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THE
MODERN LAW REVIEW
Volume 74 January 2011 Nol
Ignorance of the Criminal Law, and Duties to Avoid it
Andrew Ashworth*
'Ignorance of the law is no defence,' so we are told from an early stage in our legal studies. Or,
to be more accurate, 'ignorance of the criminal law is no defence to a criminal charge.' That
appears to be the rule in this country, apart from a couple of well-established exceptions and
another possible one. I will argue that it is a preposterous doctrine, resting on insecure founda
tions within the criminal law and on questionable propositions about the political obligations of
individuals and of the State. In developing these arguments, I will draw attention to the differing
problems of ignorance of the criminal law in three broad areas ? regulatory offences, serious
crime, and offences of omission - with a view to suggesting that there is a great deal more that
the State needs to do if the issue of ignorance of the criminal law is to be dealt with adequately
and fairly.
I begin by scrutinising the relevant rule of English criminal law and the justifications offered
for it. I then go on to situate the 'ignorance-of-law' doctrine in the context of the principle of
legality and the rule of law, those bastions of liberal criminal law theory. Part three then explores
the three broad areas of the criminal law, and parts four and five carry the debate into the political
obligations of individuals and of the State in these matters.
*Vinerian Professor of English Law, University of Oxford. I am grateful to Beatrice Krebs for research
assistance and, for contributions and comments on drafts, to Petter Asp, James Chalmers, James
Edwards, Jeremy Horder, Doug Husak, Andrew von Hirsch and Lucia Zedner.
1 4 Bl. Comm. 24. For fuller exploration of the history, see E. R. Keedy,'Ignorance and Mistake in
the Criminal Law' (1908) 22 Harv L R 75.
2 Smith and Hogan, Criminal Law (Oxford: Oxford University Press, 12th ed., 2008, by D.
Ormerod), 319; see also A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine
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Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA
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Ignorance of the Criminal Law, and Duties to Avoid it
den (1951)3 and Churchill v Walton (1967),4 the proposition that ignorance of the
criminal law is no defence was treated as fundamental to the courts reasoning;
and in Grant v Borg (1982)5 Lord Bridge delivered the strong statement that:
The principle that ignorance of the law is no defence in crime is so fundamental that
to construe the word "knowingly" in a criminal statute as requiring not merely
knowledge of the facts material to the offender s guilt but also knowledge of the
relevant law, would be revolutionary and to my mind wholly unacceptable.
(Oxford: Hart Publishing, 4th ed., 2010), 680; A. Ashworth, Principles of Criminal Law (Oxford:
Oxford University Press, 6th ed., 2009), 220-224.
3 [1950] 1 KB 544, at 546 per Lord Goddard CJ.
4 [1967] 2 AC 224, at 236 per Viscount Dilhorne, followed eg by Lord Taylor CJ. in Attorney
General's Reference (No. 1 of1995) [1996] 2 Cr App R 320, at 333.
5 [1982] lWLRat646B.
6 For a recent example, relating to the offences of encouraging or assisting a crime, see the Serious
Crime Act 2007, s 47(2), (3) and (4).
7 Law Com. No. 177, A Criminal Code for England andWales (London: HMSO, 1989), vol. 1, clause 21;
vol. 2, paras. 8.29-8.32.
8 Statutory Instruments Act 1946, s 3(2).
9 Lim Chin Aik v R. [1963] AC 160. For similar exceptions to the principle in the Model Penal Code,
see s. 2.04 of the Code and the comments by M.D. Dubber, Criminal Law: Model Penal Code (New
York: Foundation Press, 2002), 103-104; in Australia, see Criminal Code Act 1995 (Common
wealth), s. 9.4.(1) for the rule and (2) for the exceptions; in Canada, see s. 19 of the Criminal Code
('ignorance of the law by a person who commits an offence is not an excuse for committing that
offence').
10 eg Smith (D.R) [1974] QB 354 (knowledge that property 'belonged to another'), Secretary of State for
Trade and Industry v Hart [1982] 1WLR 481 (knowledge that disqualified from auditing company's
accounts because of positions previously held).
11 Model Penal Code s. 2.04 (U.S.A.); the English authorities are reviewed by A. Ashworth,'Testing
Fidelity to Legal Values: Official Involvement and Criminal Justice' (2000) 63 MLR 633, at 635
642.
12 See nl above.
13 J. Austin, Lectures onJurisprudence (2 vols, London: Murray, 5th ed by R. Campbell, 1885), 1,482.
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Andrew Ashworth
ignorance of the law would create insuperable difficulties for prosecutors in prov
ing that defendants knew the law, resulting in acquittals of guilty people.14 Others
have preferred the consequentialist argument that to allow the defence would be
to create a perverse incentive, since it would inevitably have the effect of encoura
ging ignorance of the law.15 These two consequentialist reasons seem to have been
regarded as sufficient to sustain the English rule, subject only to the exceptions
mentioned in the previous paragraph. The only argument of principle that is
sometimes invoked is that, since serious offences are mala in se, individuals should
know that they are wrong and therefore criminal.16 More will be said about this
argument in due course.
We must begin by challenging the two consequentialist arguments for the strict
doctrine, since they are unpersuasive and inadequate. The first one - Austin on the
difficulty of proof for the prosecution - seems no more powerful in this context
than in relation, for example, to the doctrine of mens rea.17 Jurisdictions that allow
ignorance of the criminal law as a defence appear not to experience significant
practical difficulties.18 As for the second consequentialist argument, the 'false
incentive reasoning, this is inapplicable to any legal system that allows the defence
only where there are reasonable grounds,' since a form of reasonableness require
ment would remove any perverse incentive to remain in ignorance.19
As for the argument of principle based on a distinction between 'mala in si and
'mala prohibits, the best we can do at this stage is to place a huge question-mark
over it. The two terms are highly contested, and do not represent agreed cate
gories of offence. It is extremely doubtful whether there is a sufficiently robust
distinction between mala in se and mala prohibita to provide reassurance that people
who are ignorant of the criminal law will be convicted only if they are blame
worthy. The ignorance-of-law doctrine crystallised at a time when perhaps the
contours of the criminal law were reasonably knowable and widely known;20 in
the pages that follow, I will raise doubts about whether this is true now, even if it
14 /to/, 482-483.
