Criminal Law Reform: England

The Law Commission, having been created by statute, could not be so easily disregarded: no government could be heard to say that the law was not in need of reform. It is a permanent governmental agency, composed of five lawyer commissioners (one of whom, in practice the chairman, must be a judge). It was established at the instigation of Lord Gardiner, lord chancellor in the labor government that came to office in 1964, who was convinced that too much of the law was in need of reform for the task to be left to commissions and committees appointed ad hoc. The Law Commissions Act, 1965, c. 22 (there is another commission for Scotland) places the commissioners under a duty "to take and keep under review all the law . . . with a view to its systematic development and reform, including in particular the codification of such law." In 1967, after Home Secretary Roy Jenkins had stated that in the government's view there was a pressing need for codification of the criminal law to begin, the commission included in its second program of law reform "a comprehensive examination of the Criminal Law with a view to its codification."

Since the commission has a responsibility to keep "all the law" (not just the criminal law) under review, it has devoted only a small proportion of its attention and staff to this work. Between 1967 and 1973 a working party (subcommittee) investigated the general principles governing criminal liability. (Here, too, Glanville Williams was the leading spirit.) It published several working papers (discussion documents) on particular matters, including the mental element in crime, inchoate offenses, the liability of accomplices, and defenses. These working papers, which were to a considerable extent modeled on, and influenced by, the tentative drafts prepared for the American Law Institute's Model Penal Code between 1952 and 1962, set out not so much to restate the existing law in statutory form, as to consider what the best rule on each point would be. This proved, however, to be too ambitious a project, and was discontinued.

The commission has nonetheless gone on to publish a series of reports recommending legislation on both the general principles of liability and the definitions of particular offenses. These include reports on the mental element in crime (1978), the inchoate offenses of conspiracy (1976) and attempt (1980), defenses of general application (1977), and the law's territorial extent (1978), as well as on the offenses of criminal damage (1970), forgery and counterfeiting (1973), and interfering with the course of justice (1979). These proposals although made piecemeal, and poorly coordinated (both with one another and with the contemporaneous work of the Criminal Law Revision Committee), were intended to ease the work of codification, for which the elimination of the remaining common law offenses and the statutory statement of the general part of the criminal law are essential prerequisites. The Home Office showed little interest in them. Only four reports were implemented by legislation (some of it badly drafted): those relating to criminal damage (in 1971), conspiracy (in 1977), attempt (in 1981), and forgery (also in 1981); while the common law offenses continued to expand under cover of the rubrics of "public nuisance," "conspiracy to defraud," and "outraging public decency."

In 1981, in order to give fresh impetus to its codification program, the Law Commission appointed a team of four academic lawyers "(1) to consider and make proposals in relation to—(a) the aims and objects of a criminal code; (b) its nature and scope; (c) its content, structure and the interrelation of its parts; (d) the method and style of its drafting; and (2) to formulate, in a manner appropriate to such a code—(a) the general principles that should govern liability under it; (b) a standard terminology to be used in it; (c) the rules which should govern its interpretation." Their report, with a draft bill governing the general principles of liability and (as an exemplar) offenses against the person was published in 1985 (Law Com. No. 143) and subsequently scrutinized by regional groups of judges and practicing lawyers before the commission itself published a revised, and more pusillanimous, version in 1989 (Law Com. No. 177).

All this work had proceeded on the (academically orthodox) basis that criminal liability ought to fall only on those who were aware that they were doing, or risking doing, what was forbidden, and that no one should be punished for causing harms that they had not actually foreseen. The intellectual climate was, however, changing and these assumptions were beginning to be challenged: retribution, as well as deterrence and rehabilitation, was once again being considered a proper function of criminal sanctions, and punishing people for causing more harm than they had contemplated, or for being careless, was no longer regarded as self-evidently unjust or unmerited. The 1989 draft code was also criticized for the selective and inconsistent way in which it incorporated certain reforms: changes in the law were, it was suggested, being smuggled in as part of a codification package without adequate public and parliamentary discussion. Doubts were also expressed as to whether all the time and effort required for the pursuit of the codifiers' ultimately unattainable goals of accessibility, comprehensibility, consistency, and certainty might not be better devoted to the many particular rules that needed reforming.

The commission appears to have felt the force of these criticisms. While not formally abandoning its objective of producing a code, it announced in 1992 that it would seek to (redraft and) "legislate the code" in installments: which is self-contradictory. Even very small installments have been slow in coming (Offenses against the Person and General Principles (1993; revised and curtailed by the Home Office 1998); Conspiracy to Defraud (1994); Intoxication and Criminal Liability (1995); Involuntary Manslaughter (1996); Misuse of Trade Secrets (1997); Corruption (1999)), and as of 2000, none had resulted in legislation. In 1992 the House of Lords' Appeal Committee endorsed a judicial foray into the field of law reform: the abolition of the centuries-old rule that a husband could not be convicted of raping his wife. And in 1998 the Lord Chief Justice, Lord Bingham, was to be heard asking whether England must wait for ever for a criminal code. These were remarkable instances of role reversal.