Codification of the Criminal Law: An Attainable Ideal?
| DOI | 10.1350/jcla.2010.74.6.669 |
| Published date | 01 December 2010 |
| Author | Jenny Lavery |
| Date | 01 December 2010 |
| Subject Matter | Article |
An Attainable Ideal?
Jenny Lavery*
Abstract
As the Law Commission welcomes suggestions for the 11th
Programme of Law Reform, this article argues that the criminal law is an
ideal candidate for reform and explores the potential for the implementa-
tion of a criminal code in England and Wales. While numerous obstacles
exist to impede codification efforts, namely institutional and professional
hostility, claims that a criminal code’s theoretical foundations are in-
compatible with England’s common law sympathies, and the current
trend towards stop-gap legislation, the author nevertheless argues that a
criminal code is necessary in order to rectify the substantial lacunae in the
fundamental relationship between the individual and the state. The article
sets out the case for a criminal code and examines reasons of failed
attempts at codification, which was once at the forefront of the Law
Commission’s reform agenda. Endeavours such as Bentham’s Utilitarian-
ism, Macaulay’s efforts in India and the 19th century Law Commissioners
are scrutinised in an attempt to divine the likelihood of codification and
conditions for success. German criminal law is endorsed as a source of
inspiration in the search for a coherent and efficient code and the author
submits that with the support of the judiciary, Parliament, government
and legal scholarship, criminal codification is attainable.
Keywords
Criminal codification; common law/civil law dichot-
omy; comparative study
The saga of English criminal codification has endured centuries of
deliberation and debate. The abundance of literature surrounding the
subject alludes to the contentious nature of the issues concerned, while
recent developments suggest that the Law Commission and the govern-
ment have lost faith in the project as a result of an apparent demise of
momentum. Nevertheless, Farmer has suggested that ‘the figure of
codification, in short, is a spectre that stalks the development of the
modern criminal law’.1 In the wake of the Law Commission’s recently
announced 11th programme of law reform, the issue raised is whether
or not codification of the English criminal law is in fact possible despite
inconsistent declarations on the realistic prospects of success.
Among the aspects that will be considered are the efforts to reform
the criminal law in the past and reasons leading to respective failures. In
this sense it is fitting to begin with the history of criminal codification,
shifts of strategy and initiatives implemented. Linked to this point is a
criminal code’s purpose and function in contemporary civilisation.
Moreover, theoretical considerations should be taken into account along
with the partisan convictions of legal theorists. Codified legal systems in
different jurisdictions will also be considered in order to determine if the
* Former student of Durham University; e-mail: jenny.lavery@dunelm.org.uk.
1 L. Farmer, ‘Reconstructing the English Codification Debate: The Criminal Law
Commissioners, 1833–45’ (2000) 18 Law and History Review 397 at 397.
The Journal of Criminal Law (2010) 74 JCL 557–578
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doi:10.1350/jcla.2010.74.6.669
The Journal of Criminal Law
Commission’s former vision of a completely codified criminal law is
achievable, or if it is merely an unattainable fantasy. A valuable per-
spective may also be gained in reflection on political, sociological and
legal circumstances necessary for the nurturing of a code.
Key matters of concern for the codification project are the scores of
impediments it has met thus far. Those encountered have arguably
crippled the movement for reform and have exacerbated the hopeless
mentality of proponents. Problems faced may be categorised into a
number of factions. Primarily, there are those hindrances associated
with the inherent nature of the English common law legal system:
namely the sheer mass of common law to be codified, the erratic
production of judge-made law, limited resources, the hostility of Parlia-
ment and the present political environment. In addition to this is the
category based on the theoretical foundations of codification and the
innate dichotomy of common and civil law systems. Generally English
lawyers see codification as the domain of classic Continental legal sys-
tems: endowed with the name ‘codophobia’,2 the hostility derived from
this antagonism is well documented. The dominating view is that a code
is a different species of law demanding different techniques; giving rise
to an enormous task of redrafting as mores, philosophy and economic
and social conditions changed. The question remains whether these
prejudices can be overcome to embrace codification fully, not as a
construct of an alien legal organism, but as the best method for curing
the countless perceived ills of English criminal law.
