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The Arguments against codification

The Law Commission’s 1989 report reviewed a number of arguments and difficulties that commentators had raised against codification of the criminal law. The Commission did not find any of them persuasive. Again, it is unnecessary to rehearse them all again now, since they are set out in full in the report. As the Commission said a number of them seemed to demonstrate several misconceptions about the nature and interpretation of an English criminal code. For example, it is not the case, as one commentator complained, that practitioners would have to learn to interpret a code like continental lawyers. A new technique would not be required. A code would be a normal English statute, interpreted according to established principles of statutory construction. English lawyers have become well used to dealing with lengthy new statutes and with mini-codes in relation to various matters of criminal law, and they have not encountered any special difficulty.

Similarly, it is not the case that codification would reduce the role of the courts in determining matters of criminal process. The courts will still need to interpret the codified law and apply it to differing circumstances. The experience of the new regimes for hearsay and bad character evidence in the Criminal Justice Act 2003 shows that there will still be plenty of work for the courts to do in implementing a code of criminal evidence.

There are three other potential issues with a code of criminal evidence that need to be addressed. The first is the objection that a code would have the effect of making the law immutable, and freezing it at a particular stage of its development.

There would be a risk of ossification of the law and perpetuation of error. In its report, the Commission thought there was some force in this view, and we should concede that there could be a risk that the proper development of the law might be inhibited. However, in my view, the risk is largely theoretical. This is for two reasons. First, as I have already suggested, the code, like any other statute, will require interpretation from time to time, and I see no reason why the courts should not continue to use their familiar techniques to adapt and apply the statutory language as appropriate to the case in hand. After all, one can fairly expect the courts to regard the code as a new starting point, not as the end of the road. Secondly, I anticipate that there would be a standing body to monitor the application of the code and, if necessary, to recommend amendments of its provisions. There are already a number of bodies in existence that could undertake this task: the Law Commission is one; the Criminal Justice Council and the Criminal Procedure Rules Committee are others. There is no reason why the code could not be updated as and when required using the expertise of these bodies.

The second issue concerns the content of the code. At this point, we return to the question of whether it would be desirable or even possible for a code of criminal evidence to be a single comprehensive statute. This is an important question and it requires a nuanced answer. One of the problems facing a codifier is how far one can or should take statutory provisions out of a thematic context. For example, if we are drafting a code of substantive criminal offences, should we try to take all the road traffic offences out of the Road Traffic Act and re-enact them in the code? Similarly, should we include all the licensing offences from the Licensing Act? What about offences concerned with health and safety, or food safety, or environmental protection, and so on? The code team took the view that there were severe practical difficulties in trying to codify offences that formed part of a complex scheme of statutory regulation of a particular activity. Such schemes often have multiple elements involving special statutory agencies, jurisdictional provisions, special duties and powers, and particular procedural and evidential rules, all in addition to the specific offences. Some of this statutory context might have to go with the offences to make them intelligible, but to take all the context would unbalance the code and make it impossibly large. Equally, it would not make much sense to split the regulatory scheme between the code and the thematic statute. This would not suit the convenience of those concerned with the implementation and enforcement of the regulatory schemes. Accordingly, we advised the Law Commission that users of the code would be better served by leaving such regulatory schemes intact in their own mini-codes. In my view, this was the right advice, and we can apply the reasoning to rules of evidence as well as to substantive offences. So, for example, if a statute creates a regulatory offence and then provides for a reverse burden of proof in relation to a special defence to that offence, that evidential rule should remain in its statutory context.

What this suggests is that a code of criminal evidence should aim to state the general rules of the law. These are evidential rules, which apply across offences in the same way as general principles of criminal liability, such as the rules of complicity or defences. Evidential rules that apply only in respect of particular offences should not normally be included. As I have just argued, the principle of user-convenience will usually indicate that evidential rules specific to a particular offence, such as a reverse burden of proof or a curtailment of the privilege against self-incrimination, should remain in their existing statutory contexts.

A further exclusion from a code concerns what was referred to earlier as ‘soft law’. We may include under this heading forms of delegated legislation such as rules of court and codes of practice issued under statutory authority. It seems to me that the style and detail of much of this material means that it is not appropriate for a code of primary legislation. The PACE codes of practice, for example, with their combination of rules, instructions, notes of guidance and explanatory material, would look very odd in a statute, even in a schedule. They could be left as they are, although that would not rule out publishing them as an annex to the code. A similar strategy could be adopted for the criminal procedure rules, which have a number of rules dealing with evidential matters. We may expect to see the practice continue of incorporating practice directions into the criminal procedure rules. That leaves a certain amount of other material such as guidelines issued by the Attorney General or the Director of Public Prosecutions, and judicial Protocols, such as the Protocol on Disclosure. There is a good case for rationalizing and consolidating such material, as Lord Justice Gross recognized in his recent review of the law on disclosure. In the evidential context witness anonymity orders provide an example of a topic where multiple sets of guidelines could usefully be amalgamated.

The third issue that presents potential difficulty for the codifier is restatement of the common law. The code team’s experience with the draft criminal code was instructive. One problem with the common law of general principles of criminal liability is that the common law sometimes presents a fuzzy target where the law is obscure or inconsistent. The law may also be a moving target as well, depending on how often it has to be refined or explained to meet the exigencies of the latest case. In this sense, a statutory draft of the common law will always be playing catch-up. A further problem is that the common law may well be viewed by some as defective in terms of policy or principle. These commentators may want the law to be reformed not restated.

The result of these different problems is that the draft the code team produced of common law rules on general principles of liability tended to attract two kinds of criticism. One group of critics, led by no less a figure than Glanville Williams, complained that we had failed to capture the proper common law rules, particularly in relation to causation. In their view, by failing to state the rules accurately, the team had inadvertently reformed them for the worse. On the other hand, some critics complained that in so far as the team had succeeded in stating the common law rules accurately, it had merely succeeded in perpetuating bad law that ought to be reformed. With a hindsight, this was undoubtedly one of the obstacles to taking forward the 1989 draft code. However, the extent of the restatement difficulty depends on how far one regards the common law in question as unclear and/or controversial. It has to be said that there was a substantial amount of obscurity and controversy surrounding the several areas of the common law on general principles of liability. It is debatable whether the position has got better or worse since 1989 The courts have done some important work on criminal defences, and in clarifying the meaning of recklessness, for example, but the law on intoxication has proved very difficult to state in an intelligible statutory form, and the thought of trying to codify the current law on joint enterprise is the stuff of nightmares.

Would the common law of criminal evidence present a comparable degree of difficulty? I think the answer to this must be ‘No’. If we take the law on expert evidence as an illustration, the rules of admissibility and the duties of an expert witness are reasonably clear. There is certainly controversy whether the common law applies a sufficiently searching test of reliability to expert evidence, especially where the evidence involves a new scientific technique or theory. As noted above, a policy decision is required as to whether the Law Commission’s proposal for a new statutory test of sufficient reliability should be enacted. If it is not presumably the common law could be restated, warts and all, and the courts would then be left to do the best they could with it. This brings us to the last part of the paper. Having outlined what would not be included in a code of criminal evidence, I will now discuss what should be included.