Analysis: The codification of the criminal law will mean abolishing outdated laws, writes Carol Coulter.
A promise to codify the criminal law was included in the Programme for Government at the behest of the man who was to become the Minister for Justice.
The setting up of an expert group to consider the issue passed largely unnoticed two years ago. Mr McDowell chose as its chairman Prof Finbar McAuley, a stalwart of the Law Reform Commission as well as a leading legal academic.
He was, and is, deeply committed to the idea of the codification of all criminal law into a homogenous whole, all of it processed through the Oireachtas.
This calls for replacing the various sources of criminal law, including those rooted in tradition and judicial decisions (the common law), with a single criminal law code. Because of their varied origins, some parts of the existing criminal law can contradict others, or it can be uncertain in what it actually means.
According to the expert group's report, the codification "is based on the democratic principle that the content of the criminal law is exclusively a matter for the legislature, and should be declared by the legislature in a comprehensive instrument which is easy to access and understand, and whose provisions are mutually consistent and reasonably certain."
Most European countries have, or are attempting to have, a homogenous criminal code. However, the report of the expert group points out that various models exist. They include consolidation of existing statute law only, restatement of both common law and statute law, radical reform of the whole of the criminal law and an incremental restatement or reform of criminal law dealing with specific areas one at a time.
The report favours the fourth option, incorporating a number of recent pieces of legislation that have already modernised and codified areas of criminal law, like the Non-Fatal Offences Against the Person Act and those dealing with sexual offences. This would involve "an exhaustive statement of the general principles of criminal liability", as well as a system of grading specific offences, it says. Codification should be introduced on a phased basis.
It should start with a general statement of principle and the codification of recently enacted criminal law legislation. Later stages should be devoted to incorporation of the remainder of the common and statute law of crime, as they are modernised. This would lead to the abolition of many common-law offences.
One of the crucial recommendations of the expert group is that the codification process should not be integrated into the ordinary process of criminal law reform, at present being carried out in the Department of Justice.
This would, it said, expose the project "to the risk of losing out in the competition for scarce resources with other aspects of the criminal law programme." It should therefore take the form of a "free-standing, discretely funded initiative designed to complement the ordinary programme of criminal law reform by incorporating its fruits into the codification process."
This proposal has the advantage of having a predecessor in the establishment of a statutory Company Law Review Group.
The report of the expert group also recommends that the advisory committee should have an ongoing monitoring role. The Minister intends to give it such a role, in that it will have to report on an annual basis to the Oireachtas, thereby ensuring that it has something to report.
The fact that the Minister has accepted this key recommendation makes it less likely that this report will join so many other worthy reports in the criminal justice area and languish unimplemented on departmental shelves.