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.”
646 THE M O D E R N L A W REVIEW [Vol. 39
In his submission on the law, Chambers, for the prisoner, argued
that “ a person who comes into this country and does an act,
believing that it is a perfectly innocent one, cannot be convicted
according to the law of England. A party must know that what he
does is a crime.” The submission continued : “ Where one man kills
another under the persuasion that he is doing a good action, he is
not liable to punishment, for he knows not the distinction between
right and wrong, and upon that point is insane.” Chambers’s alter-
native submissions therefore rested on: 1. Mistake of law, 2.
Ignorance of the law, 3. Moral justification and 4. Insanity. Bosanquet
J.’s answer to these submissions: “ I am clearly of opinion that this
is no legal defence” especially in c i r c u m s w where the facts did
not support the charge, is a far from satisfactory authority for any
general rule in respect of mistake of law.
The other two oases cited by Dr. Turner are also unsatisfactory.
They both deal with the m o w e r question d the applicability of
English law to foreigners.
Sattler * had committed theft in England and escaped to Hamburg
whence he was being brought back to England for trial after an
illegal arrest. He killed &thedetective who was bringing him back
and was on trial for that killing. The illegality of his arrest and return
was argued in excuse and the jurisdiction of the court was in issue
as the killing took place on the high seas. Ignorance or mistake of law
played little or no part in the trial.
Bmonet and Allain were two of the many Frenchmen who seem
to have run foul of the English prohibition of duelling in the early
and middle nineteenth century. The cases are not concerned with
ignorance or mistake of law but with the applicability of English law
in circumstances where the conduct complained of is permitted in
the prisoner’s own country. It seems highly unlikely that duellists were
unaware that the activity was prohibited in England. In fact such
ignorance was not argued in the cases, which were, indeed, not trials
at all but bail applications after committal. The central issue was
whether ‘the accused could be granted bail after they had confessed
to capital crimes.
While these cases do not establish or even depend on the doctrine
that ignorance of the law or mistake of law will not excuse, that
principle is nevertheless generally assumed. It is, however, surprising
that there seem to be no oases either directly establishing the rule or
u ~ e ~ e r ~ eaccepting
dly it.

The meaning of the maxim

In such circumstances it is important to examine early statements
of the maxim to see what precisely is meant by it. As was pointed
out earlier even the statement of the maxim is not uniform.
It may be that what is meant is that the principle “ Ignorance of the
law is not an excuse ” is itself deducible from the more general rule
8 Supra. 9 Supra.
NOV. 19761 MISTAKE AND IGNORANCE IN CRIMINAL CASES 647

“ignorance of things which everyone is bound to know does not

excuse.”
This is the position adopted by Hale and Blackstone. Dr. Turner on
the other hand asserts the narrower principle that “Ignorance
of the law does not excuse” as an iudependent maxim, although
he uses Hale and Blackstone as authorities to support the narrower
formulation. O
The broader statement of the maxim, which makes the principle
that ignorance of the law does not excuse depend on the general
propsition that “ignorance of things which everyone is bound to
know excuses not,” is really a form of esbppel. If it were of general
application it would mean that the Crown need only assert any
matter as common knowledge for it to be conclusive against the
accused. It was on a similar principle that the court reached its
decision in Smith.ll The maxim ‘‘everyone is presumed to know the
co11sequenm of his act” is really another form of the supposed
maxim that “ ignorance of things which everyone is bound to know
excuses not.” When this latter principle is applied to the requirement
of mew rea in a criminal trial, it means that evidence that the
consequences of conduct are obvious to anyone is sufficient to fix
the defendant with knowledge of such consequences, either as an
irrebuttable presumption against him, or as throwing on him the
burden of rebuttal if it is ,the lesser form of presumption. Neither of
these alternatives is acceptable in the modern criminal trial.l2 On one
reading of the “ ignorance ” principle there is no room for rebuttal.
It becomes a presumption of law and so irrebuttable.
A further effect of the “ignorance” rule in its wide form is that
where mistake of fact is arguable (“ ignorance of that deed,” as it is
called in the Doctor and Student Dialogue 13) knowledge of matters of
fact is as readily imputable as knowledge of matters of law. The courts
have, however, consistently acknowledged that mistake of fact is in
some circumstances exculpatory.

The use of presumptions in criminal law

It was common for early writers to state principles governing the
criminal trial in terms of presumptions, rebuttable or otherwise. So,
in Foster‘s Discourse on Homicide he states l4 :
“ 1. In every Charge of Murder, the Fact of killing being first

proved, all the Circumstances of Accident, Necessity. or Infirmity

are to be satisfactorily proved by the Prisoner, unless they arise
out of the Evidsnce produced against Him; for the Law pre-
sumeth the Fact to have been founded in Malice, until the
Contrary appeareth. And very right it is that the Law should so
-Ante. n. 645.
10
~~ ---.r.
11 D.P.P. v. Smirh [I9611 A.C. 290.
l a Woolmingron v. D.P.P. 119351 A.C. 462, and seo Hyam v. D.P.P. 119741
~~
- -
2 All E.R. 41.
13 Supra.
14 (1762) Crown Cases 255.
648 THE MODERN LAW REVIEW [Vol. 39
presume. The Defendant in this Instance standeth upon just the
same foot that every other Defendant doth: the Matters tending
to Justify, Excuse or Alleviate must appear in Evidence before
He can avail bimself of them.”
In recent times only “ in6nnity ” seem to have remained a matter
for proof by the mused, while “necessity” has generally been
rejected as exculpatory and “ accident ” merely imposes an evidentiary
burden on the defendant.
The form of the argument used by text-writers to support the
“ ignorance of the law ” doctrine is itself open to objection. Black-