15 See generally G.Williams, Textbook of Criminal Law (London: Sweet & Maxwell, 2nd ed., 1983), 452;
D. M. Kahan, 'Ignorance of Law is an Excuse - but only for the Virtuous' (1997) 96 Michigan LR
127; E McAuley andj. P. McCutcheon, Criminal Liability (Dublin: Round Hall, 2000), 570-575;
J. Chalmers and F. Leverick, Criminal Defences and Pleas in Bar of Trial (Edinburgh: Green, 2006), ch
13, 261-265.
16 See the discussions of this in the case of the Pitcairn islanders, Christian v R. [2007] 2 AC 400.
17 Indeed, this counter-argument was made as long ago as 1881 by O.W Holmes in The Common Law
(Cambridge, Mass: Belknap Press, 1963 [1881]), 48. See further A. T. H. Smith, 'Error and Mistake
of Law in Anglo-American Criminal Law' (1985) 14 Anglo-American LR 3,17.
18 See the discussion of South Africa, n 26 below and accompanying text.
19 For further discussion, see nn 29-31 below and accompanying text.
20 Compare the confidence with which Thomas Hobbes, Leviathan (1651), II. xvii. 4, proclaimed that
'ignorance of the law of nature excuseth no man, since everyone is supposed to have a developed
sense of reason, with Keedys denunciation of the presumption that everyone knows the law as
'absurd': Keedy, n 1 above, at 91.
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Ignorance of the Criminal Law, and Duties to Avoid it
was then. The use of terms such as mala in se assumes a moral consensus that is
unlikely to exist, except in relation to a small core of egregious crimes. Questions
about the justice or injustice of the ignorance-of-law doctrine are therefore unli
kely to be resolved by applying these Latin labels.
At least, however, that argument has brought our discussion to the question of
fairness and justice. Leaving aside the (in any event unsustainable) consequentialist
reasons, is it not unjust and morally wrong to convict people of crimes the exis
tence of which they were not aware? Douglas Husak and Andrew von Hirsch
argue in favour of courts being allowed to assess the moral legitimacy of the
defendant's belief or ignorance, except in cases where the defendant knows that
his conduct is injurious.21 Two of the issues they discuss will be taken further here
- the relevance of ignorance of the criminal law to the concepts of mens rea and
guilt, and to culpability and excuse.
First, can it be argued that knowledge of the criminal law is so fundamental to
the idea of criminal guilt that it should be recognised as part of the doctrine of
mens rea or, at least, as a precondition of criminal liability? Two lines of argument
are relevant here. First, criminal conviction involves public censure, and that
should be limited to cases of culpable wrongdoing. Insofar as ignorance of the
law negatives culpability, it should be relevant either to mens rea or as a defence.
Secondly, there is a link with the principle of legality or rule of law, which in this
context requires legal norms, and especially those of the criminal law, to be clear,
stable, and not retrospective in their operation. The principle of legality is usually
said to require fair warning of clear and certain criminal laws that do not operate
retrospectively. An individual living under the European Convention on Human
Rights can expect to be protected from retrospective criminal laws (Article 7),
from laws that are not sufficiently certain and from powers that do not contain
sufficient safeguards against arbitrariness (the quality of law' test derived from
Article 7).22 All of these points of principle relate to the laws function of guiding
peoples conduct, and it was Lon Fuller, in his catalogue of 'eight ways to fail to
make a law',23 who emphasised the fundamental importance of publicising laws
and making them available to citizens.
The next question, then, is whether the element of notice and fair warning is
properly seen as crucial to criminal liability For example, John Gardner has
argued that 'those of us about to commit a criminal wrong should be put on stark
notice that that is what we are about to do.'24 He goes on to argue, developing
21 D. Husak and A. von Hirsch, 'Culpability and Mistake of Law', in S. Shute, J. Gardner and
J. Horder (eds), Action and Value in Criminal Law (Oxford: Oxford University Press, 1993).
22 See further B. Emmerson, A. Ashworth and A. Macdonald (eds), Human Rights and Criminaljustice
(London: Sweet & Maxwell, 2nd ed., 2007), ch 10; B. Juratowitch, Retroactivity and the Common Law
(Oxford: Hart Publishing, 2008), ch 3; and A. T. H. Smith, 'Judicial Lawmaking in the Criminal
Law' (1984) 100 LQR 46, at 69-73.
23 L. L. Fuller, The Morality of Law (New Haven: Yale University Press, rev. ed., 1969), ch II; and
see also the discussion byj. Waldron,The Concept and the Rule of Law' (2008) 43 Georgia LR
1, at 7.
24 J. Gardner, 'Wrongs and Faults', in A.P. Simester (ed), Appraising Strict Liability (Oxford: Oxford
University Press, 2005), 69-70; although there may be situations, as Husak and von Hirsch have
argued (n 21 above), where it would not be reasonable to excuse someone who knew that he was
injuring another.
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Andrew Ashworth
Hart, that it is through the ideal of the rule of law that 'the mental element in
crime is connected with individual freedom:'
According to the ideal of the rule of law, the law must be such that those subject to it
can reliably be guided by it, either to avoid violating it or to build the legal conse
quences of having violated it into their thinking about what future actions may be
open to them. People must be able to find out what the law is and to factor it into
their practical deliberations. The law must avoid taking people by surprise, ambush
ing them, putting them into conflict with its requirements in such a way as to defeat
their expectations and frustrate their plans.25
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Ignorance of the Criminal Law, and Duties to Avoid it
28 Pace Holmes, who wrote that 'It is no doubt true that there are many cases in which the criminal
could not have known that he was breaking the law, but to admit the excuse at all would be to
encourage ignorance where the law-maker has determined to make men know and obey, and
justice to the individual is rightly outweighed by the larger interests on the other side of the
scales'. The Common Law, n 17 above, 46.
29 I am grateful to Jeremy Horder for pressing this form of response. Its claims would be strongest in
sexual offences cases where a prosecution has been brought contrary to the Crown Prosecution
Service guidance, although (as he pointed out) such guidance is not law.
