Codification of the Criminal Law: An Attainable Ideal?

Abstract

As the Law Commission welcomes suggestions for the 11th Programme of Law Reform, this article argues that the criminal law is an ideal candidate for reform and explores the potential for the implementation of a criminal code in England and Wales. While numerous obstacles exist to impede codification efforts, namely institutional and professional hostility, claims that a criminal code's theoretical foundations are incompatible with England's common law sympathies, and the current trend towards stop-gap legislation, the author nevertheless argues that a criminal code is necessary in order to rectify the substantial lacunae in the fundamental relationship between the individual and the state. The article sets out the case for a criminal code and examines reasons of failed attempts at codification, which was once at the forefront of the Law Commission's reform agenda. Endeavours such as Bentham's Utilitarianism, Macaulay's efforts in India and the 19th century Law Commissioners are scrutinised in an attempt to divine the likelihood of codification and conditions for success. German criminal law is endorsed as a source of inspiration in the search for a coherent and efficient code and the author submits that with the support of the judiciary, Parliament, government and legal scholarship, criminal codification is attainable.