Herrings Theory of Criminal Law

herrings Theory of evil LawEnglish distressing justicefulness entails sanction for various behaviors/actions and/or subjects and these prohibitions be sprawling through come in numerous statutes and judgements. Generally speaking, the law categorizes wretched liability in two types of offences those whose result is prohibited result offensives and those which carry sanction on a crabbed 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 impressus Reus the Mens Rea. In Latin the aphorism submits actus non facit reum nisi mens sit rea which means that an act is not barbarous in the absence of a conscience-smitten oral sex R v. Miller1. The physical actions/inactions, circumstance consequences are covered by the Actus Reus, thus each crime punishable by state sanction will prescribe a prohibited action or omission with its consequences in order to determine the guilt o f the accused. On the other hand, Mens Rea refers to the defendants state of mind and allows the work bench to assess whether the accused intended 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 Law care in its reports paid heed to the necessity of a consolidated and cypherd criminal law regime3. They procrastinated that the criminal cipher will style the law in a more accessible, comprehensible, consistent and certain 4 manner. However, in 2008, the Commission was finally liberated from its ever long by-line of realizing a consolidated criminal code, in England Wales. The editors of the sinful Law Review, expressed their profound displeasure, in their chromatography column named sunder The deplorable Code (1968-2008)5 stating that it was a sad end for a noble musical themel but, i n reality, this vagary of the criminal 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 leave alone certainty as it will clearly demark the rules which provide for the determination of a persons guilt6. This bear on, was hoped, to simplify the lengthy and exuberant, common law methodology where principles of offence are enshrined in case law rather, sometimes ambiguously and with loose interpretations, tailored by judges as aids 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 implicit in(p) 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 crimin al code will serve 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 world-wide public as well. Furthermore, Smith 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 conduct instructions to judges and juries, in determining verdict. He views rules of conduct as taking a communicative function, se rving 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 reflect the moral wisdom of the public rather than focus its efforts on linguistic clarity 12. Herring, further points out that such a code will also 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 also 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 extinguish old, and unsustainable laws, not practiced in todays society, he gives the example of s.36 Offences Against the mortal 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-made average into a codified n orm would be unsuccessful. He states that it is essential to appreciate that the Law Commission was primarily concerned with structural clears, 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 organic identity, i.e. its form at a lower place which it exists. And a second dimension, he mentions, is the prescriptive space under which a norm exists this could range from big legal norms to precise 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 plot of ground guarding its prescriptive space, i.e. the common law doctrines. He claims that any effort to modify the organic identity of judge-mad e norms and lock up 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 pick out 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 capabl e of respecting 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 numerate of codification effectively defeats the crucial 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, sixth 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 clergyman 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 All ER 961 (CA).16 de Brca and Gardner (1990).17 THE CODIFICATION OF JUDGE-MADE NORMS IN THE CRIMINAL LAW A RESPONSE TO THE LAW COMMISSION REPORTS by asshole VERBRUGGEN NORTH EAST LAW REVIEW pg.83