Herrings Theory of Criminal Law

Herrings Theory of Criminal justiceEnglish evil faithfulness entails sanction for various behaviors/actions and/or results and these prohibitions argon sprawling throughout numerous statutes and judgements. Generally speaking, the integrity categorizes criminal liability in two types of crimes those whose result is out(p) result crimes and those which carry sanction on a particular conduct, conduct crimes. Additionally, it must be remembered that although a crime may either be result or conduct, it always has two elements to it the Actus Reus the Mens Rea. In Latin the maxim states actus non facit reum nisi mens sit rea which means that an act is not criminal in the absence of a guilty mind R v. Miller1. The physiologic actions/inactions, circumstance consequences are covered by the Actus Reus, thus each crime punishable by state sanction will prescribe a out(p) action or omission with its consequences in order to determine the guilt of the accused. On the other hand, Mens R ea refers to the defendants state of mind and allows the court to assess whether the accused think or was either reckless or negligent in committing the crimes that s/he is accused of. Both these elements need to be proved by the prosecution, beyond reasonable doubt, Woolmington v DPP 2, for the accused to be held guilty of the crime.The impartiality Commission in its reports paid heed to the necessity of a consolidated and coded criminal lawfulness regime3. They procrastinated that the criminal code will style the law in a more accessible, comprehensible, consistent and certain 4 manner. How incessantly, in 2008, the Commission was netly liberated from its ever long pursuit of realizing a consolidated criminal code, in England Wales. The editors of the Criminal law of nature Review, expressed their profound displeasure, in their editorial named RIP The Criminal formula (1968-2008)5 stating that it was a sad end for a noble estimationl but, in reality, this idea of the crimi nal code was rather unattractive, amid several other jurists.Herring in his book, explores the idea of the criminal code, and finds that surely the code would provide certainty as it will clearly demark the rules which provide for the determination of a persons guilt6. This process, was hoped, to simplify the lengthy and exuberant, popular law methodology where principles of offence are enshrined in representative law rather, sometimes ambiguously and with loose interpretations, tailored by judges as acquired immune deficiency syndrome to justice, in particular scenarios. Although, Herring never meant that common law interpretations are inaccurately based but rather explores the idea that a codified criminal law will strengthen the principle of legality, in rather constitutional terms i.e. it will uphold the separation of powers, by limiting the creation of the law to the Parliament, not the judiciary.Secondly, Herring acknowledges that the principal advantage that a written crimi nal code will look in its accessibility as it will serve to the members of the public, a reminder of their rights, liberties and duties. However, in Chambers7, Toulson LJ, a senior member of the judiciary himself, criticizes the limited access to statute law, as a hindrance to access to justice. Thus, theoretically supporting the idea of a criminal code, all encompassing, and in the process providing instant access to the judiciary awareness to the general public as well. Furthermore, metalworker Hogan, rightly points out that the adoption of a criminal code would figuratively deliver transparency on the states position, in relation to criminal behaviors8.Paul Robinson9 in his book, proposes a code which distinguishes rules of conduct, which he proposes are aimed at the public at large and provide clarity and guidance from those of attribution, which direct instructions to judges and juries, in determining verdict. He views rules of conduct as taking a communicative function, ser ving as a guidance for the public and thus must be kept as precise and clear as possible. However, his critics, point out that such rules of conduct, firstly disregard situations where crimes are a result of a prohibited action, i.e. result crimes 10 and secondly they exclude any indication of the state of the mind of the accused, i.e. Mens Rea11. Consequently, Antony Duff fittingly points out that the criminal code must first beam the moral wisdom of the public rather than focus its efforts on linguistic clarity 12. Herring, further points out that such a code will alike provide efficiency to the court system, as the code will provide clarity and accessibility, thus enabling judges to give timely verdicts. Proponents