stone’s position is reducible to ‘the argument : “ Because ignorance

of those things which everyone is bound to know excuses not, and
everyone is bound to know the law, therefore ignorance of the law
excuses not.” Strictly the argument oughi to be in the form ‘ ‘ I f
ignorance of those things, etc.” Such a formulation would invite us
to seek justification for both the propositions that “ignorance of
those things which everyone is bound to know excuses not” and
the minor premise that “everyone is bound to know the law.”
Otherwise the conclusion “ ignorance of the law excuses not ” is
simply question-begging.
There is, indeed, no way of knowing what matters are comprised
in the category ‘‘ those things which everyone is bound to know.’,
It is only if we assume that the law is one of these things that the
argument can stand up and as was argued earlier the courts have
not consistently held that everyone is bound to know the law.15
Even if it is accepted that everyone is bound to know the law the
question arises as to what the term “bound ” means in this context.
It might mean simply under an obligation, or might, more broadly,
mean compelled, obliged or under necessity.l0
Blackstone’s meaning can perhaps be gathered by his use of
“ bound ” in conjunction with “ presumed ’,-“ every person o f dis-
cretion not only may, but is bound and presumed to know . . .,’ It
seems likely that Blackstone, therefore, means no more than that there
is a presumption in law, adverse to the accused, that he knows the
law. This would leave it open to interpret the presumption as
rebuttable as were many other presumptions adverse to thc accused
in the period. The tenor of Blackstone’s writing on this matter,
however, makes it clear that the presumption was irrebuttable.
If this is the proper interpretation d Blackstone’s viewl7 it is
csrtaialy not consistent with the law even in his own period. He
ignores not only the range d cases concerning mistake of law in
Note 7.
...
15
18 Bound: under obligation (of duty gratitude, ctc. or with infinitive) com-
pcllcd, obliged; under necessity (especially logical or moral); fated, certain (O.E.D.).
17 Blackstone’s words could bear a narrowcr meanitg if the phrase “ may and
is thereforc bound ” (italics added) in the sentence every person of dlscretion
may, and is thereforc bound and presumed to know tho law ” suggcsts that the rub
has application only after the crown has shown that the accused could have found
out the law but failed to do so.
NOV. 19761 MISTAKE AND IGNORANCE IN CRIMINAL CASES 649
larceny and associated property offences but also the dfect of
mistake of law on other types of offence, particularly those where
elements of wilfulness and specific intention are essential.
The larceny cases in which “ claim of right ” has been exculpatory
appear in early records. In Knight in 1781 the accused (Knight with
Roffey) were indicted for breaking and entering a house in the night
time to recover tea which had been seized. It was held no burglary
as W i g for the benedit of the supposed owner. Similarly in Hall 19-
the accused had set wires in which game were caught; a gamekeeper
found them, and took the game and wires for the use of the lord
of the manor; accused demanded ,&em with menaces, and the game-
keeper gave them up. The jury found ,that the accused acted under
a b o w fide impression that the game and wires were his property:
“ Held : no robbery.” 2o

Modern mistake of law cases

In more recent times Bernhard a1 illustrates the ambit of the defence
of mistake of law. Here the accused was convicted of an offence under
the Larceny Act 1916, s. 30 with demanding money with menaces
with intent to steal $thesame. The money demanded was alleged to
have been promised on a bargain arising out of an immoral con-
sideration.2a
Lord Hewart L.J.C. directed the jury at #thetrial, in part:
“ In order that that kind of excuse may arise, [a claim of right
made in good faith] there must be two elements: there must
first of all be a claim of right, and, secondly, a claim of right
made in good faith. Now, on the facts of this case,there cannot
be a claim of right. There might be a claim of wrong. The
bargain that was made was a bargain arising out of an immoral
consideration. and, on any view of the matter that bargain could
not give a claim to the present payment in January 1938 of
something due month by month up till August. . . You cannot
have a claim of right where the circumstances are such as to
exclude the possibility of a legal claim.” 23
The conviction was quashed on appeal. Charles J., delivering a
judgment of the Court of Appeal, said:
“We are, however, bound by a long series of decisions-many
before and one at least subsequent to, the Larceny Act 1916-
to hold that this view is incorrect. and that a person has a claim
of right within the meaning of the section if he is honestly
asserting what he believes to be a lawful claim, even though it
2 East P.C. 510 C.C.R.
19 R . v. Hall (1828) 3 C. & P. 409.
20 For a discussion of the position where the right claimed mistakenly is not
even a right rccogniscd by law, sce Russell on Crime, 12th ed., Vol 2, p. 1025.
2 1 [1938] 2 A11 E.R. 140.
2 2 The accused had bcen the mistress of a married man who promised periodic
payments, some of which he failcd to pay. She demanded payment under threat of
exposurc.
2 3 At p. 143.
650 THE MODERN LAW REVIEW [Vol. 39
may be unfounded in law or fact. The material words of the
Larceny Act 1916, s. 1, are declaratory of the common law, and
a long and unbroken chain of authority supports thisproposition.”
East’s Pleas of the Crown, Vol. 2 at p. 659, deailing with the defence
“ that the goods were taken on a claim of right ” was cited by the

