Loose Rivets comments:
Ignorance of the law is no excuse, I see mentioned above. That has always puzzled me. I've got a vague recollection of English Common Law having some bedrock logic like, You can't be ordered to do something you can not possibly comply with. Well, being compelled to know the law in its entirety is . . . I probably don't need I go on, but the word absurd comes to mind.
Well, Loose Rivets has committed a grave error of judgment which will be forgiven by few, having deliberately provoked a retired academic suffering acutely from lecturing-withdrawal into responding. In the case of lawyers, the symptoms are especially acute..... I absolutely have to rise to his challenge, for unless I explain something to someone I'll go mad.... errrrh, madder......
Please stop reading here -- if the mods permit this comment -- unless you want to learn some basic jurisprudence. On the other hand, some of what follows is definitely relevant to criminal law and aviation safety.
In my opinion, the absence of a defence of ignorance of the law to a criminal charge is not as problematic as Loose Rivets, who has clearly studied some law, thinks. To see why, one must understand the basic elements of a criminal trial. I appreciate that my explanation is largely based on the English "Common Law" (note the capitals, which are not an affectation) but in fact the explanation is now widely applicable in all democracies. This is because any attempt to have a legitimate and humane, rather than a vicious, repressive and oppressive, system of criminal justice has been shaped by the growing body of human rights law. This is supplemented by international legislation by means of several United Nations' and other international conventions to which many States have subscribed. These lay down what could be described as "recommended practices", and many States have passed laws to make the "should" into "shall" in their own law. I am proud that Mzantsi is one... secs. 232 and 233 of the Constitution set the theme.
The result is modern democratic legal systems tend to follow similar principles and concepts of criminal justice, using language which differs according to local culture, history and language but reaching similar results. So my language below uses terms I'm familiar with but should make sense to PPrunersfrom different cultures. Think of trying to explain to lawyers the differences between Boeings and Airbuses (as an aside, I wish that someone would do me this favour, referring especially to the use of the word "law" and how this relates to Bernoulli's).
So...... lecture begins:
1. There is a presumption of innocence until one is proved to be guilty.
2. Guilt must be proved beyond all reasonable doubt, and the prosecution carries this burden.
3. A person accused of a crime can raise defences -- for brevity I run a lot of possibilities into each other and omit some possibilities including drunkeness: eg, "I acted in self defence"; "I was not there and know nothing about the matter"; "I thought that the property belonged to me"; "my action was utterly unintended; I did not know and could not have known all the facts; I had an involuntary twitch or spasm; someone forced my hand".
4. The defences do not have to be proved beyond all reasonable doubt.
5. The prosecution has to prove beyond all reasonable doubt that the defence has no basis, is groundless, is false, is a lie.
6. If the finder of fact of the court (that is, take your pick: the judge, the judges, the majority of the jury, the unanimous jury, the judge and assessors, the assessors alone...... it all depends on the legal system) concludes that the defence may reasonably be true, then a "not guilty" verdict should follow. Noe that it is NOT NECESSARY TO PROVE THAT IT
IS TRUE!!!!!
7. It is generally impossible to prove a negative, but the defence must ensure that there is such strain on the prosecution evidence that the finder of fact will conclude that the burden of proof of guilt beyond all reasonable doubt is not discharged. This is done by ensuring that evidence helpful to the defence is before the court -- ie, the defence must "adduce" such evidence... eg, it may come from cross-examining prosecution witnesses ("Errhh, yes, the light was bad and so maybe I'm mistaken"; "Yes, I saw the accused person at another place at the time the prosecution says the crime was committed"; "Yes, the dead person was attacking the accused person").
So how does one raise a defence that one did not know the law? What evidence can one offer to the court?
In practice this is not a problem.
Everyone knows that some conduct is criminal because it obviously contravenes some moral/ethical/religious/socially-engendered rule (you don't go around hitting or killing people at random, or taking their property for yourself). On the other hand, some conduct has no obvious moral/ethical/religious/socially-engendered value - what's so special about driving on the left/right side of the road? So a law is made for the safety of all, and road signs and notices go up everywhere. Can anyone claim not to know the law about which side of the road to use?
This is exactly relevant to smoking in the toilets on airplanes. People smoke in their toilets at home and in public places, including airport lounges. It might almost be a virtue to choose such locations because they are confined and reduce the discomfort of non-smokers. So why can't they smoke in the toilets on airplanes? What is the moral/ethical/religious/socially-engendered value which is breached? It can be extremely dangerous, but this may not be apparent. So a law is passed, and made known to all by putting up notices and by cabin crew demonstrations. The system makes sure that everyone knows the law. Can anyone claim not to know the law about smoking on airplanes after having seen and heard the notices?
As for the example of the stressed young mother...... I'm afraid I remain hard-hearted. The fire does not discriminate and, as my former colleague referred to previously used to say, "She has sentenced herself".
But Loose Rivets has a point. What if a law creating an offence was passed while a person could not possibly have learned about it at the time (eg, was in the bush or at sea)? The answer looks inelegant but is adequate: in humane legal systems aspiring to legitimacy the prosecution has a discretion not to prosecute. This discretion is exercised; I draw attention, for example, to the UK's Code for Crown Prosecutors; this a document the like of which can be found widely around the world. I would claim that it is consistent with international human rights law and the various conventions.
https://www.cps.gov.uk/publications/...n_prosecutors/
And as for what one might consider to be obscure but lawful activities or activities requiring specialist knowledge, well...... I remain hard hearted. If one engages in an occupation or activity, it behoves you to know fully what you are doing. How would a pilot feel about another who does not bother to check NOTAMS?
Actually, in my view, airlines should consult criminologists and sociologists about such things. The notices and cautions are half-hearted and inadequate. My preferred text: IT IS A DANGEROUS CRIME TO SMOKE ANYWHERE ON THIS AIRCRAFT. YOU WILL BE DETECTED. THE PUNISHMENT IS SEVERE. YOU MAY ALSO BE BANNED FROM FLYING ON THIS AIRLINE IN FUTURE.
And how about the cabin crew's usual routine demonstration to include the warning and a reminder of the smoke sensors in the toilets, but extended also by: "We will now test and demonstrate the alarm" followed by a deafening screech.
Finally, those who have read this far may be interested in an excellent legal paper in a reputable learned journal on a different view of the "ignorance of the law" defence. Enjoy: we academics thrive on such things......
http://digitalcommons.law.umaryland....00&context=mlr