Making the Criminal Law Simpler: (1) the Law Commission and the Justice Committee

When Professor Roger Smith[1] gave evidence to the Access to Justice Commission this week, he suggested that a modern policy on justice should promote a combined review of criminal law and procedure with a view to reducing cost.

I had a very strong sense of déjà vu, because this had been a policy I had been strongly advocating 20 years ago: indeed, I remember personally urging Michael Howard to adopt it when he was Home Secretary in 1995.

By chance, the importance of simplifying the criminal law was discussed last week at a meeting between the Law Commission and the Justice Committee of the House of Commons.  This meeting revived a discussion which had been going strongly towards the end of my time at the Commission, but had then lapsed, due to the fact that there was no institutional framework to ensure that the debate would be effectively pursued.   As a result, millions and millions of pounds of “hardworking taxpayers’ money” has been wasted because the courts have continued at very great length to wrestle with parts of the criminal law which are very long past their “sell-by date.”

One would only have to try and cost the time that has been spent in arguing the law of joint enterprise since the Law Commission pointed out its irrationality in 1994, or the law of misconduct in public office (to cite just two recent examples of bad law that have been in the public eye in the last two years) to understand what I mean.

In a separate blog in this series I will republish a speech I gave to the AGM of the Association of Chief Police Officers to illustrate the law’s failings in 1995.   Very little has changed, because in the absence of a one-off crisis no mechanism has yet been found whereby Parliamentary time can be appropriately rationed so as to accommodate basic law reform of this type.   Ministers always have higher political priorities, and back-benchers like to festoon law reform Bills with time-consuming amendments that give its main proposals very little chance of surviving into law.

At last week’s meeting the Law Commission was represented by Sir David Bean[2] (its  Chairman), who was accompanied by Professor David Ormerod, the Criminal Law Commissioner and Elaine Lorimer, the excellent Chief Executive[3], who is at the end of her time with the Commission.

The minutes of the meeting contained the following exchanges:

“Q25  Chair: I can understand that. Could you make a case that reform of the law is not just a social good but can actually produce savings as well in some areas of activity?

Sir David Bean: I certainly can.  It does not always.  It is not our primary objective under the statute to produce proposals that save money, but some do.  As you know, we recently published a report on the Offences Against the Person Act 1861, which for reasons David can expand on is archaic and unsatisfactory in some respects.  One of the proposals we make is to introduce an offence of aggravated assault with a maximum sentence of 12 months triable only in the magistrates’ court.  Anybody who has practised in the criminal courts will be familiar with the phenomenon of a case of assault occasioning actual bodily harm where it is really very slight bodily harm and no judge would think of a sentence of anywhere near five years, yet the defendant is entitled to have the case tried in the Crown Court.  The economic impact assessors tell us that that proposal alone, if it is put before Parliament and you enact it, might be expected to save the Treasury £17 million a year.  That is several times our total annual running cost.  As I say, it is not our prime objective, but we can make proposals that produce efficiency savings.

Professor Ormerod: It might be worth adding that there is always keen interest from the very outset, when we are anticipating whether to take on a project, that we engage in some analysis.  We have our in-house economist who works with whichever Department it is, usually the MOJ analysts, to produce those detailed impact assessments.  On the Offences Against the Person project, as we say, they demonstrated a significant saving.

Q26  Alex Chalk: Stepping back for a second, is there not a wider point?  You want the law to be working correctly so that there are not the kind of mishaps that take place in day-to-day matters, which mean that cases have to come back to court under the slip rule because judges have not understood the sentencing or whatever.  Your job is to make the law work properly because a smoother and better working system is a cheaper system.  Would that be fair?

Professor Ormerod: Absolutely right.  Our work in so many projects achieves exactly that.  The sentencing that you referred to is a very good example of the current obscurity of the legislation. There are some 1,300 pages of legislation currently in force in relation to sentencing procedure.  Struggling to identify what the correct law is obviously causes delay in courts.  It generates error.  There was a significant survey conducted by somebody demonstrating that around 29% of sentencing appeals in the Court of Appeal Criminal Division included an unlawful element to the sentence.

