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Martinsson, Dennis --- "The fool's law or the Law's fool?: Common Law perspectives and Swedish experiences on the matter of mistake as an excuse from criminal liability" [2012] OtaLawRw 5; (2012) 12 Otago LR 731

Last Updated: 16 April 2014

The Fool’s Law or the Law’s Fool?: Common Law Perspectives and Swedish Experiences on the Matter of Mistake as an Excuse from Criminal Liability

I Introduction

^{Dennis Martinsson*}

... that it is possible to do the wrong thing for the right reasons.

– Gregory David Roberts, Shantaram, 2003

The citation above illustrates that, in some situations, it is possible to make a mistake for justified reasons. This relates to the fundamental issue in criminal law, namely the legal and moral question of wrongdoing.¹

Anyone can easily make a mistake, and it is easy to be mistaken about everything from the nature of reality to the law. A person can be convinced that he acted lawfully and properly when he, in fact, committed a criminal offence. One might then ask how far the judiciary is willing to accept a different view of right and wrong; which illusions and mistakes can be accepted, and which illusions are not acceptable?² To put it simply: How stupid can an individual actually be, without facing penal consequences?

The theory of excuses from criminal responsibility derives from the principle of conformity and the belief that criminal responsibility should only be imposed on the actor who had the ability and opportunity to comply with the law.³ Discharge of criminal liability due to a misapprehension, whether a mistake of fact or a mistake of law, is the outermost expression of the principle. As such, mistake as an excuse⁴

* LLM (Stockholm, 2010); LLM (Hon) (Auckland, 2011); Doctoral candidate in Criminal Law at Stockholm University. I would like to thank Professor Warren Brookbanks for feedback on an earlier version of this article.

¹ Compare George P Fletcher The Grammar of Criminal Law: American, Comparative, and International (Oxford University Press, Oxford, 2007) vol

1 at 19: “Yet the general part of the Criminal Law is closely connected to moral principles of justification and excuse”. The ability to know what is right and wrong is also a test for insanity: see further M’Naghten’s Case [1843] EngR 875; (1843) 10 CL & F 200, 8 ER 718 (HL).

² See JL Austin Sense and Sensibilia (Oxford University Press, London, 1962) at 20–32, who claims that only illusions (not delusions) can be the basis of mistake.

^{3 Compare Nils Jareborg Essays in Criminal Law (Iustus, Uppsala, 1988) at}

^{40–42; Magnus Ulväng “Rethinking ‘in Affect’: Disturbed States of Mind}

^{and Criminal Intent” (2009) 54 Scandinavian Studies in Law 180. See also}

^{HLA Hart Punishment and Responsibility (Clarendon Press, Oxford, 1968)}

^{at 22–23, 181–183, 201.}

^{4 See Nils Jareborg “Justification and Excuse in Swedish Criminal Law”}

^{(1987) 31 Scandinavian Studies in Law 157 at 161–165, for a clarification}

^{of the difference between justifying and excusing the actor in Swedish}

^{criminal law. This distinction has important implications for the question}

^{of complicity. If it is a matter of a justification (ie, self-defence) the act}

could be characterised as a subjective ground⁵ for exemption from criminal liability; meaning that the actor is excused from criminal liability, not because the act is lawful, but because he is excused due to personal reasons.⁶

II Theoretical Background

It seems very pretty [Alice] said ... but it is rather hard to understand! (You see she didn’t like to confess, ever to herself, that she couldn’t make it out at all.)

– Lewis Carroll, Through the Looking-Glass, 1871

A The Concept of Mistake in Philosophy

One of the most influential philosophers to discuss the matter of mistakes is Aristotle, who developed a theory on excuses. The premise is that an “involuntary” (ie, excused) actor is not blameworthy.⁷ In discussing criteria for excusing a person who did the wrong thing, Aristotle articulated that someone who does wrong involuntarily should not be held responsible for his wrongdoing.⁸ According to Aristotle, “voluntary” means “any of the things in a man’s own power which he does with knowledge, i.e. not in ignorance”.⁹

All mistakes, however, will not be excused; Aristotle argued that ignorance about “universals” cannot serve as an excuse;¹⁰ for example, theft, murder and other similar offences are always wrong.¹¹ Aristotle further limited ignorance as an excuse by stating that “it is only what produces pain and repentance that is involuntary”.¹²

Aristotle related culpability to harm committed “in” ignorance, but excused the actor if the harm was done “through” ignorance.¹³

is lawful and, thus, no one can be convicted as an accomplice. If it is an excuse (ie, excessive self-defence) the actor is lawful but the act is not. Therefore, an accomplice may still be held liable for his actions.

^{5 Compare Statens Offentliga Utredningar 1988:7, 39.}

^{6 Petter Asp, Magnus Ulväng and Nils Jareborg Kriminalrättens grunder}

^{(Iustus, Uppsala, 2010) at 398. Compare George P Fletcher Rethinking}

^{Criminal Law (Little Brown, Boston, 1978) at 798. See further, below n 67.}

^{7 Aristotle The Nicomachean Ethics (Oxford University Press, London, 1954)}

^{at 1110a, 1113a2.}

^{8 At 1113a2: ”Those things, then, are thought involuntary, which take place}

^{under compulsion or owing to ignorance.”}

^{9 At 1109b35–1111a24, 1135a25.}

^{10 At 1111a: “[T]he term ‘involuntary’ tends to be used not if a man}

^{is ignorant of what is to his advantage ... nor ignorance about the}

^{universal (for that men are blamed), but ignorance of particulars, i.e. of the}

^{circumstances of the action and the objects with which it is concerned.”}

^{[Emphasis in original].}

^{11 At 1107a, 1113b.}

^{12 At 1110b2.}

^{13 At 1113b–1114a; compare at 1111a.}

Consequently, when acting “in” ignorance, the actor is competent to acquire the necessary knowledge or he lacked the ability, while acting “through” ignorance means that the actor could not do better at the time.¹⁴

Yet, Aristotle maintained that a man acting “through” ignorance could still be culpable for his actions by referring to his past. An intoxicated man, who cannot act normally, is culpable since he could have chosen not to be under the influence of alcohol.¹⁵ In other words, Aristotle argued that an actor ’s culpability can be traced in his character and is the sum of voluntary decisions which has become a habit.¹⁶

B Legal Theories of Mistake: Common Law Perspectives¹⁷

While early common law accepted mistake of fact as an excuse from criminal responsibility,¹⁸ it maintained a strict view on mistake of law.¹⁹

This distinction has emerged into the maxim ignorantia juris neminem excusat, ignorantia facti excusat.²⁰ Accordingly, mistake of law has been considered irrelevant to criminal liability, and several legal scholars have tried to explain the rationale behind the maxim.

^{The traditional justification of the maxim builds upon the presumption}

^{that everyone is bound to know the law.21 This approach is, however, pure}

¹⁴ Thus, acting “in” ignorance suggests that the actor could (or perhaps

^{should?) have acted properly.}

^{15 Aristotle, above n 7, at 1103a–1109b26, 1113b20–1114a6.}

^{16 Compare Ulväng, above n 3, at 182: “[I]t is probably of a moral claim that}

^{we, as human beings, are a priori responsible both for who we are and}

^{the choices we make .... Having a bad character traits is, therefore, not}

^{easily accepted”.}

^{17 The legal doctrine in the common law discussing mistake of law as an}

^{excuse of law and fact is overwhelming and vast. This section reflects the}

^{most common arguments in common law legal theory.}

^{18 See Levett’s Case (1638) Cro Car 538, 79 ER 1059 (KB).}

^{19 See, inter alia, R v Bailey [1800] EngR 9; (1800) Russ & Ry 1, 168 ER 651; Cooper v Simmons}

^{[1862] EngR 301; (1892) 7 H & N 707, 185 ER 654; R v Prince (1875) LR 2 CCR 154. But more}

^{modern cases also have a strict view on the matter of mistake of law: see,}

^{eg, Molis v R [1980] 2 SCR 356 (SCC).}

^{20 Ignorance of law does not excuse; ignorance of fact excuses. The principle}

^{of not excusing mistake of law has been codified in some common law}

^{jurisdictions: see, eg, Crimes Act 1961 (New Zealand), s 25; Criminal Code}

^{RSC 1985 c C-46 (Canada), s 19; American Law Institute Model Penal Code}

^{(American Law Institute, Philadelphia, 1962) r 2.02(9).}

^{21 See Matthew Hale The History of the Pleas of the Crown (2nd ed, E and R}

^{Nutt and R Gosling, London, 1736) at 42: “Every person of the age of}

^{discretion and compos mentis is bound to know the law, and presumed to}

^{do so.” Compare William Blackstone Commentaries on the Laws of England}

^{(4th ed, Clarendon Press, Oxford, 1765) at 27; Oliver Wendell Holmes The}

^{Common Law (Little Brown, Boston, 1881) at 48; John Austin, Lectures on}

^{Jurisprudence (4th ed, John Murray, London, 1873) at 496–498. See also}

^{Andrew Ashworth Principles of Criminal Law (6th ed, Oxford University}

^{Press, Oxford, 2009) at 220–221, who argues that it is a duty for each citizen}

^{to take reasonable steps to become acquainted with the criminal law, and}

^{concludes that there are few problems in making the duty known, since}

fiction. Firstly, it is fiction because no one knows every law and legal norm that exists.²² It might have been a valid argument in a homogenous society with few laws and norms that were close to – if not identical to – the moral norms of that society. In today’s society, citizens cross borders to work and live and there is a relatively high level of criminalisation, particularly in the large number of specialised criminal offences that are hardly based on any moral norm.²³ Secondly, this approach is unsatisfactory since, rather than explaining the foundation of the maxim, the argument has the characteristics of a circular reasoning:²⁴ everyone is presumed to know the law; ignorance of the law is, therefore, always irrelevant.

