Making the Criminal Law Simpler: (2) My 1995 Talk to Chief Police Officers

This piece supplements the blog I wrote earlier today.  It illustrates some of the difficulties that are encountered in the criminal courts on a daily basis because so much of our basic criminal law still requires a good spring clean.  In the days when Government seemed more or less willing to bear the heavy cost of an inefficient criminal justice system, this may not have mattered very much, but my recent experience on the Access to Justice Commission has shown me very vividly how, where criminal legal aid has to take priority,  the Ministry of Justice’s detemination to slash the overall legal aid bill has borne down very heavily on the poor, the vulnerable, the illiterate, the disabled, and many others who have their legal rights trampled on but who no longer have ready access to a state-funded lawyer – and certainly cannot afford to hire pay a lawyer’s current hourly rates if they have to pay the bill themselves.

Some of the absurdities to which I refer in this talk have been corrected piecemeal over the years, but our basic law of offences against the person still remains more or less in the same condition as the draftsman left it in 1861.

It is devoutly to be hoped that the Law Commission’s new relationaship with the House of Commons Justice Committee, and a growing realisation that simpler laws save money may mean that I am no longer a voice crying in the wilderness for a reform that never came.

This is particularly important now that Parliament has decided that in many cases defendants will now simply have to defend themselves.  If an experienced lawyer cannot tell with certainty what the law means, what hope has the unrepresented layperson?

My invitation to speak to ACPO stemmed from a visit which its President, John Hoddinott, then Chief Constable of Hampshire, paid to the Commission in the early autumn of 1995 to find out what we were doing.  He told me as he left that it was the most enjoyable hour he had spent for a very long time.

A word of warning: this is quite a long piece.

October 1995

MAKING THE  CRIMINAL  LAW  SIMPLER  FOR  THE  POLICE TO USE

An address at the Annual Conference of the Association of Chief Police Officers at Warwick University on 11th October 1995

It is a  great honour  to have been  invited as Chairman  of the Law  Commission to speak to your conference today.    When I saw Lord Scarman last week he told me how well he remembered a similar visit to an  ACPO  conference   nearly 30 years ago  when he was holding my job.   I am glad that history is repeating itself.   Like Lord Scarman I believe very strongly that senior   judges should be much readier to  come and talk  to  senior   police  officers, and   vice versa, about  important  issues of interest to both our professions  in  conference settings  like  this,  and  I  know  your President,  John Hoddinott, shares   my view.   Independence is important, but it should never mean isolation : we  have  a  lot to learn from each  other.

Today I have come to talk to you about the need to make the criminal law simpler, and what the Law Commission is doing about it.   I must first say a word of introduction about the Commission.  We are a full-time Commission of five – a judge, two practising lawyers and two academic lawyers.   We have a staff of about 50, including 16 Government lawyers, 16 young legally-trained research assistants, and a small team of parliamentary counsel who are seconded to us for two years at a time.   To show you  what  we do, I will pick out 16 words from our governing statute which say it all:

  • Systematic development and reform of the law;
  • Simplification and modernisation;
  • Codification;
  • Consolidation;
  • Repeal of  obsolete  Acts.

And we have also been using this modern soundbite over the last three years:

“Making the law fairer, simpler and  cheaper  to  use”

Today   I will be talking entirely about the work of one of our five teams: the criminal law team, which is a team of nine lawyers led by Stephen Silber QC, with a bit  of   hands-on help from me from time to time.

We  see the criminal law as an essential modern working tool for all of us who work in different capacities in the criminal justice system.   One of our country’s strengths is that we have always involved lay people in the administration of criminal justice. This is perhaps why we have been so successful in avoiding revolutions in the last 300 years.   Except in a stipendiary magistrate’s  court, nobody can be  sent to prison  in  this country unless a jury of 12  lay people, or a bench of lay justices, are sure that he has committed an offence  known  to   the  law.   For this  purpose lay  people have to understand the law they are asked to apply.   It is therefore crucial that the criminal law should be both fair and easy to understand.    Provided that it does not happen  too often, I believe that it is one of the strengths of our system –  and not  one  of  its weaknesses  –  that  juries sometimes  rebel  and  bring in what are called perverse verdicts when they think the  law  they  are  told  to  apply  is  unfair.

