Finbarr McAuleyoutlines the project engaged in codifying Irish criminal law.
THE 22ND International Conference of the International Society for the Reform of Criminal Law took place in Dublin Castle earlier this month. The theme of the conference, which was opened by President Mary McAleese and chaired by Chief Justice John Murray, was criminal law codification, and it attracted over 400 delegates from 24 countries.
Codification is often associated with the civil law legal tradition of continental Europe, but it also has deep roots in the common law going back to the early decades of the 19th century. In both legal traditions the aims of criminal law codification have remained more or less constant since the first modern codes were promulgated: (i) to bring order to the sources of the criminal law by eliminating confusion and uncertainty; (ii) to improve access to the criminal law by digesting it into a single authoritative instrument; (iii) to reinforce the democratic legitimacy of the criminal law by recasting it in a modern enactment binding on judges and citizens alike; (iv) to enhance comprehension of the criminal law by rendering it in a uniform drafting style and intelligible idiom; and (v) to promote conceptual consistency in the interpretation and application of the law by standardising the meaning of key terms used across the spectrum of criminal offences.
Naturally, the relative importance of these aims will vary from jurisdiction to jurisdiction and from time to time. Writing in 1818, Thomas Babington Macaulay, who was later to draft the Indian Penal Code, described the criminal law as found in these latitudes as "at once too sanguinary and too lenient, half written in blood like Draco's, and half undefined and loose as the common law of a tribe of savages . . . the curse and disgrace of the country".
Happily, Irish criminal law is no longer the bloody affair depicted in these remarks, although significant chunks of it have never been reduced to statutory form, let alone updated in the guise of a modern enactment.
Thus the law of homicide consists largely of a collection of judicial decisions of variable quality and consistency, many of them of considerable antiquity. Similarly, the rules and principles governing the ascription of criminal liability are almost exclusively to be found at common law, as is much of the applicable law on the defences to a criminal charge.
In the result, whole swathes of Irish criminal law lack democratic legitimacy and suffer from the imprecision and uncertainty associated with the process of piecemeal development characteristic of judicial legislation. Admittedly, the Irish courts have avoided a lawmaking role in respect of the limits of criminal offences, but they have been active on the defence side, sometimes - as in the case of the plea of provocation - with singularly unhappy results. Codification provides an ideal opportunity to streamline this patchwork of judge-made rules and principles, and to integrate it into a coherent pattern with the rest of the substantive criminal law.
The Irish criminal law codification initiative was launched last year under Part 14 of the Criminal Justice Act 2006. This reflects the principal recommendations of the Expert Group on the Codification of the Criminal Law which reported in 2004: to establish a programme of phased codification leading eventually to the enactment of a fully comprehensive criminal code, and to provide a structure for the maintenance of the code following enactment.
The burden of international experience shows that the success of major codification initiatives depends on credible achievement within a reasonable time, and on a principled approach to the process of amending and developing the code once it has been introduced. Hence the Government's decision to opt for a programme of phased codification. Hence, too, its commitment to ensuring that the risk of code degradation is kept to a minimum post codification.
The process of codification is being overseen by the Criminal Law Codification Advisory Committee, made up of representatives of the principal constituencies in the Irish legal community. The committee is assisted by a secretariat drawn from the Criminal Law Reform Division of the Department of Justice, Equality and Law Reform, and by a Research Support Unit. Through partnership between the two bodies, the secretariat and the Research Support Unit are housed in the UCD School of Law.
The first phase of the codification process involves the drafting and enactment of an inaugural code instrument consisting of the general principles of criminal liability and four major blocks of offences including non-fatal offences against the person, criminal damage offences, theft and fraud offences, and public order offences. Homicide offences may also be included in the inaugural instrument. Outstanding groups of offences will then be added to the code in subsequent phases of the codification process, as and when they are modernised.
In order to ensure that this is done on a principled basis, a draft scheme is being prepared for the criminal calendar as a whole, indicating how offence categories should be sequenced and where outstanding categories should be inserted as the codification process proceeds.
Other key features of the criminal code are likely to include: (i) an outline (as opposed to consecutive) numbering system designed to facilitate amendment without disturbing the overall sequencing system of the code; (ii) the elimination of the current level of clutter surrounding the basic conduct rules of the criminal law; (iii) the use of standardised fault terms designed to promote conceptual consistency in the interpretation and application of the code; (iv) the use of a uniform template in the definition and structuring of offences; and (v) reliance, where appropriate, on aggravating factors or other similar devices as a means of dealing with duplicate offences.
Perhaps the most striking feature of the Irish codification initiative is its commitment to the principle of completeness: the idea that the code should contain all of the substantive criminal law rules needed to dispose of the case before the court. In a system where the influence of judge-made law, though declining, is still palpable, the realisation of this principle will represent a significant shift of power in Irish criminal law from the courts to the legislature.
For further information, visit www.criminalcode.ie
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Finbarr McAuley is Professor of Law, University College Dublin, and is chairman of the Criminal Law Codification Advisory Committee