Reiterating the Criminal Code
| Date | 01 November 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00944.x |
| Author | Simon Gardner |
| Published date | 01 November 1992 |
REPORTS
Reiterating the Criminal Code
Simon
Gardner
*
In
February 1992, the Law Commission issued a Consultation Paper, including a
draft Bill, on the criminal law.’ The Paper contains three main elements. First,
it
proposes a comprehensive reform of the present law on non-fatal offences against
the person. There would be new offences of intentionally causing serious injury;
recklessly causing serious injury; and intentionally
or
recklessly causing injury;
together with renderings of the present crimes of battery and assault. There would
also be related offences of kidnapping, unlawful detention and such like, along fairly
familiar lines. The Paper also proposes statutory definitions of ‘intention’ and
‘recklessness,’2 but only for the purposes of these offences and not for general
application. Second, the Paper proposes a statutory statement of certain general
principles of the criminal law. These include supervening fault, transferred fault
and defences, and the defences of duress by threats, duress of circumstances and
private and public defence. These proposals largely follow the present law, though
with adjustments as to details. They would be of general application and would not
be confined to the new offences against the person. Third, the Paper proposes a
provision on intoxication, but only by way of applying the present rules about drunken
unconsciousness and drunken mistakes to the offences and defences contained
in
the Paper’s other two elements.
The Need for the Paper
The Paper’s proposals would not make an enormous difference
in
the area of general
defences, but it is undeniable that they would improve upon the present law on
offences against the person, which is universally recognised as being devoid of any
principle. There is, however, little that is new about the proposals. The Commission
is itself treading familiar ground.
A
few years ago, the Criminal Law Revision
Committee produced a Working Paper and later a Report on offences against
the per~on,~ and the Law Commission produced similar documents on general
defence^.^
Then followed the Commission’s two Code Reports of 198S and 1989,6
which incorporated the earlier proposals. The present Paper’s proposals once again
*Lincoln College, Oxford.
I
Law Commission Consultation Paper No 122,
Legislaring
the
Criminal Code
-
Offences Againsr
rhe
Person and General Principles -A Consultarion Paper
(1992). Numbers
in
parentheses
in
the ensuing
text refer to paragraphs
of
this Paper. See further
A.T.H.
Smith, ’Legislating the Criminal Code:
The Law Commission’s Proposals’
[
19921 CLR 396.
‘Intention’ embraces not only purpose
but
also oblique intention (though only of the highest grade,
ie awareness that
in
the ordinary course of events the result will occur). ‘Recklessness’ is rendered
subjectively, as
in
Cunningham
[I9571 2
QB
396.
Criminal Law Revision Committee Fourteenth Report,
Offences Againsr the Person
(1980) Cmnd 7844.
Law Commission Working Paper No
55,
Defences
of
General Application
(1974); Law Commission
Report,
Defences
of
General Application
(Law Corn No 83, 1977).
Law Commission Report,
Codification
of
rhe
Criminal
Law
(Law Corn No 143, 1985).
Law Commission Report,
A Criminal Code for England and Wales
(Law Com No
177,
1989).
2
3
4
5
6
fie
Modern
Law
Review
55:6
November 1992 0026-7961
839
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