I am delighted to launch today the second stage of a truly radical and ambitious law reform project. The Codification of the Criminal Law Project will, in terms of its subject matter and scope, lead to the codification of all of our substantive criminal law in one easily accessible volume. The start date is 1st February, 2007 when this initiative will take effect. I have already made the necessary Commencement Order. This initiative complements the massive Land Law Reform Bill which I am currently piloting through the Oireachtas.
The origins of this venture go back to the Programme for Government. That Programme included a commitment to codify the criminal law into a single Crimes Act. This is not an easy task, as even the non lawyers among you will appreciate. The gainsayers have said in the past it couldn't be done; that it's akin to the search for the Holy Grail. Indeed, I'd be the first person to agree that the work facing anyone undertaking such a job in a common law jurisdiction such as ours is a great challenge. The overlays and interstices of the common law - judge-made rules, many inherited from decisions made before independence - and statute law is almost Sisyphean in its scope. However, the determination and experience of other common law countries in this area, Canada and Australia, in particular, shows what can be achieved if you go about the task in the right way.
The benefits of the success of the project will, I am sure, convince even the most seasoned sceptic as this example will illustrate. Can you imagine a situation where lawyers in a trial and, of course, the presiding Judge, do not have to use the fingers of both hands and considerable manual dexterity to have, for purposes of reference to a library of relevant statutory authorities, not just several Statutes of the Oireachtas and Acts going back several centuries, but thick volumes containing the layers upon layers of Judicial wisdom on the particular offence with which the defendant is charged.
In January, 2003 as a first step in fulfilling the commitment in the Government's Programme, I established an Expert Group under the Chairmanship of Professor Finbarr McAuley of UCD and a member of the Law Reform Commission. In its Report, published in November, 2004 the Group laid the foundations for future work. It outlined the overall structure and style of a criminal code and it recommended that codification should be undertaken on a phased basis using the various tools of restatement, consolidation and law reform, firstly in developing a code and secondly, in maintaining it. Just as fundamental, the Group emphasised the need for a long term commitment to the codification project. Otherwise there was the potential for failure if allocated resources were reduced reflecting a less than dedicated political priority for the initiative.
I have taken the necessary steps to ensure that this project will endure not just to its successful completion, but also for the crucial work of maintaining the Code once it is enacted. This will guarantee that the internal logic and structure of the Code during the course of the ordinary programme of criminal law reform and amendment is preserved. This is also designed to ensure that the difficulties which have been experienced in other jurisdictions which have gone down the codification route of codes becoming unmanageable. Specific provisions have been inserted in the Criminal Justice Act 2006 for this purpose. They provide for the setting up of the Codification Advisory Committee and for its statutory mandate which will guarantee the continuation of the project towards a successful conclusion and thereafter.
I have also ensured that the functions assigned to the Committee are focused so as to place its work on a continuous but phased developmental cycle. There will be specific reporting arrangements in that annual reports will have to be presented detailing progress and the development plan for the following year.
Essentially, while the provisions in our Constitution dealing with the rights and duties of citizens are concise, the corpus of law dealing with criminal offences is vast and, to a certain extent, relatively obscure. The thesis of this Government as I have said is that the criminal law is unnecessarily complex drawing as it does on hundreds of years of common law precedents and countless separate statutes, some of which date back to the days of the Hanoverian Kings. I will deal with the American experience in a moment, but it should be noted that several of the separate common law State jurisdictions in the United States have successfully operated penal Codes for many decades, making life easier for all the stakeholders involved in the criminal justice system, lawyers, Judges, the police, and not least the ordinary citizen. The exercise we are about to embark upon will make the criminal law more accessible and meaningful. This can only be a good thing.
At a slightly higher jurisprudential level, the English Law Commission put it succinctly when it said in 1989 in the context of its proposals for a Criminal Code for England and Wales
".....since the criminal law is arguably the most direct expression of the relationship between the State and its citizens, it is right as a matter of constitutional principle that the relationship should be clearly stated in a criminal code the terms of which have been deliberated upon by a democratically elected legislature."
The main advantage which flows from the codification process is accessibility in the widest sense of the term. What I mean by this is -
- Firstly, it is crucially important in an area of the law which impinges on every member of society, for the rules to be easily found. Much of our criminal law is hidden in Judge made law and it is often more necessary than not to consult digests, legal textbooks and the actual decisions themselves to ascertain what the current position is.
