Harm and Culpability

By A. P. Simester; A. T. H. Smith | Go to book overview

9
Structuring the Criminal Code: Functional Approaches to Complicity, Incomplete Offences, and General Defences.

P. R. Glazebrook

The crafting of a satisfactory criminal code -- one that is faithful to the underlying principles of the law that is being codified, that strikes a workable balance between (too) general principle and (too) detailed rule, and employs language that is both uniform and as simple as the subject matter permits -- is heavily dependent on how the code is structured: on, that is, its basic framework or skeleton.

The more complicated a code is, and the more concepts it employs, the more intricate its drafting becomes, the more likely it is that gaps that are unprovided for will open up between them, and the more opportunity there will be for misunderstanding and confusion among those applying its rules. Each concept employed by a code should, therefore, be shown to be necessary. That it is familiar to those at home with the law which the code is to replace, or that it has played its part in the development of that law, is not a sufficient reason for preserving it in the amber of that code. A good many of the concepts familiar to criminal lawyers completely served their turn long ago.

It is, therefore, unfortunate that the structure adopted by the Law Commission for its 1989 draft Criminal Code for England and Wales1 in several key respects mimics rather too closely for either comfort or simplicity traditional, but no longer very useful, ways of thinking about criminal liability. This is notably so in the way it deals with the law of complicity and incomplete (inchoate) offences. Three lengthy clauses (26-28) elaborately distinguish, among those who commit crimes, 'principals' and 'accessories'. Then, in three equally lengthy clauses (47-49) dealing with those who try,

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1
Law Commission No. 177 (HC 299).

-195-

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