LAW COMMISSION PROPOSALS ON CODIFICATION
OF THE CRIMINAL LAW
1. CODIFICATION
AND THE
CPS
1.1 The CPS, which is divided into 42 different
Areas, needs to ensure that it is internally consistent in its
approaches and practices. To some extent that object is already
achieved through the guidance provided by the Prosecution Manual
which covers not only substantive law, but also evidence and procedure.
Codification, however, could provide a clear and unambiguous statement
of the law which would improve the consistency of the application
of the law throughout the country.
1.2 The CPS has been criticised in the past
for failure to provide proper explanations for its prosecution
decisions, and it is likely that in the future prosecutors will
need to spend more time speaking to victims and witnesses. Increased
contact will occur, for example, following implementation under
the Youth Justice and Criminal Evidence Act 1999 of "special
measures" for vulnerable witnesses. At such meetings witnesses
may well raise issues concerning points of procedure or terminology.
Codification would provide a standard text to which a prosecutor
could easily refer on such occasions as well as on those when
he or she is required to provide an explanation for a previous
decision.
1.3 Experience has shown that when explanations
for prosecution decisions are given by the CPS they are often
misunderstood by their recipients. A broad understanding of the
workings of the criminal law, and of the relationship between
its component parts, such as the CPS, the police and the courts,
is not widespread in society at large; neither do the pronouncements
of the media often do much to educate or enlighten. Codification
could lead to a greater and more widespread understanding of the
criminal justice process and, perhaps, a more accurate appreciation
of the role of the CPS within it.
2. BENEFITS
2.1 Accessibility, comprehensibility and
certainty.
2.2 A Codification which is readily accessible
will enable not only prosecutors and other lawyers, but also lay
persons involved with the administration of the law, such as jurors,
magistrates, victims and other witnesses, to readily understand
what is either said to or required of them. Those benefits will
only follow, however, if the words in which the Codification is
expressed are clear and capable of being understood without ambiguity.
Both clarity and precision of expression must therefore be achieved.
That task, which will include the reduction into simple language
of states of mind which the law wishes to criminalise, will be
far from simple.
2.3 Nor will either comprehensibility or
certainty be easy to achieve. Gaps in the law will inevitably
occur as ways of life and social attitudes change with the passage
of time and comprehensibility will be lost if they are not quickly
closed. The Codification would therefore need to be a living document,
constantly reviewed and updated in clear and unambiguous terms.
Furthermore, certainty will only be achieved if all inconsistencies
and archaisms in the present law are removed, a task which will
entail reform which must, in turn, reflect or carry public opinion.
2.4 It would follow from the above a complete
and sudden Codification of the Criminal Law, which was accessible,
comprehensive and certain and thus of significant benefit to the
CPS, would require a major training initiative to familiarise
all concerned with its language and layout. Piecemeal consolidation
would undoubtedly be easier for the CPS, as well as other agencies
within the criminal justice system, to absorb.
May 2000
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