A fundamental review of the whole body of criminal law will be considered by a top-level seminar of judges and legal experts tomorrow, The Irish Times has learned.
The purpose of the seminar is to consider a promise made in the Programme for Government to examine the possible codification of criminal law into a new Crimes Act.
The seminar has been organised by an expert group appointed by the Minister for Justice to advise on this project, chaired by Prof Finbarr McAuley of UCD and the Law Reform Commission, which has drawn up an agenda of the main points to be considered.
The expert group consists of legal academics and representatives of the Attorney General's Office, the DPP's office, the Law Society and the Department of Justice, Equality and Law Reform.
The seminar will be attended by the Minister, the Director of Public Prosecutions, members of the judiciary and legal academics.
The need for a codification of criminal law arises from the fact that the law is fragmented and is divided into statute law and common, or judge-made, law.
This means that it contains gaps and inconsistencies, as well as different styles of language, with some laws much clearer than others. Codification would attempt to bring consistency to the criminal law, both in terms of outlining the general principles underlying the whole criminal law system, and in ensuring that different parts of the law did not contradict each other.
However, arguments against such a codification will also be heard tomorrow. The main arguments against it, as outlined in Prof McAuley's agenda, are that it ignores key differences between common law and statute law, particularly the use of precedent and the importance of judicial interpretation in the former. Such codification could mean the effective end of common law, and with it centuries of legal wisdom, it is argued.
It could also mean the introduction of a less flexible system, with less room for judicial discretion.
There is also an argument that, even with such a codification, there will still be a need for judicial interpretation, and therefore a new body of scattered, fragmented, judge-made law would grow up. Codification of the law could also be very expensive, as it would swallow up drafting resources.
If the issue of whether or not to proceed with codification of the criminal law is agreed, there will still be arguments about the form that should take. It could take mean reform of the existing law on a step-by-step basis, which already happens when laws are amended.
It could also be a legal statement of the general principles of the criminal law, with or without the addition of specific categories of offences added on.
But even this degree of agreement would not exhaust all the problems raised by this project. Issues of jurisdiction would have to be agreed, along with the principles of liability for criminal acts. The kind of offences that should form part of it will also have to be agreed.
There may be little argument about the inclusion of offences such as homicide, assault, sexual offences and property offences, but offences like road traffic and regulatory offences could be more controversial, and there may have to be separate codes to deal with issues such as criminal procedure and sentencing.
Finally, the seminar will consider whether this work should be undertaken by the Law Reform Commission, a special codification committee or the existing state institutions; in a phased way or all at once; and how this should be prioritised.