It is also a  striking feature of our  system that as a whole we have never had academic  lawyers among our judges,  unlike  most  other countries.  We have always been a bit suspicious of intellectuals:  “too  clever by half”  isn’t a term of approval.    And we’ve always been rather  proud  of our rambling common law:  judges developing  the law on a case by case basis, applying  established  law  to  new facts  or  changing  times.      And there is an enormous  amount to be said for a lot of this.    It is a very important part of our national culture that we shouldn’t have a rigid,   perhaps out of date, code of laws inflexibly applied by very clever – and sometimes not so very clever – lawyers who may not be completely in tune with the contemporary  social  scene or  with what  lay people regard as right and wrong.

But sometimes in any country the time comes to take stock;   to ask some difficult questions; to indulge  in a bit of self-criticism.    We should ask: Is  the criminal law fair?   Is it simple?    Is it reasonably cheap to use?   And if the answers to any of these questions is “no”, then we should ask whether as a country we ought to be doing   something about it, and if so what .

In the time allowed   to me  today I will talk a bit about the law of offences against the person.   If you invite my successor in  two or    three years’ time, he or she will probably want to talk about the laws of dishonesty, because the Commission has just embarked on a thorough overhaul of that part of the law.   But today it is the  law of non-fatal offences against the person that is most crying out for simplification and modernisation.   As you will know we published our own reform proposals in the form of a report and Draft Bill nearly two years ago .

Here  is the present  law which you have to teach your young police officers:

  1. “ Whosoever shall unlawfully and maliciously by any means whatsoever wound or  cause any grievous bodily harm … to any person  … with  intent …. to do some .… grievous bodily harm  to any person … shall  be guilty of [an  offence].[1]

  2. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any  person, either   with  or without any weapon or instrument, shall be guilty of [an offence].[2]

  3. Whosoever shall be convicted upon an indictment of any assault occasioning actual  bodily  harm  shall  be  liable  to  be imprisoned.  [3]

  4. Common assault and battery shall be summary offences.”[4]

There are five offences here, but nobody can tell police officers what they have to prove, or what defences they need to anticipate, simply by looking at the words of these sections.       As some of you will know,   the 1 861 Act was itself a sort of old-fashioned consolidation Act in which the draftsman  collected together and dumped in one place a whole lot of old offences which had something or other  to do with offences against the person.  This wasn’t systematic development and reform of the kind we are doing at the Law Commission today.   In   1861 the draftsman was the first to acknowledge that he hadn’t  been trying  to introduce consistency   into the law in what he was doing.

The 1861 Act has now lasted us over  130  years.  What is wrong with it now?  Five things.  Blameworthiness and outcome are all muddled up.   The middle two offences aren’t graded in any order of seriousness.    The law is inaccessible to everybody except the very well trained.    Because the law is so inaccessible, mistakes get made, and these bring the law into disrespect.     And all this means that the law is expensive to use, and as taxpayers we have to pick up the bill.

This is what two of our most senior judges have said about it recently:

“The argument that as section 20 and section 47 have both the same penalty, this somehow supports the proposition that the foreseen consequences must coincide with the harm actually done, overlooks the oft repeated statement that this is the irrational result of this piece-meal legislation.  The Act ‘is a rag-bag of offences brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form.'”[5]

“The reappearance of section 20 (of   the 1861 Act) before your Lordships’ House barely two years after it was minutely examined in [Savage]  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]

 

I will take these five points in turn.   In the law of offences against the person  in  most  other countries the Penal Code or the Crimes Act sets out clearly both the actus reus and the mens rea.     The actus reus may be expressed as causing serious injury, causing serious impairment of health, causing injury, or whatever, and there is not much difficulty with that.    The  mens rea may be the intent to  cause serious  injury;  the intent  to  cause  injury,  or harm; or recklessness in the sense of being aware of a risk of causing injury, and acting  unreasonably in taking that  risk.        The Penal Code or the Crimes Act also sets out clearly what the common defences are, and where  the burden of proof lies.   This means that when police officers in other countries are deciding whether to charge someone with an  offence of  violence, and if so with what offence, they can go straight to the words of the statute and don’t  have to go any further.

