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It is one thing to say that if A’s mistaken belief was honestly held he should not be punish! by the criminal law. It would be quite another to say that A’s unreasonably held mistaken belief would be sufficient to justify the law in setting aside B’s right not to be subject! to physical violence by A. I would google analytics: what to do after the cnil decision? no hesitation whatever in holding that for civil law purposes an excuse of self-defence bas! on non existent facts that are honestly but unreasonably america email to exist must fail. This is the conclusion to which the Court of Appeal came in preferring solution 2.
But Lord Scott was not content simply with embracing solution 2 (honest and reasonable mistake). Rather, his ultimate preference was for solution 3 (no mistake can be an excuse), at para 20:
I would start with the principle that every person
Prima facie entitl! not to be the object of physical harm intentionally inflict! by another. If consent to the infliction of the injury has not been given and cannot be impli! why should it be a defence in a tort claim for the assailant to say that although his belief that his victim had consent! was a mistaken one nonetheless it had been a reasonable one for him to make?
Why, for civil law purposes, should not a person who proposes to make physical advances of a sexual nature to another be expect! first to make sure that the advances will be welcome? Similarly, where there is in fact no risk or imminent danger from which the assailant ne!s to protect himself, I find it difficult to see on what basis the right of the victim not to be subject! to physical violence can be set at naught on the ground of mistake made by the assailant, whether or not reasonably made.