30 See, eg, Looseley [2002] 1 Cr App R 29 (entrapment), Postermobile pic v Brent LBQ The Times, 8
December 1997 (acting on official advice as to the law). Abuse of process would be relevant if the
law had not been adequately published, as was argued (unsuccessfully) in relation to Pitcairn
Island in Christian v R. [2007] 2 AC 400, on which see H. Power, 'Pitcairn Island: Sexual Offend
ing, Cultural Differences and Ignorance of the Law' [2007] Crim. L.R. 609, at 619-625.
31 J. Gardner, Offences and Defences (Oxford: Oxford University Press, 2007), 124; Gardner does not
refer specifically to ignorance of the criminal law, so this is my application of his doctrine.
32 Some support for this approach was expressed by Glanville Williams, Criminal Law: The General
Part (London: Stevens, 2nd ed., 1961), 291-29. For the German position, providing a defence of
unavoidable mistake of law', see M. Bohlander, Principles of German Criminal Law (Oxford: Hart
Publishing, 2009), 119-121, and Husak and von Hirsch, n 21 above, 169-170; for the Swedish
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Andrew Ashworth
In this section I consider the different problems created by three different strains of
criminal law - first, regulatory offences; secondly, serious crime; and thirdly,
offences of omission. Given the frequent references in the press to the large num
bers of new criminal laws created in recent years, it is important to assess the nat
ure of the problem. I have directed surveys of the new criminal laws created by
primary legislation in 1995 and in 2005. The overall numbers of criminal offences
catalogued - 188 for 1995 and 165 for 2005 - are somewhat lower than those com
monly cited, but the surveys were confined to primary legislation, whereas con
siderable numbers of new offences (almost entirely regulatory') are created by
subordinate legislation.37 In terms of culpability requirements, some two-thirds
of the offences in both years imposed strict liability, mostly without providing
for a defence of reasonable excuse. There was otherwise considerable diversity in
the culpability requirements,38 but it is not necessary to explore them here. It may,
approach, providing a defence of 'manifestly excusable' or clearly excusable' mistake of law, see
S.Wennberg,'Criminal Law', in M. Bogdan (ed.), Swedish Law in the New Millenium (Stockholm:
Norstedts Juridik, 2000), 172.
33 See the discussion in Ashworth, n 2 above, 185-189; and, in German, by U. Neumann,'Die Schul
dlehre des Bundesgerichthofs ? Grundlagen, Schuldfahigkeit, Verbotsirrturn, in C. Roxin and G.
Widmaier (eds), 50Jahre Bundesgerichtshqf, Festgabe aus derWissenschaft (vol. IV, Munich: Beck, 2000),
83-109.
34 See Waldron, n 23 above, 11: 'the Rule of Law aims to correct abuses of power by insisting on a
particular mode of the exercise of political power: governance through law.'
35 eg Gardner, n 24 above, 52, Fuller, n 23 above, 41^4 on the 'morality of aspiration and, more fully,
T. A. O. Endicott,'The Impossibility of the Rule of Law' (1999) 19 OJLS 1.
36 See L. Alexander and K. Ferzan, Crime and Culpability (Cambridge: Cambridge University Press,
2009), 291-292.
37 A point well made in Law Commission Consultation Paper No. 195, Criminal Liability in Regula
tory Contexts (London: the Stationery Office, 2010), paras. 1.17-1.20.
38 For example, some offences had strict liability as to one element and intent or full knowledge as to
another. Some offences used terms such as 'permitting', 'connivance', 'invites' and other operative
words that do not fit into a simplified scheme. I am grateful to Dr Rhonda Powell for research
assistance on this project.
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Ignorance of the Criminal Law, and Duties to Avoid it
however, be worth adding that there was express provision for placing a burden
of proof on the defendant in 15 (8 per cent) of new offences in 1995 and 19 (12 per
cent) in 2005.
'Regulatory' Offences
In order to elucidate the context of the new laws, let us focus on 2005 ? a year in
which there was no 'traditional law reform, in the sense of changes to the kinds of
criminal law that are commonly taught in universities and contained in textbooks
on the subject. It appears that the predominant purpose of2005 s new offences was
to reinforce the regulatory state, by creating offences that support or underpin
regulatory mechanisms. The concept of the regulatory state refers to the States
withdrawal from providing services directly and the creation of regulatory and
licensing authorities to govern other organisations that provide the services.39 In
this context, the role of the criminal law is increasingly that of hand maiden to the
regulatory state, a reinforcement mechanism that is seen as an essential part of the
package. However, the title regulatory offences' for this section is a loose one, and
should not be taken to suggest that all these offences are minor or non-imprison
able, for example.
The research suggests that, typically, a regulatory structure is supported by offences
of three kinds - offences of failure to comply, offences of giving false information,
and offences of obstruction. Five examples of offences of failure to comply are:
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Andrew Ashworth
non-compliance. In some (but not all) of these cases, this will be sufficient to deal
with any problems of ignorance of the criminal law, since and insofar as the per
son is informed about the relevant law before the conduct or omission that con
stitutes the offence.
The second type of offence commonly encountered in this context is that of
giving false information. It may accompany an offence of failure to comply with a
requirement, as in the following example from the Clean Neighbourhoods and
Environment Act 2005. Section 28 empowers an authorised officer of a principal
litter authority to require a person to give name and address. Subsection (8) then
provides:
A person commits an offence if
Now, quite apart from the fact that the officers demand may be accompanied by
reference to the penalty for non-compliance, some might take the view that the
offence under (b) is one in which there is a clear malum in se involved - lying. It is
one thing to stand on ones supposed rights and to refuse to give name and address
(which would be unsuccessful in this context, since there is no such right); it is
quite another thing positively to mislead the official by giving a false name and
address, and it could be argued that everyone should know that this is wrong and
likely to be an offence. In this context, there is likely to be very little purchase for
an argument that one was unaware that litter was regulated by authorised officers
with statutory powers of this kind. A lie to a public official is presumptively crim
inal, some would say40 - although whether anything can be described as 'pre
sumptively criminal' will be discussed further below.
