Codification and the Criminal Law (Lecture 4)

For Smith, Clause 4(1) of the Bill published with the Home Office consultation paper in 1998 "is an admirably clear restatement of the common law offences of assault and battery which would be repealed [sic: abolished]. Like the Law Commission , the Home Office intend to create a single offence ..." although it may not have succeeded, "But, whether the clause creates one offence or two, the fact remains that 4(1)(a) requires proof of a different actus reus and a different mens rea from 4(1) (b). In substance, they are still defined as two offences and it is artificial to declare they are one. This is not just a theoretical point. Take the following case: V is asleep. D, taking care not to wake him, aims a blow at the back of his head. V awakes, sees the blow coming and dodges out of the way. D has caused the actus reus defined in (b) but he does not have the required mens rea. He has the mens reas required by (a) but he does not cause the specified actus reus. .... it seems clear that he has not committed an offence under the clause ... If we really want one offence the way to do it is to define it so that the actus reus and the mens rea of the two concepts are interchangeable something like:

"A person who applies force to, or causes impact on, the body of another ir causes another to believe that any such force or impact is imminent, commits the offence of assault if he does so either -

(a) intending to apply such force or cause such an impact or belief, or

(b) being reckless whether he does so."

So even after all this time the current legislative proposals leave something to be desired even as a matter of basic definition and this is serious because "... it is indeed very important that parliament should get it as right as possible. If it becomes law, it may be with us for a very long time" [317]. I mean the last one has been around for 138 years already !

But there is another problem beyond the issues of simple definition. As Smith observes, "Unlike the definition in Law Com No. 218, that in the Bill contains no reference to consent. Since the absence of consent is the essence of assault, a definition which does not mention it is necessarily incomplete" This omission is explained in the Home office consultation paper as follows: "One change which has been made to the Law Commission's original provision is that pending the outcome of their study of Consent in the Criminal law, the offence does nor refer to consent" (13 of 17) But that is not a good reason. It is unsatisfactory only partially to define a new offence because the Law Commission is (again) reviewing an area of the law.

Professor Smith notes that Cl 18 of the Bill provides that the provisions of the Act are subject to "any enactment ir rule of law providing - (a) a defence, or (b) lawful authority, justification or excuse for an act or omission" He says "No doubt the courts will assume that a 'defence' of consent applies to the new offence of assault, and that all the offences under the Bill are subject to the common law which permits boxing and other injurious activities ranging from various 'manly diversions' to buttock branding" [320] But this is largely unsatisfactory because the crucial issues are simply ignored or evaded; The Home Office has simply put consent on its "too difficult" shelf. Again, in the body of its consultation paper the Home Office states that "The formulation is based on the present state of the law" That is probably false but certainly misconceived in that codification cannot be based upon the present state of the law where the codification s essentially incomplete and that missing part is that part of the present law that is most complex, situational, and contextual. Thus, though legislation may be nearer than ever before, it is far from certain that enacting Clause 4 as drafted will achieve the purposes of codification.

Finally, as noted, in addition to words/meanings, sentences/grammar, and values, codification requires enactment. This is a convenient point to address that directly. A sovereign parliament might be though of as an ideal instrument but a problem arises as to the possibility of the code being rendered less coherent and logically structured by amendments voted for by members of Parliament who may see things rather differently to members of the Law Commission and their advisers. And, of course, as with the present Bill, the government department sponsoring legislation may depart for any reason or none form the recommendations of the Law Commission.

And, again, there is the problem of what to do about. judicial interpretation or rewriting ? These questions were addressed by Lord Scarman in two lectures in the 1960s: "No one could suggest, without taking leave of his senses, that the present shape of English law is either simple or modern ... English law lacks coherent shape, is inaccessible save to those with the training, the stamina, and the time to explore the jungle of case and statute law, and is unmanageable save by the initiated. It retains the mystical, priestly quality of early law: it has survived into the modern world only because of the tremendous quality of its high-priests - the judges who, from their seats of judgment, have from time immemorial - often in prose of striking beauty and clarity - declared its principles and solutions. . . . Can it be said that the refined gold of the common law is not to be had without the dust, darkness, and encumbrances of the mine workings? [Whatever], the achievements of the judges are immense. They have created one of the two great systems of jurisprudence existing today in the western world. Blessed as we have been with an unbroken legal development over a period of 600 years, we find in our judge-made a wonderful consistency of legal thought and action, and a remarkable capacity for adjustment to changing social conditions. The risk exists that codification might well shatter it ...[but] development by judicial precedent is development of the law by lawyers, a practice against which man has protested with more or less success since the dawn of civilisation. One is back in the priestly atmosphere which bemuses and bewilders the ordinary citizen, which outraged Bentham. Codification is, however, a true law-making process ... And as a process it can be kept in continuous action. . .