Finally, regard should be had to the criticisms of codification as a legal
construct in itself. Hahlo uses a metaphorical device to demonstrate this:
‘Like a sorcerer’s apprentice . . . a codifier is forever pursued by the
spirits he evoked from the deep’.3 Obstacles arising from contemporary
legal culture are also important. While these problems may be common
to a multiplicity of dissimilar jurisdictions, they remain sources of con-
tention for code proponents. In general, an increased pace of legislation,
the influence of external factors such as international agreements and
EU legislation are considered thorns in the project’s side. Given these
impediments, it is readily assumed that there is no hope for a criminal
code. It is submitted however, that given the appropriate environment,
codification could flourish in England. A supportive government, Parlia-
ment, the input of legal scholars and an enthusiastic judiciary could
herald a new era for criminal law in England and Wales.
The case for criminal codification: a modern history
The most recent stance taken by the Law Commission has been heralded
as a back pedalling in the project of codification of the criminal law. The
2 Above n. 1 at 398.
3 H. R. Hahlo, ‘Here Lies the Common Law: Rest in Peace’ (1967) 30 MLR 241 at
251.
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Codification of the Criminal Law: An Attainable Ideal?
10th Programme of Law Reform4 insinuated that the project had con-
ceded to the barriers faced due to the ‘complexity of the common law,
the increased pace of legislation, layers of legislation on a topic being
placed one on another with bewildering speed, and the influence of
European legislation’.5 The Law Commission is now endeavouring to
‘reform and simplify’ specific aspects of the criminal law with a view to
returning to codification at a later date. For many commentators this has
been a bitter disappointment and overall a ‘dispiriting and frustrating
document’ signifying ‘a sad end for a noble ideal’.6 This submission is a
far cry from the Law Commission’s original enthusiasm and optimism
when the project was first placed on the agenda, leaving a question as to
how such tenacity could diminish so severely and perhaps more im-
portantly whether or not the spirit of support can be revived.
The modern effort to codify the criminal law began with the establish-
ment of the Law Commission in 1965 with the objective of reviewing
the Law of England and Wales focusing on its ‘systematic development
and reform, including in particular codification . . . and generally the
simplification and modernisation of the law’.7 A primary concern at this
time was the barrage of inconsistent and unreasonable rules resulting in
a campaign promoting the codification project with a view to reform.
Progress was hindered as a result of strained resources, but eventually
the Criminal Law Reform Committee of the Society of Public Teachers of
Law (SPTL) was invited to undertake such tasks as making proposals on
the nature and scope of a potential code, the interrelations of its parts
and method and style of drafting, and to formulate general principles of
liability and rules of interpretation. The drafters envisaged that there
should be four parts to the code, namely general principles of criminal
liability, specific offences, procedure and evidence, and disposal of of-
fenders. What J. C. Smith made clear, however, was that the exercise
was not one of codification but restatement.8 The draft Bill essentially
provided an authoritative statement of general principles, but with some
elements of reform.9 Focusing on clarity, comprehensibility, consistency,
certainty10 and professing to be aimed at the general public, it was to be
well annotated and provide clearly established definitions along with
extensive use of illustrations.
In spite of these righteous ideals the draft was not without its critics.
Bennion vocalised his opinion on the ‘over-generalisation’ of principles
claiming that the price to be paid is undue compression of language in
the general part and serious incompleteness in the statement of each
4 Law Commission, Tenth Programme of Law Reform, Law Com. No. 311, HC 605
(June 2008), available at http://www.lawcom.gov.uk/docs/lc311.pdf, accessed 6 October
2011.
5 Ibid. at para. 1.4.
6 I. Dennis (Editorial), ‘RIP: The Criminal Code (1968–2008)’ [2009] Crim LR 1.
7 Law Commission Act 1965, s. 3(1).
8 J. C. Smith, ‘Codification of the Criminal Law’ [1986] Crim LR 285 at 287.
9 Law Commission, Criminal Law: Codification of the Criminal Law—A Report to the Law
Commission, Law Com. Report No. 143, HC 270 (1985).
10 Ibid. at paras 1.4–1.9.
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The Journal of Criminal Law
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