The third typical kind of offence is that of obstructing an officer of the regula
tory agency. Although the format of these offences varies a little, examples are to
be found in several 2005 statutes. The Education Act 2005 gives certain rights of
entry to inspectors, and these are supported by an offence (in s. 24(4)) of intention
ally obstructing an officer in the exercise of any of the listed functions; similarly,
s. 51(2) of the Serious Organised Crime and Police Act 2005 creates an offence of
wilfully obstructing a designated person acting in the exercise of a power under
that Act. Section 31(1) of the Commissioners for Revenue and Customs Act 2005
creates an offence of obstructing an officer without reasonable cause, a slightly
different formulation. Further examples are probably unnecessary: these are situa
tions in which either the officer is likely to explain his or her powers to the indi
vidual, or the regulatory context of the officer's intervention is apparent, before
the conduct that constitutes the offence.
However, all these suggestions about the context in which the offences will
arise are contingent. The defence of reasonable ignorance should be available,
40 The Law Commission, n 37 above, paras. 3.123, points out that many of these offences are unne
cessary since the conduct would be criminal under the Fraud Act 2006. For analysis of the Act, see
D. Ormerod,The Fraud Act 2006 - Criminalising Lying?' [2007] Crim LR193.
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Ignorance of the Criminal Law, and Duties to Avoid it
Serious Crimes
Having earlier criticised the concept of 'mala in sey it may seem strange to use the
term serious crimes' as a sub-heading. More will be said about the nature of this
category towards the end of the section, but for the moment the target crimes are
those for which imprisonment is often used. We now leave the year 2005 and cast
our eyes more generally over recent years, considering some important changes in
the criminal law that affect all of us - not just those involved in activities that are
subject to regulatory schemes. A prime example of this is the Sexual Offences Act
2003. By any yardstick this was an important piece of criminal legislation. The
first 71 sections all created new offences, and many of them extended the ambit
of the criminal law. The aim was to modernise the law relating to sexual offences
by, for example, creating gender-neutral offences and ensuring proper protection
for the vulnerable. But how much of the detail seeped into popular consciousness?
How many teachers of criminal law would claim to know, without referring back
to the statute, many of the details of this Act? Just how have the new offences been
publicised, and has that been adequate?
Let us consider a few cases. InThomas (2006),41 Tadmitted having sex with a girl
of 17. She had been in foster care with T and his wife from the age of 11 to 17, but
had recently moved away into separate accommodation, after which the sexual
activity took place. He was convicted of an offence contrary to section 25 of the
Sexual Offences Act (sexual activity with a child family member). Two important
features of this offence are i) that it applies where the child is under 18, whereas the
general age of consent is 16, and ii) that the concept of 'family relationship' on
which the offence depends includes a person who 'is or has been [the child's] foster
parent.'A central element inT's mitigation was that he did not know that what he
was doing was a criminal offence. The Court of Appeal recognised this to the
extent of reducing his sentence from four to two-and-a-half years. Leaving aside
the question of whether the sentence was harsh for a man with no previous con
victions and excellent references from other people fostered by him, what does
this case imply about the State's responsibilities? Might it not be argued that the
government had failed to discharge its obligation to publicise the changes in sex
ual offences law? In particular, how much publicity had been disseminated among
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Andrew Ashworth
foster carers (and former foster carers) about the wider ambit of the criminal law
post-2003? To argue that such conduct involves a malum in se or is 'presumptively
criminal' is unconvincing, since the issue is a change in the outer limits of the law.
A person may well know that there is a law of sexual offences, and a law prohibit
ing incest or familial sex, without realising that it applies to former foster children
who are over 16 but under 18.
A greater challenge for my approach is raised by the various offences of posses
sion of a prohibited firearm, contrary to section 5 of the Firearms Act 1968. Sec
tion 5 contains a long list of types of gun, forms of adaptation of guns, and types
of ammunition that fall within the prohibition and therefore the offence; the list
has been amended by subsequent legislation. By virtue of section 287 of the
Criminal Justice Act 2003, section 51 of the Firearms Act was amended so as to
impose a mandatory minimum sentence of five years' imprisonment on persons
convicted of a section 5 offence, unless the court finds 'exceptional circumstances'
In Rehman and Wood (2006)42 both offenders had received the mandatory mini
mum sentence, both having unsuccessfully pleaded 'exceptional circumstances'
R had purchased a replica blank-firing handgun over the internet. The police
traced him from this internet purchase and, when they came to R!s house, he
showed them where the gun was and said he was unaware that it was illegal to
possess it. In fact, it fell within a prohibited category because it was less than 60
cm long with a barrel of less than 30 cm. His openness in purchasing the gun with
his own credit card, for delivery to his own home, tends to support his story of
ignorance. Lord Phillips CJ held that part of the context is that the offences have
been held to impose strict liability;43 but that the primary purpose of the legisla
tion is to ensure that courts impose deterrent sentences on offenders, and 'if an
offender has no idea that he is doing anything wrong, [the prospect of] a deterrent
sentence will have no deterrent effect on him.'44 With that, the Court of Appeal
quashed the mandatory minimum sentence and substituted two years - still a
substantial sentence for someone genuinely ignorant of the law. However, the
Court took a different view of Ws case. W was a collector of firearms, most of
which were kept in locked cabinets as required. However, on searching his house
the police found a number of other weapons, including a shotgun with its barrel
shortened. This was in the loft, and W said he had inherited it from his grand
father. It was a prohibited weapon, but he said he did not realise this. The Court
of Appeal held that in his case the mitigation was insufficient to amount to excep
tional circumstances,' largely because W had been a collector for many years and
should have checked whether it was lawful for him to have this shotgun in his
possession. In terms of ignorance of law, the issue in these firearms cases is that
both defendants knew that the possession of firearms was restricted by the crim
inal law, but neither of them knew that the regulations applied to the type of
firearm in their possession.
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Ignorance of the Criminal Law, and Duties to Avoid it
It might be argued that the defendants should have been put on notice by
knowledge of the general prohibition; but this would not account for a case like
Beard (2008).45 When B's mobile home was searched for drugs, the police found no
drugs but did find 66 small cartridges. These contained CS gas and were therefore
prohibited ammunition contrary to section 5 of the Firearms Act, triggering the
mandatory sentencing provisions. It was accepted that the cartridges could easily
be mistaken for blanks, that B was unaware that their possession was illegal, and
that B had no means of firing them. The Court of Appeal therefore quashed the
mandatory sentence of five years and replaced it with two years' imprisonment.
