The Gazette 1990

GAZETTE

PRIL

1990

fortunate enough to be a male

under 16 years, in addition to

getting it in the neck as aforesaid

you could be awarded a good

whipping as well. Precisely the

same sanctions would be applic-

able to you under the same

Section 3 were you to fire any

stable, coachhouse, outhouse,

house, warehouse, office, shop,

mill, malthouse, barn, storehouse,

granary, shed or farm building.

Again the same range of punish-

ment was applied to you under

Section 1 if you fired a church,

chapel, meeting house or other

place of divine worship, or under

Section 2 for firing a dwelling-

house, or under Section 4 for

igniting stations or other specified

buildings belonging or appertaining

to a railway, port, dock, harbour or

canal or under Section 5 if you

burned any of a wide and meti-

culously specified range of public

buildings. Given that the penalty for

each and every one of these pre-

cisely and minutely described

outrages is exactly the same it is

difficult to understand why the

draftsman could not have given us

a one-liner providing that anyone

who sets fire to a building is liable

to be punished up to the stated

maximum. It is only fair to say that

Section 6 provides for a somewhat

less severe maximum period - 14

years - for firing any building

"other than such as are in this Act

before mentioned". That section

however is rarely if ever used, the

reason being that even legal

ingenuity could not conceive of a

building that hadn't been specified

in the five previous sections.

Perhaps the one-liner kind of

drafting would rapidly have made

the draftsman and his colleagues

redundant. Or perhaps in the pre-

television age one had to occupy

"the criminal law is in urgent

need both of modernisation

and of codification . . . "

oneself at something and thinking

up new circumstances for arson or

forgery or fraudulent conversion

was a popular parlour or office

game in the long winter evenings.

Whatever the reason, we continue

to live with the results in the 1990s

and if a prosecutor has the

misfortune to say malthouse in the

indictment when of course he

should have said hop oast, or hovel

when clearly he should have said

fold, the result can be catastrophic.

When I tell you that there are 50

sections dealing with various forms

of damage to property, and two

wrapper uppers - Sections 51 and

52 - covering anything that might

conceivably have been missed in

the earlier 50, you will get some

idea of the nature and extent of the

problem. Consider, for example,

Section 39 which I regard as a

splendid, if not particularly unusual,

example of the genre. It is headed

"Injuries to Works of Art", and

reads "whosoever shall unlawfully

and maliciously destroy or damage

any book, manuscript, picture,

print, statue, bust or vase, or any

other article or thing kept for the

purposes of art, science, or

literature, or as an object or

curiosity in any museum, gallery,

cabinet, library, or other repository,

which museum, gallery, cabinet,

library, or other repository is either

at all times or from time to time

open for the admission of the public

or of any considerable number of

persons to view the same, either by

the permission of the proprietor

thereof or by the payment of

money before entering the same, or

any picture, statue, monument, or

other memorial of the dead, painted

glass, or other ornamental work of

art, in any church, chapel, meeting

house, or other place of divine

worship, or in any building

belonging to the Queen, or to any

county, riding, division, city,

borough, poor law union, parish, or

place, or to any university or college

or hall of any university, or to any

inn of court, or in any street square,

churchyard, burial ground, public

garden or ground, or any statue or

monument exposed to public view,

or any ornament, railing, or fence

surrounding such statue or

monument, shall be guilty of a

misdemeanor, and being convicted

thereof shall be liable to be

imprisoned for any term not

exceeding six months, with or

without hard labour, and, if a male

under the age of sixteen years, with

or without whipping provided that

nothing herein contained shall be

deemed to affect the right of any

person to recover, by action at law,

damages for the injury so

committed."

It would I think be hard to beat

that for unrestrained verbosity,

particularly when you remember

that the whole exercise results in

the creation of a cluster of rather

unlikely offences carrying a

maximum sentence of only six

months. You may well think how-

ever that if sections such as that do

little good, they do no harm. But

you would be wrong because if a

" . . . the criminal law remains

an impenetrable mystery to

the average citizen".

particular act of damage could be

held to fall within that or any other

section from 1 to 50 it precludes a

prosecution under the relatively

straightforward section 51. It is

over such weighty matters that the

brains

prosecutors

are

constantly exercised. And the

Malicious Damage Act is only one

of dozens of similar enactments.

While with experience a criminal

lawyer can find his way with

reasonable confidence through the

jungle, the criminal law remains an

impenetrable mystery to the

average citizen. And this should not

be so, particularly when one of the

fundamental propositions on which

we operate is that

ignorantia

juris

neminem

excusat.

The law,

especially the criminal law, should

be clear and accessible to all if all

are liable for breaches of it. The

scourge of legislative amendments,

of amendments of amendments, of

substitutions, insertions and

deletions and of cross referenced

definitions has made the task of

ascertaining the current status of

some offence and penalty sections

a nightmare. When I was called to

the bar, this was still, in most

cases, a relatively simple exercise.

Now there are not enough fingers

on one's hands to keep open the

various pages to be consulted. I

believe that there is a pressing need

for codification of the criminal law.

Apart from the obvious advantages

to both citizen and practitioner,

codification, and the simplification

which should accompany it, would

make a substantial contribution to

the effectiveness of the criminal

process and therefore to the

deterrent effect of law enforce-

ment.

The need for Lew Reform

The law of course also requires

constant updating to keep pace

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