By s 6 of the HRA 1998, it is unlawful for ‘public authorities’ to violate any Convention right or act in a way that is incompatible with a Convention right. ‘Public authority’ includes courts and tribunals and private individuals and organisations performing public functions (s 6(3)(b)) but does not include either House of Parliament (s 6(3)).
Obligation on the courts
Section 2 of the 1998 Act provides that judges must take into account the jurisprudence of the ECtHR when determining an issue arising in connection with a Convention right. This is the relevance of the ECHR to domestic law. In addition to their obligations under s 2, s 3 of the HRA 1998 also provides that judges must interpret national legislation ‘so far as is possible’ in line with the Convention. In circumstances where the legislation cannot be interpreted in line with the Convention, domestic courts must make a declaration of incompatibility (HRA 1998, s 4). The effect of this declaration is not to make the law invalid but to require Parliament to consider the need for reform (see AG’s Reference (No 4 of 2002) [2005] 1 AC 264).
1.6.3.3 International law
According to the website of the United Nations (<www.un.org>), international law ‘defines the legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries’. International law sets rules and policies that govern relations between international states and their citizens.
Beginning with a membership of 51, the United Nations, amongst other bodies, is responsible for addressing the needs of 193 Member States. According to Article 2, para 1 of the UN Charter, international law is ‘based on the principle of the sovereign equality of all its Members’. Each Member State is thus considered equal and not subject to any form of supranational authority without the consent of the Member State concerned.
International law can be considered as relevant to the domestic criminal law in two respects:
•International criminal offences: The Rome Statute 1998 had the effect of creating the International Criminal Court (ICC) and defining core international criminal offences, such as genocide, war crimes and crimes against humanity. These crimes were incorporated into domestic law by the International Criminal Court Act 2001. These offences are not considered in any further detail in this text, but for a full treatment, you may wish to consult, for example, Guilfoyle, International Criminal Law (OUP, 2016).
•Influence on domestic law: Given that the majority of offences lack any international sphere (eg a battery is unlikely to have any international implications), domestic law rarely integrates with international law and conventions. However, certain offences, for example fraud and blackmail, can be committed on such a large scale that their relevance moves towards the international remit.
1.6.3.4 The law of other jurisdictions
The criminal law is territorial in nature, meaning that it applies, for the most part, in England and Wales. However, law from such jurisdictions as Canada, New Zealand, Australia, and the USA may be relevant when considering our own law in comparison. On many occasions, the Supreme Court, in determining a matter of interpretation, will turn to the law of another state to understand how a term has been defined there. In this respect, the law of other jurisdictions (not to be confused with our concept of ‘international law’ above) is a useful and potentially persuasive aid to the interpretation of our own law. On a more academic level, law from other jurisdictions is vital in evaluating the law and identifying the strong (and equally weak) points in our own legal system.
1.6.4 Reform
The substantive criminal law is continuously under review as a result of judicial interpretation, Parliamentary reform and academic commentary. Such detailed review means that the criminal law is far from being a static subject; rather, it can best be described as a dynamic and cumulative body of rules influenced by a social and political backdrop. Throughout this text, references will be made to the ‘reform’ of a particular area of law. Such content will allow us to delve deeper into the substantive law and evaluate its effectiveness. In order to do so, however, we first need to be able to comprehend the different bodies responsible for reviewing and reforming the criminal law.
1.6.4.1 Law Commission
The Law Commission was set up in 1965 following the enactment of the Law Commissions Act (LCA) 1965 for the purpose of ‘promoting the reform of the law’ (LCA 1965, s 1(1)). The Commission is headed by a Chairman (at the time of writing, Sir Nicholas Green) and four Commissioners, including Professor Penney Lewis, who is the Commissioner for criminal law. The Commission is an independent body, though it is sponsored by the Ministry of Justice. The aim of the Law Commission is to ensure that the law is:
•fair;
•modern;
•simple; and
•cost effective.
The work of the Law Commission in reforming the criminal law has been preeminent for a number of years (and has effectively superseded the work of the Criminal Law Revision Committee (CLRC)). The Commission will produce a consultation paper before then publishing a full report, with the potential inclusion of a draft Bill. Many reports have been successfully adopted by the government of the day (see, for example, ‘Assisting and Encouraging Crime’ (Law Com No 131, 2006) which was implemented by the Serious Crime Act 2007). These reports are useful for providing detailed summaries of the law as it stands, the problems with the law and the proposals for reform. Other reports have not been accepted by the government (eg ‘Intoxication and Criminal Liability’ (Law Com No 314, 2009)).
1.6.4.2 Draft Criminal Code
Many countries, mostly civil law countries, have a Criminal Code, which sets out the definitions for all criminal offences, defences and procedures. These Codes are comprehensive in nature. The Law Commission, for many years, has proposed the adoption of a Criminal Code for England and Wales. In 1989, the Law Commission proposed a draft Criminal Code (‘Criminal Code for England and Wales’ (Law Com No 177, 1989)) which would have codified the majority of the existing laws on the general principles of criminal liability and specific offences against the person, property and those relating to public order. The Code lays out the fundamental rules of the criminal law and provides detailed definitions, explanations and circumstances to aid in the understanding of the criminal law.
Bennion (‘Codification of the Criminal Law – Part 2: The Technique of Codification’ [1986] Crim LR 105) took the view that the proposed reform was over-generalised and incomplete. Particularly, Bennion was critical of the simplified nature of the Code, expressing that ‘you do not simplify by oversimplifying’. Ashworth (‘Codification of the Criminal Law – Part 3: The Draft Code, complicity and the inchoate offences’ [1986] Crim LR 303) furthers this view, contending that an oversimplified version of