court :
“ And here it may be proper to remark, that in any case if there

be any fair pretence of property or right in the prisoner, or if

it be brought into doubt at all, the court will direct an acquittal.”
The court continued :
“Illustrations of the application of this principle, which we
conceive to be firmly established in our law, are to be found in
R. v. L e ~ p a r d ?R.
~ v. Wade 2 5 and R. v. Clayton.26It follows,
in our judgment, that the proper answer to the question which
troubled at least one of the jury would have been that, if the
prisoner honestly thought that she had a claim, she was entitled
to be acquitted. even though she was wrong in so thinking.”
Cases supporting the defence of ignorance or mistake of law are,
however, not limited to the special area of larceny where the ccun-
plexity of the offence and the early development of the need for
animus furandi may have accounted for its exceptional character.
Burns v. Nowell 27 was a case tried under the Kidnapping Act 1872.
This Act, with its requkment of licenes for the carriage of natives,
was passed after the plaintiffs journey had commenced and he could
not have known of it, nor have got licences. His vessel was seized.
Baggallay L.J. made it quite clear that ‘the plaintiff ought to be
excused when he could not possibly have known of or complied with
the law. He said :
“It may, however, be suggested that the carrying, though not
unlawful in its commencement, became so when the Act came
into operation, notwithstanding the ignorance of the master that
any such Act was in force. and though it was then out of his
power to obtain a licence. But beforc a continuous act or pro-
ceeding, not originally unlawful. can be treated as unlawful by
reason of the passing of an Act of Parliament by which it is in
terms made so, a reasonable time must be allowed for its discon-
tinuance; and though ignorance of the law may of itself be no
excuse for the master of a vessel who may act in contravention
of it, such ignorance may nevertheless be taken into account when
it becomes necessary to consider the circumstances under which
the act or proceeding alleged to be unlawful was continued and
when and how it was discontinued with a view to determine
whether a reasonable time had elapsed without it being
discontinued.”
24 (1864) 4 F. & F. 41.
25 (1869) 11 Cox C.C. 549.
26 (1920) 15 Cr.App.R. 45.
27 (1880) 5 Q.B.D.444 C.A.
NOV. 19761 MISTAKE AND IGNORANCE IN CRIMINAL CASES 651
Similarly, in BaiZeyz8 the Act 29 under which .the prisoner was
charged received the royal assent on May 10, 1799, and the fact
charged in the indictment (malicious wounding) happened on June
27th in the same year, when the prisoner could not know that any
such Act existed (his ship, the ‘“Langley,” being at that .time upon
the coast of Africa). Lord Eldon told the jury that he was of opinion
that he was, in strict law, guilty within the statutes, taken togetherY3O
if the facjts laid were proved, though he could not then know that the
Act of 39 Geo. 111, c. 37 had been passed, and that his ignorance
of that fact could in no way otherwise affect the case, than that it
might be the means of recommending his to a merciful consideration
elsewhere should he be found guilty. This matter with several other
qquestions-g, was referred, before sentence, to the 12 Judges. The
Judges were of opinion that it would be proper to apply for a pardon,
on the ground that the act having been committed so short a time
after the Act 39 Geo. 111, c. 37 was passed, that the prisoner could
not have known of it.
In the circumstaaces of this case, which concerned a malicious
wounding by shooting on the high seas, the grant of a pardon in the
absence of any power to upset -the jury’s finding strongly suggests
that the plea of ignorance of the law was taken as more than a matter
in mitigation.
Twose s1 is a further case outside the field of larceny, The prisoner
was indicted for having set fire to some furze growing on a common.
Bullen, €or the defence, contended that, even if it were proved that
the prisoner set the f u m on fire she could not be found guilty if it
appeared that she born fide believed she had a right to do so, whether
the right were a good one or not.
Lopes J. in his directions said : “ If she set fire to the furze thinking
she had a right to do so, that wauld not be a criminal offence.”
Watkins v. MujorSawas an action arising out of an information
laid for trespass in pursuit of game under section 30 of 1 & 2 Wm. 4,
c. 32. The appellant argued a claim of right (which was ill founded)
to shoot the game. Lindley J. in his judgment on appeal said 33 :
“We think that the claim of right was not set up as a frivolous
pretext to escape conviction. . . . This under ordinary circum-
stances would suffice to render a conviction for any criminal
offence improper; for it is well established that the justices
cannot try the existence of a right born fide set up in answer to
a criminal charge brought before them : see Paley on Convictions,
pp. 47 and 137 etc.”
The conviction was upheld on the ground that the charge brought
was really civil, but ,the availability of the defence of a claim of
28 (1800) Russ. andR. 1 C.C.R. 168.
29 39 Geo. 111, c. 37-“ An Act for amending certain defects in law respecting
.olTcnces committed on the high seas.”
30 i.e. with 9 Geo. 1, c. 22: (Black Act.)
31 (1879) 14 Cox C.C. 327.
31 (1875) L.R. 10 C.P. 662. 33 At p. 665.
652 THE MODERN LAW REVIEW [Vol. 39
right, wen if mistaken, was not questioned in relation to criminal
matters.
In Rutter 34 0 conviction under section 20 of the Malicious Damage
Act 1861 for having cut and destroyed certain trees, the property of
the prisoner's landlord, was quashed. The accused had argued that
he believed he was entitled to do what he liked with the trees on the
termination of his tenancy as he had planted them himself. The
prosecution argued on the appeal " that even supposing the prisoner
did believe the trees were his own and he was entitled to do what he
liked with them, ignorance of the law was no excuse (R.v. Twose).
Mr. Justice Channell said that in the particular circumstances of this
case the court thought the conviction must be quashed. The jury in
this case had found the prisoner guilty, but added that he had done
what he did in ignorance. The Chairman of quarter sessions declined
to accept that verdict, and had again summed up the case to the jury,
who eventually found the prisoner guilty but recommended him
to mercy.
The difficulty the appeal cow$ felt in this case was whether the jury
had intended to negative malice. Presumably the court had no doubt
that a clear indication that mistake of law had negatived malice
would have been a proper basis for aquittaL3s '

