Rob's Blog

Via a comment on a post by a policeman about whether or not we’re allowed to photograph policemen, I recently came across this comment by a judge relating to the quality of legislation:

So, yet again, the courts are faced with a sample of the deeply confusing provisions of the Criminal Justice Act 2003, and the satellite Statutory Instruments to which it is giving stuttering birth. The most inviting course for this Court to follow, would be for its members, having shaken their heads in despair to hold up their hands and say: “the Holy Grail of rational interpretation is impossible to find”. But it is not for us to desert our judicial duty, however lamentably others have legislated. But, we find little comfort or assistance in the historic canons of construction for determining the will of Parliament which were fashioned in a more leisurely age and at a time when elegance and clarity of thought and language were to be found in legislation as a matter of course rather than exception.

That’s a pretty damning indictment of the Criminal Justice Act. It comes from The Crown Prosecution Service v South East Surrey Youth Court. A little digging reveals what this case was about.

From some notes in what looks like a legal textbook (PDF):

Mode of trial: ‘dangerous’ young offenders [...] In this case where the decision of the Youth Court and the recommendation of the CPS were reviewed, the court held that where, as in this case, there were inconsistent legislative provisions, the youth court should take into account, inter alia, the policy of the legislature that those under 18 should, wherever possible, be tried in a youth court, which was best designed for their specific needs.

I’m guessing that one bit of legislation says under 18s must be tried in a youth court and another says dangerous people should be tried in an adult court and no-one is quite sure what to do with dangerous under-18s. I found another document from an organisation that provides information on youth crime that references the case (PDF):

The CJA 2003 allows the youth court to form its view at any time during the proceedings. However in Crown Prosecution Service v South East Surrey youth court & Ghanbari, the court clearly and robustly expressed dissatisfaction with what it described as ‘….the deeply confusing provisions of the Criminal Justice Act 2003 and the satellite Statutory Instruments to which it is giving stuttering birth.’ The court looked with favour on guidance which had been circulated by the justice’s clerk for South East Surrey. In doing so, it suggested that justices should bear in mind

1. The policy of the legislature that those who are under 18 should, wherever possible, be tried in a youth court, which is best designed for their specific needs.

2. The guidance given in R v Lang particularly in relation to non-serious specified offences.

3. The need, in relation to those under 18, to be particularly rigorous before concluding that there is a significant risk of serious harm by the commission of further offences. It would rarely be appropriate to reach this conclusion in the absence of a PSR from a youth offending team.

4. An assessment of dangerousness in cases involving non-serious specified offences is only appropriate after conviction, when presumably following a PSR, an informed committal to crown court can be made.

5. Where a youth is jointly charged with an adult, the magistrates court will have to make a judgement between the competing presumptions of:

* joint trial of those jointly charged
* the trial of youths in the youth court

which will involve such factors as age and maturity, comparative culpability, previous convictions and whether severance would involve injustice or undue inconvenience to witnesses. This clearly indicates the preferred option of the higher court is for committal to happen after trial in the youth court. However in the case of grave crimes, the youth court may express a view on dangerousness following a determination that s91 does apply.

In case you skimmed that, the sense is that whether you get tried in a youth court or an adult court sort of depends on a bunch of people’s opinions. (I think a PSR is a pre-sentence report by a probation officer.)

To be honest, I don’t really have an opinion about what sort of court under-18s should be tried in. But I do think it’s important that ordinary people can understand the law. As it is, it seems like there has been so much legislation of such poor quality that no-one understands the law, at least without a lifetime of study.

As a commenter on the quality of legislation thread points out:

We are told that ‘ignorance of the law is no excuse’ but how can it not be an excuse when even the courts are unsure of what the law is?

To which the original poster replies: “That saying comes from the time when ‘elegance and clarity of thought and language were to be found in legislation as a matter of course’ ”

Indeed.

Update: Having seen this, Brian Micklethwait argues that ignorance of the law is, in practice, a defence.

This entry was posted on Wednesday, April 29th, 2009 at 9:06 am and is filed under Civil Liberties. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.