Relocating Officially Induced Error of Law: Fitting the Remedy to the Wrong

Abstract

The rule that ignorance or mistake of law is no excuse is one of the pillars of the criminal law. However, it can prove problematic in some cases including those where an individual commits an offence in reliance on incorrect official advice. This paper argues that the orthodox judicial approach to such claims fails to address the concern that the defendant is held responsible for what is essentially the state's own mistake. Rather than advocating a full defence of officially induced error of law, a more appropriate solution is for the court to exercise its inherent jurisdiction to prevent an abuse of process by staying the proceedings. This ‘procedural’ approach, which identifies the state's role in the commission of the offence, has recently been adopted by the Supreme Court of Canada, and has the potential to be applied in other common law jurisdictions including Australia, New Zealand and the United Kingdom.