Ignorance and mistake

Although these two terms are generally used interchangeably there
are differences between them which may be important in seeking to
modify the widely accepted rule.
Ignorance will often lead to mistake as where an unknown law
prohibits a course of conduct that one is pursuing in the belief that
it is lawful. Here the actor mistakenly believes his conduct lawfd
because he is ignorant of the law. On the other hand mistake of law
may occur independently and without ignorancq as where a course
of conduot is pursued which is believed to be lawful, but which is
declared unlawful ex post fucto. Ignorance of the law may also exist
without mistake. Thus a person may fail to consider whether his
conduct is lawful or unlawful. In such a case it could not strictly be
said that he mistakenly believed his conduct lawful since he had no
belief either way.
Ignorance in this last sense is unusual and in the generality of
cases it can properly be said that the actor mistakenly believed
lawful what was in fact unlawful. However, in the two cases where
ignorance was directly in the judges clearly thought that
ignorance, at least in circumstances where it was impossible to know
the law, ought to excuse.
-
34 (1908) 25 T.L.R. 73 C.C.A.
35 See also Tinkler (1859) 1 F . & F. 513. Mistaken belief in right to take a child
Out of custody (Abduction under 9 Geo. 4 c. 31, s. 20).
36 Burns v. Nowell and Balley, ante pp. 650-651.
NOV. 19761 MISTAKE AND IGNORANCE IN CRIMINAL CASES 653
The time has come to reconsider the application of the maxim to
both ignorance and mistake. It became entrenched in the criminal
law in a period when the criminal trial was being developed and as
yet incapable of dealing with the accused's knowledge and beliefs
in the absence of his evidence. There is now no difficulty in receiving
evidence of ignorance or mistake and if the effect of that evidence
is to make the conduct blameless it ought to exculpate.
Not every case of ignorance or mistake wiU necessarily be blame-
less. Where ignorance is argued it is necessary to inquire whether
that ignorance is merely an avoidance of knowledge, and where
mistake is in issue it is material to consider whether the mistake ought
to have been avoided, or was " negligent " mistake.
Where ignorance is merely the result of a failure to inquire into or
to attempt to understand the law, it ought not to excuse. Similarly
where the mistake as to the law is made without demonstrable
negligence on the part of the actor he ought to be excused.
A rule such as that propod, that is, that only non-negligent
mistake or ignorance will excuse, appears to meet the requirements
of a just rule well within the capacities of a modem trial to apply.
It would answer the objection of Selden to the defence of mistake of
law-" 'tis an exouse everyman will plead, and no man can tell how to
confute him." w

2. MISTAKEOF FACT
It is largely the result of modern developments in the criminal trial
that mistake of fact has become acceptable to the courts as an excuse
for athenvise criminal conduct.
In the early period proof of the existence in the accused of the
requisite mens rea to make his conduct culpable, was generally of
little significance. He was presumed to have intended the results he
brought about, and, as he was not entitled to give evidence, it was a
presumption that was very difficult to rebut. This disability prevented
a wide range of defences or excuses that a defendant might have,
from getting before the court. Such matters as self-defence, duress,
necessity, accident and mistake where the facts were generally
peculiarly within the defendant's own knowledge were difficult to put
before the jury. The defendant could not say : " I did not intend ''
or " I was compelled " in order to rebut the adverse presumption.
Early attempts were made to meet this difficultyusing the principle
of non-imputability.