In our law the actus reus is reasonably clear for the top three offences – although you have to go to the case-law to discover what the words mean –  but the mens rea is virtually invisible, except for  section 18:  it isn’t mentioned at all for the last three offences. Recklessness apart, the mens rea for section 20, which carries a 5-year sentence,  is the intention to do a little bit of harm.   The mens rea for section 47, which carries a similar penalty, isn’t even that: it is just the mens rea for common assault – intentionally or recklessly causing another person to apprehend immediate and unlawful violence.      By modern international standards, our law scores about one mark out of ten in this respect.

Secondly, there  is no effort to grade the section 20 and section 47 offences in order of seriousness.    Senior officials of the CPS ask me how  on earth  they can give  instructions to their junior staff about what  offence to charge on the indictment when the maximum penalty for these two offences is the same, and the mens rea element is so small as to be virtually non-existent.   Everything turns on the seriousness of the outcome, which may be a matter of pure chance.   I imagine that you have much the same problems when you have to give advice to your junior staff on how to use law that is so out of date.

Thirdly, the law  is inaccessible, except to the very well trained.     You can’t go down to your local library  or  your  local  bookshop  as  you  can  in  most  countries,  and look up the law in the Penal Code or the Crimes Act.  You have to spend money on a lawyer to explain it to you.    If you try to defend yourself in court, the odds are that you will miss important points.    Easy access to the law – and particularly to the criminal law  – is the hallmark of any civilized society.   We don’t  have  it  in  England  today .

Fourth, because it is so inaccessible, it is not applied properly, and mistakes get made.   This  brings the law into disrespect.    An   example  that has been  in the news  lately is the law of self-defence.   Our criminal law says that you are allowed  to use force in certain circumstances,  in defence  of yourself or  your  property –  provided  that  the  force is reasonable in the circumstances as you believe them to be.    The concept is a very simple one for the court or the police officer.   Somebody has been hurt, but the assailant says  “I hit him because I was defending myself” or “I  hit  him  because  he was burgling my  home”.     If he says that, you put yourself in his shoes:   What was the position as he saw it, sometimes with things moving quite fast?    Then you judge his behaviour:  In the situation as he saw it, did he use more force than was reasonable?

This is all set out by a law lord nearly 30 years ago in a Privy Council case called Palmer, but because  the  law  is so  inaccessible it’s a concept that is very  often overlooked in practice.  I know of no fewer  than 18 cases since January 1993 in which the Court of Appeal has  had to set aside convictions because the judge got the  law of self-defence wrong.    Here are the first five:

  1. The Court of Appeal set aside a conviction and sentence of 12 months imprisonment for assault occasioning actual bodily harm (with two extra years activated consecutively) on the grounds that there was a complete absence in the judge’s direction of any indication that the jury should look at the case from the defendant’s point of view and place themselves in the position in which he found himself, if they were to accept his version of events.[7]

  2. The Court of Appeal set aside a conviction and sentence of 18 months  detention  for  causing   grievous  bodily  harm  with  intent  on the grounds  that  the Recorder’s  direction on self-defence  was  too complicated  and  [8]

  3. The Court of Appeal set  aside a conviction  and sentence of  9  months  imprisonment for unlawful act manslaughter on the grounds  that the judge had failed to direct the jury that it should consider whether the  degree of force the defendant had used  in removing a large, very drunk man from his public house was plainly more than was called for by the circumstances as he believed them to [9]

  4. The Court of Appeal set aside a conviction and sentence of 18 months imprisonment for inflicting grievous bodily harm because the judge failed to give the jury a direction on the subjective element in self-defence. [10]

  5. The Court of Appeal set aside a conviction for assault occasioning actual bodily harm because the Recorder wrongfully directed the jury that the defendant had to prove that she was acting reasonably in self-defence.[11]

There is   now a good deal of public disquiet about this.  Leading politicians, including the  Home Secretary, are making speeches about it.    But  they don’t seem to realise that the  Law  Commission  has been telling them  until  it  is   blue  in  the  face  that  so   long  as the criminal law  is so inaccessible, and   so  long as the law  concentrates almost exclusively on outcome and not  on  blameworthiness, these  mistakes  are bound to happen.  Here is our  solution:

“The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as  he believes them to be, does not constitute an offence –

(a)  to protect himself or another from injury, assault or detention caused by a criminal act   ….