Let us assume it can be done. What would its impact he on the common law? We must face it: the impact would be immense. First, in the use precedent. It would be inconceivable, upon the view I have put forward of the nature and objects of a code, that precedent earlier in date than the enacted code could be used as a source of law ... [next] ...the function of the judges

'Nothing short of omniscience would suffice to enable the draftsman to conceive and provide for every possible contingency . . . It is not practicable to pursue any given topic to its last details. There must ways remain a margin within which the process of judicial interpretation and application is left to operate.' Thus the judges would retain a vital legislative function when confronted with situations with which the code had failed to deal. Both as legislators, therefore, and as interpreters, their part in developing as well as applying the law would continue to be of immense importance. They would also fulfil a vital function as critics in continuous session. It will be the judges who will find the weaknesses, the ambiguities, the gaps, and so provide the opportunities and the incentive for keeping the code in 'efficient working order' . [This] ... portends a legal revolution ? Well there is much statutory law already .... codification of our law - in part, if not in whole - is both desirable and possible". [Ex Zander pp430-432]

Mr Justice Scarman, "Codification and Judge-made Law", Birmingham University, 1966 "... what sort of code is likely to come - one replete with detailed provisions or one confined to general declarations? ... any codification may find itself impaled on the horns of a dilemma. If it is to be simple and easily understood, it will in eschewing detail attract so much subsequent case law that it will rapidly lose any practical importance as a source of law: the history of Articles 1382-86 of the French civil code is an object lesson. It was such a fate that Bentham had in mind when he called for codification in great detail: for it was his view that: 'the code having been prepared, the introduction of all unwritten [i.e. not enacted] law should be forbidden.' But, if the code be detailed, will it not lose the qualities of brevity, intelligibility, and accessibility to which the advocates of codified law attach importance? [Ex Zander p432]

So are codes really easier to handle than the common law? Cohn ("The German Attorney") versus Hahlo ("Here lies the Common Law" (1967) 30 M L R 241) Cohn claims that codification renders the task of practising lawyers "very much easier". He acknowledges that no code can solve all problems and that interpretation must remain. Nonetheless only a very bad code would fail to deal clearly and succinctly with the vast majority of day to day problems. [like Clause 4 of OAP Bill] Cohn expressly means to deal with "radical codification" - the only kind known to the Continent of Europe [sic] - which makes reference to the accumulated mass of earlier materials "completely unnecessary". Cohn is attracted to a code laying down principles of a sweepingly wide and general character rather than one founded on the detailed type of legislation characteristic of a common law jurisdiction. With such a code in place, "A question which would require a common law practitioner to search in books of reference for one or several hours could be solved by his Continental colleague completely satisfactorily in as many minutes.

But then Cohn's own argument begins to work against his claims: "These codes have been ably commented on by numerous authors during the last sixty years. Commentaries vary in size from little one volume pocket editions to huge standard works approximate in size to 'Halsbury'. But it is believed that a good selection of pocket commentaries together with a more elaborate edition of one or two codes, plus the last fifteen years of the leading legal periodicals ...and the current official Statute Book will do for the needs of a large percentage of attorneys in all but a fairy small number of cases, in particular if this 'library' is supplemented by some of the better class students' textbooks from his university days".

By way of response, Hahlo calls into question the assertion that the task of a French , Dutch, or German lawyer in arguing a legal point is substantially easier than that of his English, American or Scottish colleague and observes that some other lawyers with experience of both systems do not share Cohn's view. Of course, as Hahlo acknowledges, a radical code that wipes out the past obviates the need for historical research into the position before the enactment of the code, but he thinks that even in a common law system there is rarely legitimate call for extensive historical research. In most cases it is unnecessary to go beyond the last thirty years. Hahlo then repeats Cohn's list of books and suggests that it indicates that practice in Europe is not perhaps so very different to practice in a common law jurisdiction and indeed, in my own very limited experience it is more a difference in style than in volume of materials to be consulted.

