Tuesday, 23 July 2013

A glance at the Law Commission's work

The Law Commission reviews areas of the law that have become unduly complicated, outdated or unfair. Following a process of research and consultation, the Commission makes recommendations for reform of the law to Government.  The functions of the Law Commission are set out in legislation: Law Commissions Act 1965  and the Law Commission Act 2009

Some of the Commission's current work includes a discussion paper on the problematic area of Insanity and Automatism.  The criminal law relating to these topics is generally considered to be in need of reform.  The insanity defence continues to be based on M'Naghten's case 1843 - please see the post of 27th July 2011 'Breivik - would he have a defence of insanity in English criminal law?'

The Commission has also published its Annual Report 2012-13 and is consulting on their 12th Programme of Law Reform and on Hate Crime.  Responses to an earlier consultation on Unfitness to Plead have also been published.

How effective
is the Law Commission at getting its recommendations actually implemented into law given that it is the government dictating the implementation process.  A mixed picture emerges but the situation can be said to have improved somewhat since the Law Commission Act 2009 which places the Lord Chancellor under a duty to prepare an annual report on those Law Commission proposals implemented during the year.  The report must also address any unimplemented proposals and indicate plans for dealing with them.  Reasons must be given for any decision not to implement proposals.  This important reform was discussed by Joshua Rozenberg in the Law Society Gazette in 2009.

The 2012 Lord Chancellor report (issued March 2012) is available and is worth reading in full.  The government opted against implementation of proposals relating to Participation in Crime.   Whilst accepting the Commission's recommendations (and also those in  a report on Conspiracy and Attempts) the government did not see them as priority areas in the shorter term 'when resources are scarce' and therefore said that neither sets of recommendations would be implemented during the present Parliament.  This is despite the fact that the recommendations 'seem to offer potential and possibly significant benefits to the administration of justice, both in terms of facilitating prosecutions and in better targeting what behaviour should or should not be viewed as criminal.'    (The thorny topic of 'joint enterprise' comes to mind).  Furthermore, the LC's report acknowledged that 'there could be potential savings for the criminal justice system in the longer term in respect of a reduction of appeals and a more streamlined approach to prosecutions.' 

The government also said it would not implement a Law Commission report on Intoxication and Criminal Liability.  The Commission's report addressed the law governing the extent to which a defendant should be allowed to rely on an intoxicated state at the time of commission of an offence.  The present law has been developed judicially via case law.  The Commission wished to codify the law and make it more logical and consistent.  However, the government argued that the present law contained 'well understood processes' and saw no benefit in enacting a 'new test which practitioners would need to master, yet arguably would be scarcely more intelligible.'

The Lord Chancellor's 2013 report is also available.   There were no decisions not to implement any Commission recommendations.  However, a considerable number of recommendations 'roll over' from the LC's 2012 report.

Unfortunately, a regrettable fact is that many defendants are now forced to represent themselves due to cuts in legal aid especially in Magistrates' Courts.  The latest Transforming Legal Aid proposals seem likely to increase the number of such defendants and will also markedly increase the number of litigants in person in civil cases.  It might therefore be thought to be particularly desirable for legislation to be brought forward whenever it can simplify the law.  It is not as though the government lacks legislative opportunity since, as just one example, the Anti-Social Behaviour, Crime and Policing Bill is currently before Parliament.  Could this not have been used as a vehicle to bring forward some of the unimplemented criminal justice recommendations?

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