NCJ Number
62393
Date Published
1978
Length
26 pages
Annotation
FACTORS INFLUENCING LAW REFORM AND CODIFICATION ARE ILLUSTRATED IN THE BRITISH LAW COMMISSION'S DRAFTING OF ITS REPORT ON CONSPIRACY AND CRIMINAL LAW REFORM.
Abstract
IN CRIMINAL LAW CODIFICATION, THE COMMON LAW MUST, WHERE NECESSARY, BE REFORMED AS WELL AS RESTATED, AND STATUTE LAW MUST BE REFORMED AS WELL AS MODERNIZED. SOME PARTS OF THE CRIMINAL LAW REQUIRED EXAMINATION BY BODIES WITH A BROADER BASE THAN THE LAW COMMISSION; AND EVEN THAT PART OF THE WORK WHICH CAN BE ENTRUSTED TO A LAW REFORM AGENCY IS DIVIDED BETWEEN THE COMMISSION AND THE CRIMINAL LAW REVISION COMMITTEE. ENSURING THAT THE SAME BASIC PHILOSOPHY, LOGIC, AND SEMANTICS UNDERLIES THE VARIOUS PARTS OF THE PROJECTED CODE AS THEY REACH LEGISLATIVE FORM IS A DIFFICULT TASK AS IS THAT OF ACHIEVING CLARITY AND PRECISION. THE ORDERING OF PRIORITIES IN REFORM IS ALSO PRESSED UPON CODIFFIERS. THERE MAY BE AREAS OF THE CRIMINAL LAW WHERE URGENT REFORM IS NEEDED, TO THE EXTENT THAT THE TIME REQUIRED FOR ORDERED CODIFICATION IS NOT ALLOWED. LAW REFORM IS ALSO SUCH THAT IF A POLITICAL TIDE IS RUNNING IN THE DIRECTION OF A PARTICULAR REFORM OF THE CRIMINAL LAW, A LAW REFORM AGENCY SHOULD TRY TO USE THAT TIDE EVEN AT THE EXPENSE OF SOME DISTORTION OF AN IDEAL PROPOSAL. A SURVEY OF THE WAY IN WHICH THE REPORT OF THE LAW COMMISSION ON CONSPIRACY AND CRIMINAL LAW REFORM WAS DEVELOPED ILLUSTRATES THE INFLUENCE OF ALL THESE FACTORS ON THE LAW REFORM PROCESS. THE SUBJECT MATTER OF THE REPORT AND THE FORM IN WHICH ONLY SOME OF THE RECOMMENDATIONS WERE INCLUDED IN A GOVERNMENT BILL WERE INFLUENCED BY FORTUITOUS EVENTS. TWO MISTAKES IN DRAFTING ACTS OF PARLIAMENT (ONE IN 1875 AND THE OTHER IN 1959), THE CRIMINAL ACTIVITIES OF SOME PICKETS IN THE COURSE OF A LABOR DISPUTE, THE INTEMPERATE BEHAVIOR OF SOME STUDENTS, AND THE EFFORTS OF A POLITICIAN TO RID THE COUNTRY OF PORNOGRAPHY ALL PLAYED A PART IN THE TIMING OF THE REPORT AND ITS IMPLEMENTATION. FOOTNOTES ARE PROVIDED. (RCB)