Codification of the general principles of the criminal law
Background
In the Tenth Programme, the Commission took the opportunity to reappraise whether projects with codification as their principal outcome were realistic. The Commission removed mention of a codification project in relation to criminal law from its Programme.
The duty in reforming the criminal law, as elsewhere, is to identify reform projects that will make the law accessible, remove uncertainties and bring it up to date with the aim that in the future we will return and codify the area if we cannot do so as part of the project. Rather than specifically referring to codification as the intended outcome, the Commission has introduced a new item, which seeks to undertake projects to simplify the criminal law (see below). We see this work as the necessary precursor to any attempts to codify the criminal law.
Codification
Although the codification project has been removed from our Programme, the following explains what codification work we have carried out, and how particular projects we started are to be completed.
In its July 2002 White Paper "Justice for All" the Government stated its intention to codify the criminal law. After discussion, it was agreed that we would review and revise what was said about the general principles of the criminal law in Part 1 of our Draft Criminal Code of 1989. This document is available from TSO.
The project consists of six tranches:
- External elements of offences, in particular causation
- Fault (including intoxication)
- Parties to offences
- Incapacity and mental disorder
- Defences
- Preliminary offences
Originally it was our intention to publish one consultation paper dealing with all seven areas. In recent years, however, this project was affected by other major projects we were involved in (Non-accidental Death or Serious Injury to Children, Partial Defences to Murder, Assisting and Encouraging Crime and a review of the law of Homicide).
Our project on Assisting and Encouraging Crime enabled us to progress the tranches on Parties to Offences and Preliminary Offences. In July 2006 we published a report in which we made recommendations for replacing the preliminary inchoate offence of incitement with inchoate offences of assisting and encouraging crime. In May 2007 we published a further report in which we made recommendations for reform of the law of complicity (Parties to Offences).
In October 2007 we published a consultation paper on the inchoate offences of criminal conspiracy and criminal attempts. Please see the project page on conspiracy and attempts for further detail.
In 2008 we intend to publish a report on the relevance of intoxication to criminal liability, and a consultation paper on the admissibility of expert evidence in criminal proceedings, each of which has its own project page.
As set out in our Tenth Programme of Law Reform, we are also undertaking a project on unfitness to plead and the defence of insanity.
Simplification of criminal law
In Part 1 we explained that the Commission continues to support the objective of codifying the law, and will continue to codify where it can, but considers that it needs to redefine its approach to make codification more achievable. This project is an important component of that redefinition. We believe that simplification of the criminal law is a necessary step in furtherance of its codification. The aim of the project would be to identify those areas of the criminal law where the law could be simplified and improved by the abolition or repeal of offences that had passed their sell-by date. We provide some examples in the next section. Unlike most of our projects on criminal law which often result in the replacement of existing offences with new offences, the potential fruits of this project would be the simplification of the criminal law by reducing the number of criminal offences.
The scope of the simplification work is open-ended in that it is not a project that is devoted to a discrete area of the law. It will therefore be necessary to identity from time to time the precise areas of law to be simplified. To ensure our work is as relevant and useful as it can be, we will seek the agreement of Ministers to the individual areas of the law that we wish to simplify before embarking on a specific simplification exercise. We have not formally agreed any such areas with Ministers at present.
In the Tenth Programme we mentioned three potential areas of the criminal law which we could examine with the aim of simplifying them: treason, public nuisance and kidnappings, but we have not embarked on any specific projects as yet.
For more information, contact the criminal law team or go to the team page.
NOTE - We are happy to provide information about our projects. However, we cannot give legal advice or deal with individual cases. Nor do we help with student assignments.