aVinerian 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.
Ignorance of the Criminal Law, and Duties to Avoid it
Article first published online: 7 JAN 2011
© 2011 The Author. The Modern Law Review © 2011 The Modern Law Review Limited
The Modern Law Review
Volume 74, Issue 1, pages 1–26, January 2011
How to Cite
Ashworth, A. (2011), Ignorance of the Criminal Law, and Duties to Avoid it. The Modern Law Review, 74: 1–26. doi: 10.1111/j.1468-2230.2010.00834.x
- Issue published online: 7 JAN 2011
- Article first published online: 7 JAN 2011
‘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 foundations 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.