These four decisions ? one under the Sexual Offences Act, three under the
Firearms Act - raise serious questions about the English approach to ignorance
of the law. Of course the State has a duty to put in place laws that protect young
people from sexual exploitation and to protect people in general from the risks
created by unregistered firearms, but the highest priority should be given to the
use of education and information in order to reduce the number of offences being
committed. Waiting until a case arises, imposing strict liability as to knowledge of
the law so as to convict the person concerned, and then following it with a dis
proportionate sentence so as to use this offender as a means (adequate or not) of
warning others is monumentally unjust. Not surprisingly, given the general
understanding of the common law, ignorance of the criminal law was apparently
not raised as a defence in the above cases; whether the facts of all the cases would
fit the kind of excusatory defence proposed earlier is hard to say Yet two points
should be clear. First, it is unjustifiable for the State to provide for the conviction
of people who are not at fault, in the hope of deterring others from engaging in
the same kind of conduct.46 Secondly, all four defendants were people without
criminal records, and still they ended up serving substantial prison terms47 That
should raise strong alarm bells, since these are not cases involving aggression or
major dishonesty.
Finally, what does the term'serious crime', or mala inse, add to this discussion? It
is possible to argue that there may be a 'moral core' of real crime,' so that there are
substantial elements of consensus about values as well as significant dissensus or
agnosticism in other spheres48 However, that is not enough to establish a work
able category of mala in se that can be used to separate crimes that people can rea
sonably be expected to know about from crimes that it is unreasonable to expect
people to know about, not least because of the amount of discretion that would
leave to the authorities49 Even if there is a'functional differentiation between real
45 [2008]2CrAppR(S)232.
46 The classic rebuttal of this utilitarian argument is by H. Morris,'Persons and Punishment' (1968)
52 The Monist 475.
47 Beard alone had one previous theft conviction, but the court treated him as being of good char
acter. Cf. the sentences in the older cases, much cited on the issue of strict liability, such as Howells
[1977] QB 614 (mistaken belief that gun was classed as antique no defence, fined ?100) and Hussain
[1981] 1WLR 416 (lack of awareness that metal tube was prohibited article no defence, fined ?100).
48 See the fine but neglected article by P. Rock, 'The Sociology of Deviancy and Conceptions of
Moral Order' (1974) 14 BJ Crim 139.
49 Herbert Packer regarded control of official excesses as the main practical reason in favour of the
principle of legality: H.L. Packer, The Limits of the Criminal Sanction (Stanford: Stanford University
Press, 1969), 85.
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If we return for a moment to the survey of new criminal offences created by pri
mary legislation, one finding was that a significant minority - 39 (or 21 per cent)
in 1995 and 42 (or 26 per cent) in 2005 - are offences of omission. They penalise an
individual or company for failing to do something. Offences of omission pose a
special problem. The typical character of criminal offences is that they are prohi
bitions and are intended to operate negatively: do not assault, steal or damage, for
example. Offences of omission embody obligations and require people to do posi
tive acts, or to respond to situations in a particular way. Since the criminal law
imposes fewer responsibilities on individuals to prevent harm than not to cause
harm,51 and perhaps because it is widely thought that such duties are rare, it is all
the more important to ensure that people are put on notice of the positive expec
tations that the criminal law has of them. Thus in the famous U.S. case ofLambert
v California (1957)52 L went to reside in Los Angeles and was charged with the
offence of, being a convicted felon, failing to register that she was residing in the
city for more than five days. Her defence was that she was unaware of this law, but
the court ruled that ignorance of the law was no excuse and convicted her. The
Supreme Court held that this conviction violated due process: the offence pena
lised an omission, based on status (presence) rather than an activity, and there was
nothing to alert L or anyone in her position to the requirements of the law. Lam
bert therefore demonstrates the heightened importance of re-assessing the com
mon laws 'ignorance of law' doctrine in relation to omissions.
In order to develop those thoughts, let us explore the nature of the special pro
blems by discussing two categories of omissions. First, we will examine some
offences that can be committed by omission, focusing on the origin and nature
of the duties that this involves. Secondly, we will consider general offences of
omission, offences that penalise an omission rather than the causing of an out
come by omission.
50 N. Lacey, 'Legal Constructions of Crime', in M. Maguire, R. Morgan and R. Reiner (eds), The
Oxford Handbook of Criminology (Oxford: Oxford University Press, 4th ed., 2007), 184.
51 R.A. Duff, Answeringfor Crime (Oxford: Hart Publishing, 2007), 110. For discussion of the broader
question of the extent to which people are culpable for not doing things, seej. Glover, Causing
Death and Saving Lives (Harmondsworth: Penguin, 1977), esp. ch 7, and A.P. Simester,'Why Omis
sions are Special' (1995) 1 LegalTheory 311.
52 (1957) 355 US 225.
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Ignorance of the Criminal Law, and Duties to Avoid it
steps;53 and it is fraud if a person fails to disclose information that there is a duty to
disclose, and does so dishonestly with the required intent.54 It is a feature of the
fraud offence that the list of duties to disclose is not set out in the criminal law, and
has to be sought elsewhere. It is difficult to say how widely known these duties
are. But, unless they are widely known, they presumably vie in the popular con
sciousness with sayings such as 'finders keepers' and 'tell no secrets, tell no lies.' So
it is at least possible that some people are ambushed'55 by duties of which they are
unaware.
This possibility also arises in relation to much more serious offences. Com
law manslaughter may be committed by gross negligence in failing to fulf
duty of care owed by the defendant to the victim. Many of these duties of
are obligations on people in particular situations to take positive action, but
can the conscientious citizen find out about them? Two such duties are estab
in legislation. One well-known duty is that of the parent towards her or his
- the parent may be convicted of the discrete offence of child neglect and, w
the parent causes death through failure to feed or to ensure the safety of the chi
the conviction may be for manslaughter (if grossly negligent) or for murd
there is an intent to cause death or really serious harm).56 Another statutor
well known among those to whom it applies, is that of organisations to saf
the health and safety of their employees and others affected by their activi
recently reinforced by the creation of an offence of corporate manslaught
Beyond these statutory duties, the other duties are listed only in the cri
law books, since they have been developed by the judiciary on a case-by
basis. The list includes relatively straightforward duties such as that of electr
to ensure the safety of their customers,58 more controversial duties such as t
lorry driver to ensure the safety of people who agree to be loaded into a s
container with a view to illegal immigration (a duty that was held to exist d
their consent),59 and manifestly controversial duties such as that of a perso
accepts another into her household and assists that other by washing her whe
falls ill (which was held to create a duty to take action to ensure her contin
welfare).60 These are all common law duties, created by the courts in the ca
which they were first applied, resulting in convictions for the serious offen
manslaughter and, usually, in a sentence of imprisonment.