Non-imputability
Even *thoughan accused might not give evidence of self-defence,
duress and so on, he could nevertheless point to some parts of the
evidence that showed that the act was really not his mt, or was not
a prohibited act at all. If there were some evidence of compulsion
37 Table Talk. Law.
654 THE MODERN LAW REVIEW [Vol. 39
he could argue that what seemed his act was really the result of the
compulsion and was, therefore, not imputable to him. If evidence of
an attack against which the defendant was defending himself was
before the court, he could argue his entitlement in law to defend
himself, so that the ostensible assault was no assault at ad.
In a similar way, accident, necessity and mistake could be dealt
with by the court while still preserving the presumption of intention,
that presumption requiring rebuttal only when the conduct was shown
as imputable to the accused.
The abandonment of the presumption of intention and the intro-
duction of the right to give evidence have made the principle of
non-imputability less significant in the modem period. It survives
most strongly in the law of duress, and elements of the principle can
be seen in some of the cases on mistake.
The principle that a mistake to be exculpatory must be reasonable
can be traced to the earlier form of trial. An early jury, without
direct evidence from the accused, needed the test of reasonableness
to assist them in deciding whether a mistake had in fact been made.
In modem trials it may be necessary to redevelop non-imputability
where mistake is argued and the offence is one where a mental state of
less degree than intention is required.
Where intentional consequences must be shown or specific intent
is necessary as to some element of the offence then mistake can be
directly related to that mental element. So, in larceny, the intent per-
manently to deprive the owner of his property could not be shown
where the actor by reason of mistake had some other intention or no
mental state qua that element at all.
However the great bulk of offences do not require proof of
intention. In some recklessness or negligence is sufficient while in
others the mere existence of the actus reus may be enough to convict.

Mistake and recklessness

Recklessness as to the prohibited consequences requires that the
actor must have adverted to the possibility of those consequences
coming about and, further, that he must have been negligent in acting
to produce them.
It is this second aspect of recklessness that we are concerned with
in many ordinary social activities. Thus we accept the risk a surgeon
takes in undertaking an operation that may result in the death of the
patient. Recklessness has been described as advertent negligence so
as to include both aspects.
Since negligence is generally conceived as non-advertent, the use
of the expression “advertent negligence” is mnfusing. It is more
satisfactory to examine the non-negligent conduct as unconnected
to the foresight of consequences but related to the question whether
a prohibited act has resulted at all. In the example of the surgeon,
his non-negligent conduct has not brought about an actus that is reus
even if the result is the death of a human being.
NOV. 19761 MISTAKE AND IGNORANCE IN CRIMINAL CASES 655
We can then describe recklessness as advertence to the possibility
of prohibited consequences. The consequences are prohibited only
where due care is not exercised, the activity is socially undesirable
or there is negligence.
Mistake in reckless offences will therefore operate to negative
either or both of these aspects. The surgeon may mistakenly believe
that no risk of death is involved in his activity, or he may recognise
such a risk but use all due care to avoid it.
We can thus consider offences where general intent is required,
and mistake is argued, as requiring evidence of negligence in the
general sense outlined above before the prohibited consequence can
be imputed to ‘theaccused.
The series of cases exemplified by Church 38 illustrate the import-
ance of relating questions of mistake to the kind of mens reu neceSSary
for the offence charged. On a charge of murder, where general intent
is necessary, Church’s mistake in believing he was dealing with a
cadaver.was clearly negligent and so the actus reus of murder was
imputable to him. His mistake, however, negligent or not, also
prevented his adverting to the possibility of the prohibited result
coming about. He could not, therefore, be found guilty of murder
where recklessness at least was necessary. The position is otherwise
where the offence charged does not require advertence, as in man-
slaughter, or where the intent to kill or muse grievous bodily harm
constitutes the actus reus of the crime, as in attempted murder.
This latter is well illustrated in Shorty and Others.3gHere, one of
the three accused had battered the victim and believed him dead.
The other two them assisted in the disposal in a sewer of the supposed
corpse. The victim died of drowning. Tredgold J. held that Shorty
could not be Convicted of murder “because there was a genuine, if
inadequately founded, belief that the deceased was dead.”
The accused had “ admitted an intention to assault and apparently
to an extent which would prevent any interference by the deceased
in future ” 41 and this intention grievously to injure was sufIicient for
attempted murder. The mistake went only to the actus reus of murder,
i.e. that a human being was being dealt with in the subsequent
drowning.
A similar result was reached by the court in Khandu4* where,
after an attempt to kill his father-in-law, which the accused believed
had succeeded, Khandu set fire to a hut in which the supposed corpse
was lying. He was found guilty of attempted murder.
On the other hand the Judicial Committee of the Privy Council
took 0 different view of similar fads in Thubo Meli and other^."^
The committee was not rderred to Shorty or Khundu and said:
38 [I9661 1 Q.B. 59.
39 [I9501 S.R. 280.
40 At p. 281.
41 At p. 281, per Tredgold J.
42 (1890) L.L.R. 15 Bomb. 194.
43 [I9541 1 All E.R. 373.
656 THE MODERN LAW REVIEW [Vol. 39
“ There appears to be no case. either in South Africa or England, or

