Ignorance of the law is no excuse - Part 1

Part one of a three part post

In English law the use of Latin is oddly pervasive and yet applied in an irregular manner in which the odd phrase or sentence is injected into an otherwise English language sentence or statement. This is of course much to the displeasure of law students and to those unfortunate litigants in past cases exposed to complete passages of judgment’s delivered entirely in impenetrable Latin. I have never been a fan of the use of Latin in law which I often feel does very little to serve the client in any favourable manner.

Nonetheless its use remains a matter of fact as probably all students if not the public at large will be familiar with terms such as Mens Rea and Actus Reus thrown around as the norm in legal training, while other terms such as ‘alibi’ and ‘verdict’ have long entered everyday use with little thought given to their Latin basis. Where Latin terms have become part of the lexicon of love English their use is fine. However where the term is not commonly understood, I personally feel it should not be used. Latin (despite its deeply influential history) is today after all essentially a dead language of little interest beyond the purely academic.

One such term that has held interest to me for a while however is ‘Ignorantia juris non excusat’ which translates into the more commonly known (and linguistically preferable) maxim ‘Ignorance of the law is no excuse’, a sentence Judge Dredd has no doubt uttered countless times.

I am sure that everyone understands this to mean that the law applies equally to all regardless of whether the individual has knowledge of it or not. It is therefore no defence to claim that you did not know about a particular statutory provision or common law rule; all are presumed to have knowledge of the law upon which liability may apply. Clearly this is of course an correct stance to take, particularly considering that liability for literally anything could be waived by a simple argument of lack of knowledge.

Arguably however it seems logical to suggest that for this principle to be truly fair, then presumed knowledge must in turn be supported by freely available and understandable sources of law, and this is where a particular problem with much of the English legal system lies. In fact to me there are three identifiable problem areas of discussion which impact on the application of the ‘Ignorance’ rule, including those of: 1. Understanding the law, 2. Finding and Accessing the law and 3. Public Perception of the law.

1. Understanding the law – Sources (or Sorcery!)

The English legal system is in truth largely fragmented into numerous disparate sources including those of primary and secondary legislation enacted by Parliament, Central and local Government; Common law and Equity sources in the form of case law decisions developed by the Judiciary; EU law in the form of treaties, directives and regulations given domestic effect by the European Communities Act 1972; decisions of the European Court of Justice (ECJ) based on EU law; Human rights law under the European Convention on Human Rights (ECHR) given effect by the Human Rights Act 1988; decisions of the European Court of Human Rights (ECtHR) based on the ECHR; and various other sources of international law, treaties, trade agreements, ad infinitum (there’s that Latin again!).

Many of the rules we live by (from whatever source) cannot however simply be taken on face value, but instead must be read in line with the interpretations given by the various courts and tribunals with jurisdiction in England and Wales including our domestic criminal and civil judiciary and those of the ECJ and ECtHR to name a few. Few outside of law will also be aware of the various rules of interpretation used by the courts in reading statutes. The rules may be clear to the courts, but to the public without legal training, this lack of knowledge is likely to lead on many occasions to a different and legally redundant understanding of a provision.

Additionally many areas of law are fragmented throughout the various different sources making it difficult to determine whether or not you have a complete picture when reading any one source. It can also be difficult to know where to look to even begin assembling a complete picture without access to a serious practitioners text. Criminal law sources for example are particularly scattershot (but by no means alone in that) with legal principles, rules and interpretations spread over countless statute’s, secondary legislation, case law and non statutory common law sources, some dating back literally over centuries.

The law regarding Homicide offences is a case in point. There is for example no statutory definition given for the most serious of offences, murder; that is instead left to ancient common law decisions of the courts. However the offence of Murder is supplemented and expanded upon by numerous other cases and statutory sources, including for example the Homicide Act 1957 which amongst other things sets out numerous partial defences to a charge of murder (Without actually defining any homicide offence!).

Then there is the homicide offence of Corporate Manslaughter which Parliament did see fit to both define and legislate around with another statute, namely the Corporate Manslaughter and Corporate Homicide Act 2007. I won’t get into the various different types and sources of voluntary and involuntary manslaughter, suffice to say that despite all of these offences falling under the legal umbrella of ‘Homicide’, all remain ununified in source. Indeed one must consider and examine many different sources to build up a complete picture of an otherwise uncomplicated set of related offences, defences and sentencing rules. For the sake of certainty and public understanding, one is compelled to ask Why?

In a similar manner the law regarding the various criminal assault offences is also fractured. Ok, so we have the Offences Against the person Act 1861 (Which incidentally also contains further provisions regarding homicide offences!). This particular Act sets out many different types of assault offence dependent on severity under s.47, 18 &  20 (note those provision numbers written here out of sync are in fact in sync with the increasing severity of assault offence starting with assault occasioning actual bodily harm at s.47; even a single statute can’t get things in a logical order!). There are however some glaring omissions and special mention must therefore be given to s.42 which outlines how -

‘Persons committing any common assault or battery may be imprisoned or compelled by two magistrates to pay fine and costs not exceeding… etc’.

Nothing much wrong with that. But…. just try actually finding the offences of ‘Common assault’ or ‘Battery’ in the Offences against the person Act itself. Surely they must be defined along with the rest of the assault offences? No such luck! In fact these two lesser assault offences are not defined under statute at all but are again defined only at common law by the courts (see for example Fagan vs Metropolitan Police Commissioner [1969]). It makes you wonder why Parliament when enacting the Offences Against the Person Act didn’t feel compelled to actually complete this particular picture. Perhaps it was sidelined with fierce  debate on the curious offence of impeding a person endeavouring to save themselves from a shipwreck!

The offence of Common Assault does however find its way into other statutes including s.39 of the Criminal Justice Act 1988 which while also failing to define the actual offence does deal with the judicial level at which the offence is to be tried and the sentencing structure to be applied on conviction. This only demonstrates again a fragmentation of authorities regarding a single offence, and a picture which can only be completed by researching numerous different sources.

As a law graduate who has not yet entered practice, the true depth of my knowledge on the law remains limited. I know a lot, but in turn I also know very little. I do however know a disorganised and confusing ‘system’ when I see it, and I do know that while I may have the knowledge and benefit that my degree training gives me to understand the various issues and legal sources marginally outlined above, without the benefit of such education I would likely not have the first clue regarding any of the sources of law, how they are interpreted or how they work together.

I would therefore have great difficulty in either knowing what the law says or how to interpret it and would effectively be rendered ignorant. The question is, given the disorganised nature of English law sources, could I then be said to be ignorant by choice and therefore deserving of liability, or could I be said to have been subjugated by a legal system of which my ability to understand would be heavily compromised without some formal training? Personally I do not believe that individuals should have to have a formal legal education to be able to understand the law, but by its nature the system we have necessitates it to a certain extent.

Understanding the law is however only a part of the problem, in order to understand it, we have to first be able to find and access it in an accurately transcribed format. Here in lies another major problem with the legal system in England and Wales.

Continue to Part two by clicking my shield!

About these ads