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The big idea

1 October 03

One of the authors of the Draft Criminal Code for Scotland explains the thinking behind it and the issues they had to address

by Eric Clive

Origins and progress

The telephone rang. It was Sandy McCall Smith. “Chris Gane is with me. We’ve been discussing something you might be interested in. Could you join us for lunch?” That was the beginning of the criminal code project. Over lunch I protested that I was not a criminal lawyer. No matter. They wanted somebody with experience of working on law reform projects and draft Bills.

In putting their case for a code Chris and Sandy were preaching to the converted. There are many arguments for preferring a codified criminal law to a common law system, including arguments which have to do with accessibility, clarity, coherence, structure, reliability, stability, democratic legitimacy and respect for human rights. But the simplest is this: it makes no sense to bury the law in ancient textbooks and thousands of pages of law reports if it can be set out just as well in 50 pages of statute.

But could it be? There was only one way to find out.

We began work, slowly at first. We were greatly strengthened when Pamela Ferguson joined the group. In November 2000 we presented a draft code to a consultation conference in Edinburgh University. We then revised and expanded it. Sir Gerald Gordon, although not a code enthusiast, generously participated in discussions in the later stages and made many helpful comments. He is not, however, responsible for the draft and would not necessarily agree with everything in it. We were delighted when the Scottish Law Commission offered to publish the draft code and commentary as a consultation paper.

A framework for solutions

In the course of our work we had to solve hundreds of problems. Whether we have solved them well is for others to judge, but one point must be clearly made. The case for codification does not rest on the particular solutions adopted. We have provided a possible framework. If the project goes ahead it will be for the Parliament to decide on particular solutions. It would often be easy to alter the policy within the framework provided. For example, we have provisionally inserted 12 as the age of criminal responsibility. That is just a marker. The Parliament could insert a different figure if this was thought to be more appropriate.

To restate or reform?

One question was whether the draft code should be a restatement of the law, warts and all, or a reforming measure. Our initial thought was to restate, including only such minimal reforms as might be necessary for internal consistency. However, we moved away from that idea. There seemed to be no point in preserving doubts and defects which the Parliament would be unlikely to tolerate.

So the draft code includes innovations on the common law. These include – clearer rules on the mental element in crime; new rules on overlapping and aggravated offences; new rules on offences by corporate bodies; a fully developed defence of lawful authority (which would not, however, justify the use of excessive force or corporal punishment, even by parents); updated rules on the definition and effects of mental disorder; new offences of torture, inhuman and degrading treatment and slavery; an expanded offence of drugging; new offences of violent and alarming behaviour and intrusive and alarming behaviour (to replace the “private” types of breach of the peace); a new offence of entering into a forced marriage; new rules on rape and other sexual offences; an expansion of the law on incest to cover sexual conduct falling short of intercourse; a reformulation of the law on theft and a clearer set of distinctions between theft, robbery and embezzlement; a correction of the anomaly that breaking into someone’s house is not as such an offence; a new offence of causing an unlawful risk of damage to property; a new offence of making off without payment; a new offence of wasting the time of the emergency services; a new offence of interfering with human remains (to replace and extend the archaic offence of violation of sepulchres); a new basic law on wanton cruelty to animals; a sentencing framework based on the view that there ought to be clearly stated differences between the maximum punishments for different types of offences; and the abolition of the mandatory sentence of life imprisonment for murder.

This is not an exhaustive list. The code is a reforming measure. Its enactment would provide an opportunity to effect many minor reforms which would not justify legislation on their own.

Coverage

Our initial idea was to replace only the common law. However, it seemed odd, for example, to include some sexual offences in the code but to exclude closely related offences which had recently been consolidated in the Criminal Law (Consolidation) (Scotland) Act 1995. There was a case for including some statutory offences. On the other hand it did not seem to be necessary, at least initially, to include offences, such as road traffic offences, which were already in their own “codes” and which, in any event, were often reserved matters. Nor did it seem sensible to include offences which merely provided a sanction for the breach of a regulatory rule. The result is that the draft code replaces the common law offences and some related statutory offences.

Penalties

The common law provides no indication of the relative gravity of offences. The maximum penalty for all common law offences (if tried on indictment in the High Court) is life imprisonment. It seemed to us that it would be unsatisfactory to continue this system into the code. We thought that the public would expect the Parliament to give at least some indication of the relative seriousness of offences. The draft code therefore contains a schedule of maximum penalties for all offences in the code. This allocates each code offence to one of six categories. Offences in category A, for example, carry a maximum penalty of life imprisonment or a fine or both. Murder, torture, rape and a few other offences are in this category. Offences in category F carry a maximum penalty of three months’ imprisonment or a fine not exceeding level 3 on the standard scale. Indecent conduct, for example, is in this category. It would be very easy for the Parliament to alter the categories of offences. It is important to stress that these are maximum penalties. The code contains no minimum or mandatory penalties, and therefore does not retain the mandatory life sentence for murder. Courts would have discretion within the maximum limits fixed. Section 34 also preserves any powers to increase sentence in the light of previous convictions or other extraneous factors. The objective is to introduce some order into sentencing for the most common crimes while preserving necessary judicial discretion.

