Clarity in criminal law – dream or reality?
John F Wilson (UK)
This paper is based on the work I have done recen...
Three requirements for clear criminal law –
A. Clarity in stating the legal rule
B. Certainty as to the contents of the ...
(Perhaps this is why in the UK the term ‘incitement’ has recently been replaced by
‘encouraging or assisting’ which crea...
Note that the clause says nothing about the national status of the offender, because St
Helena would not claim extraterr...
including contempt of court. The other offences are the subject of other recent statutes so
that the law on all criminal...
clauses and the groups of subjects have subject headings. The sequence of Parts is logical (I
like to think), and the se...
There is also the question of whether and if so how other changes to UK criminal legislation
should be incorporated in t...
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Clarity in criminal law dream or reality - john f wilson


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This is a fairly lighthearted paper based on the work I have done recently for Gibraltar and St Helena in updating and codifying their criminal legislation (offences and procedure). It looks at the problems of updating the statute book of a small jurisdiction to incorporate 50 years of UK criminal legislation, and the need for adaptation and simplification of complex legislative schemes. It looks at the stylistic changes in UK criminal law drafting in recent years and shows some of the ways in which small jurisdictions can lead the way in clarifying the law.

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Clarity in criminal law dream or reality - john f wilson

  1. 1. 1 Clarity in criminal law – dream or reality? John F Wilson (UK) Summary This paper is based on the work I have done recently for Gibraltar and St Helena in updating and codifying their criminal legislation, both the offences and the procedure. - It looks at the statement of the criminal rule and considers how it can be clarified - It shows that codification of criminal law can make the law more accessible and easier to follow. Introduction I am glad to be here in Lisbon during the 100th anniversary celebrations of the Portuguese Constitution (5 October 1910.) My theme is - Dream or reality? Dreams are something of a theme in my work. A few years ago, while working in Fiji, I wrote a piece for the ‘Loophole’ – the house magazine of the Commonwealth Association of legislative Counsel (CALC). It was called ‘Prince Splendid and the Dream Machine’ and was a fairytale about the perfect drafting instructions leading to perfect legislation. Prince Splendid (PS) is the Permanent Secretary, and he is aided by the Jovial Friendly Wizard (JFW) – who can sometimes be a Jolly Fierce Warlock if the instructions are no good – or if not enough time is allowed for the drafting. This is not the place for a disquisition on drafting instructions, but we can agree that it is everyone’s dream to have a set of criminal laws that are coherent and accessible and clearly expressed. Why does this seem so impossible? I am a generalist and not a criminal law expert. But during the past 2 years I have been engaged on a codification of the criminal law for Gibraltar and for St Helena, and it is my experience in that project that I would like to share with you. Both are still British Overseas Territories, but they have significant differences. Gibraltar has a Ministerial system; St Helena is still governed by the Governor. Gibraltar has an existing criminal code in the form of the Criminal Offences Act and the Criminal Procedure Act. It only applies English law selectively so is free to choose which UK laws to include in the updated version. St Helena has a couple of local criminal statutes and a small Criminal Procedure Ordinance, but otherwise applies English law wholesale up to January 2006. Gibraltar has a sophisticated legal profession whereas in St Helena there are no lawyers except the Public Solicitor. Instead there are 4 or 5 Lay Advocates, who need to have the law stated as clearly as possible for obvious reasons. This is how the law should always be stated, but it is particularly important on this small island of 4,000 people, in the middle of the Atlantic Ocean (where Napoleon spent the last 6 years of his life.) Working for small jurisdictions shows the problems in updating the statute book to incorporate 150 years of UK criminal legislation and the need for simplification of complex legislative schemes. It can also show the dangers of 'cut and paste' drafting. Using the word search and replace facility can result in such absurdities as “adGovernor in Council” instead of “administer”. I did however manage to avoid saying ‘this Act applies to Scotland’ which is said to have happened in one overseas jurisdiction.
