The principle of wilful blindness has often been contested in courts. In criminal law, Wilful Blindness or ignorance of law refers to the 'deliberate avoidance of knowledge of the facts'; that is, a person avoids gaining knowledge as a means of avoiding self-incrimination1. In its purest form, wilful blindness (also known as Nelsonian Blindness) refers to the act of intentionally shutting one's eyes to an obviously unlawful situation. An example of this can be seen when an accused individual has deliberately shut their eyes to the knowledge of possession and or knowledge of use of illicit illegal substances, the law can deem this as the equivalent of actual knowledge.
The principle of wilful blindness is derived from criminal law and is prevalent in both the Malaysian and English legal systems, however, the application of the principle in each jurisdiction differs.
Application of Wilful Blindness in the
The doctrine wilful blindness developed as a theory in English case law which states that it was pertinent to prove that the accused had sufficient knowledge to be held accountable for their acts. One of the first
Another case where the doctrine of wilful blindness was applied in the English legal system was in the
Though the case of Global-Tech provided the courts with a unilateral definition of "wilful blindness" as one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts, there is still difficulty faced in proving 'deliberate actions' and the extent of the accused actions in putting on blinkers to avoid knowledge or scrutiny of an incriminating act. As such some have stated that the courts should move away from these potential interpretations in future rulings and instead adopt a totality of the circumstances test8. In such a test courts are to be given the discretion and flexibility to assess the facts of the case and to determine the degree of 'deliberate action' required to prove Wilful Blindness.
The doctrine of wilful blindness is also applied in corporate liability cases such as in the
Furthermore, the liability of wilful blindness does not only fall on the executive directors. Non-executive directors would also be held liable if they have found that such wrongdoings had been conducted upon the company and had turned a blind eye to the same. In
Application of Wilful Blindness in
The doctrine of Wilful Blindness is not codified in any statute in
One of the earliest cases which applied the doctrine of Wilful Blindness in
The doctrine of wilful blindness has to be applied rigorously when one considers the question of knowledge. To apply the doctrine of wilful blindness successfully, relevant inferences have to be drawn from all the facts and circumstances of the particular case, giving due weight, where necessary, to the credibility of the witnesses. Where the case for the prosecution is water tight, the doctrine of wilful blindness should fail.
The courts in Tan Kok An referred to the English cases of R v Griffiths (1974) and PP v
A further use of the doctrine of wilful blindness can be seen in the
Other common law countries have attempted to eviscerate the ambiguity of the doctrine by using a 'test' to determine how the doctrine should be applied in certain cases - in this particular instance it was for the misuse of drugs. For example, In the landmark case of
- Wilful blindness refers to a mental state short of actual knowledge but is taken to be its legal equivalent. The proof of an accused's suspicions and a failure to enquire is no more than a means to show actual knowledge and should not be referred to as wilful blindness.
- Wilful blindness is distinct and separate from the presumption of knowledge in sections 18(1) and (2) of the Misuse of Drugs Act 1973.
- The Prosecution may elect to rely on the presumption in section 18(1) or (2) of the Misuse of Drugs Act, or prove wilful blindness by making out the following three-part test:
Wilful Blindness as to the knowledge of possession | Wilful Blindness as to the knowledge of the nature of the drugs |
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It should be noted that although Malaysian Courts has yet to apply the doctrine of wilful blindness as applied in the
When considering the application of the doctrine of wilful blindness in matters of corporate liability; it is stated that a corporation can be held liable for the conscious avoidance of facts that would otherwise indicate wrongful activity. If a corporation or its agents strongly suspect there are illegal activities taking place within the corporation, yet fail to investigate, the corporation may be held liable if the circumstances demonstrate deliberate avoidance of information. Thus, a corporation cannot escape liability by merely refusing to investigate further when the doctrine is applied. However, corporate liability of 'wilful blindness' is still a very new and developing area of law within
From the comparison, above between both the English and Malaysian legal system we can see that the doctrine of wilful blindness is applicable when there is an element of knowledge to be scrutinised. However, there are still ambiguities to this doctrine, a prime example would be when courts must draw a distinction between wilful blindness and the element of recklessness in criminal law. While recklessness involves the knowledge of danger or risk that a particular course of action may invoke when one persists with the prohibited course of action, Wilful Blindness arises when a person who has become aware of the need to inquire further or to take action deliberately refuses to do so or turns a blind eye to the matter because they do not wish to know the truth as not to implicate oneself or to benefit oneself. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.
To conclude, it is clear to see that despite the ambiguities faced by both the English and Malaysian courts on the interpretation of the doctrine of wilful blindness, it remains a relevant legal principle which is used in common law countries when faced with the matter of 'avoidance of knowledge' and whether it can be held to be an autonomous decision by an individual or a deliberate decision to avoid to self-incrimination.
Footnotes
1. 56 Fed. Reg. 57974, 57976 (
2. Regina v. Sleep, 169 Eng. Rep. 1296 (Cr. Cas. Res. 1861).
3. Marcus, supra note 17, at 2333-34 (emphasis added) (discussing the development of willful blindness doctrine in the English courts).
4. Marcus, supra note 17, at 2334.
5. Global-Tech Appliances v.
6. Id.
7. Id. at 2072.
8. Daniel,
9. [1991] LRC (Comm) 449
10. [2017] EWHC 2856
11. [1996] 1 MLJ 89
12. A long Overdue Clarification of Willful Blindness (2020) by
13. This case is now at the
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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