LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Discuss the difference between Common Law and the Statutory Acts made by the Powers that be, (PTB)

LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby strawmansarah » Wed Aug 08, 2012 9:21 pm

I emailed a Question to my law degree tutor today:

"I am interested in any UK case law (can find plenty from the USA) where Mens Rea was discussed.

Is there a definitive stance in the UK/European courts regarding this?

Are citizens prosecuted WITHOUT having ANY knowledge of [this week's batch of new] legislation?"

HER ANSWER:

"It is true that ignorance of the law is no defence- though I can't at the moment identify where that maxim comes from it should be reasonably easy to find via an internet search. The European Convention on Human Rights simply requires law to be accessible- i.e. that it is published somewhere that a citizen may consult, and as all our new legislation goes on the legislation.gov.uk website this would be sufficient to meet this requirement, irrespective of the fact that laws are also published in hard copy by the stationary office, as well as in legal textbooks...

As regards case law, there is too much to mention, but mostly it will be discussed in the context of a specific offence; I think there are a limited number of cases that discuss mens rea as a single entity, because it will vary from crime to crime. Your best bet is to grab hold of a basic undergraduate textbook on criminal law and read through the relevant chapter."

MY RESPONSE:

"Thank you for that interesting reply,

It makes me question whether the 'ignorance of the law is no excuse' maxim legitimately translates to 'ignorance of legislation is no excuse'? It is IMPOSSIBLE for ANYONE to know definitively, right now, at this moment, whether they have breached one kind of 'legislation' or another.

One would need to be be a) a supremely talented 'law' scholar, and b) PERMANENTLY connected to (for instace) the internet to read/digest and REMEMBER every little nuance of EVERY piece of legislation and statutory instrument and EU directive! How can that POSSIBLY fall under the maxim of 'ignorance [of it] is no excuse'?

It is also my understanding that Mens Rea is not so much about ignorance but about intent to commit crime. Actus non facit reum nisi mens sit rea means "the act does not make a person guilty unless the mind is also guilty".

Agreed; Mens Rea (alone) is not applicable in common law crimes for obvious reasons, but I argue that it should NOT apply to statutory 'offences' (sometimes also referred to as 'crimes')?

It also occurs to me that should the 'ignorance of the law is no excuse' be applied to legislation in the way you propose, it would in itself create an IMPOSSIBILITY OF PERFORMANCE - voiding the maxim ab initio. Wouldn't it???

I hope I'm not just in 'argumentative old bag' mode?"

SHE ANSWERED:


"I think that like many things in this country, it seems to work for most people most of the time, so it can be, and is applied without causing problems for the vast majority of residents throughout their lives. It is a compromise that I, for one, can live with, and I suspect most people would feel the same!" :puzz: :thinks: :no:


Personally I am disgusted at this. She is a Barrister of over 25 years and my degree tutor. The best she can come up with is a) the typical barrister practice of answering a DIFFERENT question to the one asked then justifying it; and b) closing by saying 'it is what it is so sod you' (paraphrasing for brevity).

If this is the best legal argument that can be presented, I have little to worry about in my degree or in court!
:yes: :mrgreen: :ugeek:
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Re: LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby Dreadlock » Wed Aug 08, 2012 10:46 pm

I think you are absolutely correct. I'm not sure how old the "ignorance" maxim is, but i bet it is referring to common law which is relatively brief in volume. I think all the common laws could probably fit on a couple of sides of A4 - short enough for an average person to memorise them or at least be generally aware of them all.

It is totally impossible for anyone to know all the statutes, so the maxim cannot possible apply to them.

As for your lecturer, she has a vested interest in the system so she is hardly going to go against it. Just like that appalling shill Mr Justice Foskett, who ruled on Monday that forced labour is not slavery...
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Re: LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby holy vehm » Thu Aug 09, 2012 8:12 am

Ignorance of the law is no defence.

It times gone by, when there were few laws, it would be easier to apply that saying but today it is claimed we have something like 250000 statute rules that may or may not apply.
As said, it would be beyond 'reasonable' to know them all in order to go about your lawful business. Did one intend to commit a crime/break a rule, that should always be the question, the intent, ignorance of the law should not be applied anymore.

We have government/parliament/EU that creates rules and then makes it difficult to access/find these rules without the help and assistance of the legal profession.