Q27  Alex Chalk: We will come back to that in a bit more detail.  I just wanted to make the point that a smoother running system is a cheaper system.

Professor Ormerod: Yes.”

Towards the end of this session there were these two further exchanges:

Q67  “John Howell: Let me state, first of all, that I am incredibly grateful to you for coming here.  Looking back through the records, I cannot seem to find that you have actually given evidence to this Committee over the last 10 years.  Is that because we have failed to call you or because you have had nothing to say?  I will tell you where I am going with this question. How can you take the relationship forward in the future?

Sir David Bean: I was amazed to find that until today we had never given evidence to this Committee. My predecessors have appeared before other Committees of this House in the past, some of which no longer exist, but we have never appeared before this Committee.

We would welcome an ongoing relationship. Perhaps, if you felt it appropriate, you could see us once a year and we could report on what was going on.

Q68  John Howell: I think that would be good around the time of your report or something like that.”

Chair: …”[C]ertainly we would welcome a regular slot for the Commission.  You have demonstrated the significance of the work that is done by the Law Commission, which is hugely important. Sir David, Professor Ormerod and Ms Lorimer, thank you very much for your time today and for your evidence. It has been extremely valuable to us.”

The reason why I was so thrilled by these exchanges was because they recaptured the heady days 22 years ago when we really thought we had captured the interest of the Home Affairs Committee[4] in the importance of the Law Commission’s work in making the law simpler and cheaper to use.  This extract from the Commission’s Annual Report for 1994 sets the scene:

“Meeting with the Home Affairs Committee

More significantly, on 18 May 1994 the Chairman, Professor Beatson and Mr Silber gave evidence to the Home Affairs Committee of the House of Commons.  This was the first time the Commission had ever discussed the general nature of its work with a committee of that House, and the flavour of its evidence can be picked up from a short passage in a memorandum it submitted before the meeting, which is reproduced [below]:

‘Why is the non-implementation of Law Commission proposals getting so serious?

  1. Nobody who knows the state our laws are in has ever questioned the need for the Law Commission’s work.

  2. Nor is the Commission aware of any serious criticism of the quality and thoroughness of its work. People may, of course, hold differing views on matters of policy.

  3. Lawyers are costing more and more. Legal Aid is being cut.  Law centres are being closed because local authorities can no longer find funds to support them.

  4. Much of the Commission’s work is concerned to simplify the laws relating to very ordinary activities: buying a house, making a will, renting a flat, running a small business, getting your money back when a public authority has got the law wrong, buying a secondhand car.

  5. If the Commission’s proposals are enacted, laws like these will be simpler and fairer, and less money will have to be spent on lawyers.

  6. One of the Commission’s new projects, on remedies for breach of trust, should lead to the law being much simpler if pension funds are ever stolen again: less money would have to be spent on accountants and lawyers in trying to get it back.’

 

Our discussion about the implementation of our Criminal Code proposals was particularly illuminating.   Mr Peter Butler MP told us how impressed he had been on a recent visit to America at how easy it was to take out a criminal law statute and find all the law on offences against the person in an easily accessible form.    Mr Gerald Bermingham MP, another lawyer with great experience of the criminal law in practice, remarked that anyone who practised in the criminal courts knew:

‘that the law is an absolute shambles and you get the wrong charge, wrongly drafted on the wrong indictment, and you have destroyed the offence and the offender walks free.’

