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You are here: BAILII >> Databases >> United Kingdom Judiciary Speeches >> Lord Bingham of Cornhill, Lord Chief Justice of England & Wales : Speech at Dinner for HM Judges [1998] UKSpeech Z2B7L (22 July 1998)
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Cite as: [1998] UKSpeech Z2B7L
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Lord Bingham of Cornhill
Lord Chief Justice of England
Speech at Dinner for HM Judges
The Mansion House, London
22 July 1998
It is my privilege, on behalf of all the judges here tonight, to thank you for your warm words of welcome, and to thank you and the City Corporation for again extending to us the legendary hospitality of the City.
It was that unfailing fount of wisdom on almost every subject - Samuel Johnson - who once observed
"Sir, when a man is invited to dinner, he is disappointed if he does not get something good".
And he later added:
"... depend upon it, Sir, a man does not love to go to a place whence he comes out exactly as he went in".
My Lord Mayor, we come to the Mansion House rightly confident that we shall not be disappointed; and we most certainly shall not go out exactly as we come in, not even those who are driving.
We are conscious, My Lord Mayor, that in the course of your distinguished Mayoralty you have already entertained Her Majesty's Government, the bankers and financial institutions of the City, the corps diplomatique and the hierarchy of the Church. I can only hope that you find, combined in us, the virtues of each of these groups: the modest, understated reticence of the politicians; the selfless altruism of the bankers; the transparent simplicity of the diplomats; and the sobriety of the bishops. As yourself a practising solicitor and the chief magistrate of the City, we hope you feel as much at home with us as we are privileged to feel at home with you.
It is I think clear, My Lord Mayor, that we are currently witnessing a degree of constitutional, institutional, procedural and professional change of which we have not in combination seen the like for 350 years. One need only mention such expressions as Devolution, House of Lords reform, Human Rights, Freedom of Information, Woolf, Modernisation of Justice for the seismic nature of the current changes to be appreciated. They are, one can have no doubt, changes intended to meet the needs, hopes and expectations of citizens of this modern plural democracy governed as it is by the rule of law. But there is one feature of such a democracy which, I fear, we shall still lack: something enjoyed by our former colonies, and almost all the great countries of the world; something which has the support of the present government, as of its predecessor; something which we have in the past come tantalisingly close to achieving. I refer to enactment of a clear, authoritative, comprehensive, accessible, modern, written statement of our criminal law. In short, a criminal code.
The plea for such a code cannot, I fear, startle by its novelty. In 1818 both Houses of Parliament petitioned the Prince Regent asking him to establish a Law Commission to consolidate the statute law of England. In 1831 a Commission was set up to enquire into the possibility of codifying the criminal law. The Commission produced its first report in 1835 and seven further reports over the next ten years, culminating in a Criminal Law Code Bill which was referred to a Select Committee and then dropped. In 1879 a Royal Commission under the eminent chairmanship of Lord Blackburn recommended the adoption of a draft criminal code containing over 550 clauses. Between 1844 and 1882 Lord Brougham and others made no fewer than eight separate parliamentary attempts to secure enactment of such a code. All ended in failure. And then the campaign flagged until, in 1965, the Law Commission was established and charged by Parliament to review the law of England and Wales "with a view to its systematic development and reform, including in particular the codification of [the] law ... and generally the simplification and modernisation of the law". The criminal law was an obvious - the obvious - candidate for codification. So a Criminal Code team was set up, notably including Professor Sir John Smith, whom most would gladly hail as the outstanding criminal lawyer of our time. A code was produced and published in 1985; it was revised and expanded in 1989. It has very largely withstood the appraisal and criticism to which it has been properly subjected, and has in general commanded respect and support. But the code has not been enacted, not for want of confidence in its objects on its contents, but for lack of parliamentary time, a powerful but not, surely, an insuperable obstacle. The Law Commission has tried, with indifferent success, to achieve what it can on a partial, piecemeal basis. But this is a far cry from a comprehensive code containing a general statement of principles, and defences, and offences, and penalties, and procedure and evidence, accessible to every citizen.
The arguments in favour of codification are what they have always been. First, it would bring clarity and accessibility to the law. As the Attorney General put it in the House of Commons 119 years ago:
"Surely, it is a desirable thing that anybody who may want to know the law on a particular subject should be able to turn to a chapter of the Code, and there find the law he is in search of explained in a few intelligible and well- constructed sentences; nor would he have to enter upon a long examination of Russell on Crimes, or Archbold, and other text-books, because he would have a succinct and clear statement before him".
Secondly, a code would bring coherence to this branch of the law. Sir John Smith has expressed his general disbelief in codes - a disbelief which I for my part share - but he continued:
"The criminal law is entirely different. It is incoherent and inconsistent. State almost any general principle and you find one or more leading cases which contradict it. It is littered with distinctions which have no basis in reason but are mere historical accidents. I am in favour of codification of the criminal law because I see no other way of reducing a chaotic system to order, of eliminating irrational distinctions and of making the law reasonably comprehensible, accessible and certain. These are all practical objects. Irrational distinctions mean injustice. A is treated differently from B when there is no rational ground for treating him differently; and this is not justice".
Sir John has entertained generations of students, practitioners and judges by highlighting the anomalies in our present law. As the present chairman of the Law Commission has herself said, the cure now can only be achieved by codification; it cannot be provided by the courts alone.
Thirdly, a code would bring greater certainty to the law, and in this of all fields the law should be so far as possible certain. The arguments for incremental development of the law, persuasive elsewhere, have no application here. It is not just that a defendant should be held punishable for an act which would not have been thought criminal when he did it; and if he is held not liable for conduct which would at that time have been thought criminal, the almost inevitable consequence is that others have been unjustly punished. Incorporation of the European Convention reinforces the need for certainty if the principle of legality is to be observed.
Even the most breathless admirer of the common law must regard it as a reproach that after 700 years of judicial decision-making our highest tribunal should have been called upon time and again in recent years to consider the mental ingredients of murder, the oldest and most serious of crimes.
The task is not beyond us. Writing in 1966 of the Indian Criminal Code, devised by Macaulay and Stephen among others, an Indian author said:
"The Code has been very successful. It has stood the test of time very well. A proof of its intrinsic worth and merit may be found in the fact that during the last century that it has been in force it has not been found necessary to amend it except only a very few times, and substantially the Code subsists as it was enacted in 1860".
For 25 Canadian dollars the Canadian citizen can buy a small paperback which contains a comprehensive and comprehensible statement of everything he, and the policeman, and the judge, need to know about the substantive criminal law, evidence, procedure and sentencing in Canada.
And so I could go on. But I shall exercise the judicial quality of mercy. I leave the last word to Lord Campbell, a predecessor not only of mine but of the Lord Chancellor, speaking in 1845:
"There was not a country of the Continent that had not its criminal law reduced into form, and published for the benefit of those who were either to administer or to obey it. There was now no reason why the people of this Empire should not enjoy the same advantage; and he trusted that this just reproach upon our legislation would soon be wiped away, and that a criminal code would be prepared for Great Britain".
One hopes that parliamentary time may yet be found to achieve something that has eluded our predecessors but would, I think, come to be recognised as an important milestone in our legal and public life.
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