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  1. #46
    Cynic
    Guest

    Re: O2: respecting your privacy...

    On Wed, 11 Oct 2006 14:53:38 GMT, Ronald Raygun
    <[email protected]> wrote:

    >> Why does that mean it cannot be true that ignorance of the law is no
    >> defence?


    >Because one of the most fundamental principles governing criminal law
    >is the "mens rea" principle, according to which awareness that what one
    >is doing is wrong is an essential precondition to being found guilty
    >of an offence.


    That's where your misconception lies. Mens rea means only that you
    are aware of the essential elements of your actions. There is no need
    to know that those acts are illegal.

    So if, for example, you have an illegal drug in your possession but
    thought that it was a bag of talcum powder, then that would be a
    defence to a charge of possession of illegal drugs. But if you have a
    bag of what you *know* is a certain drug in your possession, but were
    unaware that it was a prohibited substance, that will *not* be a
    defence in law.

    --
    Cynic




    See More: O2: respecting your privacy...




  2. #47
    Alex Flaherty
    Guest

    Re: O2: respecting your privacy...


    Alex Heney wrote:
    >
    > Whether one *can* be expected to or not, in law one *is* expected to.
    >
    > But fair or not, that is the law.
    >


    Remind me again, is this England or Iraq?




  3. #48
    Tumbleweed
    Guest

    Re: O2: respecting your privacy...


    "Ronald Raygun" <[email protected]> wrote in message
    news:[email protected]...
    > Tumbleweed wrote:
    >
    >> If what you said was correct, the prosecution wouldnt just have to prove
    >> that you broke the law, but that you knew you broke the law, a rather
    >> more
    >> difficult case entirely!! Luckily for us, they dont.

    >
    > The usual test, I believe, isn't whether you actually knew (which is
    > obviously impossible to prove) but whether you should have known, i.e.
    > whether a reasonable person would have known. I gather this is often
    > called the "man on the Clapham omnibus" test.
    >


    perhaps you can cite a single case where such an event has happened?

    (the "man on the Clapham omnibus" test is whether that person would think
    something reasonable, not whether he would think it illegal)

    I suspect you are just winding us up RR, playing the troll for a change?
    Thats my lot on this silly conversation anyway.


    --
    Tumbleweed

    email replies not necessary but to contact use;
    tumbleweednews at hotmail dot com






  4. #49
    Alex Heney
    Guest

    Re: O2: respecting your privacy...

    On Wed, 11 Oct 2006 17:13:13 GMT, Ronald Raygun
    <[email protected]> wrote:

    >Alex Heney wrote:

    <snip>

    >
    >> 2. mens Rea does not mean what you think it does anyhow. It means you
    >> must have had the intention of carrying out the act. It does not mean
    >> you must have known the act was illegal, nor that you intended
    >> breaking the law.

    >
    >You are mistaken. You would be right if the "rea" part of it were a
    >form of the noun "res" meaning "thing" or in this case "act" (in which
    >case "mens rea" would translate roughly as "mindful of the act",


    I don't actually care what the literal translation using proper
    grammar may be. I don't know Latin.

    But in legal terms in UK law, it means the intent to carry out the
    act.


    >
    >It clearly does not make sense to talk about being guilty of something
    >which isn't in fact wrong, so the illegality of the act is implicit
    >in the word "guilty". That you committed the act intentionally, as
    >you say, is of course also a requirement of securing a conviction,
    >though even that doesn't seem always to apply (for instance if you
    >clobber a guard in order to knock him out temporarily while you get
    >on with a robbery, and he dies as a result of the injury, you will
    >be guilty of manslaughter even though it was not your intention to
    >slaughter the man).


    You would actually be guilty of murder, not manslaughter, because you
    had the intention of assaulting him at a level likely to cause GBH.

    Manslaughter is one of those categories of crime where there is no
    need for you to intend to do the act, you merely have to be negligent
    in not preventing it.