(b) to prevent crime or a breach of the peace.”[12]

These are concepts simply expressed in one sub-section of an Act of Parliament, which everybody can look up easily.

And finally,  because   of  all  these weaknesses the  law   is expensive  to use.   I look at the problem as a taxpayer.   You also have your budgets  to  look  at.    In  our 1993  report we quoted the single case of Alan Scarlett.    He was the Leeds publican who was convicted of unlawful act manslaughter in 1993 after he had bundled an  obstreperous drunk out of his pub, and the drunk was found at the bottom of some steps with a fractured skull.   That word “unlawful” hides out of sight the ideas set out clearly in our draft Criminal Law bill.  Nobody at the trial seems to have focused on  the crucial question whether Mr Scarlett used more force than was reasonable in the circumstances  as he saw them to be, and the jury certainly wasn’t directed  that this should be the law they should be applying.   That trial, and the appeal, cost £50,000, and Mr Scarlett spent 18 weeks in  prison.      To-day a Crown Court trial costs £8,400 a day, or £900 for every half-hour –  £30 a minute  – that lawyers and judges spend in  court seeing if they can agree  about the  law, even  if they may get  it right in the end.

But the potential savings if the law  is made simpler are far greater than £30 per minute in court.     I will  give you another example of our proposals to show what I mean:

  1. “For the purposes of  this  Part  a  person  acts  “intentionally”  with respect  to  a  result  when  it  is  his  purpose  to cause  it  or  although  it  was  not  his  purpose  to  cause  it,  he  knows  that  it  would occur  in  the ordinary course  of  events  if  he  were  to  succeed  in  his  purpose  of  causing  some  other  result;  and

    “recklessly” with respect to (i) a circumstance, when he is aware of a risk that it exists or will exist, and   (ii) a  result, when he is aware of a risk that it will occur, and it is unreasonable, having regard to the  circumstances  known  to him, to take that risk; and related expressions shall be construed accordingly.

  1. A person is guilty of an offence if he intentionally causes serious injury to another.[13]
  2. A person is guilty of an offence if he recklessly causes serious injury to another.[14]
  3. A person is guilty of an offence if he intentionally or recklessly causes injury to another.[15]
  4. 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

he intentionally or recklessly, without the consent of the other, causes the other  to  believe that  any  such force or impact is  imminent .”[16]

This formulation sets out the basic offences, in order of seriousness.  Our Bill contains   its own built-in definitions, of   words  like “intentionally”  and  “recklessly” and   “injury”.    Of course case-law will start to build upon difficult points, but if this Bill gets passed, pages and pages of text books and case-law and  hours of expensive training  time can be put in the bin, because it is all here within  the words of the Bill.

I will give you examples of how it would work, from recent cases.    Christopher Gelder was jailed for 18 months  last year  at  Chester Crown Court for ABH for subjecting a  female  bank  clerk to  a psychological battering through a campaign of obscene telephone calls.  The Lord Chief Justice quashed the conviction just before Christmas because of a misdirection by the trial judge on mens rea.   He didn’t have to consider the other grounds of appeal, that psychological battering isn’t ABH, or that in 1861 you couldn’t commit ABH down a telephone line.  Under our Bill, police and prosecutors would have to consider whether they could prove that he acted intentionally or recklessly: the definitions are all there in section 1.    Clause 18 says that “injury” means “impairment of a person’s mental health”, so that there would be no difficulty about that.   Everyone could see  from the outset exactly what had to be proved, and there would be no need  to  waste  time  and  money working  out  what  the  law  is  and  often getting it wrong.

Secondly, Santokh Singh Mandair.    He was jailed for four years in 1991 for throwing dilute sulphuric acid at his wife.  He was only charged under section 1 8,  but the jury found him not guilty    of  that  but  guilty of an  alternative offence under section 20 of causing GBH.  Two and a half years later the House of Lords ruled  by 4-1 that “causing GBH”  included   “inflicting  GBH”,   the words of the 1861  Act, so that  his conviction was  all right on that ground.  The case then went back to the  Court of  Appeal  which  quashed  the  conviction because the  judge hadn’t  directed the jury at all on the mens rea for section 20.   Under our proposals, none of this colossal waste of time and money would have occurred because  the mens  rea  is set out so clearly, and  there is no problem about different verbs being used for different offences.