for that matter elsewhere, which resembles the present.”44 The

accused in this case had attempted to kill the victim and, believing
him dead threw the body over a cliff. He died of exposure.
Their Lordships held that it was not possible “ to divide up one series
of acts.” “ There is no doubt that the accused set out to do all these
acts in order to achieve their plan and as part of their plan.” 45 The
evidence was, however, of two plans. “ It is established by evidence,
which was believed and which is apparently credible, that there was a
preconceived plot on the part of the four accused to bring the
deceased man to a hut and there to kill him, and then to fake an
accident, so that the accused should escape the penalty for their
act.” 4a
What was involved in this case was not an attempt “ to divide up
one series of acts ” but to distinguish two series of acts. The mistaken
belief that the object being dealt with in the later assaults was a
cadaver makes it impossible to impute the uctus reus of murder to
the accused.
Church’s case,47which adopts much of the argument in Thabo Meli
was, however, an appeal against a conviction for manslaughter. The
accused had been acquitted on the murder count. The trial judge
had given directions on manslaughter by criminal negligence; under
provocation and arising from an unlawful aot causing death. On
criminal negligence he used the test of ‘‘ utter recklessness” which
was more appropriate to the mental state neceSSary for murder, but
in the context of this case he made it clear that what he was referring
to was the accused’s culpable negligence in failing to ccm6rm that
the victim was indeed dead before he threw the body in the river.
‘‘What steps did he take .to find out whether she was alive or dead?
He seems to have made no attempt, according to him, to find out
whether she was breathing or not. He seems to have made no attempt
to feel whether her heart was beating. . . . You have then nothing left
but his bare unsupported statement: ‘I thought she was dead.’”48
In the circumstances of *thiscase the jury were clearly entitled to
find that the accused’s mistake. if it occurred at all, was negligently
made and so did not exculpate him.
The continuing act principle was irrelevant on this aspect of the
case. It related to the third basis of manslaughter-an unlawful act
causing death.“g
~~

44 Per Lord Reid at p. 374.

45 Ibid.
46 Per Lord Reid at p. 373 (italics added).
47 Ante.
48 Ibid. quoted by Edmund Davies J. at p. 68.
49 The continuing act doctrine has been variously applied. See for example,
Ramsay 119671 N.Z.L.R. 1005. 1014 and Masilela and Another [1968] (2) S.A.
558 (A.D.). The rule was narrowly construed in the former,Fase and in the latter
it became a causal doctrine. The injuries were said to be a direct contributory
cause ” of a later death Prom monoxide poisoning.
Nov. 19761 MISTAKE AND IGNORANCE IN CRIMINAL CASES 657
The question in all these cases was whether the accused could have
intended or been reckless as to the death of a victim who, he believed,
was already dead. The effect of mistake on the mens rea was exten-
sively dealt with but little attention was paid to the effect of mistake
on the imputing of the actus reus to the accused. This led the courts
into the artilicialities of the continuous act doctrine in the face of
direct evidence of discontinuity. In each case a conviction for man-
slaughter or attempted murder was available simply on the basis that
the mistake was negligently made.

Mistake and negligence

Offences of negligence are distinguished from intentional and reck-
less crimes because the actor may be culpable even though he did not
advert to the consequences of his conduct, if he ought to have
considered them and they are prohibited.
Where an actor’s mind is affected by mistake, it is necessary to
consider the effect of that mistake. It may have prevented his
advertence to the consequences. Even if his mistake has prevented
advertence we have still to inquire whether it was negligent to have
made the mistake.
The evidence as to the making of a mistake wiU often be diflicult
to assess. The trial judge in Church, for example, suggested that the
defendant’s mistaken belief rested only on “his bare unsupported
statement: ‘ I thought she was dead.’ ” In some other cases the
belief may well have been justified in the circumstance^.^^
Given, however, that there is evidence of mistake, it is still
necessary to consider the circumstances that led to such a mistake.
If it is clear that, objectively considered, the mistake ought not to
have been made, it is submitted that the mistake will not excuse in
negligence offences. This test is, in many ways, similar to the
“reasonable mistake” doctrine that the courts have applied to all
offences. It is really applicable only to offences where a mental state
less than intentional is required and then only in the limited sense
that “ reasonable ” means ‘‘ non-negligent.” There may well be
circumstances in which a jury will accept that it is not negligent to
hold an unreasonable belief.62

Statutory defences
Some defences provided by Statute provide for non-negligent
mistake in the sense outlined. It is a defence under section 19 of the
Sexual Offences Act 1956 if the accused believed the girl he abducted
was “ of the age of 18 or over ” and had “ reasonable cause for that
5 0 Quoted by Edmund Davies J. at p. 68 of the report, supra.
61 For example in Khandu and Ramsay (vide supra) medical evidence supported
the defendants’ assertions that they believed their victims dead at the eariicr stage.
52 For example cases of primitive superstition and uncouth opinion might show
instances of unreasonable but non-negligent error.
VOL. 39 (6) 2
658 THE MODERN L A W REVIEW [Vol. 39
belief.” The second part of :thisdefence could well be put in the form
“ was he negligent in making a mistake as to her age? ”
Similar provisions have been introduced in other Statutes providing
a defence of non-negligent mistake.63

Mistake and statutory offences

Although some statutory offences provide for the defence of non-
negligent mistake, while others require mens rea, there is a large
group of offences where the actor is held strictly liable. In such
offences mistake can only affect the acfus reus of the crime unless
some dement of negligence or recklessness is introduced.
The c o w seem inclined to read negligence into statutory offences
in such circumstances. So in Sweet v. Parsleys4 Lord Reid,55 after
considering the injustice that might develop from the use of the
principle of strict liability in “serious offences,” examined two
possible modifications of strict liability :
“ Parliament has not infrequently transferred the onus as regards