There are two major problems with criminal liability for omissions creat
this way. First, there may be nothing to put the individual on notice of the
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Andrew Ashworth
situation, not least because there may be a widespread belief that in England and
Wales there are few legal duties to care for ones fellow human beings.61 The para
ble of the good Samaritan is an indication of what it may be morally right to do,
but, we are told, not of English criminal law. This is quite a well-known differ
ence of orientation between English and continental European criminal law.
Thus the problem for the individual is that the existence of duty-situations is
exceptional, since English laws general position is not to impose legal duties to
care for others, and that even where the courts have considered whether to impose
a duty the boundaries often remain uncertain. Thus it is not clear to what extent
one has a duty to care for the health of members of ones family beyond young
children and a spouse or partner: at common law the existence of duties towards
adult children is unclear,62 and a similar lack of certainty attends the incidence of
duties towards friends63 and towards people who stay over at ones home 64
The second major problem is that the list of duty-situations remains open for
judicial development, so that individuals often cannot know whether their failure
to intervene in a given situation will lead to liability for the serious offence of
manslaughter. It is regarded as a fundamental principle that criminal legislation
should not be retroactive, and that fair warning is given, yet the judicial recogni
tion of new duty-situations in these serious cases would seem to violate this65
This conflict between principle and practice is evident in European human rights
law: while the Strasbourg court affirms the principle of non-retroactivity of crim
inal laws as an essential element in the rule of law,' the leading judgment goes on:
There will always be a need for elucidation of doubtful points and for adaptation to
changing circumstances. Indeed, in the United Kingdom, as in other Convention
States, the progressive development of the criminal law through judicial lawmaking
is a well entrenched and necessary part of legal tradition. Article 7 of the Convention
cannot be read as outlawing the gradual clarification of the rules of criminal liability
through judicial interpretation from case to case, provided the resultant development is
consistent with the essence of the offence and could reasonably be foreseen.66
Whether it could 'reasonably be foreseen that the English judiciary would abolish
the marital immunity in rape, rather than waiting for Parliament to do so, remains
61 Surveys suggest that the position is more nuanced: eg P.H. Robinson andJ.M. Darley, Justice,
Liability and Blame: Community Views and the Criminal Law (Boulder: Westview Press, 1995), 42?50,
and B. Mitchell,'Public Perceptions of Homicide and Criminal Justice' (1998) 48 BJ Crim 453.
62 Compare, eg, Smith (1826) 2 C & P 449 (no duty to maintain adult brother who was mentally
handicapped) and Sheppard (1862) L & C 147 (no duty towards daughter of 18, even though age
of majority was then 21), with Evans [2009] EWCA Crim. 650 (mother had duty towards daugh
ter of 16, but the latter's half-sister had a duty based on other grounds - grounds which are contest
able, see G.Williams,'Gross Negligence Manslaughter and Duty of Care in "Drugs" Cases' [2009]
Crim LR 631).
63 Compare, eg Sinclair (1998) 148 NLJ 1353 with Lewin v Crown Prosecution Service [2002] EWHC
Admin 1049.
64 cf the seminal U.S. decision in People v Beardsley (1907) 113 NW 1128, and the discussion of Ger
man law by G.P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), 612-613 and by
M. Bohlander, n 32 above, 40-45.
65 G. P. Fletcher,'Criminal Omissions: some perspectives' (1976) 24 AmerJ Comp Law 703; P. Wes
ten,'Two Rules of Legality in Criminal Law' (2007) 26 Law and Philosophy 229, at 268.
66 SWand CRv United Kingdom (1995) 21EHRR 363, at [34-35].
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Ignorance of the Criminal Law, and Duties to Avoid it
67 For analysis, see Emmerson, Ashworth and Macdonald, n. 22 above, ch. 10.
68 N 25 above.
69 Law Com. No. 177, A Criminal Code for England and Wales: vol. 2, Commentary on Draft Criminal Code
Bill (1989), paras. 7.9-7.13.
70 ibid, para. 7.11.
71 Bohlander, n 32 above, 40-45.
72 Du Cros v Lambourne [1907] 1 KB 40 (dangerous driving).
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Ignorance of the Criminal Law, and Duties to Avoid it
82 For analysis and discussion, seej. Herring,'Familial Homicide, Failure to Protect and Domestic
Violence - Who's the Victim?' [2007] Crim LR 293, and J. Herring, 'Mum's Not the Word: An
Analysis of Section 5 of the Domestic Violence, Crime and Victims Act 2004', in C. Clarkson
and S. Cunningham (eds), Criminal Liability for Non-Aggressive Death (Aldershot: Ashgate, 2008).
83 [2009]EWCACrim.2.
84 The man, who spent much less time at home because of work commitments, received a sus
pended sentence with an unpaid work requirement.
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Andrew Ashworth
Most of the discussion so far has focused on the imposition and extent of the
duties on individuals, notably duties to learn about the criminal law and positive
obligations to act in situations where the criminal law imposes omissions liability.
Now it is time to explore and to justify the obligations on the State, and to con
sider how they should interact with the obligations imposed on individuals. I start
from the proposition that two of the fundamental duties of the State are the duty
of security and the duty of justice. As part of the justification for its existence the
State should recognise a duty to provide a framework of security for its citizens,
by way of laws and processes designed to protect people from physical harm.
And, because the State is composed of individuals whose autonomy should be
respected, the State should honour the duty of justice in the laws and procedures
that it creates.
