Herring’s Theory of Criminal Law

English bent law entails sanction for assorted behaviors/actions and/or results; and these prohibitions are sprawling throughout abundant statutes and judgements. Generally speaking, the law categorizes bent accountability in two types of crimes; those whose aftereffect is prohibited; aftereffect crimes and those which backpack sanction on a accurate conduct, conduct crimes. Additionally, it charge be remembered that although a abomination may either be aftereffect or conduct, it consistently has two elements to it; the Actus Reus & the Mens Rea. In Latin the adage states “actus non facit reum nisi mens sit rea” which agency that “an act is not bent in the absence of a accusable mind”; R v. Miller[1]. The concrete actions/inactions, accident & after-effects are covered by the Actus Reus, appropriately anniversary abomination amiss by accompaniment sanction will appoint a banned activity or blank with its after-effects in adjustment to actuate the answerability of the accused. On the alternative hand, Mens Rea refers to the defendant’s accompaniment of mind; and allows the cloister to appraise whether the accused advised or was either adventuresome or negligent; in committing the crimes that s/he is accused of. Both these elements charge to be accepted by the prosecution, “beyond reasonable doubt”, Woolmington v DPP [2], for the accused to be captivated accusable of the crime.

The Law Commission in its letters paid heed to the call of a circumscribed and coded bent law regime[3]. They procrastinated that the bent cipher will appearance the law in a “…more accessible, comprehensible, constant and certain” [4] manner. However, in 2008, the Commission was assuredly absolved from its anytime continued following of acumen a circumscribed bent code, in England & Wales. The editors of the Bent Law Review, bidding their abstruse displeasure, in their beat called “RIP: The Bent Cipher (1968-2008)”[5] advertence that it was a ‘sad end for a blue-blooded ideal’; but, in reality, this abstraction of the bent cipher was rather unattractive, amidst several alternative jurists.

Herring in his book, explores the abstraction of the bent code, and finds that absolutely the cipher would accommodate “certainty”; as it will acutely bind the rules which accommodate for the assurance of a person’s guilt[6]. This process, was hoped, to abridge the diffuse and exuberant, accepted law methodology; area attempt of answerability are anointed in case law; rather, sometimes ambiguously and with apart interpretations, tailored by board as aids to justice, in accurate scenarios. Although, Herring never meant that accepted law interpretations are inaccurately based but rather explores the abstraction that a allocation bent law will strengthen the assumption of legality, in rather built-in terms; i.e. it will advocate the break of powers, by attached the conception of the law to the Parliament, not the judiciary.

Secondly, Herring acknowledges that the arch advantage that a accounting bent cipher will serve in its accessibility; as it will serve to the associates of the public, a admonition of their rights, liberties and duties. However, in Chambers[7], Toulson LJ, a chief affiliate of the attorneys himself, criticizes the bound admission to statute law, as a albatross to admission to justice. Thus, apparently acknowledging the abstraction of a bent code, all encompassing, and in the activity accouterment burning admission to the attorneys & acquaintance to the accepted accessible as well. Furthermore, Smith & Hogan, accurately credibility out that the acceptance of a bent cipher would figuratively bear accuracy on the state’s position, in affiliation to bent behaviors[8].

Paul Robinson[9] in his book, proposes a cipher which distinguishes rules of conduct, which he proposes are aimed at the accessible at ample and accommodate accuracy and guidance; from those of attribution, which absolute instructions to board and juries, in free verdict. He angle rules of conduct as demography a ‘communicative function’, confined as a advice for the accessible and appropriately charge be kept as absolute and bright as possible. However, his critics, point out that such rules of conduct, firstly apathy situations area crimes are a aftereffect of a banned action, i.e. aftereffect crimes [10] and secondly they exclude any adumbration of the accompaniment of the apperception of the accused, i.e. Mens Rea[11]. Consequently, Antony Duff abundantly credibility out that the bent cipher charge aboriginal reflect the moral acumen of the public; rather than focus its efforts on linguistic accuracy [12]. Herring, added credibility out that such a cipher will additionally accommodate ability to the cloister system, as the cipher will accommodate accuracy and accessibility, appropriately enabling board to accord appropriate verdicts. Proponents of the cipher additionally affirmation that the activity of drafting the new bent cipher will itself bright best of the contradictions and ambiguities. Thus, Herring claims that afterlight the cipher will rather extinguish old, and unsustainable laws, not accomplished in today’s society, he gives the archetype of s.36 Offences Against the Person Act 1861[13].