mens rea to the accused, so that, once the necessary facts are
proved, he must convince the jury that, on the balance of
probabilities, he is innocent of any criminal intention. . . The .
other method would be in effect to substitute in appropriate
classes of cases goss negligence for mens rea in the full sense,
as the mental element necessary to constitute the crime. It would
be much easier to infer that Parliament must have meant that
gross negligence would be the necessary mental element than to
infer that Parliament intended to create an absolute offence.”
Lord Diplock, in the same case,50 introduced a similar principle
based on the approach of Dixon J. in Proudnian v. Dayman, in the
Australian High On Lord Diplock’s view it was not necessary
to introduce gross negligence as a neoessary element. An evidentiary
burden of non-negligence should be thrown onto the accused:
“Unlike the position where a statute expressly places the onus of
proving lack of guilty knowledge on the accused, the accused does
not have to prove the existence of mistaken belief on the balance
of probabilities; he has to raise a reasonable doubt as to its
non-existence.”
This latter approach is, with respect, very much to be preferred.
The importation of negligence into statutory offences may be justified
on other grounds, but it is not neceSSary to resolve the problems
presented by mistake in cases of strict responsibility. Here mistake
~~

53 The Trades Descriptions Act 1968 provided by s. 24 that as to a number of

otiences it is a defence to prove (i) that the commission of tho offence was due
(inter a h ) to a mistake or accident and (ii) that the defcndant “ took ail reasonable
precautions and cxercised ail duc diligence to avoid the commission of such
an offence by himself or any other person under his control ”
64 [ 19691 1 All E.R. 347.
5 6 At p. 351.
50 At p. 363.
57 [1941] 67 C.L.R.536.
Nov. 19761 MISTAKE AND IGNORANCE IN CRIMINAL CASES 659
affects the imputation of the actus reus to the accused in the same
way that evidence of duress may prevent the act from being “his
act.” Evidence of bare mistake may not be enough, and the court
may require that the evidence intended to raise the issue of mistake
shows that the mistake was not negligently made, i.e. non-negligent
mistake.

Mistake as to the elements of a crime

There are very few offences in which it is possible to say that the
actus reus consists of a single element as to which a specified state
of mind is necessary for conviction. The description of murder as
“when a man of sound memory and of the age of discretion unlaw-
fully kills any reasonable creature in being, and under the King’s
peace, with malice aforethought, either express or implied by the law,
the death taking place within a year and a day,”58 illustrates the
complex character d that crime.
Again, all offences are not of the same order, in that, in some
offences the prohibition goes to lthe consequences of conduct while
in others it relates to the circumstances or the conduct itself. It is not
the consequences of rape or assault, for example, that are prohibited
but the carnal connection with the mn-consenting victim in the one
case, and the intentional putting in fear in the other.
Where the offence involves the intentional, reckless, or negligent
bringing about of a further consequence. mistake generally has the
effect of making that consequence unintended, non-reckless or
non-negligent.
Mistake may, however, go to one of the circumstances of the crime
irrespective of the effect on the actor’s mind as it relates to the
consequences. This is particullarly so where the oonsequexms are
irrelevant, but is also significant in such offences as murder and
manslaughter. Mistake in homicide may relate to the “reasonable
creature,” as in the supernatural cases 5s; to the existence of a “ being,’’
as in the early abortion cases 6 o and possibly in heart transplan~tations;
the victim being under the King’s peace; whether the death will
occur within a year and a day, and to many matters within the
concept of “ malice aforethought.”
We are not, therefore, always able to ask simply whether mistake
prevented advertance to consequences or whether it was negligent to
have brought such consequences about. It is necessary in a p eat many
cases to inquire whether the actor’s mistake prevented his advertance
to the existence of some circumstance-such as the existence
or non-existence of a consenting mind in a rape victim, or the
existence of a current marriage in bigamy.
58 Quoted in Russell on Crime, 12th ed., p. 465.
59 See Williams, “ Homicide and the Supernatural ” (1949) 65 L.Q.R. 491.
60 Poulfon (1832) C. & P. 329. On an,jndictment against a mother for the murder
of her child, Littlcdalc J. told the jury the being born must mean that the whole
body is brought into the world, and it is not sufllcient that the child respires In the
progress ot the birth.”
660 THE MODERN LAW REVIEW [Vol. 39
Mistake as to the object in homicide
It is neceSSary in murder that the actor should have adverted to the
consequences of his conduct, that is, that he should have foreseen
the certainty or probability of the death of a human being. Mistake
may prevent his foreseeing such a consequence as where he mistakenly
believes his conduct is harmless yet is aware that he is dealing with
a human being. In other cases he may give no thought to consequences
because he is labouring under a mistake as to some ulterior matter
which prevents his adverbnce. This is the case where the actor shoots
at an object which he mistakenly believes is an animal but which is in
fact a human, or attempts to dispose of a supposed corpse which is
in fact not dead.
Murder is, however, a crime of either intention or recklessness. In
reckless murder it is not enough to look to the effect of mistake on
the mental state of the actor. His conduot may be intended and result
in the death of a human being and yet not be culpable. Mistake may
negative negligence in the conduct. So, if the actor adverts to but is
mistaken about the nature of the objeot as when he perceives it to be
a dead body, a ghost or a changeling we can say that he did not
intend the prohibited result that flows from his assault, but we
cannot so readily say that he was not reckless or negligent as to those
consequences.
Professor Glanville Williams in his paper on “Homicide and the
Supernatural ” 61 speaks of murder as requiring “ an intention to kill
a human being,” 6a and since intention is required “ Any mistake that
negatives this intention negatives the crime.” 63 Murder, however, is
not a criae of specific intent. and recklessnass as to the death of a
human being is all that is required. Indeed, it is probably exceptional
for the Crown case to rest fairly and squarely on proof of intended
killing.
In reckless murder the mental state of the actor may not be
affeoted by mistake in so far as he adverts to the probable death of a
human being and yet it may negative the negligence aspect of the
crime. Thus the surgeon may not be mistaken as to the probability
of the death of his patient, yet may mistakenly apply a fatal remedy.
His mistake as to this element may be exculpatory if non-negligent.
The need to separate the two aspects of reckless offences is
illustrated in circumstances such as those in Church’s case.64Even
though it could be shown that there was gross negligence in the
accused’s n d e c t to colzfirm that the object he was dealing with was
a cadaver, yet his mistake nevertheless prevented his adverting to the
possibility of killing the victim.
The primary question for the jury, whethex the murder charge is
founded on intentional or reckless killing, is whether the mistaken
~~

