Guilfoyle, International Criminal Law (OUP, 2016).
•Influence on domestic law: Given that the majority of offences lack any international sphere (eg a battery is unlikely to have any international implications), domestic law rarely integrates with international law and conventions. However, certain offences, for example fraud and blackmail, can be committed on such a large scale that their relevance moves towards the international remit.
1.6.3.4 The law of other jurisdictions
The criminal law is territorial in nature, meaning that it applies, for the most part, in England and Wales. However, law from such jurisdictions as Canada, New Zealand, Australia, and the USA may be relevant when considering our own law in comparison. On many occasions, the Supreme Court, in determining a matter of interpretation, will turn to the law of another state to understand how a term has been defined there. In this respect, the law of other jurisdictions (not to be confused with our concept of ‘international law’ above) is a useful and potentially persuasive aid to the interpretation of our own law. On a more academic level, law from other jurisdictions is vital in evaluating the law and identifying the strong (and equally weak) points in our own legal system.
1.6.4 Reform
The substantive criminal law is continuously under review as a result of judicial interpretation, Parliamentary reform and academic commentary. Such detailed review means that the criminal law is far from being a static subject; rather, it can best be described as a dynamic and cumulative body of rules influenced by a social and political backdrop. Throughout this text, references will be made to the ‘reform’ of a particular area of law. Such content will allow us to delve deeper into the substantive law and evaluate its effectiveness. In order to do so, however, we first need to be able to comprehend the different bodies responsible for reviewing and reforming the criminal law.
1.6.4.1 Law Commission
The Law Commission was set up in 1965 following the enactment of the Law Commissions Act (LCA) 1965 for the purpose of ‘promoting the reform of the law’ (LCA 1965, s 1(1)). The Commission is headed by a Chairman (at the time of writing, Sir Nicholas Green) and four Commissioners, including Professor Penney Lewis, who is the Commissioner for criminal law. The Commission is an independent body, though it is sponsored by the Ministry of Justice. The aim of the Law Commission is to ensure that the law is:
•fair;
•modern;
•simple; and
•cost effective.
The work of the Law Commission in reforming the criminal law has been preeminent for a number of years (and has effectively superseded the work of the Criminal Law Revision Committee (CLRC)). The Commission will produce a consultation paper before then publishing a full report, with the potential inclusion of a draft Bill. Many reports have been successfully adopted by the government of the day (see, for example, ‘Assisting and Encouraging Crime’ (Law Com No 131, 2006) which was implemented by the Serious Crime Act 2007). These reports are useful for providing detailed summaries of the law as it stands, the problems with the law and the proposals for reform. Other reports have not been accepted by the government (eg ‘Intoxication and Criminal Liability’ (Law Com No 314, 2009)).
1.6.4.2 Draft Criminal Code
Many countries, mostly civil law countries, have a Criminal Code, which sets out the definitions for all criminal offences, defences and procedures. These Codes are comprehensive in nature. The Law Commission, for many years, has proposed the adoption of a Criminal Code for England and Wales. In 1989, the Law Commission proposed a draft Criminal Code (‘Criminal Code for England and Wales’ (Law Com No 177, 1989)) which would have codified the majority of the existing laws on the general principles of criminal liability and specific offences against the person, property and those relating to public order. The Code lays out the fundamental rules of the criminal law and provides detailed definitions, explanations and circumstances to aid in the understanding of the criminal law.
Bennion (‘Codification of the Criminal Law – Part 2: The Technique of Codification’ [1986] Crim LR 105) took the view that the proposed reform was over-generalised and incomplete. Particularly, Bennion was critical of the simplified nature of the Code, expressing that ‘you do not simplify by oversimplifying’. Ashworth (‘Codification of the Criminal Law – Part 3: The Draft Code, complicity and the inchoate offences’ [1986] Crim LR 303) furthers this view, contending that an oversimplified version of the Code would have provided judges with too much discretion.
Where relevant in this text, we shall be referring to key proposals made in the draft Code. At the time of writing, Parliament is yet to adopt the Code, and it is unlikely that the Code will ever be adopted, which Child and Ormerod (Smith, Hogan, & Ormerod's Essentials of Criminal Law, 3rd edn (OUP, 2019)) consider to be ‘regrettable’. The Law Commission’s response to this is to produce so-called ‘mini-codes’ that deal with specific areas of legal reform.
1.6.4.3 Judicial law making
It is essential to open this section by explaining that the role of judges and the courts is not to make law – it is to interpret law. Prior to the decision in Knuller v DPP [1973] AC 435, the appellate courts were understood as holding a power to create new criminal offences. In Knuller, however, the House of Lords renounced this power on the basis that any such changes should be made by Parliament.
Despite the decision in Knuller, many examples exist of the appellate courts exercising law-making powers. For instance, in R v R (Rape: Marital Exemption) [1992] 1 AC 599, the House of Lords took it upon itself to rule that non-consensual sexual intercourse within marriage should no longer be exempt from criminal liability. In essence, the House of Lords created a new offence of marital rape. I prefer to view R v R as more of a reflection of the gradual development of the common law. Indeed, this was the view taken by the ECtHR in CR v UK [1996] 1 FLR 434 upon a referral of R v R. The Court was of the view that, although Article 7 of the ECHR restricts and prevents the operation of retrospective laws, it does not prevent the evolution of the common law.
With the implementation of the Human Rights Act 1998, judicial law-making powers must now be read in accordance with their international obligations of consistency. As a result of the inherent change it was about to face, the House of Lords in C v DPP [1996] AC 1 gave the following guidance to judges (per Lord Lowry):
(1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial interventions than purely legal problems. (4) Fundamental legal doctrines should not lightly be set aside. (5) Judges should not make change unless they can achieve finality and certainty.
1.7Criminal procedure, evidence and sentencing: an overview
As discussed earlier, the substantive criminal law is concerned with the definition and categorisation of offences; it concerns what features or elements must be present in a given case for a person to be ‘liable’ for a criminal offence. It is, however, naïve to believe that the substantive criminal law operates to the exclusion of other areas of criminal justice.