At the aforementioned time Herring, lists the abeyant pitfall of the code, primarily, he criticizes that there is no agreement that the bent cipher would become a “bestseller”; advertence doubts in accessible absorption in the code[14]. Furthermore, he addendum that the drafter overemphasized the allowances of the code, he credibility out that cases which crave an assay of law & chastity will abide alfresco its scope; the belled accessory twins case [15]. Correspondingly, De Burca[16] states that the allure with simplifying the cipher pays no heed to the actuality that a accurate bent answerability represents an assay of a deluge of “political, ethical, and practical” concerns, affecting the way a accurate law develops for a accurate offence.

But, the final attach in the coffin, is ashore by J. Verbruggen[17] and his assay of this concern; area he asserts that “a structural transformation of a judge-made barometer into a allocation barometer would be unsuccessful.” He states that it is all-important to acknowledge that the Law Commission was primarily anxious with structural reforms, rather than any absolute reform; and declared that the drafters were “not anxious with law reform”, but rather employing allocation to accomplish the law simpler (11).  He draws acumen aural a acknowledged barometer as accepting two dimensions; firstly, its “organic identity”, i.e. its anatomy beneath which it exists. And a additional dimension, he mentions, is the “normative space” beneath which a barometer exists; this could ambit from absolute acknowledged norms to absolute action contemplations. He says that it is the aggregate of both these elements which architecture the anatomy of a barometer and emphasized that the drafters aimed at altering the amoebic character of judge-made norms; i.e. the anatomy in which case law exists; while attention its normative space, i.e. the accepted law doctrines. He claims that any accomplishment to adapt the amoebic character of judge-made norms and still advance its normative space; would be “structurally impracticable”. He suggests that an assay of adjudicator fabricated norms reveals “normative considerations” after any specific arrangement of priority. He purports that back such norms are to be crude into a code, assertive normative considerations will be accustomed antecedence over the other; which, otherwise, would eventually advance to “editorial choices” amidst the drafters. He concludes that the drafters bootless to apprehend that adjudicator fabricated norms are organically altered to allocation norms, as the closing are added akin in nature, than the former; and that allocation norms do not in their entirety, represent the exact ambit of normative considerations that abide in judge-made law.

The Bent Cipher as envisaged by the Law Commission was a attentive abstraction and a through effort, but acutely it came to a halt, amidst juristical considerations. Admittedly, it charge be assured that because allocation is not fundamentally able of apropos the normative amplitude of a judge-made norm, it creates doubts. Although, it seems fair to accompaniment that the Cipher does accommodate for accessibility, as accurately appear by Herring; but, these doubts which abide to the amount of the amount of codification; finer defeats the acute belief set alternating by the Law Commission of bendability and certainty.

[1] R v. Miller [1983] 2 AC 161, 174 (HL)

[2] Woolmington v DPP [1935] AC 462

[3] Law Commission, ‘Criminal Law – Allocation of Bent Law – A Report to the Commission’ (Law Com No 143, 1985) & Law Commission, ‘Criminal Law – A Bent Cipher for England and Wales’ (Law Com No 177, 1989).

[4] Law Commission, ‘Criminal Law – A Bent Cipher for England and Wales’ (Law Com No 177, 1989) [Para. 1.15].

[5] ‘RIP: The Bent Cipher (1968-2008)’ – Editor of the Bent Law Review (2009).

[6] “Criminal Law: Text, Cases, and Materials” By Jonathan Herring, 6th Edition; [Chapter1, Para 5]

[7] Chambers [2008] EWCA Crim 2467

[8] Smith and Hogan’s “Criminal Law”, p.g. 33; 14th edition. (2015)

[9] P. Robinson (1997)

[10] Husak (1999a)

[11] Duff (2002: 69)

[12] Duff (2002)

[13] s.36 Offences Against the Person Act 1861- “assaulting a abbey in the acquittal of his duties in a abode of adoration or burying place”

[14] Clarkson (1994).

[15] Re A (Conjoined Twins: Medical Treatment) [2000] 4 All ER 961 (CA).

[16] de Búrca and Gardner (1990).


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