61 (1949) 65 L.Q.R.491.
62 At p. 494.
63 Ibid.
64 Supra.
Nov. 19761 MISTAKE AND IGNORANCE IN CRIMINAL CASES 66 1
belid prevented advertance to the real state of affairs, not whether it
prevented the actor’s intending the prohibited consequences.
Failing clear direction on this element of the crime, there is a risk
that a jury, having heard evidence relevant to the “negligence ”
aspect of “ reckless ” murder may well transfer their belief that the
making of the mistake was grossly negligent into their consideration
of the question whether the accused adverted to the consequences.
This is especially so when the jury are directed that the mistake must
be reasonable. The unreasonable failure to consider cardully whether
the victim in Church was alive or dead might readily be considered
by a jury to make the mistake that prevented advertance unreasonable.

Mistake as to consequences and mistake as to an element

When an actor is mistaken as to the existence or oharacter of some
essential element of the actus reus it will commonly have the con-
sequential effect of preventing his adverting to the results of his
conduct. So, in Church the accused’s mistake about the nature of the
object he was dealing with prevented his adverting to the probability
that death could result from his conduct. It is therefore necessary
to divide the whole transaction so that the question whether there
is mistake as to the existence of a necessary element can be
considered independently of the question whether that mistake
has had the d e c t of preventing the actor from foreseeing
the prohibited consequences. Equally where the evidence suggests
ignorance of some fact its d e ct may be to prevent advertence to con-
sequences. On one view of the evidence in Church as summarised
by Edmund Davies J.66 the accused was merely ignorant whether the
victim was alive or dead.
There are many offences, however, in which knowledge by the
accused of the existence or nature of m e element of the actus reus
may be indifferent to his guilt. This is probably the case,for example,
on a charge of burglary where the accused is ignorant whether the
premises comprise a dwelling-house or not. His ignorance of this
matter could be said to prevent his having, averted to an essential
element of the crime yet it may have no effect on his culpability.
Equally, it is arguable, that, even if he positively, though mistakenly,
believed that the premises were not a dwelling-house it would not
affect the queStion.Oe

Mistake affecting ulterior intention

Since the actus reus of some offam includes either an ulterior
intention in the actor, as in the traditional forms of larceny and
burglary, or a requirement that a specified state of mind should
65 Ante, p. 657.
66 Williams, Criminal Law, The General Part, p. 196, sees dangers in holding that
some elements of serious crimes can be matters of strict responsibility. See also
J. C. Smith in 76 L.Q.R. 98, quoted in Williams at p. 197.
 662 THE MODERN LAW REVIEW [Vol. 39
exist in the victim, as in rape, mistake may negative such ulterior
mental states.
We have already seen that a mistake of llaw may have the effect
of excusing what is otherwise larceny or one of the many property
offence^.^' A mistake of fact may operate similarly, as where the
taker's intention is merely to borrow an object which is incapable
of being removed without being destroyed. Here the mistaken belief
that the object could be borrowed would, presumably, negative 'the
ulterior intent.
In offences where .the state of mind of the victim is an element of
the actus reus, as in rape, mistake will generally take the form that
the accused mistakenly believed that the victim was a consenting
party. Where there is evidence sufficient to raise that question, it
may still be necessary to wnsider whether the mistake was reck-
lessly or negligently made. If the definition of rape requires that the
accused should both intend having intercourse and also intend having
such intercourse with a non-consenting victim, even reckless or
negligent mistake should exculpate. However if only recklessness or
negligence as to these two elements is sufficient it would seem
necessary to show that the mistaken belief was not negligently
arrived at.88
D. O'CONNOR."
87 Ante, p. 649.
c.8See Sperofro (1970) 7 1 S.R.(N.S.W.) 334. The decision in Morgan [1975]
2 All E.R. 347, perhaps because it concerns a case of aiding and abetting rape,
assumes that it is necessary in charges of rape to show that the accused both intended
the act of intercourse and intended that that act should be without the consent of
the victim. It may be that no more is necessary in rape than that the Crown
should prove general intent. Recklessness as to the act and the element of consent
should be sumcicnt. If this is so the abandonment of the requirement of reason-
ableness may be o p n to question.
* Ph.D. Reader in Law, Australian National University.