The Lord Chief Justice and codification of the criminal law

In his speech on 6 July at the annual Mansion House dinner for judges, the Lord Chief Justice, Lord Thomas of Cwmgiedd, revived Lord Bingham’s call for the criminal law to be codified in a single document. He noted that there were now fewer criminal law specialists than previously and that the law was currently contained in a “maze of innumerable, to some … impenetrable, statutes and common law developments over the centuries, which it is difficult to defend as entirely rational” and suggested that the criminal law was “long overdue for clarification and simplification”. He went on: “We ought to be able to look to a single document that sets out the nature of criminal conduct, in other words, a modern code” and commended it as a suitable project for the Law Commission’s next reform programme.

The relationship between Lord Thomas’s proposal and “law & religion” may seem slightly tenuous; but, apart from the fact that there are still several offences that are purely religious per se (such as the offence of obstructing or assaulting a clergyman or other minister in the discharge of his duties, under s 36 Offences Against the Person Act 1861), there is also the broader issue of non-religious offences that may be aggravated by a religious element: see the Racial and Religious Hatred Act 2006. The offences of assault or wounding, harassment, damage, and public order offences such as causing people to fear violence or harassment, may be charged as specific racially or religiously aggravated offences and, if the defendant is found guilty, may result in a more severe sentence.

Opinions are divided on whether codification is a good or a bad idea: some early commentators have suggested that the problem is not with the law but with constraints on legal aid and systemic failures in the Crown Prosecution Service. However, it is not wholly incompatible with the common law tradition: see, for example, the Canadian Criminal Code (RSC, 1985, c C-46).

But there is a broader issue outside the criminal law. Employment law, in particular, is an area that frequently taxes the brains (and the patience) of religious organisations; and as we have observed before, most recently in Employment status of clergy: goodbye to the ‘Servant of God’?, the distinctions between ‘workers’, ‘employees’ and ‘office holders’ have become increasingly unhelpful and, we suggested, ripe for reform.

What employers need (and in the interests of transparency I must admit to being an employer) is a clear and, above all, a consistent set of rules; and that is exactly what the current law does not provide, resting as it does on a combination of statute, common law and the decisions of Employment Appeal Tribunals and the superior courts. We suggested that it would be an appropriate topic for a thorough examination by the two Law Commissions: but if the LCJ is now reviving the idea of codification, then employment law looks to me like a suitable case for treatment.

Frank Cranmer

Cite this article as: Frank Cranmer, "The Lord Chief Justice and codification of the criminal law" in Law & Religion UK, 11 July 2016, https://lawandreligionuk.com/2016/07/11/the-lord-chief-justice-and-codification-of-the-criminal-law/

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