    >
    >>> From that it follows directly that the "ignorance is
    >>>no defence" mantra is untrue, because if you don't know that what
    >>>you are doing is wrong, *then it isn't*.

    >>
    >> That would follow if you were right about the meaning of "Mens rea"
    >> but you aren't, so it doesn't.

    >
    >Thank you. Since your interpretation of the meaning is wrong, it does.
    >


    Whether I am right or wrong about the meaning of "mens rea", you are
    wrong about ignorance of the law.

    There is no doubt whatsoever about the *very* well established
    principle in UK law that ignorance of the law is no defence.



    >
    >I'm not talking, by the way, of cases where the signs were never put
    >up in the first place, and therefore the restrictions have never been
    >in force at a particular site, but about cases where the signs were in
    >fact duly installed originally, but have subsequently either vanished
    >as a result of vandalism or accident, or have been rendered illegible
    >due to poor maintenance.
    >
    >But these technical requirements aren't written into the legislation
    >for the fun of it, they have a purpose. That purpose, I put it to you,
    >is to simplify proceedings. Without the technicality being explicitly
    >written into the rules, I suggest that an "I didn't know restrictions were
    >in force there at the time" defence in the form of a no mens rea plea would
    >be equally as effective, but would place a much bigger burden on the courts
    >system to achieve. If it is written into the rules that it suffices to
    >show that signs were absent, this is much easier to deal with.


    The defence probably would be available.

    But then that defence would not rely on ignorance of the law, but on
    ignorance of the facts, which always has been a defence.
    --
    Alex Heney, Global Villager
    Hypochondria is the only disease I haven't got.
    To reply by email, my address is alexATheneyDOTplusDOTcom



  5. #50
    Alex Heney
    Guest

    Re: O2: respecting your privacy...

    On Wed, 11 Oct 2006 17:18:32 GMT, Ronald Raygun
    <[email protected]> wrote:

    >Tumbleweed wrote:
    >
    >> If what you said was correct, the prosecution wouldnt just have to prove
    >> that you broke the law, but that you knew you broke the law, a rather more
    >> difficult case entirely!! Luckily for us, they dont.

    >
    >The usual test, I believe, isn't whether you actually knew (which is
    >obviously impossible to prove) but whether you should have known, i.e.
    >whether a reasonable person would have known. I gather this is often
    >called the "man on the Clapham omnibus" test.


    It has never been called that. Unsurprisingly, since it exists only in
    your imagination.

    There are some laws which rely on what somebody knew "or should have
    known", or which rely on what a "reasonable person" would think.

    Those are the cases where the "man on the Clapham Omnibus" test comes
    into play.
    --
    Alex Heney, Global Villager
    You can name your salary here. I call mine Fred.
    To reply by email, my address is alexATheneyDOTplusDOTcom



  6. #51
    Alex Heney
    Guest

    Re: O2: respecting your privacy...

    On 11 Oct 2006 11:17:25 -0700, "Alex Flaherty"
    <[email protected]> wrote:

    >
    >Alex Heney wrote:
    >>
    >> Whether one *can* be expected to or not, in law one *is* expected to.
    >>
    >> But fair or not, that is the law.
    >>

    >
    >Remind me again, is this England or Iraq?


    Wales :-)
    --
    Alex Heney, Global Villager
    You can name your salary here. I call mine Fred.
    To reply by email, my address is alexATheneyDOTplusDOTcom



  7. #52
    Ronald Raygun
    Guest

    Re: O2: respecting your privacy...

    Cynic wrote:

    > On Wed, 11 Oct 2006 14:53:38 GMT, Ronald Raygun
    > <[email protected]> wrote:
    >>
    >>Because one of the most fundamental principles governing criminal law
    >>is the "mens rea" principle, according to which awareness that what one
    >>is doing is wrong is an essential precondition to being found guilty
    >>of an offence.