of the code in like manner claim that the process of drafting the new criminal code will itself clear most of the contradictions and ambiguities. Thus, Herring claims that updating the code will rather do away with old, and unsustainable laws, not practiced in toda ys society, he gives the example of s.36 Offences Against the Person Act 186113.At the same time Herring, lists the potential pitfall of the code, primarily, he criticizes that there is no guarantee that the criminal code would become a bestseller indicating doubts in public interest in the code14. Furthermore, he notes that the drafter overemphasized the benefits of the code, he points out that cases which require an examination of law morality will remain outside its scope the notorious conjoined twins case 15. Correspondingly, De Burca16 states that the fascination with simplifying the code pays no heed to the fact that a particular criminal offence represents an examination of a plethora of political, ethical, and practical concerns, affecting the way a particular law develops for a particular offence.But, the final nail in the coffin, is stuck by J. Verbruggen17 and his examination of this concern where he asserts that a structural transformation of a judge- do norm into a cod ified norm would be unsuccessful. He states that it is necessary to appreciate that the Law Commission was primarily relate with structural reforms, rather than any substantive reform and stated that the drafters were not concerned with law reform, but rather employing codification to make the law simpler (11). He draws distinction within a legal norm as having two dimensions firstly, its native identity, i.e. its form under which it exists. And a second dimension, he mentions, is the normative set under which a norm exists this could range from wide-ranging legal norms to precise insurance policy contemplations. He says that it is the combination of both these elements which makeup the structure of a norm and emphasized that the drafters aimed at altering the organic identity of judge-made norms i.e. the structure in which case law exists while guarding its normative space, i.e. the common law doctrines. He claims that any effort to modify the organic identity of judge-made nor ms and still maintain its normative space would be structurally impracticable. He suggests that an examination of judge made norms reveals normative considerations without any specific appointment of priority. He purports that when such norms are to be transplanted into a code, certain normative considerations will be given priority over the other which, otherwise, would eventually lead to editorial choices amongst the drafters. He concludes that the drafters failed to realize that judge made norms are organically different to codified norms, as the latter are more restrictive in nature, than the former and that codified norms do not in their entirety, represent the exact scope of normative considerations that exist in judge-made law.The Criminal Code as envisaged by the Law Commission was a gallant idea and a through effort, but sadly it came to a halt, amid juristical considerations. Admittedly, it must be concluded that because codification is not fundamentally capable of respect ing the normative space of a judge-made norm, it creates doubts. Although, it seems fair to state that the Code does provide for accessibility, as rightly reported by Herring but, these doubts which exist to the core of the matter of codification effectively defeats the all important(p) criteria set forth by the Law Commission of consistency and certainty.1 R v. Miller 1983 2 AC 161, 174 (HL)2 Woolmington v DPP 1935 AC 4623 Law Commission, Criminal Law Codification of Criminal Law A Report to the Commission (Law Com No 143, 1985) Law Commission, Criminal Law A Criminal Code for England and Wales (Law Com No 177, 1989).4 Law Commission, Criminal Law A Criminal Code for England and Wales (Law Com No 177, 1989) Para. 1.15.5 RIP The Criminal Code (1968-2008) Editor of the Criminal Law Review (2009).6 Criminal Law Text, Cases, and Materials By Jonathan Herring, 6th Edition Chapter1, Para 57 Chambers 2008 EWCA Crim 24678 Smith and Hogans Criminal Law, p.g. 33 14th edition. (2015)9 P. Robinson (1997)10 Husak (1999a)11 Duff (2002 69)12 Duff (2002)13 s.36 Offences Against the Person Act 1861- assaulting a reverend in the discharge of his duties in a place of worship or burial place14 Clarkson (1994).15 Re A (Conjoined Twins Medical Treatment) 2000 4 entirely ER 961 (CA).16 de Brca and Gardner (1990).17 THE CODIFICATION OF JUDGE-MADE NORMS IN THE CRIMINAL legal philosophy A RESPONSE TO THE LAW COMMISSION REPORTS by JACK VERBRUGGEN NORTH EAST LAW REVIEW pg.83