To Codify Or Not To Codify

The advantages and disadvantages of having a codified criminal system

The absence in English law of a single authoritative criminal code is a frequent source of bafflement for those, such as Italian lawyers and students of law, who take such things for granted.

In Italy if you want to know what the law on a particular issue is, the age of criminal responsibility for example, you simply refer to the Codice Penale. Turn to Article 97 and you will find, clearly stated, that those below the age of 14 are not criminally responsible in Italy.

To determine the same question in Scotland, on the other hand, you would first have to be familiar with section 41 of the Criminal Procedure (Scotland) Act 1995. You would then have to consider the implications of the Criminal Justice and Licensing (Scotland) Act 2010, before, for good measure, exploring various guidance documents produced by, amongst others, the Crown Office and Procurator Fiscal Service, the police and the children’s reporter. Indeed, in Scotland, major crimes against the person and property (including murder, culpable homicide, assault, theft, fraud and robbery), are all defined by the common law.

Of course, from Justinian’s celebrated compilation of Roman legal materials (completed in 534) to Gratian’s corpus of canon law (published in Bologna in the 12th century), Italian’s have a proud history of legal codification. In England, an early attempt at codification, initiated by Lord Brougham in 1833, failed to deliver. A subsequent attempt in 1878 (Stephen’s Criminal Code Bill) suffered a similar fate.

The arguments in favour of codification are (i) constitutional; (ii) moral; and (iii) administrative. A key aspect of the constitutional argument is the principle that the legislature alone should have the power to determine criminal offences. In the absence of parliamentary approval, the criminal law may be said to lack democratic legitimacy. A further argument is that a code provides greater accessibility, comprehension, consistency and certainty. In an uncodified system the range and obscurity of the sources of the criminal law mean that legal research for both lawyers and judges can be time-consuming, expensive and, ultimately, inconclusive.

Arguments against codification include the tendency of criminal codes to use broad definitions that can put wide powers of interpretation and application in the hands of the judiciary. Conversely, codes can sometimes use overly precise definitions that leave little or no room for judicial discretion.

In Ireland, the process of Codification began in January 2003. Over ten years later, the process of codification is still not complete.

So, whilst the arguments in favour of a criminal code are persuasive, the practicalities of codification mean the adoption of such a code in the UK is unlikely anytime soon.

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