A second argument for rejecting the idea of mistake of law as an excuse is the impossibility for the prosecution to challenge the defendant’s claim that he was ignorant of the law. According to Austin:²⁵

[if] ignorance of the law were admitted as a ground for exemption, the Courts would be involved in questions which it were scarcely possible to solve, and which would render the administration of justice next to impossibility.

^{Holmes suggests that Austin’s reservations due to evidential difficulties}

^{could be solved by shifting the burden of proof to the defendant.26}

^{Additionally, Holmes presents a third argument, stating that:27}

Public policy sacrifices the individual to the general good. ... 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

ignorantia juris neminem excusat is a widely known principle.

^{22 Compare Douglas N Husak “Ignorance of Law and Duties of Citizenship”}

^{(1994) 14 LS 105 at 110: “[T]he problem arises from the fact that few}

^{persons are likely to be aware of the existence of the alleged duty to know}

^{the law.” See also Lon L Fuller The Morality of the Law (Yale University}

^{Press, New Haven (Conn), 1967) at 84; Don Stuart Canadian Criminal Law}

^{(5th ed, Thomson Carswell, Scarborough (Ont), 2007) at 344; Peter Blume}

^{“Laws, Publication and Communication” (1991) 35 Scandinavian Studies}

^{in Law 11 at 21–23.}

^{23 See Inkeri Anttilla, “Om normkommunikation inom straffrättens område”}

^{in Alfred Bexelius and Jon Palle Buhl (eds) Liber amicorum in honour of}

^{professor Stephan Hurwitz LLD (Juristforbundets forl, Copenhagen, 1971)}

^{55 at 55–56.}

^{24 Compare Fuller, above n 22, at 53.}

^{25 Austin, above n 21, at 498. Compare John Selden Table Talk (3rd ed, Jacob}

^{Tonson, Awnsham and John Churchill, London, 1716) at 61.}

^{26 Holmes, above n 21, at 47–48.}

^{27 At 48. Compare ATH Smith “Error and Mistake of Law in Anglo-American}

^{Criminal Law” (1985) 14 Anglo-Am LR 3 at 16: “If occasionally individual}

^{injustice is the result, that is an unhappy byproduct of an otherwise}

^{efficient system”; Jerome Hall General Principles of Criminal Law (2nd ed,}

^{Bobbs Merill, Indianapolis, 1960) at 385: “[T]he criminal law represents}

^{an objective ethics which must sometimes oppose individual convictions}

^{of right”; Glanville L Williams Criminal Law (2nd ed, Stevens and Sons,}

^{London, 1961) at 289. See also People v Marrero 507 NE 2d 1068 (NY 1987)}

^{at 1069, 1073.}

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.

Holmes thus suggests that inflicting criminal responsibility on an individual is an effective method in making the law known. By the same reasoning, acquitting the defendant due to ignorance would only increase the uncertainty of the law among the general public. This utilitarian explanation of the maxim has been criticised for not cutting through the core of mistake of law.²⁸

An alternative reasoning for the axiom is presented by Hall, suggesting that:²⁹

If that plea [ignorance of law] were valid, the consequences would be: whenever a defendant in a criminal case thought the law was thus and so, he is to be treated as the law were thus and so, ie that the law actually is thus and so. But such a doctrine would contradict the essential requisites of a legal system, the implications of the principle of legality.

The core of Hall’s argument is that if the defence was allowed, the objectivity of the law would be replaced by the defendant’s perception of the law. Such a legal order would be incompatible with the rationale of the principle of legality.³⁰ Allowing the excuse would deprive the authoritative interpretations by officials (ie, the legislator and the courts) in declaring what the law is. Such a legal order would, in the words of Hall:³¹

[oppose] objectivity to subjectivity, judicial process to individual opinion, official to lay, and authoritative to non-authoritative declarations of what the law is. That is the rationale of ignorantia juris neminem excusat.

Recognising mistake of law as an excuse does not contradict the principle of legality; rather, they are two sides of the same coin.³² When an individual, for example, acts in accordance with a decision from an official authority, he acknowledges the principle of legality by conforming to the official decision. If the authoritative decision later proves to be erroneous, the individual should not be blamed.³³ To reason differently

²⁸ Hall, above n 27, at 381; Peter Brett “Mistake of Law as a Criminal Defence” [1966] MelbULawRw 3; (1966) 5 MULR 179 at 195.

²⁹ Hall, above n 27, at 382–383 [emphasis in original]. The phrasing has been criticised since Hall simultaneously speaks about different levels of “the law”: see Fletcher, above n 6, at 733; Laurence D Houlgate “Ignorantia Juris: A Plea for Justice” (1967) 78 Ethics 32 at 38–39.

^{30 Hall, above n 27, at 382–387.}

^{31 At 383, 406–408.}

^{32 Compare Petter Asp “En principfråga: Om relationen mellan}

^{legalitetsprincipen och behandlingen av straffrättsvillfarelse i modern}

^{straffrätt” in Torbjörn Andersson and Bengt Lindell (eds) Vänbok till Torleif}

^{Bylund (Iustus, Stockholm, 2003) at 61.}

^{33 Canadian cases support officially induced error as a defence: see, inter}

^{alia, R v MacDougall [1982] 2 SCR 605 (SCC); R v Canoil Thermal Corp &}

^{Parkinson [1986] 27 CCC (3d) 295 (ONCA); R v Jorgensen [1994] 4 SCR 55}

would support a legal position in which law abiding citizens could risk serious legal consequences.

Hall further states that the rules of law express objective meanings, and that only competent officials are capable of articulating binding interpretations of the law.³⁴ Yet, Hall maintains that the substantial criminal law is unavoidably vague and “it is therefore possible to disagree indefinitely regarding [their] meaning”.³⁵

Hence, Hall contradicts himself. Furthermore, Hall implies that the meaning of the law is absolute and its meanings will not change. This reasoning is not convincing. Hall does not take into account that court practice, as well as legal norms, are constantly changing.³⁶ Accordingly, it is necessary for the courts to interpret the law in the light of present-day conditions and to try to modernise the law and develop its reasoning and meaning of the law.³⁷ Hall’s argument thus builds on a false premise.

Additionally, Hall argues that the principle of legality is inseparable from morality, since “the criminal law represents certain moral principles: to recognise ignorance of the law as a defence would contradict those values”.³⁸ Hall argues, if mistake of law would serve as an excuse from criminal liability, it would undermine the objective morality of the

(SCC). Common law in general, however, has not accepted the defence. For a discussion, see Warren J Brookbanks “Officially Induced Error as a Defence to Crime” (1993) 17 Crim LJ 381; Andrew P Simester and Warren J Brookbanks Principles of Criminal Law (3rd ed, Thomson Brookers, Wellington, 2007) at 449–454; Morris Manning, Alan W Mewett and Peter Sankoff Criminal Law (4th ed, LexisNexis, Markham (Ont), 2009) at

370–375; Miriam Gur-Arye “Reliance on a Lawyer ’s Mistaken Advice: Should it be and Excuse from Criminal Liability?” (2002) 29 Am J Crim L 455.

³⁴ Hall, above n 27, at 383, 386. Therefore, Hall rejects the idea of erroneous advice of lawyers as an excuse; see at 387: “[L]awyers are not law- declaring officials; it is not their function to interpret law authoritatively.” See contrary, Brett, above n 28, at 186: “[T]he man who does not bother about the legality of his conduct is poles apart from the man who makes an honest effort to behave in conformity with the law but is mistaken or misled.” For support for legal advice as an excuse, see, inter alia, Simester and Brookbanks, above n 33, at 470; Andrew Ashworth “Excusable Mistake of Law” (1974) 22 Crim LR 652 at 657–661.

³⁵ Hall, above n 27, at 382. Compare Richard A Posner “The Jurisprudence of Skepticism” (1988) 86 Mich L Rev 827 at 872: “Courts, it is true ... are unpredictable.” [Emphasis in original].

³⁶ Compare Folke Schmidt “Construction of Statutes” (1957) 1 Scandinavian Studies in Law 155 at 192. See also Kaarlo Tuori Critical Legal Positivism (Ashgate, Aldershot, 2002) at 121–216, who argues that the law and our perception of the law is constantly changing.

