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CODIFICATION OF CRIMINAL LAW

Comment 27th July 2010

All criminal laws should be repealed.  A new 'Criminal Code' should be introduced, defining all crimes and their respective penalties.  All future changes to the criminal law should be by a change to the 'Criminal Code', rather than by stand alone Act.  The 'Code' should set out, in its first part, the basic principles and tenets of criminal law in England & Wales.

In respect of punishment, I would suggest that prison should be reserved for those cases where there is a very high element of mens rea, ie that intent is established, or where there is a well founded need for the protection of the public from harm (individual or in general).  All other cases should be handled without custody, with a strong emphasis on compensation to victims, restorative justice and rehabilitation.  We should not be imprisoning people because the victims, or their families, expect it.  (Note, wilful failure to pay compensation, or to comply with other disposals ordered by the court, indicates a high level of mens rea)  I would contend that the adoption of such principles would minimise short term custodial sentences and reduce the prison population significantly.  Sentences should reflect the act/failing of the offender, and their culpability, not the outcome of the act/failing.

All penalties for eg failure to put household rubbish in the right bag, should be abolished and replaced with a system of discounted council tax/rates for doing the right thing (ie carrot, not stick).

Consideration should be given to how much of an overlap there is between the Harrassment Act 1997 and Common Assault (Criminal Justice Act 1988).  Common Assault does not require physical contact, apprehension of immediate physical contact is sufficient.  Any overlap should be eliminated by cutting back the Harrassment Act and relying on Common Assault.  Section 5 of the Public Order Act 1986 should be redrafted to make less likely the successful prosecution of trivial offences, or prosecution where there is no compelling evidence of real 'harassment, alarm or distress' to a genuine victim.  In my area, a few years ago, someone was prosecuted successfully for saying 'oink oink', as he walked past a policeman.  I'm not saying that this is desirable behaviour, but it does not require the application of the criminal law.  Prosecution in such cases merely serves to bring ridicule on the Criminal Justice system.

Whilst it is important to take account of the needs of victims, we should be careful not to go too far.  We are, at present, in danger of institutionalizing victimhood.  The outcome is that victims are unable to move on and get on with their lives.  We need to be opening up avenues of restorative justice, with the objective of genuine remorse on the behalf of the offender, and genuine forgiveness on the part of the victim.  Only through forgiveness is it possible for victims to leave their victimhood behind them, and to get on with the rest of their lives.

Why does this matter?

The 'Criminal Code' would be the single biggest reform of the criminal law ever.  It would bring logical coherence to the criminal law and make clear is principles and purposes to all citizens, law enforcement agencies, public bodies etc.

Other suggestions are designed to make life less burdensome, based upon my experience in the courts.

Suggestions with regard to victims are heartfelt.  We need to ensure that victims are well catered for and looked after, but victim's justice is undesirable, and victims do not benefit by being institutionalized in their victimhood.

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