    >
    > That's where your misconception lies. Mens rea means only that you
    > are aware of the essential elements of your actions. There is no need
    > to know that those acts are illegal.
    >
    > So if, for example, you have an illegal drug in your possession but
    > thought that it was a bag of talcum powder, then that would be a
    > defence to a charge of possession of illegal drugs. But if you have a
    > bag of what you *know* is a certain drug in your possession, but were
    > unaware that it was a prohibited substance, that will *not* be a
    > defence in law.


    I'm not sure that's a good example, because here the ignorance is not
    about the law which prohibits possession of controlled substances,
    but about whether the "certain drug" in question is in fact a controlled
    substance.

    What if I didn't know that talcum was *not* a controlled substance?
    What if I suspected that it was?

    What if it was paracetamol, but in large quantity. Shops aren't
    supposed to sell me more than two packs of 16 500mg pills at a time.
    Is it illegal for me (not being a shop licenced to sell pills) to
    possess 2kg of paracetamol?




  8. #53
    Ronald Raygun
    Guest

    Re: O2: respecting your privacy...

    Alex Heney wrote:

    > On Wed, 11 Oct 2006 17:13:13 GMT, Ronald Raygun
    > <[email protected]> wrote:
    >>Alex Heney wrote:
    >>>
    >>> 2. mens Rea does not mean what you think it does anyhow. It means you
    >>> must have had the intention of carrying out the act. It does not mean
    >>> you must have known the act was illegal, nor that you intended
    >>> breaking the law.

    >>
    >>You are mistaken. You would be right if the "rea" part of it were a
    >>form of the noun "res" meaning "thing" or in this case "act" (in which
    >>case "mens rea" would translate roughly as "mindful of the act",

    >
    > I don't actually care what the literal translation using proper
    > grammar may be. I don't know Latin.


    Gee, that's too bad. They would hardly use a Latin term to describe
    a legal principle if the meaning of the term were at odds with what it
    is taken to mean in practice, would they? It means "guilty mind", and
    that's that. It means that except in strict liability cases (which
    are those in which mens rea does not apply), awareness that you were
    doing something wrong *MUST* exist, or you cannot be guilty of the
    actus reus (which is the actual criminal act).

    The Latin name derives from principles which originally governed
    Roman Law, and these principles (together with their names) have been
    adopted on a wholesale basis, since much of UK law is indeed based upon
    Roman law. It would have been unthinkably daft to label principles
    with a name which does not accurately reflect their meaning, and it
    would likewise be unthinkably daft to adopt into English law a principle
    together with its Latin name, and then change the principle to have a
    completely different meaning and yet retain its original name.

    > But in legal terms in UK law, it means the intent to carry out the
    > act.


    Yes, but it is implicit in "the intent to carry out the act" that the
    act in question is an unlawful one, otherwise the courts would not be
    concerning itself with the case. If you carry out an act which you
    (genuinely) believe to be lawful, then there can be no guilty mind,
    no mens rea.

    >>>> From that it follows directly that the "ignorance is
    >>>>no defence" mantra is untrue, because if you don't know that what
    >>>>you are doing is wrong, *then it isn't*.
    >>>
    >>> That would follow if you were right about the meaning of "Mens rea"
    >>> but you aren't, so it doesn't.

    >>
    >>Thank you. Since your interpretation of the meaning is wrong, it does.

    >
    > Whether I am right or wrong about the meaning of "mens rea", you are
    > wrong about ignorance of the law.


    First you say that if I am right about the meaning of mens rea then
    I'd be right about the ignorance bit, and now you say I'm wrong no
    matter what mens rea means. Marvellous contradiction.

    > There is no doubt whatsoever about the *very* well established
    > principle in UK law that ignorance of the law is no defence.


    If what you say is true, there is something *very* wrong with UK
    law. It runs manifestly counter to natural justice that you can be
    found guilty of an offence when you commit an act which there is no
    way a reasonable person could know/believe/suspect to be unlawful.
    It's just absurd.

