Criminal Law General Defences Mistake

1
Criminal Law General Defences Mistake
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Defence of mistake

• Where D mistakenly believes that circumstance A
  exists but in fact it is circumstance B
• if A, then no crime
• if B, then crime
• Do we assess Ds liability on facts
• as D believes them to be? OR
• in some other way?

3
Mistake of law?

• Ds mistake might be of fact or law
• mistake of law is no defence
• not knowing that conduct is a crime - Bailey 1800

4
Mistake of law?

• Ds mistake might be of fact or law
• BUT mistake of civil law may be equivalent to
  mistake of fact
• believing that you are owner of property may
  give you defence to criminal damage - Smith 1974
  Hart 1982

5
Mistake of fact?

• Ds mistake might be of fact
• if induced by drugs or alcohol, different
  principles
• has different consequences depending on type of
  offence. Is offence
• one of strict liability
• one of negligence
• one involving intent or foresight

6
Strict liability and mistake of fact

• Consider Prince 1875
• takes girl away from parents but believes on
  reasonable grounds that she is over 16
• court applies strict liability as to
  circumstance of age - thus mistake is no defence
• but see B v DPP 2000 1 All ER 833 and R v K
  2001 3 All ER 897 both deal with sexual acts
  with young children
• Lords hold that Parliament intended mens rea and
  prosecution must prove that D did not honestly
  believe that V was over the relevant age
• potentially a landmark decisions for strict
  liability

7
Negligence and mistake of fact

• Consider Tolson 1889
• marries again but believes on reasonable grounds
  that husband is dead
• would reasonable person have made same mistake?
  If yes, mistake is defence
• Consider Caldwell 1980 (again!)
• believes nobody in hotel but still recklessly
  endangers life an unreasonable and drunken
  mistake but if it had been a sober mistake, based
  on reasonable grounds????
• changed by R v G 2003 4 All ER 765?

8
Intent and mistake of fact

• Key decision is Morgan 1976
• following Tolson, should be acquitted only if he
  believed on reasonable grounds that the woman was
  consenting
• BUT Lords held that if honest belief, whether
  reasonable or not, that V consenting, no
  intention to have sex without consent or
  recklessly - prosecution failed to prove one of
  ingredients of offence, and acquitted.
• NB s.1 Sexual Offences Act 2003 - unreasonable
  beliefs (as in Morgan) are no longer a defence to
  rape

9
Intent and mistake of fact

• Consider Williams 1987 assaults V but believes
  that acting in defence of others
• does not matter that reasonable person would
  have not made same mistake? Mistake is defence
• approved by Privy Council in Beckford 1988
• But Morgan/Williams line of authority does not
  overrule Tolson
• Phekoo, 73 Cr.App.R. 107 harassment and
  eviction belief that V was not a residential
  occupier but merely a squatter must be based on
  reasonable grounds