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The draft code and reliance upon official statements

Published online by Cambridge University Press:  02 January 2018

Glanville Williams
Glanville Williams*
Affiliation:
Cambridge
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Extract

Any project to draft a criminal code has to compromise between the desirable and the politically possible. It may be that the draft now produced by the Law Commission, or something like it, is the best that can safely be backed, though the contrast between it and the American Law Institute's Model Penal Code (which also had to take account of political realities, and yet has been adopted in many States) is a painful reflection on our stodginess. It is hard to avoid the impression that the Law Commission have been too cautious in their approach, leaning too much in favour of bare restatement of the existing law and against modifications that experience or reflection show to be necessary.

Type
Research Article
Information
Legal Studies , Volume 9 , Issue 2 , July 1989 , pp. 177 - 188
Copyright
Copyright © Society of Legal Scholars 1989

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References

1 Law Corn No 177.

2 Law Reform Commn of Canada, Report 31.

3 See Kadish and Kadish, Discretion to Disobey (Stanford Calif 1973) 160 ff; Nicol in 39 MLR 542; Tedeschi in 8 Israel L Rev 173. Reliance upon a decision that wasoverruled after the defendant acted was held to be no defence by a District Court judge in Campbell (1972) 10 CCC (2d) 26 (Can), but he granted an absolute discharge.

4 See Williams, Criminal Law: The General Part, 2nd edn, 298–299.

5 Daylight Theatre Co (1972) 20 CRNS 317.

6 (1973) 24 CRNS 182.

7 Above n 3.

8 [1915) 1 KB 616.

9 [1962) AC 220.

10 Royal College of Nursing v DHSS (1981) AC 800.

11 See Fazal, M. A. in (1972) Public Law 43 Google Scholar

12 Gillick v West Norfolk etc Health Authority (1986) AC 112.

13 Cowburn (1959) Crim LR 554 (The Times, 12 May).

14 The chief cases are Imperial Tobacco v A-G (1981) AC 718; A-G v BBC (1981) AC at 336G-337D; also Woolf J in Royal College of Nursing v DHSS (1981) 1 All ER 545. The last case, which went to the Lords on the point of substance, shows the risk to the citizen of incurring great costs if he seeks clarification of the law in this way, even if he is ultimately successful. For an admirable discussion see Feldman in (1981) Crim LR 25. See also the remarkable decision of the Supreme Court of Canada in Minister of Justice of Canada v Borowski (1981) 64 CCC (2d) 97.

15 See Lords Denning and Roskill in the Royal College of Nurring case (1981) AC 800.

16 United Stales v Wurzbach 280 US 396 at 399 (1930).

17 [1981] 2 WLR at 288C

18 Williams, , Clgp, 2nd edn ss 103 n 1, 105 nn 17–19; Williams v Williams (1973) 2 All ER 559. Google Scholar

19 Eg Burgess v West (1982) Crim LR 235 (misleading speed-limit signs); similar cases under the Highways Act culminated in Brook v Ashton (1974) Crim LR 105. See also Surry CC v Battersby (1965) 2 QB 194; Cooper v Hall (1968) 1 WLR 360, 1 All ER 185 (parking offence); Cohen (George) 600 Group Ltd v Hird (1970) 1 WLR 1226, 2 All ER 650; Redbridge London BC v Jacques (1970) The Times, 21 October; Fyfield Equipment Ltd (1971) Crim LR 507 (Crown Court); Pugh v Pidgen (1987) The Times, 2 April; Cambridgeshire etc CC v Rust (1972) I QB 426, criticised by Ashworth in (1974) Crim LR 659; Bowsher (1973) RTR 202, Crim LR 373 (road traffic); Arrowsmith (1975) QB 678 (incitement to disaffection); Jacey Ltd (1975) Crim LR 409 (obscenity).

20 The point is suggested by a series of difficult decisions in planning law (not directly related to criminal offences). See, in historical order, 87 LQR 15; 125 NLJ 279, 379; 129 NLJ 161. The possibility of estoppel as a defence in crime was also recognised in the blood-specimen case of Perry v McCouern (1986) RTR 240, though this was not a case of ignorance of law. Ashworth in (1974) Crim LR 652 suggests that the doctrine of criminal estoppel may help the courts to change their present attitude, but at present this is little more than a potentiality. (If estoppel is available for official action leading to mistake of law, it is difficult to see why it was not relied upon in some of the cases in the preceding paragraph.) Another possibility is that the authority of the officer may sometimes actually legalise the act, as in Tun (1977) AC 650.

21 See the important judgment of Beadle CJ in Zemura (1974) (1) SA 584, a masterly survey unequalled in any of the English cases. For Scandinavian law see Andenaes in Essuys in Criminal Science, ed Mueller (1961) 217.

22 See Model Penal Code s 2.04(3)(b) (enacted in various States); George Fletcher, Rethinking Criminal Law 755 Q Frank C Newman in 53 Col LRev 374; Kadish and Kadish, op cit 160–161 (but see ibid 110 ff).

23 MacDougall (1982) 31 CR (3d) 1 (Sup Ct); Cancoil Thermal Corpn (1986) 52 CR (3d) 188. See also Barton in 22 Crim LQ 315.

24 MacDougall, last note, at 11.

25 A T H Smith in 14 Anglo-American L Rev 9.

26 See Arzt in 24 AJCompL 673.

27 A T H Smith, op cit 8–9.

28 2 BGHSt 194, translated in Silving, Criminal Justice 790–800.

29 Law & Contemp Prob, Winter 1977, 58–40.

30 Rethinking Criminal Law 747. Cp Ryu and Silving in 43 Revista Juridica de la Universidad de Puerto Rico 20; Ryu in 24 AJ CompL 603–604; Kadish and Kadish, Discretion to Disobey (Stanford, Calif 1973) 164–167. Arguments in favour of the German rule are presented by Paul Matthews in 3 LS 185 ff. For other comparative studies see Ryu and Silving in 24 UChicLRev 421; Vera Bolgár in 52 Iowa L Rev 626.

31 See Cooper v Simmons (1862) 7 H & N 707, 158 ER 654.

32 A Delaware court held it to be a defence that the defendant used diligence to obtain professional advice (Long v State (1949) 44 Del 462, 65 Atl 2d 489), but this opinion is exceptional in the United States. See also on the whole subject the powerful article by Peter Brett in 5 Melbourne Univ LRev 179.

33 Michael, Levi in 5 The Company Lawyer 253 Google Scholar

34 Smith, A T H in 14 Anglo-Am LRev 23 Google Scholar

35 Richardson (1980) 57 CCC (2d) 362.

36 Parrot (1979) 51 CCC (2d) 539.

37 So held in Canada in Giroux (1979) 12 CR (3d) 289; MacIntyre (1983) 24 MVR 67.