Legal Opinion: Endless new criminal laws that lead to injustice

More than 50 new criminal justice bills have been introduced in the last decade. Such a welter of complex legislation is taking its toll, says Robert Verkaik, Law Editor
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The Independent Online

Clarity and certainty form the bedrock of any fair criminal justice system. So it is alarming to discover that in one recent case the Court of Appeal was so confouded by a raft of new laws that it couldn't decide whether a defendant was innocent or guilty.

The case was raised by Sir Igor Judge, one of Britain's most experienced judges, who said that the court's failure to get to grips with the law meant that an innocent man spent time in prison.

The simple question before the judges was whether the defendant was guilty of an offence of failing to register as a sex offender contrary to the 2003 Sexual Offences Act.

"Any intelligent observer would have been baffled to discover there could be any doubt about whether or not the defendant was guilty of this criminal offence," said the judge, one of a panel of three hearing the case.

"For the Court of Appeal to decide the issue, we heard detailed submissions about the legislative provisions in no less than five statutes... The problem was so complicated that three judges had to reserve judgment because at the end of the hearing we could not work out whether or not the defendant was guilty. After reserving judgment we concluded that no offence had been committed. Yet the appellant had spent time in custody."

Sir Igor, speaking to an audience of students and lawyers on Monday evening, was careful not to blame any particular political party for the court's confusion.

But it is difficult to hide from the statistics. In the last 10 years Labour has has created more than 3,000 new criminal offences, passed 115,000 pages of legislation and introduced more than 50 Bills, including 24 criminal justice measures. Compare this with the 60 years between 1925 and 1985 when governments of different colours managed to get by with only six Criminal Justice Acts, an average of one every decade.

In the case before the Court of Appeal the five statutes were the Sex Offenders Act 1997, the Criminal Justice and Public Order Act 1994, which was replaced by section 73-79 of the Crime and Disorder Act 1998, the Powers of Criminal Courts (Sentencing) Act 2000, which repealed sections 73-79 of the 1998 Act, and the Sexual Offences Act 2003.

Sir Igor said: "My concern here is not just the quantity of legislation, the absence of certainty, the vast increase in complication in the sentencing process. It can also produce injustice."

But most telling was his added observation that "S" was not a unique case. How many others have been wrongly imprisoned or had extended prison sentences simply because the criminal law has become unmanageable?

While Sir Igor is constitutional constrained in what he can say about the politics of such a mess of legislation, others are less diplomatic.

The Liberal Democrats accuse the Government of being hopelessly addicted to eye-catching initiatives that require endless legislation, an accusation echoed by the Conservatives. Surely what is required now is for politicians of all hues to take a step back and work together to bring about a codification of the criminal law. For an innocent person to spend time in prison simply because the law is too confusing can only shame our system of justice.