But it was clear that the committee was very anxious about the difficulties which would face Parliament if it tried to accommodate criminal law Bills of the type produced by the Commission.  Their current experience with the Criminal Justice and Public Order Bill, which had spawned many amendments on topics never directly addressed by the Bill’s draftsman, left them disillusioned about the prospects of survival of a very technical Bill designed solely to improve the quality of the criminal law.   One exchange  gives a flavour of the discussion:

“MR JOHN GREENWAY MP:

You see when we look at the debates we have had, for example on the Criminal Justice and Public Order Bill here in the Commons, a record number of new clauses put down by Members of Parliament adding new offences, dealing with particular problems that they see as requiring the strengthening of the law. It is this controversial aspect of the criminal law which I think influences the attitudes and the view of politicians and makes it much more contentious than it appears to be to the practising lawyer.

MR JUSTICE BROOKE:

This is fundamental. As a country are we willing to go on with our criminal law in a mess because we do not have the machinery to sort out the mess, or are we not? That is the fundamental question.

MR JOHN GREENWAY MP:

You are saying we politicians should, in actual fact, bury the party political hatchet on all of this, accept the advice that you give from all the work that you have done, and try a completely different approach to the one which has hitherto been adopted?

MR JUSTICE BROOKE:

I think there has to be exploration of what might be possible. Law reform cannot work in our field except by agreement and unless machinery is devised for taking forward the proposition you have just put to me, we really will stay, as a country, with the criminal law in a ghastly mess.’[5]

 

After the meeting we submitted a Memorandum, at the committee’s request, in which we dealt at rather greater length with some of the issues discussed at the meeting and we suggested possible ways forward.[6]   We were pleased to see that the committee’s Chairman[7] took up these themes in a speech he made in the House of Commons soon afterwards when he raised the possibility of creating a Select Committee, perhaps composed of members of both Houses of Parliament, with the sole function of reforming the criminal law.[8]    In the same month Professor Sir John Smith QC uttered a cry of almost total despair about the unreformed law of offences against the person in the pages of the Criminal Law Review.

Perhaps in my lifetime I may yet see Parliament waking up from its long sleep.   But just how much money has been unnecessarily wasted in criminal legal aid expenditure (and in public expenditure on the courts, the prosecution service, the police, and on the teaching of unnecessarily complicated criminal law) because our ministers and Parliamentarians failed to heed the advice the Commission was giving it all those years ago and have been content to leave the tangled thickets of the criminal law in a state that can only really appeal to the antiquarians among us?

 

[1] A former Director of both JUSTICE and the Legal Action Group (LAG).

[2] Lord Justice Bean.  The practice of ensuring that the Chairman of the Law Commission should be a Lord Justice of Appeal, with the added authority afforded by that office, was developed long after my time as Chairman of the Commission.

[3] Another welcome development has been the upgrading of the post of Chief Executive of the Commission.   In my day the Secretary of the Commission was not a high-ranking civil servant, and therefore commanded less authority within other Whitehall departments.

[4] There was no Justice Committee in those days.

[5] On the following day, 19 May 1994, Lord Mustill handed down his speech in R v Mandair [1994] 2 WLR 700 in which he said at p709:  “The reappearance of section 20  [of the Offences Against the Person Act 1861] before your Lordships’ House barely two year after it was minutely examined in R v Parmenter [1992] 1 AC 699 demonstrates once again-that this unsatisfactory statute is long overdue for repeal and replacement by legislation which is soundly based in logic and expressed in language which everyone can understand.”

[6] Minutes, pp 15-24.

[7] Sir Ivan Lawrence QC, MP.

[8] Hansard (HC) 27 June 1994, vol 245, cols 595-6. He added: “Almost everyone agrees that what would most reform the criminal law is the creation of a code of criminal law. However, that is light years away under our present system. There is simply no machinery for dealing comprehensively with such a large subject … because there is no time in the parliamentary year to deal with it, even though much of what would be agreed by a commission … would be entirely non-contentious.”

[9] In a note to Pearson [1994] Crim LR 534, he wrote: “It is almost beyond belief that so simple and common an offence as that under section 20 [of the Offences Against the Person Act 18611 goes on giving the courts so much trouble … There is an overwhelming case for the urgent implementation of the Law Commission’s draft Criminal Law Bill, restating the law of non-fatal offences against the person.”

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