^{37 Compare Tyrer v United Kingdom (5856/72) ECHR 25 April 1978 at [102];}

^{Soering v United Kingdom [1989] ECHR 14; (1989) 11 EHRR 439 (ECHR) at [31].}

^{38 Hall, above n 27, at 383. Note that Hall accepts mistake of fact as an excuse,}

^{since it is not challenging the morality of criminal law: at 394.}

community.³⁹ According to Hall, when a defendant denies criminal liability by claiming mistake of law, the defendant is actually challenging the law itself. Hall has misunderstood the nature of ignorance of law.

Firstly, Hall’s presumption is false because when the defence of mistake is allowed, the defendant is not excused due to the law itself. The reason why the defendant may be excused is due to personal reasons.⁴⁰

Accepting ignorance as an excuse is not to say that the defendant did the right thing (since he believed he was right); therefore allowing the excuse is not undermining the moral principles represented in the criminal law.⁴¹

The alleged morality of the criminal law will thus remain unimpaired if the plea is allowed.

Secondly, Hall seems to assume that the morality of the law is definite. In reality, the morality in the society changes and the law will, eventually, embrace the new morality.⁴² Since the morality changes with modern thoughts and reasoning, it is difficult to argue that the law is inherently objective in its morality.

C The Concept of Mistake Reviewed: Some Contemporary Thoughts

Just as Alice, after reading the poem “Jabberwocky”, could not make sense of what she had just read,⁴³ common law theorists have not been able to explain the rationale behind the ignorantia juris neminem excusat maxim. Why, then, cannot common law theorists confess that their arguments supporting the axiom are false?

The arguments defending ignorantia juris neminem excusat have a common underlying feature, namely, the maxim must be sustained because if everyone were allowed to act in according to what he believed the law to be, it would have severe consequences for the society and the legal system. Otherwise, no “law” would exist and, secondly, it would allow the law to become more complex. The underlying premise has some valid points; the respect for the law must be maintained in order

³⁹ See at 383–386.

^{40 Compare Asp, Ulväng and Jareborg, above n 6, at 398.}

^{41 Compare State v O’Neil 126 NW 454 (Iowa 1910) at 456: “Respect for the}

^{law which is the most cogent force in prompting orderly conduct in a}

^{civilized community is weakened, if men are punished for acts which}

^{according to the general consensus of opinion they were justified in}

^{believing to be morally right and in accordance with the law.”}

^{42 It was not long ago that, for example, homosexuality was considered}

^{criminal in democratic States. Today, the values defending this view have}

^{changed significantly, and a number of countries now recognise same-sex}

^{marriage. As a further example, until recently it was accepted that a man}

^{could legally have sex with his wife whenever he wanted to; today, the}

^{law recognises that rape can be committed within a marriage. A similar}

^{shift in morality has been observed when anti-smacking legislation has}

^{been introduced in various jurisdictions.}

^{43 How was Alice supposed to know what a Jabberwocky was, when she}

^{never had seen one? Similarly, how is a defendant supposed to understand}

^{a law when he has never heard of it?}

to preserve the efficiency in the legal system. Nevertheless, to uphold the maxim so strictly must be considered immoral in contemporary society.⁴⁴ Modern developments in the law provide reasons to reform and modify the strict maxim.

(i) The development of human rights law has many implications for ignorantia juris neminem excusat. In this context, attention should be paid to Hohfeld’s theory of “fundamental legal conceptions”.⁴⁵ Hohfeld describes different legal positions of individuals by identifying a few concepts, which then are related to each other. Every legal concept is defined by a corresponding antipode, such as the correlation between “right” and “duty”. Although Hohfeld’s theory focuses on private law, it appears to be particularly suitable in analysing the correlation between the individual and the State, since the theory focuses on two-party relations. The model thus implies that the State cannot impose a duty on its citizens without being accompanied with a corresponding right for the individuals.⁴⁶

In the human rights discourse, the individual has a recognised right to information;⁴⁷ thus the State has a corresponding duty to inform its citizens.⁴⁸ Hence, the State has a duty to publish laws and make the criminal offences in its country known to the individuals.

(ii) The duty of States to make the criminal law known is closely related to the concepts of fair warning and the principle of legality.⁴⁹

These concepts build on two premises; firstly, that the law is sufficiently accessible to the individual so he knows in advance whether a certain conduct is criminal or not.⁵⁰ Thereby, the individual is given

⁴⁴ Compare Fuller, above n 22, at 39: “Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a rule that ... is kept secret to him [ie non-publication], or was unintelligible [ie vague criminal provision], or was contradicted by another rule of the same system”.

⁴⁵ Wesley Newcomb Hohfeld Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (Yale University Press, New Haven (Conn), 1923) at 35–64.

^{46 See, eg, European Convention for the Protection of Human Rights and}

^{Fundamental Freedoms 213 UNTS 221 (opened for signature 4 November}

^{1950, entered into force 3 September 1953), art 1: “The High Contracting}

^{Parties shall secure [ie, “duty”] to everyone within their jurisdiction}

^{the rights and freedoms [ie, “right”] defined in ... this Convention.”}

^{[Emphasis added]. See also Joseph Raz The Morality of Freedom (Clarendon}

^{Press, Oxford, 1986) at 193–207, who recognises that persons as social}

^{beings have both rights and responsibilities.}

^{47 See, inter alia, European Convention on Human Rights, above n 46, art}

^{10; United Nations Universal Declaration of Human Rights GA Res 217, III}

^{(1949) art 19; International Covenant on Civil and Political Rights 999}

^{UNTS 171 (opened for signature 16 December 1966, entered into force}

^{23 March 1976), art 19(2)–(3).}

^{48 Compare Husak, above n 22, at 115.}

^{49 See, eg, European Convention on Human Rights, above n 46, art 7.}

^{50 Compare Prostitution Reference [1990] 1 SCR 1123, 77 CR (3d) 1 (SCC) at}

an opportunity to comply with the law.⁵¹ Secondly, it requires the development in the case law to be reasonably foreseeable. In reality, however, “many laws are couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice”.⁵² The notion of predictability articulates the ideal that the criminal law should be clearly defined and that the individuals should understand the law.⁵³ Consequently, such an obligation lies in the hands of the State, which needs to distribute knowledge about its criminal laws.⁵⁴ This has fundamental implications for the matter of mistake (of law) as an excuse from criminal liability.

The reasoning bears some resemblance with the principle of non- retroactivity; namely, that an individual’s knowledge of an offence is crucial for his criminal responsibility. If the individual, at the time of the crime, did not know that a certain behaviour was prohibited by law or that it was impossible for him to acquire such knowledge, it would be highly unfair to punish him for a breach of law. In such cases the State, not its citizen, should be blamed for the lack of awareness of the offence.⁵⁵

(iii) Modern criminal law consists of more complex structures than ever

^{before; most notably, the field of criminal law has become increasingly}

26: “It is essential in a free and democratic society that citizens are able, as far as possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid .... This is especially important in the criminal law, where citizens potentially are liable to a deprivation of liberty if their conduct is in conflict with the law”; Conally v General Construction Co [1926] USSC 3; 269 US 385 (1926) at 391; Sunday Times v United Kingdom (6538/74), ECHR 26 April 1979 at [49].

^{51 Compare Hart, above n 3, at 17–24, 179–185, 201.}

^{52 Sunday Times v United Kingdom, above n 50, at [59]. See, eg, Swedish Tax}

^{Evasion Act 1995, which is so vague in its wordings that it is impossible}

^{to tell whether a conduct will be considered criminal or not. The same}

^{reasoning applies to the case law regarding the Act.}

^{53 See, inter alia, SW v United Kingdom [1995] ECHR 52; (1995) 21 EHRR 363 (ECHR) at [35]:}

^{“[I]t also embodies, more generally, the principle that only the law can}

^{define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege)}

^{and the principle that the criminal law must not be extensively construed}

^{to an accused’s detriment, for instance by analogy. From these principles}

^{it follows that an offence must be clearly defined in the law.” See also}

^{Kokkinakis v Greece [1993] ECHR 20; (1993) 17 EHRR 397 (ECHR) at [52]: “This condition}

^{[clearly defined law] is satisfied where the individual can know from the}

^{wording of the relevant provision, and if needed, with the assistance of}

^{the courts’ interpretation of it, what acts and omissions will make him}

^liable.”

^{54 In today’s society, the obligation can easily be fulfilled by publishing the}

^{criminal laws online. It is questionable, however, whether a law-abiding}

^{citizen is able to understand the meaning of the legal language.}

^{55 Note, however, that this reasoning only applies to petty crimes: see below}

^{Part III-A-1-(b), Manifestly excusable mistake of law. It is thus not possible}

^{for the defendant to rely on ignorance in cases about universals, such as,}

^{inter alia, rape, murder, theft and drug offences. See also Aristotle, above}

^{n 7, at 1111a.}

internationalised. National jurisdictions have, for example, implemented new categories of crimes, such as genocide, human trafficking and terrorism. More importantly, however, is the tendency in the European Union (EU) to integrate the national criminal laws.⁵⁶ The EU institutions have also created a new norm hierarchy, in which EC-regulations with implications for the national criminal laws must be incorporated in the legislation of each Member State. When these new regulations are introduced into the national legal system, they might be implemented through a specialised law rather than integrated in the criminal code. When such a method is applied, the knowledge of these regulations among the general public is questionable.⁵⁷

The development towards a transnational approach thus casts doubts on the alleged duty to know the law. Assume there is such a duty for the individual: consider when he has fulfilled his duty to know the law; when he has read the relevant provisions in the national law,⁵⁸ or when he has consulted their application in the national case law, or when he in addition has considered the international law on which the national law is based? The task would, in a modern and complex legal system, be enormous even for an educated lawyer.

