Fletcher is charged with theft after taking a bicycle from outside a shop. Fletcher states he genuinely believed the bicycle belonged to him - it looked identical to his own which had been stolen the previous week. The prosecution argues that his belief was unreasonable. The jury must consider whether Fletcher's mistake of fact provides a defence. Which of the following correctly states the law on mistake of fact?
- AMistake of fact is only a defence where the belief was both genuine and reasonable - an unreasonable mistake cannot found a defence to any offence.
- BMistake of fact is a defence only to specific intent offences - for basic intent offences the defendant is judged by what a reasonable person would have believed.
- CMistake of fact is not a defence to theft because dishonesty under the Fraud Act replaces any mistake-based defence in property offences.
- DA genuine belief in facts which, if true, would make the defendant's act innocent provides a defence - the belief need not be reasonable, though its reasonableness is evidence of its genuineness.
Show answer and explanation
The defence of mistake of fact operates where the defendant genuinely believed in a state of facts which, if true, would make their act innocent. In R v Williams (Gladstone) [1984], the Court of Appeal confirmed the test is subjective - the belief need not be reasonable, but reasonableness is relevant evidence of whether it was genuinely held. Under s.2(1)(a) Theft Act 1968, a person is not dishonest if they appropriate property in the belief that they have in law the right to deprive the other of it - Fletcher's genuine belief that the bicycle was his would negate the dishonesty element.
- A: The belief does not need to be reasonable. The test is subjective - a genuine but unreasonable mistake can still provide a defence. Reasonableness is evidence of genuineness, not a separate requirement.
- B: Mistake of fact applies to both specific and basic intent offences - it is not limited to specific intent. The specific/basic intent distinction is relevant to voluntary intoxication, not mistake of fact.
- C: The Fraud Act 2006 does not replace the s.2(1)(a) Theft Act defence. Dishonesty in theft is governed by the Ivey test and s.2(1)(a) - a genuine belief in the right to take is a complete answer to dishonesty.