Law Reform Bodies and the Reform of the Criminal Law
| Published date | 01 November 1985 |
| DOI | 10.1177/002201838504900408 |
| Author | Peter Alldridge |
| Date | 01 November 1985 |
| Subject Matter | Article |
LA W
REFORM
BODIES
AND
THE
REFORM
OF
THE
CRIMINAL
LAW
Peter Alldridge*
The
purpose
of this article is to draw
attention
to two
errors
which
have
been
made
in criminal legislation for
the
protection of
property.
The
same
errors
appear
in
the
Theft
Act
1968, which was
based upon the work
ofthe
Criminal Law Revision CommitteeIand
the
Criminal
Damage
Act
1971, which was
based
upon
the
work of
the
Law
Commission.j
They
are: (i)
the
error
of
the
undefined
mental
state;
and
(ii)
the
error
that
consent can be ignored.
Both
errors
have led to much costly litigation which has not in all
cases
reached
the
conclusion
the
Law
Reform
body
concerned
would
have
wished.
IDefining the Mental State
The
mental
state
necessary for conviction of many offences
under
the
Theft
Act
1968,
and
under
section 1
and
2 of
the
Theft
Act
1978,
is
"dishonesty".
The
mental
state
required for conviction
under
section 1 of the Criminal
Damage
Act
1971 is (as an alternative to
"intention")
"recklessness". Now when such words
appear
in
statutes
there
are
three
courses which can be
adopted:
(a)
add
a
statutory
definition;
(b)
make
it clear in
the
statute
that
whether
or not
that
mental
state
exists is a question of fact for
the
jury
to
decide,
putting
such
interpretation
upon
the
word as their knowledge of
the
English language dictates;
(c) do
neither
(a)
nor
(b).
There
are
difficulties with (a) in so far as definitions
cannot
cover
every
eventuality.
The
relative ignorance
(of
the
legislator) of fact
and
his relative indeterminacy of aim
make
this
neither
possible
nor
desirable."
The
second alternative (b) is not a technique which has
•
Department
of Law, University College, Cardiff.
1.
C.L.R.C.
8th
Report:
Theft and Related Offences
(Cmnd.
2977, 1966).
2.
L.C.No.
29 Offences
of
Damage to Property (1970).
3.
H.L.A.
Hart,
The Concept
of
Law
(Oxford
1961), p. 121et seq.
383
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