The Gazette 1983

GAZETTE

JULY/AUGUST 1983

capable of conforming to society's demands entails a

peculiarly offensive anticipatory condemnation".

Thirdly, the Court recognised that preventive detention

would be so unreliable that it would fail to diminish as far

as possible the chances of an innocent person being

convicted. Walsh J. noted that, in most cases, "even of

persons with known criminal records, an attempt to

predict who is likely to commit an offence while awaiting

trial on bail can never be more than speculation".

This

makes preventive detention all the more dangerous for the

innocent accused. The reason is that the form of detention

involves a self-validating prediction. The system will

appear to fail only when it releases persons who prove to be

worse risks than anticipated; but when the system detains

persons who could safely have been released, its mistakes

will be hidden. Because no accused in detention will

commit an offence in public, each decision to detain will

confirm the prediction that led to the detention, while any

decision to release pending trial may be refuted by its

outcome.

The point of these comments on

O'Callaghan

is to

illuminate the judicial recognition that each individual

facing the criminal process has a right to equivalent respect

as an end rather than a means. The Constitution attests this

normative premise concerning the individual — in its

Preamble and Fundamental provisions —as the matrix for

criminal due process. To those who take constitutional

principle seriously and for whom, therefore, the moral

imperative of personal autonomy is a shaping force, the

priority of rules and procedures that respect the dignity

and freedom of the individual over any advantages

obtained by deviating from them must be accepted. It is

proposed briefly to describe the notion of criminal

responsibility through this constitutional lens.

The principle of legality: Nullum crimen sine lege

Article 15 of the Constitution emphasises the legislative

role in the definition of offences and penalties. The

requirement of prospectivity and clarity of definition in

criminal law emanates from the Constitution. Article 15.5

prohibits the legislature from declaring "acts to be

infringements of the law which were not so at the date of

their commission". The doctrine of criminal due process

has given voice to a doctrine of clarity and specificity

regarding criminal statutes. The commitment to the

requirement of fair warning is encapsulated in the

principle of legality: there must be no offence or punish-

ment save in accordance with established, reasonably

specific, and fairly ascertainable enacted law.

It is clear since

King v. D.P.P.

that violation of the

principle of legality is a constitutional defence to a

prosecution. In

King

the claimant had been convicted of

being a "suspected person", found in a certain public

place, loitering with intent to commit a felony, i.e. to steal,

in breach of s. 4 of the Vagrancy Act, 1824." Under the

statute, no proof of any act showing intent to commit a

felony was necessary. McWilliam J. was mindful that the

expression "loitering" was vague, and,

"without other ingredients, could not possibly

constitute an offence in any way, so that doing what is a

perfectly lawful act on the part of any other citizen may

be the foundation of an offence on the part of a

suspected person or a reputed thief, and as no proof of

any act showing intent to commit a felony is necessary, a

person could be convicted for doing an otherwise lawful

act".

However, McWilliams J. voided the relevant part of s.4 of

the 1824 Act on the grounds it denied the claimant a fair

trial, as the provision diluted the integrity of the guilt-

eliciting process, and trenched upon his right to move

freely in public without intruding on others. McWilliam

J.'s decision was affirmed in the Supreme Court.

The

specified part of s.4 of the 1824 Act was held to be violative

of the requirement of clarity and specificity mandated in

view of Articles 38.1, 40.4.1°, 40.1 and 40.3 of the

Constitution. Henchy J. adjudged that the impugned part

of s. 4 did not meet even the elementary prerequisites of

adequate crime definition. His opinion was that,

"the ingredients of the offence and the mode by which

its commission may be proved are so arbitrary, so

vague, so difficult to rebut, so related to rumour or ill-

repute or past conduct, so ambiguous in failing to

distinguish between apparent and real behaviour of a

criminal nature, so prone to make a man's lawful

occasion become unlawful and criminal by the breadth

and arbitrariness of the discretion that is vested in

both the prosecutor and the judge, so indiscriminately

contrived to mark as criminal conduct committed by

one person in certain circumstances when the same

conduct when engaged in by another person in similar

circumstances would be free of the taint of criminality,

so out of keeping with the basic concept inherent in our

legal system that a man may walk abroad in the secure

knowledge that he will not be singled out from his

fellow-citizens and branded and punished as a criminal

unless it has been established beyond reasonable doubt

that he has deviated from a clearly prescribed standard

of conduct, and generally so singularly at variance with

both the explicit and implicit characteristics and limita-

tions of the criminal law as to the onus of proof and

mode of proof, that it is not so much a question of ruling

unconstitutional the type of offence we are now con-

sidering as identifying the particular constitutional

provisions with which such an offence is at variance".

The idea that a conviction without fair warning to the

individual is unconstitutional raises the problem of

legality: an enactment which criminalises conduct but

which is incapable of being obeyed is not "law" at all. As

Lon Fuller opinioned, "to speak of governing conduct

today by rules that will be enacted tomorrow is to talk in

blank prose".

It is necessary to justify the requirement of

particular statutory clarity. Firstly, vague penal statutes are

objectionable because they fail to provide enforcement

agents with adequate guidance regarding the precise ambit

of the prohibited conduct. Thus they furnish such agents

with excessive discretion over whether to initiate a

prosecution. Secondly, it vindicates the priority of

constitutionally protected conduct. The individual who is

uncertain about the applicability of a vague criminal pro-

vision to his or her protected activity might be inhibited

from exercising his or her, constitutional rights.

King

intimates that the courts will apply an exacting level of

review to such a statute. Thirdly, the protections accorded

the individual in criminal process, for example, inquiry

rights at trial, might count lightly in a case based on a

complex set of facts, if the crime involved was vaguely

defined. Fourthly, the most important justification reflects

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