THE FORM OF ENGLISH CRIMINAL LAW
HISTORICAL BACKGROUND
The history
of judicial law-making in English Criminal Law is one of stunted development.
This is not to say that it rested on no rational principles, but that the
principles did not enjoy the prolonged period of active development and
refinement in the nineteenth century such as occurred in e.g. contract law.
It is true that, unlike the criminal law, much of the civil law was at first cribbed and confined by the rigidities of the formulary system and the artificialities of pleading, but that system seems to have involved its practitioners in habits of ratiocination without atrophying their creative powers. At all events when the old restraints were loosened and then cast aside, the subsequent development of the law, helped as it was by constant pressure from mercantile interests, was ordered, continuous, and comparatively rapid.
In English
law, criminal law is peculiar in having two standing bodies actively devoted to
its reform. The Criminal Law Revision Committee was set up in 1959 by the home
secretary as a standing committee to examine such aspects of the criminal law
as he might refer to it and make recommendations for revision if thought
necessary. This committee of part-time lawyer’s members has made no pretensions,
nor indeed has it had the power, to examine the law as a whole.
However, it
has produced a number of reports on particular areas, usually resulting in
litigation, e.g. the Theft Act 1968. In 1965 The Law Commissions Act established permanent salaried
Commissioners to keep the whole law, civil and criminal, under review” with a
view to its systematic development and reform, including in particular the
codification of such law, the elimination of anomalies, the repeal of separate
enactments and generally the simplification and modernization of law.
In pursuance
of this remit, the Law Commission announced an ambitious program for the
codification of criminal law, but in the event soon found itself examining and
reporting on particular areas of the law, which reports have sometimes resulted
in legislation.
After 1965 in practice both bodies were
considering and making proposals about particular areas of the law, it might
have been decided that the Criminal Law Review Committee was redundant.
However,
codification still seems a long way away. It can be argued that reforming
particular parts of the law before producing a code covering the general
principles of liability is putting the cart before the horse. This way of
proceeding has, however, proved unavoidable. The fact of the matter is that the
Law Commission has not been able to find the great amount of time needed to think
about general principles, as it recognized in 1981 by setting up a small team
of senior academics to undertake the preliminary work for the codification of
the general parts of the Criminal Law.