The Gazette 1983

GAZETTE

JULY/AUGUST 1983

capable of conforming to society's demands entails a peculiarly offensive anticipatory condemnation". 7 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". 8 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. 9 It is clear since King v. D.P.P. 10 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". 12 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. 13 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". 14 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". 15 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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