Hahlo turns from his criticisms of Cohn, to some general observations about codification which justify him in his view that codification is unlikely to a be a remedy for the real or imagined ills of the common law:

1. Far from increasing certainty, a code creates "a lengthy period of increased legal uncertainty".

2 "Almost as soon as the ink is dry the need for legislative amendments will become manifest".

3 "How long this process can continue before the[re is a] need for wholesale code revision


Hahlo attributes this to the inevitable "fuzzy zone of uncertainty around the edges of law. "To think that law could be rendered either more certain or more stable by codification is to blame a certain form of law for attributes which are ... inherent in the nature of law, whatever form it may take ... Codification of a country's law must be paid for, and the price is heavy":

(1) Work of preparing the code which, if continental experience is any guide will keep the best legal brains in England and Scotland busy for the next twenty or thirty years. This may be harsh. The Code Napoleon is said to be the product of 4 men in 4 months and it was implemented within 4 years. However, the Law Commission was established in 1965 and it has been committed to codification at least since 1968. Certainly the project has occupied some of the best legal brains in England and yet there is relatively little to show for it.

(2) There is a need to relearn the law. A code is not just a statute. It requires different legal techniques which have to be learned by the legal profession.

(3) Increased legal uncertainty

(4) Diminution of the influence of English law outside the United Kingdom.

(5) Codification on the instalment plan, as the Law Commission envisages differs from the great European codifications which came into life complete and fully formed. That may add to uncertainty as the product of one group or generation sits uneasily with that of another.

(6) Even if the Law Commissions hopes to preserve the substance of the common law, "... in law, more than any other field, substance and form go together" So pouring common law wine into codification bottles may alter it irretrievably. And whilst a Bentham and maybe a Scarman would welcome this, a Diplock, and maybe a Hahlo, would not. I think these observations assist in understanding why despite almost thirty years effort, relatively little has been accomplished so far. I think, too, that the modern English experience of the Theft Acts, 1968 and 1978, (see Preddy [1996] AC 815] and the resultant legislation) a modest venture in codifying the criminal law, supports Hahlo's scepticism.

Finally, I will look at another specific reform issues which bear on "codification", namely Conspiracy to Defraud drawing on four main sources all in 1995 Criminal law review:

I Editorial [97-98];

II Smith's blistering article [209-218];

III Silber's wholly ineffectual response [461 - 463]; and

IV Smith's letter [519 - 520]

I The Llaw Commission has been working in conspiracy to defraud, on and off, since the early 1970s. Now there is Law Com No. 226 - Criminal Law "Conspiracy to Defraud (1994) - but "certainly not a final report" - because the Law Commission has embarked on a "comprehensive review of dishonesty offences" - this will "inevitably take a number of years to complete" and that will make it necessary to look at conspiracy to defraud again. RHST - this is the same unfortunate pattern as exhibited in respect of assault; a new review of a component (consent) prevents completion. Here a new review of dishonesty prevents completion of recommendations about conspiracy to defraud. So for the time being it is as you were. Te offence of conspiracy to defraud should remain in its present form. I oppose that. If I had anything to do with it I would abolish that offence. However Law Com No 228 catalogues various forms of conduct which would cease to be criminal of conspiracy to defraud was abolished, without offering any principled basis as to why such conduct should ever have been criminalised in the first place or why it should now remain criminalised.

There is a difficulty hereabouts with a conflict between "the general principle that conduct should not be criminal merely because two or more persons agree to perform it " AND the "compelling" practical reasons for retaining the offence of conspiracy to defraud, "at least for the time being". So we encounter a conflict between principle and policy. I adhere to the principle that nothing should be a criminal conspiracy if the conduct agreed upon would not be a crime if committed by one person. That is the principle underlying the 1977 Act and conspiracy to defraud is inconsistent with that principle. It was exempted from the legislation over 20 years ago as a temporary matter and it has remained ever since and seems likely to do so for the foreseeable future.

II Prof Smith's 10 page comment on Law Com No 228 is very highly critical. The long awaited "final report" turns out to be a holding operation. Pending completion of the "Dishonesty Project", conspiracy to defraud will remain as it is. So it is likely to be around for quite some time. Apparently it fills gaps and simplifies and shortens fraud trials. But for almost 25 years the Law Commission has repeatedly expressed the opinion that there is no place in criminal law for an offence of conspiracy to do an act which is not itself a criminal offence. Yet, offensive as this is the Law Commission seems committed to our enduring it.

