Law and Rights

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The Law Commission reviews areas of the law that have become unduly complicated, outdated or unfair.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?

- Modernising The Rules On Unfitness To Plead
The Law Commission wishes to see new rules relating to Unfitness to Plead - a matter that became very topical when Lord Janner was prosecuted in 2015 for alleged sexual offences - (previous post). Janner died in late 2015. Law Commission - ...

- Joint Enterprise (3) - Concerns Are Widespread
The problematic aspect of criminal law commonly referred to as "Joint Enterprise" has been in the news recently as a result of a televised drama by Jimmy McGovern - COMMON. Please look at the previous posts on this topic - 4th April 2014 - Joint Enterprise...

- Joint Enterprise 2 ~ Involvement In Crime
Previous post - Joint Enterprise 1 - Setting the Scene The criminal law seeks to punish not only principal offenders (those who perform the act prohibited by the definition of a criminal offence) but also a range of others who are involved in crime. ...

- Criminal Law ~ The Law Commission On Insanity And Automatism
Included in recent publications by the Law Commission are: (a) Discussion paper on Insanity and Automatism published 23 July 2013 and (b) Unfitness to Plead consultation responses published 10 April 2013. a) Insanity and Automatism: In July 2012, the...

- The Queen's Speech - A Lot To Do
The State Opening of Parliament was held on Tuesday 25th May with the usual pomp and pageantry. The real business of Parliament now begins and interesting days lie ahead. The Queen's Speech contained 23 Bills (and one draft Bill) - see...

Law and Rights