    >>[parking restrictions with missing signs]

    >
    > The defence probably would be available.
    >
    > But then that defence would not rely on ignorance of the law, but on
    > ignorance of the facts, which always has been a defence.


    Ignorance of what facts? The only ignorance in this example is of the
    fact that a restriction (a "law") is in force. In what way is that not
    the same as "ignorance of the law"? It seems to me to be a perfect
    example of just that. Doing something you do not and cannot know to
    be wrong.




  9. #54
    Alex Heney
    Guest

    Re: O2: respecting your privacy...

    On Wed, 11 Oct 2006 23:33:26 GMT, Ronald Raygun
    <[email protected]> wrote:

    >Alex Heney wrote:
    >
    >> On Wed, 11 Oct 2006 17:13:13 GMT, Ronald Raygun
    >> <[email protected]> wrote:
    >>>Alex Heney wrote:
    >>>>
    >>>> 2. mens Rea does not mean what you think it does anyhow. It means you
    >>>> must have had the intention of carrying out the act. It does not mean
    >>>> you must have known the act was illegal, nor that you intended
    >>>> breaking the law.
    >>>
    >>>You are mistaken. You would be right if the "rea" part of it were a
    >>>form of the noun "res" meaning "thing" or in this case "act" (in which
    >>>case "mens rea" would translate roughly as "mindful of the act",

    >>
    >> I don't actually care what the literal translation using proper
    >> grammar may be. I don't know Latin.

    >
    >Gee, that's too bad. They would hardly use a Latin term to describe
    >a legal principle if the meaning of the term were at odds with what it
    >is taken to mean in practice, would they?


    Yes.


    >
    >> But in legal terms in UK law, it means the intent to carry out the
    >> act.

    >
    >Yes, but it is implicit in "the intent to carry out the act" that the
    >act in question is an unlawful one, otherwise the courts would not be
    >concerning itself with the case.


    Correct.


    > If you carry out an act which you
    >(genuinely) believe to be lawful, then there can be no guilty mind,
    >no mens rea.
    >


    Incorrect in law, whether correct in Latin or not..


    >>>>> From that it follows directly that the "ignorance is
    >>>>>no defence" mantra is untrue, because if you don't know that what
    >>>>>you are doing is wrong, *then it isn't*.
    >>>>
    >>>> That would follow if you were right about the meaning of "Mens rea"
    >>>> but you aren't, so it doesn't.
    >>>
    >>>Thank you. Since your interpretation of the meaning is wrong, it does.

    >>
    >> Whether I am right or wrong about the meaning of "mens rea", you are
    >> wrong about ignorance of the law.

    >
    >First you say that if I am right about the meaning of mens rea then
    >I'd be right about the ignorance bit, and now you say I'm wrong no
    >matter what mens rea means. Marvellous contradiction.


    No, I said it would follow.

    But it would still be incorrect.

    It is simple, unarguable FACT that in UK law, ignorance of the law is
    no defence.


    >
    >> There is no doubt whatsoever about the *very* well established
    >> principle in UK law that ignorance of the law is no defence.

    >
    >If what you say is true, there is something *very* wrong with UK
    >law. It runs manifestly counter to natural justice that you can be
    >found guilty of an offence when you commit an act which there is no
    >way a reasonable person could know/believe/suspect to be unlawful.
    >It's just absurd.
    >


    The law is quite often absurd.


    >>>[parking restrictions with missing signs]

    >>
    >> The defence probably would be available.
    >>
    >> But then that defence would not rely on ignorance of the law, but on
    >> ignorance of the facts, which always has been a defence.

    >
    >Ignorance of what facts? The only ignorance in this example is of the
    >fact that a restriction (a "law") is in force. In what way is that not
    >the same as "ignorance of the law"? It seems to me to be a perfect
    >example of just that. Doing something you do not and cannot know to
    >be wrong.


    The *law* is that you must not park where there are signs prohibiting
    it.