A few illustrations

There are 75 offences in the code. There is space here to mention only four.

Murder

Should murder be limited to intentional killing? There were initially different views within the group. In the end we agreed that the case for reform was not so strong as to justify a departure from the traditional approach. Accordingly, section 37(1) provides that: “A person who causes the death of another person with the intention of causing such a death, or with callous recklessness as to whether such a death is caused, is guilty of the offence of murder”. This is similar to, but possibly clearer than, the existing law. It will be seen that “callous recklessness” is used instead of “wicked recklessness”. The word “wicked” did not seem entirely appropriate in a modern criminal code and might carry some unwanted baggage with it. Of course, if the Parliament preferred to retain “wicked” that could be done by changing one word.

“Recklessness” in the code includes objective recklessness – covering, in this context, the situation where the accused ought to have been aware of the risk of causing death even if not actually aware of it.

Assault

Assault is one of the most commonly prosecuted offences. Under the existing law consent is not a defence, but that rule gives rise to obvious and serious difficulties. Section 41(1) of the code provides that “A person who attacks another person, presents a weapon at another person in a menacing manner or uses force against another person, without that person’s consent, is guilty of the offence of assault”. As the word “attack” might by itself give rise to uncertainty, the code provides a non-exhaustive list of what it would cover. Attacking a person includes punching, kicking, hitting, biting, grabbing or pushing that person; striking, stabbing or cutting that person with a weapon or implement; causing that person to be struck by any projectile; causing that person to come into contact with any object or structure to that person’s injury; and otherwise infringing that person’s interest in bodily integrity.

Under this provision the consent of the victim would normally be sufficient to prevent an offence from being committed. For example, a doctor would not commit an assault by cutting a person in the course of an operation to which the patient had consented. A boxer would not commit an assault by punching an opponent in the course of a boxing match. However, section 111 of the code provides for certain cases where the consent of the victim is to be disregarded. These include cases where the consent was to a socially unacceptable activity likely to cause serious injury or a risk of serious injury. So, for example, a consent to a duel or to a street fight would not prevent a prosecution for assault.

Rape

Section 61 provides that a person who has sexual intercourse with another person without the consent of that person and who knows that the other person does not consent, or is reckless as to that fact, is guilty of the offence of rape. It has already been noted that the code defines recklessness in objective terms. In the context of rape this means that a person will be reckless if the person is or ought to be aware of an obvious and serious risk that there is no consent but nonetheless acts where no reasonable person would do so. It would not be a sufficient defence under the code for a man accused of rape to say “I genuinely believed she consented” if a reasonable person would not have formed that belief.

In the code “sexual intercourse” includes anal intercourse. So male rape is covered in the same way as rape of a woman.

Section 111 (mentioned above) provides that consent to sexual intercourse is to be ignored if at the time when the consent was given the person was under 12 years of age. So any sexual intercourse with a child under the age of 12 is rape. (There are other provisions in the code to protect older children or young people.) Section 111 also provides that a person’s consent is to be ignored if the person giving the consent was, by reason of his or her young age or mental disorder, unable to understand what was being consented to or to withhold consent; if the consent was induced by force or fear or was otherwise not freely given; or the consent was induced by fraud as to the nature of what was being consented to or the identity of the person doing what was  consented to.
It is obvious that this section reforms the law of rape much more comprehensively than would be possible by resort to the common law.

Theft

The courts have, in recent years, expanded the definition of theft to include certain types of dishonest or objectionable behaviour, such as temporarily appropriating property or wheel-clamping cars, which lay people would not consider to be theft. The code has a separate offence of criminal interference with property (section 83) which deals with cases of this type. This enables the definition of theft to be more in line with ordinary usage. Section 77(1) of the code provides that “A person who steals another person’s property is guilty of the offence of theft”. “Stealing” is defined in the code as appropriating property, without the owner’s consent, with the intention of depriving the owner permanently of it or being reckless as to whether or not the owner is deprived permanently of it.

The next steps

The Scottish Law Commission has invited comments by 15 December 2003. The consultation period is an opportunity for constructive comments from a wide range of people and bodies – solicitors, advocates, judges, police authorities, professional bodies, voluntary organisations and others – with an interest in shaping the future criminal law of Scotland. The nature of those comments will help to determine the future of the draft.