III Mistake in Swedish Criminal Law

And yet I trembled, as if ... I were one of the criminals he had hunted down.

^{And I had not done anything wrong!}

^{– Karin Boye, Kallocain, 1966}

56. For an overview, see Petter Asp EU & straffrätten: Studier rörande den europeiska integrationens betydelse förden svenska straffrätten (Iustus, Uppsala,

^2002).

^{57 This is mostly visible in the field of environmental law, where EC-}

^{regulations require the Member States to introduce criminal offences. The}

^{criminalisation will be structured through a domestic criminal provision}

^{that refers to the EC-regulation which criminalises the behaviour.}

^{Compare Court of Appeal for Western Sweden case B-1888/08 (2008), where}

^{a man sold a leopard fur coat that belonged to his mother and claimed}

^{that he was unaware that it could be illegal. Selling anything made of}

^{leopard was, according to an EC-regulation and its appendix, illegal. The}

^{EC-regulation, however, contained an exemption if it could be proven}

^{that the leopard coat fur was produced before the enforcement of the}

^{regulation. The Court of Appeal concluded that the man had not proven}

^{that the fur coat was produced before that date, and thus, held the man}

^{responsible. See also Court of Appeal for Western Sweden case B-43/06 (2007)}

^{concerning a tiger skin.}

^{58 Compare Hall, above n 27, at 380: “From such facts, it might be presumed}

^{that he read the law in question; it might also be inferred that, being a}

^{normal adult, he understood enough of it to satisfy a relevant mens rea.”}

^{A layman may understand perfectly well a provision from its everyday}

^{meaning, but can the legal system really expect everyone to understand}

^{the legal meaning of the wordings?}

A Swedish Experiences⁵⁹

Mistake as an excuse from criminal liability has in Swedish criminal law traditionally been divided into three categories: mistake of fact, foul mistake of law and error of law. Since legislation was introduced in 1994, error of law is now termed mistake of law.⁶⁰ The latter is the only category of mistakes which is regulated by the law. The codification of mistake of law⁶¹ also resulted in a shift in the theory of mistake as an excuse.

Previously, the main rule stated that a foul mistake of law always resulted in a discharge, while an error of law never could result in an acquittal.⁶²

The new legal doctrine of mistakes means that a mistake of fact and a foul mistake of law will be resolved by considering the mistake as a part of the mens rea element of the crime. Thus, it should be solved by an application of the coverage principle, meaning that criminal liability requires that an act was committed intentionally or (if negligence is specially prescribed) by negligence.⁶³ Therefore, there is no longer any reason to differ between these two types of mistakes; mistake of fact as well as foul mistake of law should always render a discharge from crimes requiring intent.⁶⁴ This general rule applies regardless of whether

⁵⁹ The phrasing “Swedish experiences” is intentional, since mistake in Swedish criminal law is not very easily understood and the excuse is not treated according to a certain theory. Rather, as this part of the article underpins, the experience of the Swedish criminal law is multifaceted.

⁶⁰ The different categories were developed by Thornstedt: see Hans G Thornstedt Om rättsvillfarelse: En straffrättslig undersökning (Nordstedts Förlag, Stockholm, 1956). This classification has been fully embraced by the Swedish legislator: see Statens Offentliga Utredningar 1988:7, 163–164,

^{181; prop 1993/94:130, 51–53.}

^{61 See Law 1994:458. Since the codification, mistake of law has only resulted}

^{in three guiding rulings from the Supreme Court: see NJA 2001 p 214; NJA}

^{2003 p 268 and NJA 2004 p 786. In addition, recent case law concerning}

^{excessive use of violence raises issues on the matter of mistake: see NJA}

^{2009 p 234. For a commentary, see Dennis Martinsson “Nödvärnsexcess}

^{med livsfarligt våld” (2010) 22 Juridisk Tidskrift 141; Martin Borgeke}

^{“Nödvärnsrätten vid allvarliga angrepp på person: En ny HD–dom med}

^{skiljaktig mening” (2010) 21 Juridisk Tidskrift 571.}

^{62 Compare NJA 1985 p 281 I, II.}

^{63 See Asp, Ulväng and Jareborg, above n 6, at 352–397; Petter Asp and}

^{Magnus Ulväng “Täckningsprincipens ABC” (2009) 1 Juridisk Publikation}

^{265. The general rule is that an act is criminal only if it is committed}

^{intentionally: see Swedish Penal Code 1962 c 1, s 2. When an act is}

^{committed through negligence, it must be specifically expressed that a}

^{crime can be committed through negligence. See further Samuel Cavallin}

^{Skuld (Iustus, Lund, 1999) at 774–776, who concludes that the distinction}

^{between intent and negligence has become blurred.}

^{64 Note that this position is similar to the common law, where the general}

^{rule states that mistake of fact is a defence to a criminal charge: see, eg,}

^{Hall, above n 27, at 363–366; Simester and Brookbanks, above n 33, at}

^{430–432. In some common law jurisdiction, cases which involve a mix of}

^{fact and law are treated as a question of mistake of fact: see, eg, Thomas}

the misapprehension was justifiable or not. However, the actor may still be liable for an offence through negligence, if the mistake was made by him due to recklessness.

Mistake of law, on the other hand, applies to an element of a criminal offence that does not require mens rea, and falls within the scope of Swedish Penal Code 1962⁶⁵ c 24, s 9. Mistake of law was previously subject to the doctrine of discretion, meaning that a mistake of law was irrelevant as an excuse and exceptions from the main rule could only be accepted in rare cases when the actor ’s mistake is considered excusable. With the new legislation, the doctrine of mens rea now applies to mistake of law, which states that the actor is not liable if he was unable to understand that his action was unlawful and that the lack of knowledge of the criminal provision was not due to negligence.⁶⁶ This means that an additional requirement applies to the “individual culpability”,⁶⁷ which is independent from the standard mens rea requirement. The Preparatory Legislative Materials emphasises that there is no significant difference between these theories and that a discharge should be allowed only when the mistake is “manifestly excusable”.⁶⁸ The Preparatory Legislative Materials is also critical to the narrow interpretation in the case law of mistakes as an excuse, suggesting that a future application of mistake as an excuse should be extended. Simultaneously, the Preparatory Legislative Materials articulates that the scope of Swedish Penal Code

^{1962 c 24, s 9 should be applied very restrictively.}

It can be questioned how this contravening statement should affect the

v R [1937] HCA 83; (1937) 59 CLR 279 (HCA) at 306.

^{65 Law 1962:700. The official English translation of the Swedish Penal Code}

^{1962 is available at <www.sweden.gov.se/sb/d/3926/a/27777>. Note,}

^{however, that the translation of the Code originates from 1999 and, thus,}

^{regarding some offences, it is not up to date.}

^{66 See Statens Offentliga Utredningar 1988:7, 183–185; Thornstedt, above n}

^{60, at 50–52, 164, 196–201. For the English terminology, see Johs Andenæs,}

^{“Ignorantia Legis in Scandinavian Criminal Law” in GOW Muller (ed)}

^{Essays in Criminal Law (Sweet and Maxwell, London, 1961) 217 at 217–218.}

^{67 Modern scholars in Swedish criminal law differ between “unlawful deed”}

^{and “individual culpability”: see, eg, Asp, Ulväng and Jareborg, above n 6,}

^{at 33–44, 297–425; Jareborg, above n 4, at 159–160. Compare Karl Engisch}

^{Untersuchungen über Vorsatz und Fahrlässigkeit im Strafrecht (Scientia, Berlin,}

^{1930) at 22. Traditional Swedish criminal law, however, spoke instead}

^{about an “objective” and a “subjective” side of the crime: see, eg, Johan}

^{CW Thyrén Principerna för en strafflagsreform III (Gleerup, Lund, 1914);}

^{Johan CW Thyrén Förberedande utkast till strafflag: Allmänna delen, Kap I–}

^{XIII (Gleerup, Lund, 1916) at 27. See also Ivar Agge Straffrättens allmänna}

^{del. Föreläsningar: Tredje häftet (Nordstedts Förlag, Stockholm, 1964) at 325.}

^{Tyrén’s view has been criticised by modern legal scholars: see, inter alia,}

^{Nils Jareborg Handling och uppsåt: En undersökning rörande doluslärans}

^{underlag (Nordstedts Förlag, Uppsala, 1969) at 345; Alvar Nelson Rätt}

^{och ära: Studier i svensk straffrätt (Lundequist, Uppsala, 1950) at 101.}

^{68 Swedish Penal Code 1962 c 24, s 9. See Part III-A-1-(b), Manifestly}

^{excusable mistake of law, for a full citation of the provision.}

courts when dealing with mistakes of law; should the judicature broaden the perspective, or should it preserve the status quo?