Professor Smith discusses the Dishonesty project in term that suggest, perhaps, that he does not share the Law Commission's notion of its priority. Certainly my own view is that the dishonesty project is unlikely to prove to have been a fruitful allocation of time and resources. Of course the law is complex but [210]"... it is impossible for legislation to be limited to concepts which a jury can be expected to understand without explanation ... Simple language sometimes serves only to conceal the implicit difficulties - If theft is to remain a separate offence - as it must - there is no way to avoid reference to complex issues of the civil law of property". [211] "If course the criminal law cannot work unless it is understood by a jury but that does not mean that all criminal legislation must be in terms which a jury can understand unaided. The law must be expressed in words capable of being understood by a lawyer, whether prosecutor, defender, or magistrates' clerk, and it must be capable of being explained to a jury". So who are codes addressing? In this passage professor Smith seems to be advocating a "professional", Germanic code, not a popular Benthamite, French style code.

As to conspiracy to defraud the law Commission repeats much that is familiar - width, vagueness, and uncertainty and the criminalising of conduct which "ought not to be criminal". At pp 212- 217 the Law Commission lists the conduct that would (probably) be decriminalised if conspiracy to defraud was abolished. Tonner [1985] 1 WLR 344 was a massive VAT fraud. If the penalties for the VAT offences or conspiracies had been adequate there would have been no need to invoke Conspiracy to defraud - but it might be thought that "it was improper for avoid the limitation which Parliament had put on Vat offences and [statutory] conspiracies by resorting to the common law offences" [218]. So is the Law Commission (and are judges) pursuing their moral values surreptitiously against those embodies in statute?

Law Commission No 228 defends the practical need to retain conspiracy to defraud because it enables a better presentation of "the overall criminality" . There are two aspects;

(1) assists prosecution in explaining to the jury how all the alleged incidents of dishonesty were part and parcel of the [same] overall fraudulent scheme. "Yes" says Smith provided the parties are parties to the same overall fraudulent scheme.

(2) assists in convicting and sentencing individuals for an offence which properly reflects their contribution to the overall fraudulent scheme. "Ditto" if parties.

Law commission example [218]: " the ringleader A might procure B to steal cheques from a bank, C to forge the cheques, and D to obtain money by passing them off as genuine. B and C cannot necessarily be charged with conspiracy to obtain money by deception because they may not know the details of the intended deceptions; but they will know in general terms that they are participating in a fraud and they can therefore be charged with conspiracy to defraud - which better represents the criminality of their conduct than theft or forgery alone". RHST WOW !!! "this is wholly inacceptable".

Smith [218] "So, B who is proved to have done nothing more than steal a cheque form at A's request may be convicted of conspiracy to defraud V, of whom he has never heard, of a million pounds. If B cannot be convicted of obtaining the money by deception from V, why should he be liable to be convicted (in effect) of defrauding V [out] of it? The charge reflects A's "overall criminality" but not that of B or C. The offence which properly reflects B's contribution is theft of a cheque form. DIAGRAM

III Stephen Silber QC Law Commissioner. We are conscious of our duty "to promote the codification of the law".

(1) pp 461-462 "We propose to carry out a very far-ranging review, looking not only at the Theft Acts 1968 -1978 and the Forgery and Counterfeiting Act 1981 but also at areas in which the law of dishonesty has not or might not have previously intervened" BECAUSE OF

(2) "radical and multifarious technological advances". Quite: "Amy country is wise to review dishonesty laws at least once a generation for this sort of reason" [462]. RHST - But why does this call for a review of dishonesty ? AND

(3) the length and complexity of fraud trials. RHST - ditto. SO WE SEEK TO SIMPLIFY THE LAW AND

(4) We query whether the present legislation is not capable of improvement [RHST but who thought otherwise? And is this not, in its result, allowing the best to be the enemy of the good

OK there are serious problem with the Theft Act and there are problems with its application. The Original committee thought that the concept of dishonest appropriation would be "easily understood even without the aid of further definition" [8th Report Cmnd 2977 1966 para 34]. This is now seen to be "over-optimistic". Twenty-seven years on (i.e. in 1995) "no one is quite certain exactly what appropriation is". RHST agrees with Smith's explanation - stretching definitions to convict dishonest individuals - i.e. creative judging to accommodate sloppy prosecution. So consultation because in the words of Lord Goff, "juries are pilgrims with us on the endless road to unattainable perfection" [Spiliada Maritime Corp v Consulex 1987 AC 460, 488C] and Chaucer: conversations with pilgrim are profitable. But the cost of a wide-ranging review of dishonesty "The Dishonesty Project" is to prevent completion of other long awaited and wholly justifiable reforms, as for example, the abolition of common law conspiracy to defraud.

