Reconceptualising fault in the criminal law : a defence of reasonable mistake of law

Abstract

This is a thesis about criminal culpability and the need for a moral theory of criminal fault. The liberal positivist ideal of separating law and morals has resulted in the moral reductionism of the doctrine of mens rea. Originally a normative concept that was used to evaluate blameworthiness in moral terms, mens rea has been transformed into a descriptive concept that merely identifies the technical, psychological mental states that are required for particular offences. It is argued that the doctrine of mens rea should be recast in an overt normative mould.

This work does not suggest that the morality of prohibited conduct or the moral virtue of the accused be brought into question in determining culpability. The thesis merely argues that morally innocent accused should not be subjected to criminal liability. In order to achieve this, the thesis reconceptualises criminal fault in terms of moral blameworthiness. The doctrine of mens rea is consequently reconstructed so that it can be expressly used to attribute moral blameworthiness more fairly.

It is argued in this dissertation that a person is morally blameworthy when he or she engages in prohibited activity, knowing that it is illegal, or where he or she ought to have known, that it is illegal. Where an accused was reasonably ignorant or mistaken as to the legality of the conduct, he or she should be regarded as morally (and hence, legally) innocent. Thus, the legal rule that ignorance of law is not a defence is unfair, contrary to fundamental principles of justice and can no longer be supported. It is proposed that a general defence of reasonable mistake of law be recognised.

The work exposes a hidden normative doctrine of fault. Because this normative doctrine is formally suppressed, internal contradictions in the key notions of culpability are inevitable. It is demonstrated that by relying on theoretical, historical, doctrinal and comparative analyses, these contradictions can be resolved.