  2. 2. 2 Three requirements for clear criminal law – A. Clarity in stating the legal rule B. Certainty as to the contents of the law C. Coherently organised material A. Clarity in stating the criminal rule The first requirement for clarity in criminal law is a clear statement of the criminal rule. But this is not always easy to achieve. People say the Ten Commandments are simple and clear - ‘Thou Shalt not Kill’ and ‘Thou Shalt not Steal’. Yet no sooner did Moses come down from the mount (for the second time remember; he did have to rewrite the Commandments) – than scribes and scholars started explaining them. They are in fact very far from being a straightforward code of laws. It should be possible to state a criminal rule clearly e.g. ‘Keep off the grass’. But even this begs the question of how the grass is to be cut. Note that these rules – ‘Thou shalt not steal’, and ‘Keep off the grass’, are directed to the potential offender. Is that the best way to state the criminal law? It would be rather odd to frame a criminal rule that way – ‘If you break into a house, you will be committing an offence and liable to (prison etc.)’ This might be how a Ministry leaflet explains the law. But it is surely not for Parliament to address potential lawbreakers. Everyone in England thinks they know another clear criminal rule - ‘Trespassers will be prosecuted’. But even if trespass were an offence (which it is not usually unless there is violence or damage) this statement would not create the offence. In English legislation, the criminal rule has in the past been stated in a number of ways, most of them defective - 1 - “No person shall cause or permit a vehicle to wait ...” (from UK Traffic Regulation Orders). This uses ‘shall’ and implies that some person might or may do the thing. It cannot be cured by replacing ‘shall’ with ‘must’ – “No person must...” is not right. 2 - “A person who ....... commits an offence”. This is the ‘sandwich clause’ which separates the verb from the subject, sometimes by several phrases. It is only suitable for very short statements of the offence. 3 – “If a person ......... he commits an offence”. This is gender-specific as well as being a sandwich. It cannot be cured by saying ‘he or she’ as the person might be a company. Repeating ‘the person’ becomes tedious and confusing. 4 – “Whosoever shall ....... shall be guilty of felony”. This from 1861; no further comment needed. Sometimes ambiguity is built into the rule. Driving in Germany this summer, my wife and I saw speed limit signs on the autobahns, expressed as a number (i.e. kilometres per hour.) Some signs also showed a lower number and the words “Bei Nasse”. We gathered that it means a lower limit applies when the road is wet. (Some signs read “Bei Nebel” which means “When foggy.”) There is obvious scope for dispute as to when the road is wet (or foggy) but it seems to suit Germany so why should a mere English drafter object?
  3. 3. 3 (Perhaps this is why in the UK the term ‘incitement’ has recently been replaced by ‘encouraging or assisting’ which creates two offences and is not very different from ‘aiding and abetting’.) In recent years new formulations have been used - 5 – “No person may ...” (Not liked by the Working Group on TROs). 6 – “A person must not ....” 7 – “It is an offence for a person to .......” 8 – “The following are prohibited ....” (followed by a statement that it is an offence to do a prohibited thing.) One of the most useful devices, both to avoid the gender problem and to achieve clarity in other ways, is to use letters. This has been done in the UK in recent years, though sometimes the choice of letter - D or P or V - can seem rather arbitrary. I prefer to use ‘A’ and ‘B’ even though the letter ‘A’ can be confused with the word ‘A’. To illustrate this and other aspects of the statement of the criminal rule, I offer my version of the offence of bigamy. (I recently had to include this in the St Helena Crimes Bill, though in Gibraltar it was not needed as the offence is in the Marriage Act.) Section 57 of the UK Offences against the Person Act 1861 reads - “Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for any term not exceeding seven years . . . : Provided, that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.” (This is still the law in the UK.) My redraft is - “XX. (1) Subject to subsection (2), a married person (‘A’) who marries any other person during the life of A’s former husband or wife commits an offence for which the maximum penalty on conviction is imprisonment for 7 years. (2) Subsection (1) does not apply to a person (‘A’) who marries a second time if – (a) A’s husband or wife has been continually absent from A for at least 7 years up to the date of the second marriage and has not been known by A to be living within that time; (b) at the time of the second marriage, A has been divorced from the bonds of the first marriage; or (c) A’s first marriage has been annulled or declared void by a court of competent jurisdiction.”
