CODIFICATION AND THE CRIMINAL LAW

(Four Lectures MT 2000 wks 7 & 8 Thursdays at Noon & Fridays at 10.00am. R H S Tur Oriel College 20th November 2000)

LECTURE 1

Introduction: from Bleak House back to Bentham's "labyrinth without a clew" and "vast hotbed of uncertainty"; Bentham's lifelong commitment to a Code



Four Prerequisites for any Code (language, structure, values, enactment)



Prerequisite One: Theory of Language

Orwell's "rules

Prerequisite Two: Logical Structure

Austin, Kelsen, Hart, ... and Tur

Command, Norm, Rule, ... and "open-ended, defeasible normative conditionals"

Prerequisite Three: Values - Reason versus History

Smith and Stephen

Tur on Turner and Morgan

Bourne [1938] 1 KB 687 and Smith's "hypo"

Values - public sentiment versus a priori critical morality

LECTURE 2

A brief digression on the history of 'European' codification



Four Concepts of Codification

(1) Justinianic, Benthamite, Napoleonic, Rationalist - "French"

(2) Von Savignyan, Historical, Organic - "Germanic"

(3) Consolidatory and Incremental - "English"

(4) "Model Codes", non-binding restatements - "American"

No consensus as to the appropriate Concept of a Code for the criminal law of England and Wales. No consensus even on the most basic question of Values.



Prerequisite Three Continued: Values - Utilitarianism

Difficulties of application

(a) "tract of future time"

(b) "moral community"

Difficulties in theory

Rule and Act Utilitarianism (e.g. Riggs v Palmer - intention/justice)

Values for a Code for the criminal law of England and Wales

Subjectivism

Objectivism

Synthesis

Nagel on "Moral Luck"

Smith on "Moral Sentiments"



LECTURE 3

What is the Law Commission?



Example I: Assault

Is consent definitional or defensive, or both; does it matter?

Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com No 218, 1993)

Comments on

(1) Lord Mustill in Brown

"Definitional Minimalism" (Tur)

(2) Leng, "Consent and Offences against the Person: The Law Commission Consultation Paper No 134" 1994 Crim L R 480 - 488.

(3) The Second Law Commission Consultation Paper on Consent - Shute, "Something Old, Something New ...." 1996 Crim L R 684.

Tergiversations.



LECTURE 4

Prerequisite Four: Enactment

Home Office Consultation Paper (1998)

More Tergiversations

Smith, "Offences Against the Person: The Home Office Consultation Paper" 1998 Crim L R 317

Codes versus the common law

Lord Scarman

Hahlo (1967) 30 MLR 241 versus Cohn

The nature of law

Preddy [1996] AC 815

Example II: Conspiracy to Defraud

(Perhaps) Brief Comment on Law Commission Consultation Paper 155: Legislating the Criminal Code - Fraud and Deception (12th March 1999).

The definition of "dishonesty"

Conclusion (Lord Bingham)



MATERIALS AND SOURCES

Criminal Law: Codification of the Criminal Law (Law Com No 143, 1985)



Criminal Law: A Criminal Code for England and Wales (Law Com No 177 Vols 1 & 2, 1989).



Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com No 218, 1993)



Criminal Law: Conspiracy to Defraud (Law Com No 228)



Farrar & Dugdale "Codes and Codification" in Introduction to Legal Method , Ch 11.



Charles Dickens Bleak House (1852-3) Ch 1.



George Orwell, "Politics and the English Language", in Inside the Whale and Other Essays, Penguin, 1957), pp 143-157.



Michael Zander, "The Law Commission and Codification" in The Law-Making Process, Ch 9, part 5.



John Merryman, "Codes and Codification", The Civil Law Tradition, Ch V.



Davies & Holdcroft, "Utilitarianism" in Jurisprudence, Texts and Commentary, Ch 7



J C Smith, "Defences at Common Law and by Statute" in Justification and Excuse in the Criminal Law, pp1-6.



R H S Tur "Subjectivism and Objectivism: Towards Synthesis" in Action and Value in the Criminal Law, Shute, Gardner & Horder eds., pp 213-237



R H S Tur, "Criminal Law and Legal Theory" in Legal Theory and Common Law, Twining ed., pp 195 - 214.



Elliott, "Dialogues on the Theft Act", In Reshaping the Criminal Law, Glazebrook ed., pp 287 - 304.



The Theft Acts 1968 and 1978



Clarkson, "Violence and the Law Commission" 1994 Crim L R 324 - 333



Leng, "Consent and Offences against the Person: The Law Commission Consultation Paper No 134" 1994 Crim L R 480 - 488



Editorial on Conspiracy to Defraud 1995 Crim L R 97 - 98



J C Smith, "Conspiracy to Defraud" 1995 Crim L R 209 - 219 and 519 - 520.



Silber, "The Law Commission, Conspiracy to Defraud and the Dishonesty Project" 1995 Crim L R 461 - 463



Editorial on Offences Against the Person 1995 Crim L R 909



Henry Brooke, "The Law Commission and Criminal Law Reform" 1995 Crim L R 911



Editorial on Revision of Consent 1996 Crim L R 73



Editorial on A "Crystal Mark" for Lawmakers 1996 Crim L R 149



The Second Law Commission Consultation Paper on Consent

(1) Shute, "Something Old, Something New ...." 1996 Crim L R 684

(2) Ormerod, "Consent - A Second Bash" 1996 Crim L R 694



Smith, "Offences Against the Person: The Home Office Consultation Paper" 1998 Crim L R 317



Horder, "Reconsidering Psychic Assault" 1998 Crim L R 392



Lord Bingham, " A Criminal Code, Must We Wait for Ever?" 1998 Crim L R 694



Law Commission Consultation Paper 155: Legislating the Criminal Code Fraud and Deception (12th March 1999).