Third, Susan  Savage.  She was the woman who threw beer at her husband’s  former girlfriend in  a pub in Durham.    The  victim finished up with cuts on her wrist from broken glass, and Mrs Savage was jailed for 12 months for a section 20 offence.   The Court of Appeal quashed that conviction because the recorder had directed  the jury wrongly on the mens rea, but it substituted an alternative verdict of ABH, on the grounds  that  the act of  throwing the beer constituted an  assault,  and the bodily harm was caused by that assault, even though there was no clear finding by the  jury  that the defendant intended to glass her victim or  that  she   knew of  the  risk  that she might.  As you will know, the House of Lords upheld that decision,  but  it has  left the law in a  very odd state –  no proper inquiry into blameworthiness  is now needed in a case  like this and all the attention  is concentrated   on the scale of the injury, which may have been unintended.   Again, there would be no problems like that with our simple Bill .

And finally Robert Spratt.    He pleaded  guilty to ABH in 1991 and received a 30-month sentence for ABH for firing an air-gun out of a window of his council flat so that pellets hit a girl playing in the forecourt below.  He was advised to plead guilty on the basis of “Caldwell recklessness”,  that there was an obvious risk even though he was so stupid he hadn’t  realized it.    He’d  been  firing the air-gun at a  metal wastepaper bin 10 yards away inside his flat,  and  when he couldn’t  dent it  he said he decided to aim at  a  rubbish shute outside  the window to see how far the pellets would go.     At that time the law was in such a muddle that the House of Lords later said the Court of Appeal had set aside the conviction  on the wrong grounds.   But what was clear at   the end of the  day  was that on his account of the matter he wasn’t  guilty  of  ABH  at  all,  because  there had  never  been  an  assault.    Again  none   of  this confusion would have happened  if   our Bill  had  been  law: it would have  pointed everyone  in the case straight to what had to be proved.   This is what different police organisations, including ACPO, thought of our proposals:

“The draft Bill is a good document which details the proposed law in simplistic terms; replaces obscure and outdated statutes which have themselves been overtaken by law based entirely on judicial interpretation.”[17]

“This proposed legislation certainly brings the law on assaults up-to-date … it is easy to read, understand and, hopefully, to implement practically.” [18]

“We would welcome the change in direction brought about by these proposals which overall we find satisfactory”.[19]

There is another  valuable spin-off  if the law is made simpler .  I am not saying that young Mr Spratt  shouldn’t be guilty of  a criminal offence, however stupid he is, if he  fires a dangerous weapon like an air-gun out of the window and  peppers  a 7-year old girl in the playground below with pellets.  If a general  law of offences against the person provides that nobody should be guilty of causing injury unless at  the very  least he  is aware of a risk that he may cause it,  this will force Parliament to think more carefully about whether  it ought   to    create appropriate  tailor-made offences  to punish people who  commit dangerous acts  like shooting air-guns out of windows of  council flats, however  low their IQ.

I will now show you another example of our work.  This is a bit more recherché.     The  law of duress  by threats.    This involves some quite difficult common  law, and  I  imagine that every time it  is mentioned in a case, a lot of expensive time  is spent by both sides, in their offices as well as in court, working out what the  law is and how  it can  be applied to  the  facts.  Our proposals are equally simple:

(1) “No act of a  person  constitutes  an  offence  if  the act  is  done  under duress by threats.

(2) A person does an act under duress by threats if he does it because he knows or believes (a) that a threat has been made to cause death or serious injury to himself or another if the act is not done, and (b) that the threat will be carried out immediately if he does not do the act, or if not immediately, before he  or  that  other can  obtain  effective  official protection, and (c) that there is no other way of preventing the threat being carried out,

and the threat is one which in all the circumstances (including any of his personal characteristics that affect its gravity)  he cannot reasonably be expected to resist.

