Honest and reasonable mistake of fact

Honest and reasonable mistake is a defence that our criminal lawyers often use to beat charges where the is not required to prove that our clients’ intended to commit the crime. 

What is honest and reasonable mistake of fact?

An honest and reasonable mistake of fact is very literal. An honest and reasonable mistake of fact occurs where you commit an offence under an honest but mistaken belief as to facts. If true it would mean no criminal offence was committed. The belief must be reasonable and have a proper basis.  

Honest and reasonable mistake of fact is distinguishable from an honest and reasonable mistake of law, which is not an offence. The differences between a mistake of fact and law are highlighted in the examples below:

  • An example of an honest and reasonable mistake of fact is if you drive with a suspended driver’s licence. Knowing that driving while suspended was a criminal offence but you did not know that your licence was suspended. Your belief may be considered reasonable if you did not receive the suspension letter from the Roads and Maritime Service. In this example you would be not guilty.
  • An example of an honest and reasonable mistake of law is if you drive whilst your licence was suspended. Knowing you were suspended but not knowing it was an offence to drive while suspended.  In this example you would be not guilty.

What is the legal test for honest and reasonable mistake of fact?

To raise the defence of honest and reasonable mistake of fact there must be evidence of the following:

  1. Your mistake was an honest one;
  2. Your belief forming the basis of your mistake must have been a reasonable belief to have held in the circumstances;
  3. The mistake must be one relating to fact and not law.

The first part of the test is a subjective assessment of whether the belief is honestly held. The second part of the test is an objective assessment of whether the belief was reasonable in the circumstances.

Reasonable doubt

To raise honest and reasonable mistake of fact our criminal lawyers put forward evidence of the honest and reasonable belief. At which point the police must prove there was no honest and reasonable mistake of fact beyond reasonable doubt.

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