The States duty to provide a framework for security may be presented as part of a
bargain between the State and its citizens, a bargain in which a measure of security is
provided in return for a measure of obedience. The right to security is therefore a
core right with a corresponding duty on the State, as Liora Lazarus argues:
The corollary of a "right to security" is a state duty to develop structures and institu
tions that are capable of responding to and minimising "critical and pervasive
threats" to human security (by which I mean an absence of harm in the most core
physical sense of harm to person).85
This is the narrow and focused sense in which the State has a duty of security. To
what extent is an individual committed to accepting the laws that are enacted in
furtherance of this duty? Three lines of argument will be considered briefly, in
support of the duty of a citizen to accept the laws that are the outcome of demo
cratic processes. One such argument is that voters consent, actually or tacitly, to
the powers of the State by virtue of their involvement in the process. Another
argument is that we can fairly posit a hypothetical contract as the basis of political
obligation, inasmuch as citizens can be taken to have agreed to the authority of the
State in exchange for the State assuring various benefits to citizens. This leads
towards a further argument - that the citizens obligations to the State stem from
the acceptance, or at least from the positive seeking, of benefits provided by the
State.86 All these are in-principle arguments in favour of individuals having an
obligation to obey the law (and, therefore, as already argued, having an obligation
to make reasonable efforts to ascertain the law). The arguments are conditional on
the State performing its part of the bargain, in terms of creating the appropriate
level of security, and it is therefore for debate whether they are applicable to parti
cular individuals in a particular jurisdiction at a given time.
85 L. Lazarus,'Mapping the Right to Security', in BJ. Goold and L. Lazarus (eds), Security and Human
Rights (Oxford: Hart Publishing, 2007), 329.
86 These are painfully clipped summaries of sophisticated arguments, elaborated and assessed (for
example) by D. Knowles, Political Obligation: A Critical Introduction (London: Routledge, 2010),
chs 7,8 and 9. Knowles would almost certainly regard my summaries as 'bowdlerized' (see ibid, 79).
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Ignorance of the Criminal Law, and Duties to Avoid it
These arguments do not suggest that citizens' obligations to the State are
unlimited. The fundamental duty of justice requires the State to recognise certain
rights of individuals in its dealings with them; notably, in the sphere of criminal
law, the State should respect the rule of law and the principle of legality, so that
citizens as rational agents may plan their lives so as to avoid criminal conviction.
Discussing these doctrines in part 2 earlier, we noted that they are said to require
that criminal laws be certain, stable and not retrospective, and that they tell in
favour of insisting on culpability as a requirement of criminal liability. We then
followed Fuller in emphasising a further element - that laws, and particularly
criminal laws, should be adequately publicised. This stems from the same ratio
nale as the other elements: if the law is to serve as a guide to conduct, at least to the
extent of allowing citizens to apply their minds so as to avoid becoming subject to
the criminal sanction, it should be reasonably accessible. It is suggested, not that
knowledge of the law will always lead people not to commit crimes, but that
there are some people (as in the cases discussed in part 3(b) above) who commit
crimes merely out of ignorance.
This is where the two fundamental State duties - of security, and justice ? come
together. In order to perform its duty of security effectively, the State should take
steps to ensure that fewer of the wrongs and harms it criminalises actually take place.
It is better that crimes do not occur in the first place than that we convict people after
they have committed them: the result should be fewer victims and fewer offenders.
This resolves itself into two interlocking duties - the State's obligation to take steps to
ensure greater publicity for criminal laws, and the obligation on individuals to take
reasonable steps to ascertain the criminal law. For the State, one way of trying to
reduce the number of crimes is to put greater energy into publicising the criminal
law. This is also a political duty, since it is unjust to convict an individual, let alone to
impose imprisonment, by maintaining a strict rule that ignorance of the criminal
law is no excuse. The State's duty of justice indicates that it should convict only in
cases of culpable ignorance of the criminal law, leaving individuals with some obli
gation to inform themselves reasonably (bearing in mind the State's own duty of
publicity) about the contours of the criminal law.
So the argument I wish to make is a) that the State has a duty to provide secur
ity to its citizens, which includes the creation of criminal offences in order to pre
vent harm and to punish wrongdoers, b) that the offences it creates should be so
framed as to impose the censure of conviction only for culpable wrongdoing, c)
that the State should recognise that citizens as rational agents may legitimately
expect to use the criminal law in order to guide their conduct (indeed it should
want them to do so in order to avoid criminality), and d) that therefore the State
(through its duty of justice) should have the obligation to ensure that its criminal
laws are not only certain, stable, prospective and based on proof of culpability, but
also that they are sufficiently publicised.
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Andrew Ashworth
Finding out what is the criminal law presents a particular problem when so much
legislation is secondary, by means of statutory instruments and other forms of
order90 It is no less of a problem when legislation amending previous legisla
tion is passed (and particularly if its commencement dates are staggered), and the
official web-site fails to incorporate the latest amendments into the text of the
law.91 The Law Commission examined the problems in 2006, citing a complaint
from children's organisations about the difficulty of identifying the current
law through a mixture of primary and second legislation, referring to such
information as 'fundamental to democracy'92 The government accepted the
87 To adopt phrases used by the European Court of Human Rights more generally; see, eg, Artico v
Italy (1981) 3 EHRR1.
88 Recall the case of Beard, n 45 above; he was unable to read or write.
89 One could propose an economic argument - that money spent on publicity may be more cost
effective than trials and punishments for those who offend; but my preference is to rely on the
political argument.
90 Failure to publish statutory instruments or other orders should afford a good defence to criminal
liability: Statutory Instruments Act 1946, s. 3(2), and Lim Chin Aik v R. [1963] AC 160.
91 This happened with the OPSI website (the Office of Public Sector Information) a few years ago,
with the consequence that courts had been deciding cases under Regulations that had been super
seded some five years earlier: see the strong words of Toulson LJ. in Chambers [2008] EWCA
Crim. 2467, paras. 55-62.
