Criminal Law Reform: England

The most important manifestation of the revival of interest in criminal law reform during the 1950s was the establishment in 1959 (by Home Secretary R. A. Butler, largely at the instigation of Glanville Williams, the leading academic writer on English criminal law) of a standing Criminal Law Revision Committee. It was "to examine such aspects of the criminal law of England and Wales as the Home Secretary may from time to time refer to the Committee, to consider whether the law requires revision and to make recommendations" (First Report, Cmd. 835, 1959, p. 3). (The standing Law Revision Committee, first appointed by the lord chancellor in 1934 and reconstituted as the Law Reform Committee in 1952, had never considered any aspect of criminal law.)

The Criminal Law Revision Committee always included three of four senior judges, one or two circuit judges, the chief London stipendiary magistrate, and the director of public prosecutions, as well as several practicing and one or two academic lawyers. It thus maintained the convention, recognized since the eighteenth century, that the government should sponsor only those reforms in the criminal law that had the support of the judiciary. The committee produced eighteen reports on specific matters, of which the most important were the seventh (Cmnd. 2659, 1965) recommending the abolition of the felony/misdemeanor distinction (implemented in 1967); the eighth (Cmnd. 2977, 1966), on theft and related offenses (implemented in 1968); the eleventh (Cmnd. 4991, 72), proposing many important changes in the law of evidence; the fourteenth (Cmnd. 7844, 1980), on offenses against the person, including homicide; and the fifteenth (Cmnd. 9213, 1984), on sexual offenses.

As might be expected from its composition and sponsoring department, the committee adopted a very pragmatic approach to its work (Glanville Williams inspired almost all of it, but he was far from being always successful in getting his ideas accepted). It eschewed all interest not only in codification but also in restating the common law in statutory form, and its reports showed a readiness to retain common law rules whose vagueness and uncertainty ("flexibility") was their chief attraction. Until the advent in 1979 of Mrs. Thatcher's conservative government the Home Office was, accordingly, usually ready to promote legislation giving effect to the committee's recommendations, though on the only occasion when radical proposals for rationalization and reform were made (in the eleventh report, on the law of evidence) it took fright after just one of many recommendations attracted a great deal of (ill-informed) criticism. This recommendation (to invite the drawing of inferences about the veracity of a defense which the defendant had failed to mention when first questioned by the police) had, therefore, to wait for more than twenty years before being implemented (by sections 34–38 of the Criminal Justice and Public Order Act 1994) though others were taken up when occasion offered, notably in the Police and Criminal Evidence Act 1984.

The Thatcher government was hostile to royal commissions and departmental committees, which had continued to flourish as a means of finding solutions to controversial issues from which governments wished to distance themselves. Its immediate predecessors had remitted the law relating to official secrets (1972), contempt of court (1974), abortion (1974), obscenity (1979), and pretrial criminal procedure (1981) to them. These bodies were now portrayed as slow and cumbersome: their real vice was that their members could not be required, as civil servants could be, to do ministers' bidding, who in turn were embarrassed by having to explain their failure to act on the advice they had been given. The Criminal Law Revision Committee was not, however, formally abolished: it was simply starved to death by not having further subjects referred to it. The Public Order Act 1986, a tawdry piece of lawmaking, which replaced the common law offences of riot, affray, and unlawful assembly with statutory substitutes, was produced without the committee's help.