Ormerod, "A Bit of A Con?" 1999 Crim L R 789



Law Com 218 (1993)

6(1) A person is guilty of the offence of assault if-

(a) he intentionally or recklessly applies force to or causes an impact on the body of another-

(i) without the consent of the other, or

(ii) where the act is intended or likely to cause injury, with or without the consent of the other: or

(b) he intentionally or recklessly, without the consent of the other, causes the other to believe that any such force or impact is imminent.

(2) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person.



Home Office Consultation Paper (1998)

Clause 4(1) of the Bill provides: "A person is guilty of an offence if -

(a) he intentionally or recklessly applies force to or causes an impact on the body of another, or

(b) he intentionally or recklessly causes the other to believe that any such force or impact is imminent".

(2) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary course of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person.



Codification and the Criminal Law, Lecture 4 (passages cited)



Smith: V is asleep. D, taking care not to wake him, aims a blow at the back of his head. V awakes, sees the blow coming and dodges out of the way. D has caused the actus reus defined in (b) but he does not have the required mens rea. He has the mens rea required by (a) but he does not cause the specified actus reus. .... it seems clear that he has not committed an offence under the clause ... If we really want one offence the way to do it is to define it so that the actus reus and the mens rea of the two concepts are interchangeable something like:

"A person who applies force to, or causes impact on, the body of another ir causes another to believe that any such force or impact is imminent, commits the offence of assault if he does so either -

(a) intending to apply such force or cause such an impact or belief, or

(b) being reckless whether he does so."





Scarman 1: "No one could suggest, without taking leave of his senses, that the present shape of English law is either simple or modern ... English law lacks coherent shape, is inaccessible save to those with the training, the stamina, and the time to explore the jungle of case and statute law, and is unmanageable save by the initiated. It retains the mystical, priestly quality of early law: it has survived into the modern world only because of the tremendous quality of its high-priests - the judges who, from their seats of judgment, have from time immemorial - often in prose of striking beauty and clarity - declared its principles and solutions. . . . Can it be said that the refined gold of the common law is not to be had without the dust, darkness, and encumbrances of the mine workings? [Whatever], the achievements of the judges are immense. They have created one of the two great systems of jurisprudence existing today in the western world. Blessed as we have been with an unbroken legal development over a period of 600 years, we find in our judge-made a wonderful consistency of legal thought and action, and a remarkable capacity for adjustment to changing social conditions. The risk exists that codification might well shatter it ...[but] development by judicial precedent is development of the law by lawyers, a practice against which man has protested with more or less success since the dawn of civilisation. One is back in the priestly atmosphere which bemuses and bewilders the ordinary citizen, which outraged Bentham. Codification is, however, a true law-making process ... And as a process it can be kept in continuous action. . .



Let us assume it can be done. What would its impact he on the common law? We must face it: the impact would be immense. First, in the use precedent. It would be inconceivable, upon the view I have put forward of the nature and objects of a code, that precedent earlier in date than the enacted code could be used as a source of law ... [next] ...the function of the judges

'Nothing short of omniscience would suffice to enable the draftsman to conceive and provide for every possible contingency . . . It is not practicable to pursue any given topic to its last details. There must ways remain a margin within which the process of judicial interpretation and application is left to operate.' Thus the judges would retain a vital legislative function when confronted with situations with which the code had failed to deal. Both as legislators, therefore, and as interpreters, their part in developing as well as applying the law would continue to be of immense importance. They would also fulfil a vital function as critics in continuous session. It will be the judges who will find the weaknesses, the ambiguities, the gaps, and so provide the opportunities and the incentive for keeping the code in 'efficient working order' . [This] ... portends a legal revolution ? Well there is much statutory law already .... codification of our law - in part, if not in whole - is both desirable and possible".



Scarman 2: "... what sort of code is likely to come - one replete with detailed provisions or one confined to general declarations? ... any codification may find itself impaled on the horns of a dilemma. If it is to be simple and easily understood, it will in eschewing detail attract so much subsequent case law that it will rapidly lose any practical importance as a source of law: the history of Articles 1382-86 of the French civil code is an object lesson. It was such a fate that Bentham had in mind when he called for codification in great detail: for it was his view that: 'the code having been prepared, the introduction of all unwritten [i.e. not enacted] law should be forbidden.' But, if the code be detailed, will it not lose the qualities of brevity, intelligibility, and accessibility to which the advocates of codified law attach importance?



Bingham: "We are currently witnessing a degree of constitutional, institutional, procedural and professional change of which we have not in combination seen the like for 350 years. One need only mention such expressions as Devolution, House of Lords reform, Human Rights, Freedom of Information, Woolf, Modernisation of Justice for the seismic nature of the current change to be appreciated. They are, one can have no doubt, changes intended to meet the needs, hopes and expectations of citizens of this modern plural democracy governed as it is by the rule of law. But there is one feature of such a democracy which, I fear, we still lack: something enjoyed bu our firmer colonies, and almost all the great countries of the world; something which has the support of the present government, as of it predecessor; something which in the past we have come tantalisingly close to achieving. I refer to the enactment of a clear, authoritative, comprehensive, accessible, modern, written statement of our criminal law. In short, a criminal code. The plea for such a code cannot, I fear, startle by its novelty".