1 The notion of mistake: the classification reexamined

The traditional division between mistake of fact, foul mistake of law and mistake of law has proved to be complex and obscure. Although the theoretical classification was introduced in Swedish criminal law over fifty years ago, and has been criticised by legal scholars since it was presented,⁶⁹ no effort has been made to clarify and specify the criticised categorisation. This is of particular concern, since there are no guidelines in the regulation and the legal reasoning differs considerably between the Preparatory Legislative Materials, the case law and the legal doctrine.⁷⁰

There are no specified criteria as to, for example, differ between a mistake which is relevant to the standard assessment of the mens rea element (foul mistake of law) and a mistake that is not relevant to that assessment (mistake of law). Consequently, whether the actor is excused or not will depend on the specific crime. Thus, the matter of mistake in Swedish criminal law is approached on an ad hoc basis. This is not a desirable policy.⁷¹

If the conclusion is that the legal theory is lacking crucial elements, then a reexamination of the current legal position needs to answer two questions: firstly, is it necessary to articulate an exemption from criminal liability due to a mistake; and secondly, if so, how should the new legal position be constructed?

The concept that everyone is assumed to know the law is simply outdated in modern society.⁷² For example, we can assume that murder in most societies is prohibited by law and that the core elements of the national criminal law are similar in most countries. Thus, it is impossible for a defendant to claim he did not know that murder was illegal. What we are witnessing, however, is an increase in criminalisation, most notably by the enlarged number of EC-regulations affecting the

⁶⁹ The categorisation, which built upon the work of Thornstedt, see above n 60, has been heavily criticised in the legal doctrine, mainly by Jareborg: see, eg, Jareborg, above n 67; Nils Jareborg Allmän kriminalrätt (Iustus, Uppsala, 2001). See also Ivar Strahl “Till frågan om rättsvillfarelsens betydelse inom straffrätten” (1962) 56 Svensk Juristtidning 177.

⁷⁰ Even the Preparatory Legislative Materials is contradicting itself when trying to clarify the meaning of mistake of law.

⁷¹ Since mistake, regardless of the type, has important implications for procedural matters, it is unfortunate that there is the lack of legal theory in this area of the criminal law. The case law suggests that the defendant has to meet certain evidential requirements: compare Dennis Martinsson Nödvärnsexcess: Om konsten att svårligen kunna besinna sig (LLM Thesis, Stockholm University, 2010) at 31–36.

⁷² See above Part II-B, Legal Theories of Mistake: Common Law Perspectives and Part II-C, The Concept of Mistake Reviewed, Some Contemporary Thoughts.

criminal law⁷³ but also by introducing extensive codes which might be subject to changes or amendments by an ordinance.⁷⁴ Consequently, the criminalisation of a behaviour may not be known by the general public. Thus, the increased number of specialised laws with implications for criminal responsibility motivates exemptions.

As to the reformulation, the traditional classification needs to be replaced since it does not provide any clear criteria for how to differentiate between the categories.⁷⁵ A more reasonable approach, in order to determine whether the defendant should be excused, is to differ between intent relevant mistake (ignorance of one’s actions) and manifestly excusable mistake of law (ignorance of the unlawfulness of one’s actions).⁷⁶ The former consists of mistake of fact and legal mistake,⁷⁷ while the latter category only includes mistake of law.

(a) Intent relevant mistake

(i) Mistake of fact

Mistake of fact concerns the situation when the actor has a misconception regarding a particular (non-legal) fact; a hypothetical example is a woman who remarries since she incorrectly thought that her husband had died in a drowning accident. Since she remarried due to a mistake of fact, she lacked the criminal intent to commit bigamy.⁷⁸ Hence, she should be excused from criminal liability. However, from a more practical point of view, situations concerning self-defence raise interesting legal issues, particularly in cases where the question of putative excessive use of violence arises.⁷⁹

⁷³ See further Petter Asp Internationell straffrätt (Iustus, Uppsala, 2011) at

^145–151.

^{74 See, eg, Swedish Environmental Code 1998.}

^{75 See, however, Kjell V Andorsen Rettsvillfarelse i strafferetten (Fagbokforlaget,}

^{Bergen, 2005) at 284.}

^{76 See Asp, Uiväng and Jareborg, above n 6, at 300, 356–358, 390–397, 409;}

^{Lena Holmqvist and others Brottsbalken. En kommentar. Del II (13–24 kap)}

^{Brotten mot allmänheten och staten m.m. (Norstedts Förlag, Stockholm, 2007)}

^{at 24:79.}

^{77 This is formerly known as foul mistake of law. The rephrasing has been}

^{done in order to separate between a mistake of law (mistakes regarding}

^{the criminal law) and other mistakes about other legal aspects, which are}

^{relevant for the application of a criminal offence.}

^{78 Swedish Penal Code 1962 c 7, s 1. Compare R v Tolson (1889) QBD 168}

^{(CCR), in which a woman was deserted by her husband and heard from}

^{reliable sources that he had drowned. Since she honestly believed on}

^{reasonable grounds that her previous marriage was annulled or dissolved,}

^{she was acquitted. See also Hall, above n 27, at 367–368: “Thus ... mistake}

^{of fact is a defense if, because of the mistake, mens rea is lacking.”}

^{79 According to Swedish criminal law, excessive use of force is a subjective}

^{ground from criminal liability: see Swedish Penal Code 1962 c 24, s 6. For}

^{an analysis, see Martinsson, above n 71. For an overview and commentary}

^{of earlier case law, see Curt Blomkvist Rätten till självförsvar: Om tillåtet}

^{och otillåtet våld i nödsituationer (Forum, Stockholm, 1972).}

In Umeå District Court case B–1627/11 (2011), a woman was charged with violence to a public servant⁸⁰ after she kicked two police officers as they were about to take her into custody due to intoxication. The policemen, however, were wearing plain clothes and drove a civil police car and looked like “slobs”. The police officers explained to the woman that they were cops and presented their police badges. The woman, however, doubted this and was very frightened and convinced that they were about to rape her. She kicked the men in self-defence in an attempt to escape. It was not until she was in the police car and she heard the sirens that she realised they were police officers. The courts found that it was apparent that the woman was convinced she was about to be raped by two strange men and that her belief determined the outcome. The woman was acquitted of the charges.

However, the following case illustrates that mistake of fact will not always result in an acquittal. In Svea Court of Appeal case B-4227/05 (2006), a neighbour was awoken by a screaming woman in the middle of the night. The neighbour realised that the screams came from the basement and was convinced the woman was suffering severe abuse by several offenders. The neighbour grasped a steering lock and headed towards the basement. When the neighbour knocked on the door, a man opened it. The neighbour immediately hit the man with one stroke to the face and another stroke to the man’s back. The objective course of events, however, was rather different. In fact, it was a case of a quarrel between the man and his girlfriend; the man decided to go home due to the disagreement. He went to the basement to get his bicycle. The girlfriend followed the man to the basement, and what the neighbour heard was the girlfriend screaming and shouting at him to make him stay. The District Court concluded that the situation was one of an excused excessive use of force, and thus, the neighbour was acquitted. The Court of Appeal, however, held that the action constituted a gross assault⁸¹ and sentenced the neighbour to six months in prison.

In this situation, when the actor clearly lacked intent, an acquittal would have been preferable.⁸² By not acknowledging the actor ’s view of the situation, it is possible to question whether the Court of Appeal sufficiently and skillfully handled the matter of mistake and whether this was a correct application of the coverage principle. In addition, it is noteworthy that the Court did not state its reasons for the conviction.⁸³

^{How should one understand the legal position when the court does not}

⁸⁰ Swedish Penal Code 1962 c 17, s 1.

^{81 Swedish Penal Code 1962 c 3, s 6.}

^{82 For a detailed analysis, see Martinsson, above n 71, at 42–45.}

^{83 Note that an inadequate reasoning is a breach of European Convention}

^{on Human Rights: see Georgiadis v Greece [1997] ECHR 28; (1997) 24 EHRR 606 (ECHR)}

^{at [41]–[43], where the European Court of Human Rights stated that the}

^{national courts must sufficiently disclose the reasons for their decisions.}

^{Compare Ruiz Torija v Spain (1995) 19 EHRR 553 (ECHR) at [29]–[30];}

^{Hiro Balani v Spain (1995) 19 EHRR 566 (ECHR) at [27]–[28]; Van de Hurk}

^{v Netherlands [1994] ECHR 14; (1994) 18 EHRR 481 (ECHR) at [61].}

^{sufficiently justify its decision?}

(ii) Legal mistake⁸⁴

Legal mistake includes a misconception of a rule, a legal norm or legal fact which is relevant to the application of a criminal provision. Once again, bigamy can be used to illustrate a hypothetical example: a legal mistake arises when a woman who was married in Sweden remarries. The reason she remarries is that she, wrongfully, believed that the divorce regarding her previous marriage was valid according to Swedish private international law. According to the new legal doctrine, the woman should be excused from criminal responsibility since she lacked the required intent.

