Ignorance of the law is no excuse?

Ignorance of the law is no excuse? Or is it?

Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a lawyer (either barrister or solicitor) working in the area of criminal law before acting or relying on any of its content.

In December 2017 Sydney University Law School was advertising an interesting podcast with eminent professor Andrew Ashworth. Emeritus Prof Ashworth was the Vinerian Professor of English Law from 1997 to 2013 at the University of Oxford.

The professor argues that the idea that ignorance of the law is no excuse needs to be revisited in light of the proliferation of new laws, not to mention their complexity. Emeritus Professor Ashworth contends that, in certain circumstances, the state should be compelled to take reasonable steps to publicise new laws for the benefit, understanding and accessibility of the community.

Of course, to say that ignorance of the law can never be an excuse in the criminal law is not entirely accurate. The defence of honest and reasonable mistake of fact is available to alleged offenders in certain circumstances. In making out this defence, to show that someone honestly believed something to be so is seldom the difficult aspect; it is whether that belief was reasonable that can be problematic.

Importantly the defence can only be raised by a defendant in relation to a mistake of fact rather than law, and it is generally only available for strict liability offences.

These distinctions can be difficult to understand and so it is recommended that those wanting to raise a defence of honest and reasonable mistake as to fact seek legal advice.

Posted by Sebastian De Brennan, Barrister, s.debrennan@humanrightslaw.com.au

© 2017 Sebastian De Brennan. Barrister at Law