How many times have we heard a court inform us that we best seek legal advice or even had the court appoint on our behalf, this surely makes the law inaccessible to all.

The fact that many are fine with this does not make it correct, the law must always be fair and just, equal to all, otherwise its unlawful, an unlawful application of the law.

As said in the past, the more numerous the laws the more corrupt the state. We only require a few basic laws and a number of rules in order to coexist, what we have tho is this complex society of some 70 million people with its many laws and rules, to numerous to ever know them all and to apply the adage ignorance is no defense would mean before i did anything i would have to consult a book first making it impossible for a society to function properly so there has to be acceptance.

If i intend to do something that the state has made illegal and i did not know this and proceeded, the state would make a claim and ignore my pleas of ignorance, claiming it is no defense. Its a catch 22 situation, society cannot function if we all check the law before doing anything yet it hammers you if you dont.
"A ruler who violates the law is illegitimate. He has no right to be obeyed. His commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals".
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Re: LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby strawmansarah » Thu Aug 09, 2012 10:59 am

I find it 'telling' that the barrister finds it something she can'live with'. Perhaps if I earned £1,000 an hour I'd prefer the status quo too :thinks:
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Re: LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby Freeman Stephen » Thu Aug 09, 2012 12:43 pm

I cant remember the exact latin but i am sure you can search for it online: the phrase "ignorance of the law is no excuse" is attributed to two slightly different latin maxims with the word legis expressing law in one and the word juris expressing law in the other. the two phrases are constructed very differently, but rather than of putting words in your mouth, what do you calculate the exact meanings of there two phrases to say in english. i know this will involve a ten minute crash course in latin, but it might be worth it.
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Re: LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby diasan » Fri Aug 10, 2012 10:14 pm

strawmansarah wrote:Agreed; Mens Rea (alone) is not applicable in common law crimes for obvious reasons, but I argue that it should NOT apply to statutory 'offences' (sometimes also referred to as 'crimes')?


Hmm, not sure what you're getting at above (or if I'm misinterpreting it), but I'd suggest mens rea is applicable in common law.

We do not punish the insane for criminal acts, as they can not comprehend that they did (or were doing) wrong. Hence no guilty mind.

Similarly children. Below 7 yrs old they can (in law) do no wrong, as they can not comprehend which acts are wrongful.
Between 7 and 14 there is a rebuttable assumption that they still can not comprehend the difference.
(Maybe the age limits have changed since the early 60's).

I think the point wrt the common law is that an Adult (or sound mind) is viewed as always being able to distinguish right from wrong and hence if they do wrong, it must be through choice. Hence the question of mens rea will not usually arise. But even if it does, then torts are still available to compensate for the damage.
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Re: LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby strawmansarah » Sat Aug 11, 2012 6:39 pm

I said Mens Rea (alone) if you read it. There must always be Actus Rea in common law crime....
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Re: LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby diasan » Sun Aug 12, 2012 12:49 am

Hmm. So you meant 'mens rea alone' - i.e. without the 'alone' being within parenthesis?

If so, then yes I did misunderstand your meaning.

I usually interpret parenthesised expressions as being omittable, without changing the meaning,
In this case, the meaning changes depending upon if 'alone' is present.
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Re: LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby pedawson » Sun Aug 12, 2012 7:13 pm

This is as you say your law professor protecting her own position in the society.
She could never have agreed with you even if she thought you were correct.
There are unwritten rules regarding what can and cannot be taught at uni and although what you say is correct an answer in a 'paper' would count against you.

However, if you could get her OFF record I believe she may say something quite different, however you would have to have a very special relationship for that to happen.

I have to say though I DO NOT like her reply in either case. And to think it is this type of person we are promoting to protect our society.
WHO are they protecting? It certainly is not us.

Namaste, rev phil;
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Re: LEGAL ARGUMENT(ish) with a Barrister about MENS REA

Postby strawmansarah » Wed Aug 22, 2012 3:11 pm

MENS REA has been on my mind a lot recently:

It occurs to me that may be why there is lenience in the 'first offence' situation. They can't PROVE Mens Rea. Of course, in subsequent offences with the SAME legislation involved, they can, because it's been discussed in court in your presence.... :clap:
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