In order to apply this category of mistake, the fault must relate to an element of the applicable provision which requires mens rea. Hence, application of a legal mistake will arise where the offence requires a specific intent. In the case law, this type of mistake has mainly concerned misapprehensions of ownership. It is a recognised principle in Swedish criminal law that he who steals “of what cause it may be”, in the belief that it belonged to him, cannot be guilty of theft;⁸⁵ this principle can be illustrated by the following cases.

In NJA 1907 p 471, a man was accused of theft since he picked apples from his neighbour ’s tree. The man believed that he was the rightful owner of these apples, since they were hanging on his side of the property. The Supreme Court acquitted the man, stating that the ownership of the apples was a legal fact that required mens rea.

A more recent example is NJA 1991 p 117, where a woman was charged with theft since she took down a sign that belonged to a café. She was convinced she was the owner of the sign. The woman had established the business and she had bought the sign. Her sisters had taken over the business and she later sued her sisters, pleading that the court should declare her the rightful owner of the sign. The District Court, as well as the Court of Appeal, dismissed the writ. The woman quoted the earlier court decision, claiming that it was incorrect. The District Court and the Court of Appeal sentenced her for theft. The Supreme Court, however, found her guilty of unlawful dispossession.⁸⁶ The Supreme Court stated that she was mistaken about the legal effects of the earlier court decision concerning the dispute of the ownership and that such misapprehension should not be viewed any differently than a genuine mistake of the ownership.⁸⁷

⁸⁴ Note that this category bears strong resemblance to “claim (or colour) of right”. See for example, Warren J Brookbanks “Colour of Right and Offences of Dishonesty” (1987) 11 Crim LJ 153; Margaret Briggs Mistake of Law (LLM Thesis, University of Otago, 1994) at 213–218.

^{85 Ivar Strahl Allmän straffrätt i vad mån angår brotten (Nordstedts Förlag,}

^{Stockholm, 1976) at 148.}

^{86 Swedish Penal Code 1962 c 8, s 8.}

^{87 If she once again takes down the sign, still believing she is the owner, she}

^{The legal issue of mistake gets even more complicated when, as in NJA}

^{1973 p 590, the actor is intoxicated when committing an offence. In that}

^{case, a man was charged with petty theft88 since he had taken a stroller}

^{that belonged to someone else. The man claimed that he could not be}

^{liable since at the time of the crime he was considerably intoxicated and}

^{therefore was mistaken about the ownership. He and his family had}

^{recently moved, and while moving, they accidently left their stroller}

^{behind. When committing the act, the man went to the building where}

^{he used to live and he saw a stroller, which he thought was the one they}

^{had left behind. The District Court, in a decision that was upheld by the}

^{Court of Appeal, sentenced the man for petty theft. The Supreme Court,}

^{however, was of a different opinion, stating that because the man thought}

^{he was the owner of the stroller, he lacked the intent to “acquire it” 89 and}

^{thus, could not be liable for theft. The Supreme Court, however, found}

^{the man guilty of unlawful dispossession.}

These rulings illustrate well that in cases concerning legal mistake, the courts are willing to accept misconceptions of the defendant. This could be seen as an expression of the principle that the defendant needs to be blameworthy (in a moral sense) in order to be held responsible for his actions⁹⁰ (although, that is not always the case when it comes to mistake of law).

(b) Manifestly excusable mistake of law

Mistake of law is, as compared to the other types of mistakes, rather different in its nature since it concerns a misapprehension about the contents of a certain regulation of criminal law and the question of whether the court should acquit the defender or mitigate his punishment. Swedish Penal Code 1962 c 24, s 9 states that:⁹¹

An act committed by a person laboring under a misapprehension concerning its permissibility shall not result in hi[m] being liable to punishment if the mistake arose by reason of an error in the proclamation of the criminal provision, or for other reasons, it was manifestly excusable.

An example of a mistake of law is when a man comes to Sweden and marries a woman, despite the fact that he already has one or several wives in his home country. The fact that he thought Swedish law permits polygamy raises the question whether his misapprehension is an excusable mistake of law.

It should be noted that the provision applies to elements of a criminal

cannot be guilty of theft. See Suzanne Wennberg “Villfarelse eller ej: Om subjektiv täckning av juridiska begrepp i brottsbeskrivningar” (1991) 3

^{Juridisk Tidskrift 112 at 116.}

^{88 Swedish Penal Code 1962 c 8, s 2.}

^{89 This is the fundamental condition to sentence the defendant for theft.}

^{90 Compare Claes Lernestedt Dit och tillbaka igen: Om individ och struktur i}

^{straffrätten (Iustus, Uppsala, 2010) at 78–83.}

^{91 Compare Penal Code of Finland 1889 c 4, s 2; German Criminal Code}

^{1998, s 17. See also Criminal Code of the Kingdom of Norway 1902, s 42.}

offence which do not require mens rea. The scope of the provision thus regulates mistakes that are irrelevant to the standard assessment of the mens rea element. The actor need not, for example, have thought that he received “an improper reward”,⁹² but he must have intent to the certain circumstances that a court will consider when deciding whether the act is improper. Moreover, the offence of drunk driving,⁹³ for example, requires mens rea of the fact that it was a motor-vehicle, but not that one had a certain level of alcohol in the blood.⁹⁴

When mistake of law was regulated, the Preparatory Legislative Materials emphasised that as a general rule, a misapprehension or ignorance about a criminal offence does not constitute an excuse from criminal liability and that the provision should be applied very restrictively.⁹⁵ At the same time, the Preparatory Legislative Materials stressed the importance of the courts in widening the application of mistake of law as an excuse. Therefore, it was suggested that it should be possible to apply the rule when the defendant completely lacks knowledge of a criminal offence. In other words, the Preparatory Legislative Materials suggests that the provision applies to mistake as well as ignorance.⁹⁶ This interpretation has gained some support in the case law.

In RH 2002:36, a nurse was charged with a breach of data security⁹⁷ since she had read a patient’s medical records without being involved in the treatment of the patient. The nurse claimed she had searched for medical records purely for educational purposes, which was common conduct by her colleagues. The Court of Appeal concluded that she was ignorant about the fact that her conduct constituted a crime; therefore she was excused.

It is questionable whether it was accurate to excuse the nurse, since the case concerned a defendant who made a mistake while working. In particular in this occupation, the nurse must have been taught how to handle medical records and must have been aware of the possibility that it could hold sensitive information about the patient.

(i) Error in the proclamation of the criminal provision

Mistake of law is applicable if a proclamation of a criminal provision has affected the possibility of accessing its contents. The Preparatory Legislative Materials emphasises that not every other error will serve as

⁹² As in the case of the offence of taking a bribe, see Swedish Penal Code

^{1962 c 20, s 2. Compare Svea Court of Appeal case B-5903/09 (2010).}

^{93 Road Traffic Offences Act 1951, s 4.}

^{94 See, eg, RH 1991:41.}

^{95 Statens Offentliga Utredningar 1988:7, 183–189; prop 1993/94:130, 56–60.}

^{96 Prop 1993/94:130, 55. See also Thornstedt, above n 60, at 26–27. Some}

^{scholars support a narrower view on the difference between mistake and}

^{ignorance: compare Asp, Ulväng and Jareborg, above n 6, at 301–310, who}

^{differ between mistake (error), doubt (dubio) and ignorance (ignorantia,}

^{neither mistake nor doubt).}

^{97 Swedish Penal Code 1962 c 4, s 9(c).}

an excuse; it must be a significant erroneous publication. The defendant should, for example, be acquitted if the public notice has not taken place before the criminal act was conducted, or when the public notice has been made through partial changes which are enforced simultaneously and made it very difficult to obtain the final version of the regulation.

(ii) Other reasons

When mistake of law was codified, the Preparatory Legislative Materials underpinned that the earlier case law, which had developed other grounds for excuse for criminal liability due to mistake of law, still should be valid and applicable in future cases.

Actor lacked the possibility of gaining information about the contents of a criminal provision

The Preparatory Legislative Materials supports the idea that an actor may be excused from criminal responsibility if he had no possibility of gaining information about the contents of an offence. This excuse presumes that the ignorance of the law was not due to the actor himself. A hypothetical case is when a foreign citizen visits Sweden and commits and offence that is incompatible with the conception of justice in his country. The following two cases illustrate ignorance concerning drug offences.

In RH 1990:99, a man was charged with narcotic drug offence⁹⁸ and an attempted customs offence⁹⁹ when he tried to import khat to Sweden. The man had been on holiday for about one month, and meanwhile khat had been classified in Sweden as a narcotic substance. However, khat was not at the time of the offence listed in the instructions of the National Board of Health and Welfare and was thus not in force until after the man brought khat into the country. The District Court held that the man’s objection that he did not know that khat was an illegal substance was not excusable and therefore sentenced him according to the charge. The Court of Appeal, however, acquitted the man since the criminalisation must have come as a surprise for him. The Court of Appeal stated that this was a “clearly excusable” case of mistake of law.

