer told three other officers to have sex with his wife, and that she would pretend to refuse just to be stimulating. They pleaded mistake, and the jury did not believe them. The House of Lords held that the judge had wrongly directed the jury that the mistake must be a reasonable one; the correct legal test was whether the defendants had honestly believed the wife was consenting, not whether they reasonably believed this. Glanville Williams & Dennis Baker Treatise of Criminal Law (Lexis 2021) pp. 265-283 [15] argued that mistake of fact applies to normative standards such as dishonesty in property offences and what is improper conduct in bribery offences. However, on the facts the House of Lords held the conviction was nonetheless safe despite the misdirection. R v Williams (Gladstone) confirmed the principle stated in Morgan that a belief that a certain set of facts are true does not need to be reasonable to operate under the defence of mistake. It merely needs to be genuine. However, the reasonableness of that belief is material in the jury deciding whether the defendant had actually held that belief. [16]
An exception to this appears to be bigamy (see R v Tolson (1889) 23 QBD 168).
The Sexual Offences Act 2003 has introduced a hybrid test of reasonable belief as to consent. The defendant must now be seen to have taken steps to ascertain clearly whether the complainant was consenting in all the circumstances. This abolishes the defence of a genuine though unreasonably mistaken belief as to the consent.
It is not a defence that the defendant held an honest and reasonable belief that what he was doing was not criminal. [17] Where the defendant is a foreigner, and the offence is not criminal in his own country, the fact of such a belief is still not a defence. [18] It is not a defence that the defendant believed that he would not be prosecuted for what he was doing. [19]
Section 3(2) of the Statutory Instruments Act 1946 provides:
In any proceedings against any person for an offence consisting of a contravention of any such statutory instrument, it shall be a defence to prove that the instrument had not been issued by [or under the authority of] His Majesty’s Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged.
(Words in brackets inserted by section 1(1)(a) of the Statutory Instruments (Production and Sale) Act 1996, as read with section 1(2))
A mistake about the civil law may have the effect of negativing the mens rea for an offence. See:
The defence of property is a common method of justification used by defendants who argue that they should not be held liable for any loss and injury that they have caused because they were acting to protect their property.
Dishonesty is acting without honesty. The term describes cheating, deficient probity, lying, deliberate withholding of information, being deliberately deceptive, or showing knavishness, perfidiousness, corruption, treachery, or deficient integrity.
In English criminal law, public nuisance is a act, condition or thing that is illegal because it interferes with the rights of the general public.
In criminal law, incitement is the encouragement of another person to commit a crime. Depending on the jurisdiction, some or all types of incitement may be illegal. Where illegal, it is known as an inchoate offense, where harm is intended but may or may not have actually occurred.
The Theft Act 1978 is an act of the Parliament of the United Kingdom. It supplemented the earlier deception offences contained in sections 15 and 16 of the Theft Act 1968 by reforming some aspects of those offences and adding new provisions. See also the Fraud Act 2006.
Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence.
In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than malice, but is more blameworthy than carelessness.
Common assault is an offence in English law. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. In England and Wales, the penalty and mode of trial for this offence is provided by section 39 of the Criminal Justice Act 1988.
"Deception" was a legal term of art used in the definition of statutory offences in England and Wales and Northern Ireland. It is a legal term of art in the Republic of Ireland.
In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offense. The liability is said to be strict because defendants could be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea.
Self-defence is a defence permitting reasonable force to be used to defend one's self or another. This defence arises from both common law and the Criminal Law Act 1967. Self-defence is a justification defence rather than an excuse.
Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises not only in criminal law but also in civil law, where it is relevant to contract law and trusts law.
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.
Criminal damage in English law was originally a common law offence. The offence was largely concerned with the protection of dwellings and the food supply, and few sanctions were imposed for damaging personal property. Liability was originally restricted to the payment of damages by way of compensation.
An offensive weapon is a tool made, adapted or intended for the purpose of inflicting physical injury upon another person.
English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.
In law, knowledge is one of the degrees of mens rea that constitute part of a crime. For example, in English law, the offence of knowingly being a passenger in a vehicle taken without consent (TWOC) requires that the prosecution prove not only that the defendant was a passenger in a vehicle and that it was taken by the driver without consent, but also that the defendant knew that it was taken without consent.
In the field of criminal law, there are a variety of conditions that will tend to negate elements of a crime, known as defenses. The label may be apt in jurisdictions where the accused may be assigned some burden before a tribunal. However, in many jurisdictions, the entire burden to prove a crime is on the prosecution, which also must prove the absence of these defenses, where implicated. In other words, in many jurisdictions the absence of these so-called defenses is treated as an element of the crime. So-called defenses may provide partial or total refuge from punishment.
Obtaining property by deception was formerly a statutory offence in England and Wales and Northern Ireland.
Rape is a statutory offence in England and Wales. The offence is created by section 1 of the Sexual Offences Act 2003:
(1) A person (A) commits an offence if—
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