    The unknown *facts* are that the signs are present but damaged. (If
    they are missing, then there is no offence).
    --
    Alex Heney, Global Villager
    Circular Definition: see Definition, Circular.
    To reply by email, my address is alexATheneyDOTplusDOTcom



  10. #55
    Cynic
    Guest

    Re: O2: respecting your privacy...

    On Wed, 11 Oct 2006 23:33:26 GMT, Ronald Raygun
    <[email protected]> wrote:

    >Alex Heney wrote:
    >
    >> On Wed, 11 Oct 2006 17:13:13 GMT, Ronald Raygun
    >> <[email protected]> wrote:
    >>>Alex Heney wrote:
    >>>>
    >>>> 2. mens Rea does not mean what you think it does anyhow. It means you
    >>>> must have had the intention of carrying out the act. It does not mean
    >>>> you must have known the act was illegal, nor that you intended
    >>>> breaking the law.
    >>>
    >>>You are mistaken. You would be right if the "rea" part of it were a
    >>>form of the noun "res" meaning "thing" or in this case "act" (in which
    >>>case "mens rea" would translate roughly as "mindful of the act",

    >>
    >> I don't actually care what the literal translation using proper
    >> grammar may be. I don't know Latin.

    >
    >Gee, that's too bad. They would hardly use a Latin term to describe
    >a legal principle if the meaning of the term were at odds with what it
    >is taken to mean in practice, would they?


    Don't be simple. Many legal terms, whether in English or Latin are
    strictly defined and may mean something completely different to their
    meaning when used in everyday conversation.

    "Mens Rea" means only that the person understood what he was doing and
    the surrounding circumstances. it does *not* mean that he was aware
    that what he dis was against the law.

    Otherwise any offence could be defended simply by saying, "I didn't
    know that it was illegal".

    --
    Cynic




  11. #56
    Cynic
    Guest

    Re: O2: respecting your privacy...

    On Wed, 11 Oct 2006 22:14:03 GMT, Ronald Raygun
    <[email protected]> wrote:

    >> So if, for example, you have an illegal drug in your possession but
    >> thought that it was a bag of talcum powder, then that would be a
    >> defence to a charge of possession of illegal drugs. But if you have a
    >> bag of what you *know* is a certain drug in your possession, but were
    >> unaware that it was a prohibited substance, that will *not* be a
    >> defence in law.


    >I'm not sure that's a good example, because here the ignorance is not
    >about the law which prohibits possession of controlled substances,
    >but about whether the "certain drug" in question is in fact a controlled
    >substance.


    So? Just as you might know that there is a law about having sex with
    someone below a certain age, but perhaps are uncertain what that age
    actually is.

    >What if I didn't know that talcum was *not* a controlled substance?
    >What if I suspected that it was?


    There are two stages. Stage 1 is what you thought you were doing.
    Stage 2 is whether what you *thought* you were doing is *in fact*
    illegal. So if you thought you were carying talcum powder but it was
    in fact heroin, then you have committed no crime *even if* you thought
    that possession of talcum powder was illegal. But if you were
    carrying talcum powder bu *thought* that it was heroin, then you have
    committed a crime *even if* you did not know that possession of heroin
    is illegal.

    So we have the situation wher a person carrying heroin is aquitted
    because he thought it was talcum powder, while the person carrying
    talcum powder is convicted because he thought it was heroin. And the
    former person *thought* he was committing a crime, whilst the latter
    person di not. that is *in fact* the lawin the UK, whether you agree
    with it or not.

    >What if it was paracetamol, but in large quantity. Shops aren't
    >supposed to sell me more than two packs of 16 500mg pills at a time.
    >Is it illegal for me (not being a shop licenced to sell pills) to
    >possess 2kg of paracetamol?


    I do not know. But if I was found in possession of 2Kg of paracetamol
    and it *is* illegal, then the fact that I did not know that it was
    illegal would make zero difference - I would be convicted.