Hence, the Court of Appeal found that the man’s actions were “clearly excusable” due to the fact that khat had recently been criminalised and that it was not in force at the time of his offence. It is worth noting that the case was decided before Swedish Penal Code c 24, s 9 existed. The case would, however, result in an acquittal today due to the requirement of “manifestly excusable” mistake of law. This case still serves as a good example of when a defendant cannot be blamed for his actions.

In Scania and Blekinge Court of Appeal case B-607/10 (2010), a Dutch man was charged with grave narcotics smuggling¹⁰⁰ since he imported khat to Sweden. He denied criminal liability, claiming that he was unaware

⁹⁸ Act on Penal Law of Narcotics 1968 c 1, s 1.

^{99 Act on Penalties for Smuggling 2000, ss 2, 8, in conjunction with Swedish}

^{Penal Code 1962 c 23, s 1.}

^{100 Act on Penalties for Smuggling 2000, s 6, in conjunction with s 3.}

that khat was classified as a narcotic in Sweden. The District Court, in a judgment that was affirmed by the Court of Appeal, held the man liable for his actions. The courts concluded that it was not a case of mistake of law because he had not investigated whether khat was an illegal substance in Sweden.

It is striking that the courts in this case concluded that it was not a case of mistake of law. The man’s conviction that he was not aware that he was importing an illegal substance was reasonable. Although his ignorance may not have been “manifestly excusable”, the courts should have taken his ignorance into account and explained why it was not relevant in this case. However, one possible explanation of the outcome is that the judgment could be seen as an indication from the courts that crimes involving narcotics are so grave that the defendant cannot rely upon mistake of law as an excuse.¹⁰¹

Vague criminal provision

Vagueness as an excuse from criminal liability refers to linguistic vagueness. As underpinned by the Preparatory Legislative Materials, in certain circumstances it might be difficult to decide whether an act, which is in the periphery of what constitutes a crime, is criminal or not. The court must consult the Preparatory Legislative Materials and the case law to decide whether it is a criminal offence. It is not sufficient to only study the language of the regulation.

In NJA 1984 p 236, a German citizen was accused of breaching the Aliens Act¹⁰² since he had anchored in a military protective area, which was a forbidden area for foreigners. He denied criminal responsibility, claiming that the leaflet he had received which explained how foreigners were allowed to travel within the protective area, contained no information that he was forbidden to enter the area in which he anchored. The District Court and the Court of Appeal acquitted the man due to the difficulties in interpreting the meaning of the provisions stated in the leaflet. Although the Supreme Court acknowledged that the information prescribed in the leaflet was “not very easy to understand”, the Court concluded that because of this, he should have made further investigations to be certain of the contents of the regulation. Thus, his misapprehension was not manifestly excusable.

An interesting and a practical issue is that there are several legal terms which the layperson may have difficulties in understanding, and specific legal terms for which he might have his own interpretation. The layperson may thus be convinced that his deed is lawful, while the legal position is contrary to his belief.

This matter arose in NJA 2004 p 786 where a man was charged with

¹⁰¹ Compare prop 1993/94:130, s 58, where the legislator has stated that foreign views of the legality of crime concerning assault and similar offences should not count as an excuse for the defendant.

¹⁰² Aliens Act 1980, s 96. Note, however, that this legislation was replaced by Law 1989:529.

grave hunting violations¹⁰³ after having shot a wolf. The man thought that the wolf was about to attack his cattle. The question was whether the shooting had taken place “immediately if the predator has attacked and injured or killed domestic animals”.¹⁰⁴ The District Court and the Court of Appeal acquitted the man because there were several possible interpretations of the regulation. The Supreme Court recognised his argument that media had given him the impression that it was legal to shoot predators in such situations, stating that it was a reasonable claim; however, the Court concluded that his mistake of law was not manifestly excusable.

In Svea Court of Appeal case B-5903/09 (2010), a man was accused of taking a bribe.¹⁰⁵ The man was working with assisted living as a caretaker and had also been employed privately by a client, for which he received about SEK 190,000.¹⁰⁶ The question was whether this was an “other improper reward for the performance of his duties” according to Swedish Penal Code 1962 c 20, s 2. The man denied criminal liability, claiming that he did not understand that it could be a bribe and was acquitted by the District Court. The Court of Appeal, however, was of the opinion that it was a bribe. The Court of Appeal held that his employer had informed him that he was not allowed to receive any gifts or other compensation from his care holders and thus he could not successfully claim ignorance.

There are reasons to reflect on these verdicts. One important observation is that the courts do not seem to make any distinction between an unclear provision and a legal difficulty in interpreting a provision. It is unfortunate and inappropriate to not differ between these situations; while the German citizen made a mistake because of an unclear provision, the other men were aware of the regulations but did not fully understand the legal terms. Instead, they had their mind set on their interpretation of the law.¹⁰⁷ The German citizen should, in my opinion, have been acquitted since his mistake was due to a lingual vagueness and thus the only case of a mistake of law.

It is also worth noticing that the different instances in each case had separate views on the outcome, which highlights the difficulty and the uncertainty when it comes to mistake as an excuse from criminal liability in Swedish criminal law.

Officially induced error

In cases where a person contacts a governmental authority, seeking

¹⁰³ Hunting Act 1987, ss 43–44, in conjunction with s 3.

^{104 Ordinance of the Hunting Act 2006, s 28. Note, however, that the phrasing}

^{of the provision was amended by Law 2009:310, but it still contains the}

^{same requirement for shooting any predator.}

^{105 Swedish Penal Code 1962 c 20, s 2.}

^{106 Approximately NZD 37,200.}

^{107 Compare Hall, above n 27, at 363: “Thus, mistakes ... often result not}

^{only from faulty perception but also from ... the ideas already in the}

^{interpreter ’s mind, including his bias.”}

information, advice or guidance regarding how he should act in a certain situation, but receives an erroneous advice and because of that commits a crime, the person should be excused from criminal responsibility.

An acquittal, however, requires that the individual (i) contacted the correct authority; (ii) the individual has given the authority the right information; (iii) concerning a specific question; (iv) in which the authority was competent to give an authoritative decision. Furthermore, the individual must have (v) documented what advice that was given to him; and (vi) provide information about who gave the advice and when it was given to him.

Officially induced error as an excuse applies both to written and oral advice. It is also applicable when different authorities, as in NJA 1973 p 306, have issued conflicting decisions in the same case. In this case, a man was charged with breaching the Building Act¹⁰⁸ since he, without the required building permit, used his basement for living purposes. The man claimed he had been given permission by the County Administrative Board to sublease the basement. However, the Local Building Committee had, previous to the permission being granted, decided that the basement could not be used for any living purposes. The District Court acquitted the man. The Court of Appeal convicted the man. The Supreme Court held that the conflicting decisions made the man believe that he did not need a permit. His belief was thus manifestly excusable.

Another related matter is whether someone should be excused from criminal liability when he relied upon an erroneous advice from an expert. The Preparatory Legislative Materials emphasises that such erroneous advice is an excuse, albeit in rare cases; for example, when there is no competent authority to contact, when the expert has special knowledge in a certain field and the expert is serious, and that it is a question of criminal responsibility for a petty crime. In Stockholm District Court case B-3870/09 (2009), an art student was accused of, inter alia, false alarm.¹⁰⁹ She had acted mentally insane and most notably, she had tried to commit suicide by jumping from a bridge in central Stockholm. She was pleading she was not guilty of any criminal conduct, stating that previous to the art project she had contacted a criminal lawyer to ensure her behaviour would not constitute a crime. The District Court stated that she had stretched herself very far in her intentions to examine whether her conduct would be lawful, and that the advocate title signals a certain quality. The District Court concluded that her erroneous belief that her conduct did not constitute an offence was manifestly excusable.

An actor may also be excused if he, through his own investigations, tried to determine the law on a specific matter. This presumes, however, that the actor was able to assimilate the contents of the relevant

¹⁰⁸ Building Act 1959, ss 54, 69. Note that the regulation was replaced by

^{Law 1987:10.}

^{109 Swedish Penal Code 1962 c 16, s 15.}

regulation(s) and that sufficient legal research has been conducted.¹¹⁰

B Discussion

Although Swedish criminal law, at its surface,¹¹¹ provides a sound policy¹¹² regarding mistakes, the legal structure of mistake as an excuse is questionable. There are several reasons to be concerned about the development in this legal field.

(i) The principle regarding mistakes in Swedish criminal law is, in theory, not complicated: intent relevant mistakes should always result in a discharge and a mistake of law should result in an acquittal if the mistake was manifestly excusable. Yet, the courts do not apply this standard. It is possible to question whether this is due to a misconception about the principle governing mistake of law. This could be illustrated by a conflict between:

Norm I: Mistakes can never serve as a defence, eg, ignorantia juris neminem excusat.

Norm II: Mistake can serve as a defence, if the actor was manifestly excusable.