  4. 4. 4 Note that the clause says nothing about the national status of the offender, because St Helena would not claim extraterritorial jurisdiction over such an offence anyway. That is just one of the many adaptations I have had to make in incorporating English statute law into the law of an overseas territory. Note also that the penalty is stated as a maximum, without specifying whether it is on indictment or summary. Nowadays statements of penalty normally do not say they are maxima but do say whether they are on indictment or summary. In St Helena, we are using wording which allows the Attorney General to have the choice of venue i.e. summary trial or trial by jury. Plain English drafting To achieve clarity of expression, I have, needless to say, adopted Plain English principles. So ‘shall’ becomes ‘must’ (in most cases); ‘where’ becomes ‘if’ etc. My drafts use short sentences and the active voice rather than the passive. They use the present tense rather than the future e.g. ‘nothing prohibits’ rather than ‘nothing shall prohibit’. Many of you will be aware that Parliamentary Counsel in Whitehall have now adopted most of these principles and it is good that the Mother of Parliaments is now falling into line with what has been done to clarify criminal law around the Commonwealth for years. Politically correct drafting My draft Bills for Gibraltar and St Helena also adopt politically correct terminology. This is to avoid demonising people caught up in the criminal law system and to make rehabilitation more likely. They avoid using ‘the offender’ unless the person has been convicted; they say the ‘defendant’ rather than ‘the accused’ unless then person is not yet in court; they say ‘impose a penalty’ rather than ‘inflict punishment’; they refer to ‘mental disorder’ rather than ‘insanity’. The second requirement for clarity in criminal law is to know what the law is, and to be able to access it readily. This means that all the criminal offences should be legislated, rather than leaving some to the common law. At present the offence of murder is not statutory in Britain. Nor is manslaughter, and nor is kidnapping. These offences are still common law offences and their meaning can only be ascertained by studying case law or textbooks. B. Certainty as to the contents of the law My Crimes Bill makes murder, manslaughter and kidnapping statutory offences. It does not include all common law offences, such as outraging public decency, or piracy. It does not include defences such as self-defence, ejection of trespassers and necessity. Nor does it include purely regulatory offences such as liquor licensing. But it does include summary offences such as criminal trespass and public nuisance. The Bill does not deal with road traffic offences, drugs, money-laundering, or firearms, which are the subject of separate legislation. Nor does it include official secrets legislation, terrorist offences, maritime and aviation security, or international criminal offences (except genocide). However, it does set out in one document the vast bulk of criminal offences,
  5. 5. 5 including contempt of court. The other offences are the subject of other recent statutes so that the law on all criminal offences can be easily accessed. Certainty as to contents also requires that criminal procedure law should be set out in one Act, as far as practicable. My Criminal Procedure & Evidence Bill sets out in one document the bulk of criminal procedure rules, including forfeiture etc. It incorporates the latest amendments to the UK PACE legislation (Police and Criminal Evidence Act 1984) on retention of DNA profiles etc. The CPE Bill does not include provisions of the UK law which give additional powers of search and seizure and detention in relation to gangs, suspected terrorists, etc. Nor does it include the Proceeds of Crime Act 2002 which provides for confiscation orders against people who live a ‘criminal lifestyle’. The Bill does not specify the order of proceedings in a trial by jury, but does regulate consecutive and concurrent sentences which are left to procedural practice in the UK. The Bill does not include all the UK Criminal Procedure Rules, nor AG’s or DPP’s guidelines on cautions etc. However, the rules can be made or adopted under the Bill and other items can be taken note of by the courts in the conduct of proceedings. In order to know what the criminal law is in England and Wales, a practitioner has to buy Archbold’s Criminal Pleading, Evidence & Practice or Blackstone’s Criminal Practice which are published every year. They come with 3 or 4 supplements, and with a monthly newsletter. They still do not include the Codes of Practice published under the Police & Criminal Evidence of 1984 (‘PACE’). In Gibraltar and St Helena the practitioners and courts will only have to refer to my two statutes, plus the Schedules and the Codes of Practice, to guide them for most of the time. The Bills are up to date to May 2010 when the UK Parliament was dissolved. They therefore include the UK Bribery Act 2010 and changes made to criminal laws by the Policing & Crime Act 2009, the Coroners & Justice Act 2009 and the Crime & Security Act 2010. It is something of a scandal that so many major pieces of criminal legislation were rushed through Parliament in April under the ‘wash-up’ procedure before dissolution. Every year for the past several years in the UK there has been at least one major statute adding offences or changing procedure. Such a rapid rate of change is not conducive to clarity in criminal law. Some provisions of those Acts are not yet in force in the UK and one of the problems of trying to draft clear laws on the basis of UK legislation is knowing what laws are in force. Many commencement dates are deferred and some provisions are not brought into force for several years; this is to be deplored. C. Coherently organised material The third requirement for clarity in criminal laws is that the material should be coherently organised. I hope I have achieved that with my two consolidating Bills. Inevitably, the Bills are long – 600 clauses and 4 Schedules for the Crimes Bill; 700 clauses and 12 Schedules for the CPE Bill. They are divided into Parts – 27 for the Crimes Bill and 30 for the CPE Bill. They are not divided into Chapters or Divisions but the longest Part is 45