It is for the defendant to show that the reason for his act was such knowledge or belief as is mentioned in paragraphs (a) to (c) .”[20]

We  intend this defence to apply to every offence, even the offence of murder, but it isn’t that aspect of our proposals that I want  to talk about to-day.   It is the simple language that we use.   We also show  very clearly where the burden of proof lies.  Twice recently the Appeal Court has asked   for    the law on  duress to be codified, and it would make things a lot  simpler for all of us if  it was.

What I have shown you so far is a glimpse of   the   work we    have   been doing in simplifying or codifying substantive law.    I will only make a brief mention of our major project  on the dishonesty laws, but  I believe this is another area   of our   work which ought  to be of great importance and interest to the police.    Here the law  has been modernised since the last  war.  We had the Theft Act   in 1968 and the Forgery and Counterfeiting Act, which was based on a Law Commission Bill, in 1 981.   What we are now doing is having  a good look at what has happened in the  last 30 years, with  a view to getting rid of the unnecessary complexities that have cropped up, and  trying  to make  the  law  as simple and straightforward as possible again .  We are looking, too, at areas where the  law hasn’t kept  up with the pace of modern technology.  And we are also  considering what  might  be done in relation to the dishonest  theft  of trade  secrets and other  forms   of  confidential  information.  We hope  to publish our  first  Consultation Paper next year, and we will be  looking to you to point out to us all the difficulties you are experiencing with the present law in practice.

I will turn now to the law of criminal evidence.  This, too, is  far  too complicated.        We were  very pleased when our recommendation that the old rigid corroboration rules should be scrapped was  implemented last year.     Now,  as you may know, the Home Secretary has asked us to report on the hearsay rule and on  the  rules about evidence  relating  to previous   misconduct.     These are  just two areas of the law of criminal evidence where I believe  a lot could be done to make the law simpler and more  principled.    On    hearsay, you may have seen that we are looking at ways to make the admissibility of hearsay evidence more rule-based  and  predictable,  so  that less is  left  to the discretion of the individual judge who happens to hear the case.    We are  also  proposing to take an axe to the complicated rules about evidence generated  by  computers, and  to make it easier  for  experts  to  give  evidence    about  the results   of  routine investigations  in forensic science laboratories.

I hope that this is only a start.  There is a lot wrong with the law of criminal evidence, and  I would  like  to  think that ACPO  could take a part in helping us to identify the next areas we could usefully examine.    There is no reason  why we should not devote part of our criminal law team to a rolling ongoing programme  of reform  of  different parts   of  the  law of evidence, if this is  what people want. We  are  showing the Home Secretary we can produce our reports  for   him within two years, provided that our resources are maintained at  their  present level,  and  it is probably  now time to be thinking  about the next topics we could usefully  tackle in this field.

Finally, consolidation.   Our criminal statute law is now all over the place .  If you look at the repeals schedule  of the Criminal Justice and  Public Order Act 1994 you will see  that  it repeals sections of 48 other Acts.  There are minor amendments of 32 Acts, and two schedules containing 35 pages of consequential amendments to lots more.   You will see much the same story, on a slightly smaller scale, at the end of the Criminal  Justice Acts in 1991 and 1993.  I can’t safely use my expensive copy of the 1991 Act because so much of it  has  been  repealed or changed.  We live in a world where we have to pay for an endless stream of expensive loose-leaf supplements if we are to try and keep up to date.  No  wonder  that  mistakes get made.

..Last  March  Lord  Justice  Rose, the chairman of the Criminal Justice Consultative Council, said this:

“The  criminal  justice   system does   not  respond well to upheaval.    A period of calm  and consolidation would be most welcome to those who are doing their best to make the system work at the coalface” .

There  are  three Scottish criminal  law consolidation  Bills passing through Parliament at the moment.  The  Scottish judges  and  the Scottish police will be very lucky when they are given them  to use.   One of them contains over  300 sections dealing with all aspects of Scottish  criminal procedure – 11 sections on bail,  11 sections   on  children  and  young persons, 39 sections on trial procedure, 40 sections on  summary procedure,  61 sections on sentencing, 32 sections on the law of evidence, and so  on.   All up to date, and all  in one place.   Another  of  them  contains  50    sections, drawn from six  different  Acts, covering  procedures  for  dealing  with  the proceeds  of crime, confiscation and forfeiture and restraint orders.   The third contains 53 sections of substantive criminal  law, drawn from ten earlier Acts, all brought together into one place.   A fourth Bill kills  six whole Acts and sections of 28 more as part of the consolidation  process.