Firstly, is this a norm conflict? If so, it requires that one principle articulates that p is lawful, and the other states that non-p is lawful. Additionally, it needs to be a bilateral conflict, meaning that an application of the first principle per se excludes an application of the second norm. According to Kelsen, the conflict should be solved by a legal interpretation, as proclaimed by the courts.¹¹³ Kelsen’s approach has, however, been criticised; some scholars argue that the contravening norms should, in the specific case, be weighed against each other.¹¹⁴

The interesting question norm regarding mistakes is the prevailing one. It is, in my opinion, not a question of a norm conflict; more correctly, Norm I is the recognised main rule, and Norm II expresses the accepted exemptions. Thus, the scattered case law can partly be explained by a difficulty in apprehending in which situations Norm I and Norm II respectively are applicable.¹¹⁵

110. See Södertörn District Court case B-10449/11 (2011), where a man was excused due his own investigations of the legality of his conduct.

^{111 Compare Tuori, above n 36, at 154–161.}

^{112 See above Part III-A, Swedish Experiences, regarding the doctrine of mens}

^rea.

^{113 Hans Kelsen General Theory of Norms (Oxford University Press, Oxford,}

^{1991) at 123.}

^{114 See Kaarlo Tuori Rättens nivåer och dimensioner (University of Helsinki,}

^{Helsinki, 2008) at 55. Compare Joseph Raz “Intention in Interpretation”}

^{in Robert P George (ed) The Autonomy of Law: Essays on Legal Positivism}

^{(Clarendon Press, Oxford, 1996) 249 at 256: “[I]f an original can have}

^{several meanings, then possibly two incompatible interpretations can}

^{both be valid.” See, however, Kelsen, above n 113, who argues that one}

^{principle always will prevail the other.}

^{115 This, in turn, is due to the lack of guidance in the Preparatory Legislative}

^{Materials and legal doctrine.}

If not a norm conflict, is it a paradigm shift? According to Tuori, principles undergo a process of sedimentation, in which the deep structures of law create and develop the principles. Tuori argues that the legal system is of a multilayered nature and the different levels of the law are dynamically related. Principles, as elements of the deeper structures, are dependent on the law’s surface level, while they simultaneously have a role in the development of the legal order at the surface level.¹¹⁶ The development of the principles will be distillated from the surface level to the deeper structures; meaning that a specific principle will, eventually, be recognised as an element of the valid law.

Relating Tuori’s theory to mistake of law, it is thus possible to argue that Norm II is in the process of sedimentation. The reason for this is that Norm II only recently has gained recognition and has thereby not yet been fully accepted at the surface level. The scattered case law can be explained by an ongoing paradigm shift, in which Norm II is slowly eroding the validity of Norm I, and thereby undermining the rationale behind Norm I. The evolving norm articulates that as a principle, every excusable mistake of law should result in an acquittal. Until Norm II prevails, mistake of law will remain the kingdom of the law’s fool.

(ii) This leads to the interesting question in Swedish criminal law: What is the main rule concerning mistake of law? The wording of Swedish Penal Code c 24, s 9, raises some questions. Firstly, it must be highly unusual that there is an error in the proclamation of the law. Secondly, with reference to the case law before the codification, “other reasons” might apply and excuse the actor. However, these grounds for excuse, according to the Preparatory Legislative Materials, concern extremely rare situations. Thirdly, the requirement that the mistake be “manifestly excusable” indicates that the defendant needs to meet an additional criterion in order for him to be acquitted. Exactly what is meant by “manifestly excusable” is not clear – neither in the case law nor in the legal doctrine nor in the Preparatory Legislative Materials. This phrasing signals that the legislator, in fact, has limited the area for applying mistake of law as an excuse and that the courts should be restrictive in acquitting a defendant.

In other words, the phrasing and application of mistake of law is designed as a rule of exception and will hardly ever apply to the favour of the defendant.¹¹⁷ Thus, the main rule is that ignorance and mistake of law is not an excuse from criminal liability.¹¹⁸ Swedish criminal law, however, accepts some typical exceptions in cases where the actor was “manifestly excusable”. The design of these exceptions is important; it illustrates that it is possible to have a less strict view on mistake of law as an excuse without undermining the principle of legality nor the moral

116. See Tuori, above n 36, at 148–216. A change in the deeper structures will, however, take longer than a shift at the surface level.

^{117 See also Lernestedt, above n 90, at 99.}

^{118 Hence, the main rule is the same in Swedish criminal law as in the common}

^law.

^{principles present in the criminal law.}

(iii) Since the matter of mistakes is far from clear and there is no guidance from the legislator, the courts have been given the ability and opportunity to interpret and develop the law of mistakes.¹¹⁹ One tendency which illustrates the extensive discretion of judges is the requirement of a criminal law due diligence. This requirement could be seen as an illustration of what it takes for an actor to be “manifestly excusable”.

This requirement is particularly present in cases concerning mistake of law.¹²⁰ The notion of due diligence is unclear and imprecise; there is no clear statement from any court explaining when the defendant has fulfilled the requirement.¹²¹ This is unsatisfactory. The case law suggests that there is no difference between D1, who is completely unaware of the fact that a certain behaviour is criminalised, and D2, who is ignorant of the fact that a certain behaviour might be criminalised. Yet, there should be a difference.

From the outset, they both subjectively believe that their actions are lawful. If there is a requirement of due diligence, then D2 should have determined whether the behaviour was legal or not. By not conducting research, D2 took a risk and is therefore liable for his actions. In the case of D1, it depends on the specific crime; for example, D1 cannot successfully claim that he was unaware that rape was not criminalised;¹²² but what if D1 was unaware of a local regulation stating that his act is unlawful?¹²³

Without clarification from the courts it is difficult – if not impossible – for individuals to know when they ought to further investigate whether a certain behaviour is criminalised or not before they act.¹²⁴

Another tendency is that the courts seem to include moral reasoning in the judgments; for example, in situations of putative excessive use of violence the courts reason how the defendant should have interpreted

¹¹⁹ Compare Magnus Ulväng ”Om straffrätt och principer” in Petter Asp, Claes Lernestedt and Magnus Ulväng Katedralen: Tre texter om straffrätt (Iustus, Uppsala, 2009) 149 at 229. For a discussion about the discretion for judges to develop the law, see HLA Hart The Concept of Law (Clarendon Press, Oxford, 1961) at 10, 150; Ronald Dworkin Taking Rights Seriously (Harvard University Press, Cambridge (Mass), 1977) at 22, 80, 116.

¹²⁰ Support for a due diligence approach can be found in, inter alia, NJA 1984 p 236; Scania and Blekinge Court of Appeal case B-607/10 (2010); Stockholm District Court case B-3870/09 (2009); Svea Court of Appeal case B-5191/10 (2010); Svea Court of Appeal case B-2510/07 (2008). Support against a due diligence approach can be found in, inter alia, RH 2002:36 and RH 2003:33.

¹²¹ See, however, Stockholm District Court case B-3870/09 (2009). Although, in general it must be considered too farfetched to contact a specialised lawyer in order to be excused.

¹²² Compare Christian v R [2007] 2 AC 400 (PC), where the defendants knew that rape and sexual abuse were wrong and criminalised, though unaware of the terms in English law.

¹²³ See, eg, NJA 1972 p 316, in that case the Supreme Court found that this was not an excuse.

^{124 Compare Hart, above n 3, at 1.}

the situation rather than how the defendant actually interpreted the situation.¹²⁵ Thus, the courts tend to analyse the situation from a highly objective perspective and how a responsible citizen, a bonus pater familias, would have acted in the defendant’s situation. Applying moral aspects in cases of mistake of fact and mistake of law could explain why the courts interpret the law and the defendant’s conception narrowly. Evidently, such analysis has negative implications for the legal certainty; it leads to difficulties in determining what ruled the outcome of the individual case and in creating coherence of which factors that are relevant in cases concerning mistakes. It is therefore complicated, if not impossible, to analyse what the ruling will be in a particular case.¹²⁶

¹²⁵ See, inter alia, Svea Court of Appeal case B-4227/05 (2006). For a detailed analysis, see Martinsson, above n 71, at 72–76. This is also present in cases regarding mistake of law: see, eg, Scania and Blekinge Court of Appeal case B-607/10 (2010); Svea Court of Appeal case B-5903/09 (2010) and NJA 1984 p

236. Surprisingly, when it comes to legal mistakes, the courts are willing to accept the defendant’s perception.

¹²⁶ Although there is, and there will always be, some situations when it is not clear whether a behaviour is criminalised. Compare Cantoni v France (17862/91) ECHR 15 November 1996 at [35]. See Douglas Husak and Andrew von Hirch “Culpability and Mistake of Law” in Stephen Shute, John Gardener and Jeremy Horder (eds) Action and Value in Criminal Law (Oxford University Press, Oxford, 1993) 157 at 166: “Any citizen ... should have a reasonable warning of fair notice of what conduct is punished.” See, however, Hall, above n 27, at 382–387, who argues that the principle of legality provides a reason not to acquit the defendant.