The Gazette 1990

GAZETTE

A 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

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 of 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.

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,

"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

The need for Lew Reform The law of course also requires constant updating to keep pace

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