SI Woes

Red TapeEarlier today the Law Commission, an independent non-partisan body that reviews our laws to look for potential reforms, published a consultation paper called Criminal Liability in Regulatory Contexts. Although this is a relatively dry title dealing principally with over-regulation of business, it is of wider public interest. It deals, in the specific context of regulation, with the problem of governments’ tendencies to over-legislate. In particular, it addresses the problem of too many criminal offences being on the statute books.

By way of an example, the commission looks at Halsbury’s Laws of England and Wales, a generally comprehensive book of all current law. It notes that in the 637-year period between 1351 and 1988, our criminal law filled a single 1382-page volume. From 1988 to 2008, however, the criminal law exploded to fill a further three volumes totalling 3,746 pages. This does not even cover the true scale of the expansion, as it deals only with England and Wales, and may not even contain all the offences currently in force. Factor in Scotland and Northern Ireland, and the extent of our legislative hyperactivity becomes even greater.

One might argue that this is nothing more than the necessary growth of government to meet the demands of a changing and more complex world. The evidence does not bear this out. People haven’t suddenly become more criminal, nor have they devised so many novel ways of being underhand that existing legislative frameworks proved insufficient. Nor is it a matter of government tending to regulation that they had previously neglected: this trend started under the Thatcher government.

The Law Commission finds the cause elsewhere, looking at the vast amount of secondary legislation passed every year. Secondary legislation is, broadly speaking, law not passed as an Act of Parliament. It is generally drafted by a Minister’s office and placed before Parliament, passing automatically if no objection is raised within a specified period. Over 3,000 pieces of secondary legislation pass annually, with over 60 national regulatory bodies, as well as local and trading standards authorities, having the power to create criminal law this way.

With the sheer volume of such legislation passed and cacophony of sources demanding and introducing it, the potential for proper Parliamentary scrutiny is limited. Parliament’s constitutional role is usurped. The laws with the ability to change lives dramatically, that should be passed with the most careful of debate and examination, are in effect being rubber-stamped. This is not an abstract concern. The “legal high” mephedrone was banned in just such a fashion, despite a lack of proper consultation with the Advisory Council on the Misuse of Drugs, and in the face of significant concern by the scientific community.  The government restricted the freedom of a citizen to engage in behaviour that affected nobody but himself, without the most basic of debates in Parliament, just to feed a frenzied media.

This is of concern. Government should not be able to in effect command legislation to sate a ravenous media.  Particularly problematic was Blair and Brown’s  wish to pass eye-catching legislation to be seen to be doing something.  These laws quickly fell by the wayside after the media lost interest and simply caused too much complexity and opportunities for abuse. It is legislating in a knee-jerk fashion in place of actually tackling the problems people want addressed. This is noticeable in the Commission’s report, which points out how many of these laws fall into rapid disuse, observing that the time and effort put into their creation could be better spent on actual governing.

The Law Commission says that this trend is undesirable in the regulatory context. Many of the actions criminalised would be better addressed as civil matters or via other regulatory mechanisms. Doing so would ease the costs and strain on our criminal justice system. The same logic ought to apply, by extension, to the criminal law in general. Let’s hope that the current government, which has made something of a promising start, will take heed.

Hello Legislation

The old statute law websites at OPSI and the Statute Law Database are being mothballed and replaced with a single site:  The new site promises to  “[bring] together the legislative content currently held on the OPSI website and revised legislation from the Statute Law Database to provide a single legislation service that replaces the current services”. It claims to hold:

  • All legislation from 1988 – present day is available on this site (see ‘What legislation is missing’ for details of any known legislation we do not carry)
  • There are no secondary legislation items (e.g Statutory Instruments) available before 1988 as they are not available in a web-publishable format.
  • Most pre-1988 primary legislation is available on this site. In some cases we only have the original published (as enacted) version and no revised version. This occurs if the legislation was wholly repealed before 1991 and therefore was not included in the revised data set when it was extracted from Statutes in Force. In other cases we may only have a revised version if the original (as enacted) version is not available in a web-publishable format.

This can only be welcome.  There have been major problems with a system that was creaky, dispersed and unreliable.  This was clear in R v Chambers [2008] EWCA Crim 2467, where a confiscation order was made improperly using legislation that was five years out of date because the changes were not reflected online.  Toulson LJ noted (between paragraphs 68 to 72):

There is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic. This means that the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned, and are entirely dependent on the parties for being able to inform them what were the relevant statutory provisions which the court has to apply. This lamentable state of affairs has been raised by responsible bodies on many occasions, including the House of Lords Committee on the Merits of Secondary Legislation.