  6. 6. 6 clauses and the groups of subjects have subject headings. The sequence of Parts is logical (I like to think), and the sequence of clauses in each Part is consistent. The definitions are at the start, as in other Commonwealth jurisdictions. So are the short title and commencement provisions. Because of the length of some UK sections, some clauses have over 20 subsections (contrary to Plain English principles.) I have left the clauses long rather than split them into smaller ones, so that the running sequence of the clauses is the same. However, the clause numbering is not the same as the section numbering of the equivalent UK Acts. The UK statutes sometimes have many sections inserted by amendments. This can lead to e.g. 64ZN of PACE 1984. A rewrite removes this phenomenon and results in a clearer statute, but means that if practitioners do need to look at Archbold or the case law on a point they will have to work out which UK section is the model. That is made easier by providing a Derivation Table, showing the UK (or local) source of the provision. There is also a Destination Table so that people familiar with the existing local laws can find out where they have got to. The other apparatus to assist following the legislation is an Explanatory Note (or Memorandum). This will be published with the Bill, but not with the Act, as it is in the UK. I have drafted the Parts with letters and the clauses with numbers carrying those letters. That makes it easier to change the sequence of Parts, to add to or remove Parts, or to add to or remove clauses within Parts. Before enactment the Parts and clauses can be numbered in sequence and cross-references will then need changing. But why should the Bill not be enacted with lettered parts? This would avoid problems if amendments are made in future. Advantages of a criminal code The UK Law Commission has avoided trying to codify the criminal law except for a few topics. Given the complexities I have mentioned, it is not hard to understand why. But codification of criminal law can help realise the dream of clarity. It can – • achieve clarity in the statement of the legal rule; • achieve consistency of policy; • make the law more accessible and easier to follow; • state common law offences clearly e.g. murder; • remove overlaps and duplication and inconsistencies; • put all the definitions together in one place; • allow penalties to be compared more easily; • ensure that general principles are applied consistently e.g. corporations, forfeiture; • enable the criminal rules to be stated in a consistent manner; • use modern language even for old provisions e.g. Town Police Clauses Act 1847. Disadvantages The disadvantage of a consolidation are that it – • results is an unwieldy document; • is difficult to amend by adding or removing sections; • might change the meaning and legal effect of some provisions; • inhibits judicial development of the law.
  7. 7. 7 There is also the question of whether and if so how other changes to UK criminal legislation should be incorporated in the Crimes Act and the Criminal Procedure & Evidence Act once they are enacted. (One solution might be for Acts to be re-enacted with the amendments incorporated.) D. Conclusion Clarity in criminal law does not have to be just a dream. Perhaps it is a dream to have simple laws; but it should be possible to achieve – • clarity of expression by the use of Plain English principles (though old statutes still abound and some will not be replaced for generations); • certainty as to what the laws are (though this will remain a dream while Ministers introduce new laws every year, and if commencement dates are deferred indefinitely); • coherently organised material; • easier access to the laws All these can be achieved by codification, as I have endeavoured to show. This was in effect done for most of Britain’s colonies (in the same way as written Constitutions were given). I have redone it for Gibraltar and am now doing it for St Helena. In future perhaps I will do similar work for other overseas territories. Perhaps even the Falkland Islands. Mention of the Falkland Islands reminds me of a perfect example of ambiguity. It is a headline that appeared in an American newspaper at the time of the Falklands War - “British left waffles on Falklands”. Does that joke work in Portuguese, I wonder? JOHN F WILSON (UK) 13 September 2010 __________________________________ English Barrister (practised for 10 years in Birmingham; now non-practising) 30 years government legal work in Pacific Islands, West Indies, Hong Kong • Attorney General Tuvalu (1977 to 1978) and Montserrat (1979 to 1983) • Head of the Localisation & Adaptation of Laws Unit in the Hong Kong AGs Chambers (1985 to 1996) • First Parliamentary Counsel Fiji, 1998 to 2000 • Law Draftsman Grenada 2002 to 2004 • Back to Law Drafting Division Hong Kong SAR (part of China) 2002 to 2004 Since 2004 based in the UK doing law drafting work for Commonwealth jurisdictions - • Biosecurity law for the Pacific islands including Solomon Islands • Environmental law for Fiji • Medical and mental health legislation for Fiji • Maritime Zones for Papua New Guinea. Now drafting criminal codes for Gibraltar and St Helena Also drafting model Traffic Regulation Orders for PATROL (Parking & Traffic Regulations Outside London). ________________________________