92 Law Com. No. 302, Post-Legislative Scrutiny (2006), para. 4.11.
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Ignorance of the Criminal Law, and Duties to Avoid it
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Andrew Ashworth
the offence is governed by common law) elsewhere. Also relevant are cultural
issues," particularly in relation to foreign visitors to this country. In the old case
ofEsop (1836)100 the judges ruled that a visiting sailor could be convicted of a sex
ual offence while in an English port, although he did not know that the conduct
(lawful in his own country) was criminal here. This problem occurs now: certain
forms of touching that amount to sexual assault in English law are not punishable
in the laws of at least one Eastern European country, and its embassy in London
has to deal with a number of cases every year in which visitors fall foul of English
sexual offences law. Those who take a car to another country are usually informed
of major differences in road traffic law; should there not be a one-page guide to
selected English criminal laws for foreign visitors?
Citizens need information about new criminal offences and about the ambit of
the existing criminal law; and information is needed for adults and for children.
Publicising new criminal offences requires a communication strategy from the
department sponsoring the legislation: if the new offences concern a particular
branch of industry, commerce or other activity, they require dissemination in a
particular direction. Where it is the general criminal law that is being changed, a
broader communication strategy is required. History shows that, under certain
conditions, publicity about a new law can enhance law-abidance: perhaps the
best-known example is the introduction of the offence of driving with excess
alcohol, with a fixed blood/alcohol ratio reinforced by breath testing, a law that
was widely publicised and debated and which appears to have changed beha
viour.101 Other approaches would have to be tested for different types of crime,
such as sexual offences and firearms laws, but publicity campaigns have been suc
cessful in other countries.102 They should be regarded as a primary method by
which the State carries through its duty of security. An additional difficulty, of
which the Stern Report on rape reminded us, is that some criminal laws that are
no longer new are still not widely and properly understood. This is not the place
to propose detailed solutions: my aim is to point to a problem that should be
remedied.
99 See Power, n 30 above, and S. Bronitt and B. McSherry, Principles of Criminal Law (Sydney: Law
Book Co.), Ch 7.6.
100 7 C & P 456. In Hussain [1981] 1WLR 416, D's reaction on arrest was that the metal tube (which
was held to fulfil the English definition of a prohibited firearm) was lawful in his own country
and often used by children.
101 The classic study is that of L. Ross, Deterring the Drinking Driver: Legal Policy and Social Control (Lex
ington, Mass.: Lexington Books, 1982). A key element accompanying this particular legislative
innovation was the perception of an increased probability of detection (ibid, 27-29). Simply creat
ing a new law would probably be much less effective if the risk of being caught and prosecuted
were thought to be low.
102 On sexual assault laws in Canada, see J. V Roberts M. G. Grossman and R. J. Gebotys, 'Rape
Reform in Canada: Public Knowledge and Opinion' (1996) 11J Family Violence 133, at 141-142.
See also M. Manion, Corruption by Design (Cambridge, Mass.: Harvard UP, 2005), 46-47, discuss
ing the use of advertisements on buses, television and radio as part of the anti-corruption drive in
Hong Kong.
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Ignorance of the Criminal Law, and Duties to Avoid it
There is a particular difficulty in relation to children, not least because the age of
criminal responsibility remains at 10. No doubt a normal moral development should
give them guidance which allows them to steer away from many forms of lawbreak
ing, but it is not clear how far this can be expected to extend. Brooke L.J. held that a
prohibition in an anti-social behaviour order that required a boy of 14 not to commit
any criminal offences was not only too wide but also demanded too much of a child
of that age: he 'might well not know what was a criminal offence and what was
not.'103 That may be particularly true in the area of sexual offences, where there is
considerable ambiguity in the reach of the criminal law. The Sexual Offences Act
criminalises all kissing and intimate touching between children under 16, yet does
so on the understanding that there will not be a prosecution unless there is evidence
of exploitation or abuse. There are strong rule-of-law objections to that mode of
lawmaking;104 but if we are to have it, its implications for the realistic limits of the
criminal sanction need to be spelt out to the young people concerned. The Sexual
Offences Act has resulted in some convictions of young people for offences that are
grossly disproportionate to their conduct,105 but the real challenge is how to com
municate to young people the ambit of the mminal law in these and other matters.
Although schools teach citizenship,' what is needed is a more concerted programme
of education about those areas of criminal law that are likely to be relevant to them.
CONCLUSIONS
The aim of this article is to offer a critique of the common law doctrine on ignor
ance of the criminal law, with a view to moving discussions away from narrow
(and unpersuasive) consequentialist arguments and opening up some wider issues
of justice and political obligation. Three points have particular significance.
First, the common law doctrine that ignorance of the criminal law is no excuse
has been shown to have insecure foundations. To exclude any defence based on
ignorance of the criminal law is manifestly unfair, given the diverse, often technical,
and changing content of the criminal law. To require actual knowledge of particular
conduct's criminality would be to go too far in the other direction, since it is right to
expect citizens to make reasonable efforts to find out the criminal law (so long as the
State recognises its obligations too). It was argued that a defence of excusable or rea
sonable ignorance of the law would achieve the best alignment with fairness, bearing
in mind the censure inherent in criminal conviction.106
Secondly, the State's duty of security requires not just the creation of
laws to protect us from significant wrongs and harms, but also recognition
103 R (on application ofW) v Director of Public Prosecutions [2005] EWHC Admin 1333. The Stern Report
(above, n 96) expressed particular concern about ignorance of the law among young people.
104 J. R. Spencer,'The Sexual Offences Act 2003: Child and Family Offences' [2004] Crim. L.R. 347.
105 Notably in the case of G, above n 33, where only a minority agreed that, on the facts, convicting
this boy of 15 of rape of a child under 13 was inappropriate (see the commentary at [2008] Crim.
L.R. 818).
106 Reasons for preferring this to the remedy of abuse of process were offered above: see text accom
panying n 31.
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Ignorance of the Criminal Law, and Duties to Avoid it
110 See, eg the arguments of W. J. Stuntz, 'The Pathological Politics of Criminal Law' (2001) 100
Michigan L R 506.
111 Lacey, n 50 above, 193.
112 See the reference to German law, above, n 71.
113 As demonstrated by A. Norrie, Crime, Reason and History (Cambridge: Cambridge University
Press, 2nd ed.,2001).
114 Fuller, n 23 above, 43. However, Fuller characterised the duty to make laws accessible as part of the
morality of duty, for the State, and not merely the morality of aspiration.
? 2011 The Author. The Modern Law Review ? 2011 The Modern Law Review Limited.
26 (2011) 74(1) MLR 1-26
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