I  regard all this as basic housekeeping.  We have  now  started  a project, with Home Office approval,  to consolidate the law on the courts’ sentencing powers, which is the most tangled of the lot.   I saw last week a minute from parliamentary counsel which described what she found when she started her work.  I  will give you just two quotations:

“Another result of the piecemeal way the law has developed is the fact that many provisions are to be read subject to the provisions of later enactments.  In  several cases, there is nothing in the earlier provision to alert the reader to the existence of the later provision.”

And :

“Added  to this,  the  reader  has  to  identify whether the relevant enactment, and any  amending  enactments, are in force and whether there are any transitional provisions.  A person might be forgiven, for example, for  failing to  spot  that some of the provisions  of  the  Children and Young Persons Act 1969 dealing with supervision orders (which have themselves been  subject to heavy textual amendment)   are still subject  to “transitional” amendments made  by   a  statutory  instrument  in 1970!”

What hope have magistrates ‘ courts  and  part-time judges when they try to  keep up with  all this?    But   I  believe that  the substantive criminal  law needs to be     consolidated  just  as  much  as procedural  and  sentencing law.  Why can’t we have a consolidated Crimes Act like other countries?  It would be so much easier  for  all of us  to access the criminal law and to keep it up   to date   if  its most  frequently  used  provisions were  all to be found  in one place.

Today   I have  told you a bit  about what we are doing at the Law Commission, and why we are doing  it.   I   personally believe that  it  is just as  important for the police as it is for the courts and for the citizen that the criminal law should be simple, modern and easy  to   access.   If   the law is clear  and certain, it should  be so much easier to enforce.   But we cannot do this on our  own.

When  I came to the Law Commission nearly   three years ago the front doorstep there was littered  with  unimplemented  reports. Things,  as you may know, are a great deal   better  now. I hope that by next month 14 of our law reform reports will have been  implemented  in 14 months.  But these are mostly in the field of civil  law.    I don’t believe the Home Office or Parliament have yet  really  woken  up  to the need to simplify the  criminal law, improving its quality and accessibility instead of  just  endlessly  changing  its  content.   There seems to me to be a need for a new Parliamentary procedure – a committee to scrutinise the work we are doing and to enter into a  dialogue with us and with others like ACPO and the CPS, judges and magistrate s and other interested people, if things are really to improve.

I will be leaving the  Law Commission to go back to full-time judging at the end of the year.    It will then be for others to carry the message on after  I go.  But I would like to  think  that ACPO may be willing to lend its   voice to our call to make the criminal law simpler and easier to  access.    It seems to me that it might also make policing a whole lot easier.    But you will all know much more about that  than I do.   That is why I have come here today.

 

[1]             Offences Against the Person Act 1861, section 18.  Maximum penalty, five years’ imprisonment

[2]            Ibid, section 20.  Maximum penalty, five years’ imprisonment

[3]            Ibid, section 47.  Maximum penalty, five years’ imprisonment

[4]             Criminal Justice Act 1988, section 39.  Maximum penalty six months’ imprisonment.   Section 40 of that Act provides that in  certain  circumstances a charge of common assault may be  included  in an  indictment with other  offences.

[5]            Lord Ackner in Savage [1992] 1 AC 699, 752.

[6]              Lord Mustill in Mandair [1995] AC 208, 221.

[7]                Wood  (11  January 1993)

[8]                Harris (14 January 1993)

[9]                Scarlett  (7  May 1993)

[10]             Gaffney (18 May  1993)

[11]              Wallace (24 May 1993)

[12]             Law Commission’s Draft Criminal Law Bill, clause 27.

[13]            Maximum penalty: life imprisonment..

[14]            Maximum penalty: 5 years imprisonment.

[15]             Maximum penalty: 3 years imprisonment.

[16]            Maximum penalty: 6 months imprisonment.

[17]            ACPO.

[18]            The Metropolitan Police.

[19]            The Police Federation of England and Wales.

[20]             Law Commission’s Draft Criminal Law Bill, Clause 25

 

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