It is a serious state of affairs when the relevant legislation is not accessible, the Government’s own public information website (OPSI) is incomplete and the prosecution in an excise case unintentionally misleads the court as to the relevant Regulations in force. Although the problem has in this case arisen in an excise context, it is part of a wider problem of substantial constitutional importance.

Hopefully putting everything in one place under the control of the National Archives should help get on top of things.  Though they state that legislation is only up-to-date to the end of 2002, we will at least now have an idea whether legislation is out-of-date.  The site is certainly easier both on the eye and to use.  One hopes it is just the start of a wider overhaul.

Ian Tomlinson: Further Questions

Despite the characterisation of my previous post (and I will answer the questions that have been asked in due course), I am not satisfied with the outcome of the Ian Tomlinson case. Something wrong happened, we don’t quite know what, and the experience has left a bitter taste in the mouth for many. The family have suffered a practical injustice, and as I said above, are no closer to finding out what happened.

From what I can see, the case raises three points that warrant further research and discussion. I haven’t researched them fully as my LexisNexis and Westlaw accounts have just expired; I’m more interested in raising them to start a discussion.

1. Should Consent be Widened as a Defence?

As I said previously, the likely reason an ABH charge was not pursued is because of ABH’s status as the threshold of consent. After R v Brown, one could only consent to injuries constituting ABH or worse in specific defined circumstances. The obvious examples are sports and surgery.

R v Brown is a controversial case. To very briefly summarise it, a group of adults engaged in extreme consensual sado-masochistic sex. You can read the judgment here. It is controversial because it is criticised as a paternalistic limitation of the freedom of consenting adults. There is also a glaring inconsistency in the idea that responsible S&M sex is criminal, but “rough and ill-disciplined horseplay” is not. What we have also seen is that it creates what might be viewed as an arbitrary scale of injuries to which some might be able to be consented to, but others cannot. More relevant to this case is that where someone has been injured, but not sufficiently on this scale, proceeding under a genuine ABH charge may not be possible because of this policy consideration.

Given that we are moving towards more liberal social attitudes and a greater acceptance of the idea that we are free to do what we like with our bodies, one could argue that this part of the law needs updating. Would we be better by lifting the threshold for consent from ABH to, for example, GBH or wounding (this would still have resulted in convictions in Brown)? Or perhaps we should reverse the current situation, and have a general rule in favour of a defence of consent, with specific exemptions?

2. Poor PR

As I noted in my conclusion, the CPS have not done enough to explain the issues clearly to a lay audience. They have not adequately explained why they have not brought a misconduct charge, nor why the investigation took as long as it did. The decision statement was not one that could walk a layman through each issue step-by-step. It left too much open to speculation. The result is that confidence in the authorities has been shaken more than it ought to be amid accusations of a cover-up.
Even if they had done this though, I’m not sure how much of a difference it would have made. Comments have already suggested that the CPS overstepped the mark, or that in a case perceived as borderline (even if it actually isn’t), it should go to a jury to satisfy the public interest. In theory, this could be possible if we returned to the Grand Jury system (abandoned in 1933). This would, however, be expensive, time-consuming, and an even greater burden on our courts. The system barely exists outside the US now. Suggesting such a large change to the system on the back of one case is excessive, and the merits are unclear. Nonetheless, it remains a possibility that may merit part of a wider discussion.

3. Extending the Six Month Limit?

The biggest point of practical injustice here was that a common assault charge could not be brought because of the statutory six-month limit. This arises because common assault is a “summary offence”, triable only before a magistrate’s court. Under section 127 of the Magistrates’ Courts Act 1980, summary charges have to be brought within six months of the alleged event, unless certain specific exceptions apply. There seems little reason to change this as a general principle. In this specific case, however, it has let an alleged assailant go untried. It presents prosecutors with a gamble: hold out on getting the more serious charge at the risk of losing the whole case, or settle for a lesser charge that may not reflect the seriousness of the crime. It seems that a specific exemption where a delay is caused by investigating a more serious allegation (with reasonable grounds for doing so) might be a solution that doesn’t undermine the purpose of the statute.