The Character Of Law

Every so often, I seem to think of something that I'm interested in, often completely independent from the world's news, that I write as an article on this site. This is one of those cases, although it could also be accurately described as an attempt to avoid doing any work on the Roman law of contract.

Law, in order to serve its purpose of regulating behaviour in society by laying down certain moral standards, must have certain characteristics. These will be commented on below

Law must be fair. This is concerned with procedural fairness, so that the law does not have different rules for different people depending on their status, for example. There must not be arbitrary discrimination, as recognised by the House of Lords in A v Secretary of State for the Home Department [2005] 2 AC 68. Here, they held that holding foreign nationals without trial could not be justified on grounds of preventing terrorism, as British citizens would not be subject to the same laws even if they posed a greater terrorist threat. Dicey used the words "all are equal before the law."

Law must be just. This is to be distinguished from fairness in that fairness ensures procedural fairness, but justice is concerned with the outcome of the case. Procedural fairness means that a law is correctly applied, but an unjust law could be applied fairly, but still be unjust. The same rules regarding procedural fairness should be applied to the substantive law as well as the application of it, so that law should not introduce arbitrary discrimination. But there is no mechanism, apart from Parliament, to ensure just laws are passed. In theory, the judiciary has to interpret the Acts of Parliament consistently with the will of Parliament. But it is possible that the judiciary could use its interpretative power to put a just interpretation on an unjust statute, thus correcting the injustice. Various senior judges have said this is a possibility.

Law must be clear. By this it is meant that it must be easily accessible, non-retrospective and no duplication of offences. The first two are well-established principles, as it is obvious that the law must be understandable and criminalising acts retrospectively falls foul of the idea of a just legal system. The third one, is in my view, the most interesting.

To take an example, the Sexual Offences Act 2003 made a raft of new criminal offences, from rape downwards. But so many of these offences overlap, so the same facts could be charged to many offences, all of comparable seriousness. Let us take the facts of R v G [2008] UKHL 37, where a 15 year old boy had consensual sex with a 12 year old girl. The girl had told the boy she was 15. The boy was convicted under section 5, rape of a child under 13 [max life]. But he could also have been charged and convicted on these facts under section 6 (assault of a child under 13 by penetration [max life]) or section 8 (causing or inciting a child under 13 to engage in sexual activity [max life]). By far the broadest crime is the last one, but note that they all carry the same maximum penalty, life imprisonment. As the other two crimes are subsets of the third crime, I propose to repeal s.5 and s.6, as they are surplus to requirements. Any facts falling into these cases can just as well be charged under s.8, without any defendants getting off scot free. I propose that the higher states of fault required for the s.5 and s.6 crimes be taken into account when sentencing, but proved during the trial.

To summarise, law must be clear, fair and just. Clearness leads to simplicity, which is the major flaw with legislation passed over the last 15 years. I hope that there is a reevaluation of law as a simple and clear moral code, applied by principles of fairness, to lead to a just substantive result.