- Secondly, the criminal law should, as far as possible, be easy to understand. Codification offers an unprecedented opportunity to make the law accessible and better understood - not just by lawyers, I hasten to add, but by the ordinary man and woman in the street and, not least, that man or woman when who is called to serve on a jury in a criminal trial.
- Thirdly, codification involves discovering the principles of the law, distilling them and, if necessary, reforming them. Thus, it offers an unprecedented opportunity for relatively simple and ready access to the law with important implications for eliminating obscurity, inefficiencies and lack of clarity in this fundamental area of the criminal justice system.
In a historical sense we are standing on the shoulders of giants. Towards the end of the 19th century moves were made in the major common law countries towards codification of their respective criminal laws. Much of this work was successful. In India, Lord Macauley was the author of the Indian Penal Code which was completed in 1835 and enacted in 1860. The Canadian Criminal Code was enacted in 1892 and the Australian Griffith Codes were finalised in the State of Queensland in 1899, in Western Australia in 1902 and in Tasmania in 1922. Stephen's draft scheme of 1877 in the UK was adopted in 1878 as the Criminal Code (Indictable Offences) Bill, but it was never enacted. Indeed, the experiences of our nearest neighbour in approaching the subject of codification illustrate very well the difficulties ahead in that there have been three unsuccessful attempts at codification in England and Wales.
The latter part of the 20th century has also seen a great deal of codification activity, in particular the American model Penal Code promulgated by the American Law Institute in 1962. This Code has had a seminal influence on the criminal policy and legislation of the individual States, the vast majority of which have now adopted revised Codes whose form and content bear its imprint. Indeed, some of those States have moved further on and have recently embarked on re-codification projects which are designed to take account of the piecemeal accretion which the original instruments have undergone in the decades since their commencement. I am thinking here of the Final Report of the Kentucky Penal Code Revision Project and also of the Final Report of the Criminal Code Rewrite and Reform Commission in Illinois, both published in 2003.
I would now like to say a word about the membership of the Codification Advisory Committee. It will come as no surprise to anyone that the Chairman of the Committee is Professor Finbarr McAuley. Professor McAuley was, as I have said, the Chairman of the Expert Group which laid the foundations for this next stage of the process. He is Jean Monnet Professor of European Criminal Justice a serving member of the Law Reform Commission. The other members of the Committee will be appointed in the course of the coming week.
Having regard to the amount of law reform involved and the potential complexity of the policy issues that are likely to arise, I have gone to some lengths to put in place what I believe are very innovative administrative and research support arrangements for the Committee. Firstly, a dedicated Research Unit will be located within the Law School in UCD, funded by my Department. Secondly, a permanent Secretariat made up of up to 6 people s econded from my Department will assist the Committee in its work and also participate in the research function. This is to ensure a symbiotic relationship between the ongoing programme of criminal law reform and the codification process. As part of this process the Law School will accommodate up to four members of the staff of my Department who may wish to acquire advanced academic criminal law qualifications. In this way, the long term process of codification will feed into the ordinary programme of criminal law reform both within my Department and in conjunction with the work of the Law Reform Commission with which it is closely concerned.
In deciding to establish the statutory body, I relied on the very positive experience of the Company law Review Group which had its origins in the Working Group in Company law Compliance and Enforcement established in 1999 established by Mary Harney TD when she was Minister for Enterprise, Trade and Employment, and which I chaired. I understand that the Company law Review Group has completed its work in codifying our company law and that the heads of a Bill will shortly be presented to Cabinet. That is a great achievement by the Company Law Review Group and its chairman Dr. Tom Courtney.
Make no mistake about it, this is an exciting and far-seeing initiative. I agree wholeheartedly with the opinion of the Expert Group that the net issue for us is not whether our criminal law should be codified, but rather what form such codification should take. The establishment of the Advisory Committee; its statutory underpinning; the creation of a dedicated Research Unit wholly funded by my Department within the law School in UCD which will be a centre of excellence and an advocate for codification; the creation of a permanent Secretariat containing full-time hand-picked staff from my Department who will have access to third level and higher qualifications, will all be critical factors in underpinning and driving the whole project forward under the aegis of my Department. Finally, the connection through the Chairman of the Committee with the ongoing work of the Law Reform Commission will be of tremendous importance in helping to ensure that this project will endure to a successful conclusion.
I wish the Professor McAuley every success in this very important project.
24 January 2007