Improved access to the law and consistency in its interpretation are among the objectives of the draft criminal code, writes FINBARR MCAULEY
THE RECENT publication by Minister for Justice Alan Shatter of the draft criminal code and commentary marks a watershed in Irish criminal law.
The draft code, which was prepared by the criminal law codification advisory committee, attempts to draw together in a single instrument the disparate sources of law in four areas of major importance.
These are offences against the person, theft and fraud and related offences, criminal damage offences, and public order offences, respectively.
In addition, the draft code sets out the general principles of criminal liability governing the specific offences in these four categories.
The draft thus gives effect to one of the principal recommendations of the expert group on the codification of the criminal law, which reported in 2004: the development of a programme of phased codification leading to the enactment of an inaugural criminal code that can be added to as and when the outstanding areas of the substantive criminal law are modernised.
In order to illustrate what the code would look like when enacted, the draft is presented in the form of heads of Bill.
The draft code is accompanied by a detailed commentary explaining the principles of codification employed in the draft and outlining their impact on the substantive offences included in it.
As well as digesting the sources of law in a single instrument, the draft criminal code contains several features designed to promote the codification goals of improved access to the law and greater consistency in its interpretation and application. These features include:
A standardised offence template governing the definition of offences (offence definitions across the draft code have the form: “A person commits the offence of x if he or she . . .”);
A consistent approach to the naming of offences (so that offence names can be included in offence definitions);
A policy of one offence per code section (to reduce confusion and error for code users);
Provision for aggravating factors within baseline offences and the use of offence consolidation as ways of reducing needless offence proliferation;
An improved system for classifying offences based on the interests they are designed to protect;
The development of a flexible numbering system capable of accommodating new additions to the code without degrading its existing structure and layout.
Similarly, fault terminology – specifying the mental element in criminal offences – has been standardised across the draft code. In effect this means that the normal fault requirement for a criminal offence – intention or recklessness – has been rendered in the form “a person commits the offence of x if he or she intentionally, knowingly or recklessly . . .”
The rationale for this approach, which derives from the codification goals of improving clarity, consistency, and certainty, is that separate and distinct mental states should be treated as such when defining fault terms of general application across the criminal law.
The current practice of stretching the definition of intention to include knowledge (knowing that something is likely to occur in the normal course of events) is undesirable because it effectively reduces knowledge to a species of intention when, outside the confines of murder, the criminal law has always treated knowledge as a fully fledged fault element in its own right.
Knowledge is a fault element in many important criminal offences including rape.
Moreover, as a glance at part 4 of the draft criminal code and commentary reveals, it is also a specified fault element in a number of key offences in the Criminal Justice (Theft and Fraud Offences) Act, 2001.
By the same token, an attempt has been made to fashion a coherent classification of the non-mental or material elements of a criminal offence: typically, the physical act or acts involved in the commission of an offence.
By virtue of the scheme set out in Head 1102, the non-mental or objective components of every offence in the draft code can be easily and convincingly classified as either a circumstance or result element – in other words, either as a feature or characteristic of the defendant’s act or as a consequence of it.
When allied to the new fault scheme outlined in the preceding paragraphs, this arrangement ensures there is a proper match-up between fault and objective elements when offence definitions are being drafted by the legislature and/or applied by the courts.
For example, Head 1107(1)(b) provides that intention as to a circumstance means that the defendant believes or hopes that the circumstance exists.
Similarly, Head 1107(1)(c) provides that intention as to a result means that it is the defendant’s objective or desire to cause the result.
Although many of the adjustments and innovations described in this short article will strike the non-specialist reader as dry and technical, lawyers will be painfully aware that the flaws they are designed to correct have bedevilled the criminal law for centuries.
The draft code and commentary is an attempt to demonstrate that codification is the most effective way of solving the problems of inaccessibility, inconsistency and uncertainty associated with the current mix of judge-made and statute law drawn from different eras and often cast in the opaque idiom of yesteryear.
The draft criminal code and commentary is on the Department of Justice website (justice.ie), and interested parties may make submissions by post or e-mail to criminalcode@justice.ie
Finbarr McAuley is chairman of the criminal law codification advisory committee, professor of law at UCD, and a member of the Law Reform Commission. He also chaired the expert group on the codification of the criminal law.