    --
    Cynic





  12. #57
    rob
    Guest

    Re: O2: respecting your privacy...


    >> What if I didn't know that talcum was *not* a controlled substance?
    >> What if I suspected that it was?

    >
    > There are two stages. Stage 1 is what you thought you were doing.
    > Stage 2 is whether what you *thought* you were doing is *in fact*
    > illegal. So if you thought you were carying talcum powder but it was
    > in fact heroin, then you have committed no crime *even if* you thought
    > that possession of talcum powder was illegal. But if you were
    > carrying talcum powder bu *thought* that it was heroin, then you have
    > committed a crime *even if* you did not know that possession of heroin
    > is illegal.
    >
    > So we have the situation wher a person carrying heroin is aquitted
    > because he thought it was talcum powder, while the person carrying
    > talcum powder is convicted because he thought it was heroin. And the
    > former person *thought* he was committing a crime, whilst the latter
    > person di not. that is *in fact* the lawin the UK, whether you agree
    > with it or not.


    I think, therefore I am guilty!





  13. #58
    Tim
    Guest

    Re: O2: respecting your privacy...

    "Cynic" wrote
    > So we have the situation wher a person carrying heroin
    > is aquitted because he thought it was talcum powder...
    > ...
    > ... if I was found in possession of 2Kg of paracetamol and
    > it *is* illegal, then the fact that I did not know that it was
    > illegal would make zero difference - I would be convicted.


    Nah - just tell them that you thought it was talcum powder!
    Can they *prove* you knew it was paracetamol?






  14. #59
    Cynic
    Guest

    Re: O2: respecting your privacy...

    On Thu, 12 Oct 2006 12:26:15 +0100, "Tim" <[email protected]> wrote:

    >> So we have the situation wher a person carrying heroin
    >> is aquitted because he thought it was talcum powder...
    >> ...
    >> ... if I was found in possession of 2Kg of paracetamol and
    >> it *is* illegal, then the fact that I did not know that it was
    >> illegal would make zero difference - I would be convicted.

    >
    >Nah - just tell them that you thought it was talcum powder!
    >Can they *prove* you knew it was paracetamol?


    There's the rub! If I was unaware that the substance I had was
    illegal, I would openly admit what it was. But if I knew it was a
    prohibited substance, I may well lie and claim that I thought it was
    something else.

    --
    Cynic




  15. #60
    John B
    Guest

    Re: O2: respecting your privacy...

    Tim wrote:
    > > So we have the situation wher a person carrying heroin
    > > is aquitted because he thought it was talcum powder...
    > > ...
    > > ... if I was found in possession of 2Kg of paracetamol and
    > > it *is* illegal, then the fact that I did not know that it was
    > > illegal would make zero difference - I would be convicted.

    >
    > Nah - just tell them that you thought it was talcum powder!
    > Can they *prove* you knew it was paracetamol?


    First of all, possession of 2kg of paracetamol isn't illegal: the
    restrictions only apply to OTC sales from pharmacies and other licensed
    retail outlets. Unlicensed sale of paracetamol is technically illegal
    in any quantity, but possession is not.

    Looking at a situation where the substance is illegal - if you were
    found with 2kg of cocaine, and you told the arresting officers that it
    was talcum powder that you were planning to rip people off with, then
    it shouldn't be too hard to prove that you knew it was cocaine - the
    fact that you paid someone several thousand pounds rather than a fiver
    for it, for example...

    With paracetamol, there would be a similar trail: you would need either
    to have purchased it over the counter from a licensed pharmacy or
    retail outlet, to have been prescribed it by a doctor, or to have
    bought it illegally.

    In the first two cases, there might well be receipts/loyalty
    card/credit card/CCTV evidence showing that you were the purchaser. If
    you'd bought it illegally, given that the cost would only be petty cash
    rather than thousands of quid, it might be harder for the authorities
    to prove a trail - unless they can find the supplier, of course...

    --
    John Band
    john at johnband dot org
    www.johnband.org




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