IV Smith's letter (519-520) . He did not intend to give the impression that tyhe Theft Acts , particularly as currently construed, are incapable of improvement but he seeks to refer back in some detail to his remarks about Hollinshead [1985] AC 975. [519]: "Hollinshead stains conspiracy beyond all proper bounds. It decides that H had conspired to defraud an Electricity Board when in fact all he had one was to agree to sell apparatus to X who, as he knew, intended to sell it to a person unknown, who might be expected to defraud the Board".

So H (sells to) X and X (sells to) person unknown for the purposes of committing an offence under S.2(1) (b) of the Theft Act, 1978 (i.e. deceiving into foregoing payment of money due for electricity). So if H conspired at all, he conspired to commit that offence: i.e. he committed a Statutory Conspiracy and not common law conspiracy to defraud But in truth, no party to the agreement was going to cause the Board to forego payment or defraud it. Smith's suggestion [1985 Crim LR 657] extend Statutory Conspiracy to include Conspiracy to Aid and Abet. The Court of Appeal in (1984) 80 Cr App Rep 64, 77 "it is an offence to aid and abet conspiracy" Court of Appeal (in Smith's view rightly) held that there is no offence to conspire to Aid and Abet. So legislation is necessary on this. Well that is OK so far as it goes but even this is not a happy answer to the Hollinshead problem. The indictment would have to allege that H conspired to aid and abet X to aid and abet persons unknown to commit the offence under s 2(1)(b), TA, 1978. This would be a great advantage over the conspiracy to defraud charge in that it accurately describes the alleged conduct [RHST agrees] "But it would be a cumbersome charge - so cumbersome as to indicate that conspiracy is an inappropriate way of dealing with this kind of case". It follows for Smith that an unsatisfactory decision such as Hollinshead is a dubious reason for the retention of common law conspiracy to defraud.

So where are we, four years on from the beginning of the dishonesty project? Well the Theft Act 1968 as ben amended as a result of the decision in Preddy 1996 AC 815 That is an example of the Law Commission working well speedily and effectively to deal with an immediate and very real problem but that development had nothing to do with the dishonesty project. Otherwise we have had no advance either in the main topic dishonesty on with topics (such as conspiracy to defraud) which have been sterilised by virtue of the Law Commission's recent perfectionism. What we have now is CP 155 which advocates neither a general fraud offence (as in Scotland) nor a general dishonesty offence, as being unacceptably vagues but does propose he removal of a requirement of dishonesty from deception offences and hints at its retention if at all in theft and theft related offences only is transformed from an open-ended question of fact and social value for the jury to a closed, exhaustive definition to be determined as a matter of law by the judge.

I conclude with a recent comment from Lord Bingham 1998 Crim LR 694 under the plaintive title "A Criminal Code: Must we Wait forever?" [in handout] "We are currently witnessing a degree of constitutional, institutional, procedural and professional change if which we have not in combination seen the like for 350 years. One need only mention such expressions as Devolution, House of Lords reform, Human Rights, Freedom of Information, Woolf, Modernisation of Justice for the seismic nature of the current change to be appreciated. They are, one can have no doubt, changes intended to meet the needs, hopes and expectations of citizens of this modern plural democracy governed as it is by the rule of law. But there is one feature of such a democracy which, I fear, we still lack: something enjoyed bu our firmer colonies, and almost all the great countries of the world; something which has the support of the present government, as of it predecessor; something which in the past we have come tantalisingly close to achieving. I refer to the enactment of a clear, authoritative, comprehensive, accessible, modern, written statement of our criminal law. In short, a criminal code. The plea for such a code cannot, I fear, startle by its novelty".

But in order to progress we cannot continue to allow the best to be the enemy of the good and we must be content to enact some legislation, such as the current Offences Against the Person Bill and not put off anything until we can do everything. Otherwise Lord Bingham's plea will be repeated for years to come without our working one single miracle with the law.