Doc. No.: DC/04 Doc. No.: DC/04 DRAFT CRIMINAL CODE AND COMMENTARY 31 May 2010 Page 1 of 329 Doc. No.: DC/04 Page 2 of 329 Doc. No.: DC/04 INTRODUCTION Contents 1. This draft integrates all of the work done to date on the Draft Criminal Code, thus realising one of the principal aims of codification: digesting the sources of law into a single instrument. In line with the Advisory Committee’s First Programme of Work 2008-2009, the draft contains six numbered Parts, of which Part 2: Homicide Offences takes the form of an indicative heading only, to signal the fact that the Advisory Committee is mindful of the Minister for Justice, Equality and Law Reform’s request that homicide offences be included in the inaugural criminal code. Subject to a successful outcome of the upcoming review of the codification project by the Department, it is envisaged that the codification of homicide offences, and their eventual insertion into the Draft Criminal Code, will take place post review. 2. The remaining Parts are as follows: Part 1: General Principles; Part 3: Non-Fatal Offences Against the Person; Part 4: Theft and Fraud and Related Offences; Part 5: Criminal Damage Offences; Part 6: Public Order Offences. Parts 2-6 have been sequenced in descending order of seriousness. (a) The General Part 3. Part 1, dealing with general principles, is incomplete in the sense that it is currently confined to the rules of inculpation affecting such matters as the objective and faults elements of an offence, causation and consent; remaining matters of preliminary and general concern (such as provisions on the objectives of the Code, scope of the General Part, principles of construction, as well the articulation of the rules governing proof of criminal responsibility, double jeopardy, jurisdictional issues and general time limitations etc) and the general defences to a criminal charge will be added at a later date. Broadly speaking, this division of labour is designed to ensure that the bulk of the rules affecting the meaning and scope of offence definitions can now be seen in fully codified form. It also illustrates how the general principles codified in Part 1 interact with the offences codified in Parts 3-6; and how this interaction contributes to greater certainty and consistency when interpreting and applying offence provisions. (b) The Special Part 4. Parts 3-6 inclusive are complete in the sense that all of the matter pertaining to their respective areas of substantive law has been included; although it goes without saying that these Parts will be kept under review as work on the Draft Code progresses. In addition, the current draft reflects the suggestions and observations made by the Advisory Committee in respect of earlier drafts. 5. Moreover, the relevant procedural, evidential and ancillary provisions have been included in the form of code chapters (as distinct from schedules) in all four substantive law Parts following the Advisory Committee’s recommendation to that effect. Pending detailed consideration of the matter by the Advisory Page 3 of 329 Doc. No.: DC/04 Committee, the technique of codification (described below in paragraphs 7-23) has not as yet been systematically applied to this material. (c) Codifying homicide offences and the general defences 6. Although the Department of Justice, Equality and Law Reform has yet to take a formal view on the matter, it seems likely that the completion of Part 1: General Principles, and work on Part 2: Homicide Offences, will take the form of codifying the draft Bills in these areas recently published (or, in the case of inchoate offences, shortly to be published) by the Law Reform Commission. With the exception of two proposals affecting the scope of the mental element in murder and the limits of the offence of conspiracy, respectively, these draft Bills are largely declaratory of the common law in their respective areas. So it would seem sensible to “codify” them as they are, as opposed to waiting until such time as the relevant legislation has been introduced and passed, and then codifying the resultant law. At all events, pending any decision the Department may make, the Advisory Committee may wish to consider this matter, along with other issues bearing on the future development of the Draft Code, during the period of the upcoming review. The technique of codification (a) The role of restatement 7. Unlike its more exotic cognates, the model of codification employed in the current draft is essentially a form of enhanced restatement. Apart from changes necessitated by the offence template (see section (c), below), the introduction of the triple fault alternative (see paragraphs 28-34, below) and the division of labour between the General and Special Parts, the emphasis throughout has been on preserving the integrity of the original statutory offence. Accordingly, there are no instances of law reform save those inherent in the codification process - such as the “plugging” of gaps in mens rea and the standardisation of fault terms in order to promote consistency and certainty across the Code (this issue is discussed in more detail in the Explanatory Notes to Head 1106 (Fault Elements)). 8. Similarly, in respect of the common law rules and principles codified in Part 1, the emphasis has also been on restatement; the aim has been to reduce the general principles of criminal liability to statutory form. Moreover, only those rules and principles which can be regarded as having been definitively settled by the courts have been fully codified. Where matters are still uncertain, as in the case of some of the rules bearing on the issue of consent, the relevant provisions have been codified in headline form only, leaving room for further development and clarification by the courts. (b) Suggestions for law reform 9. Where work on the draft has suggested that there may be a need for limited law reform in a particular area, or where a member of the Advisory Committee has made an arguable case that such reform may be desirable, a suggestion to that Page 4 of 329 Doc. No.: DC/04 effect has been made in the Explanatory Notes to the relevant Head; see, for example, note 10 to Head 6108, suggesting that the penalties for riot and violent disorder may need to be adjusted to reflect the relative seriousness of these offences. (c) The use of a standardised offence template 10. Offences have been codified in two stages. First, in the interests of consistency and accessibility, each offence has been formatted in accordance with the standard offence template outlined in the Committee’s First Programme of Work 2008- 2009, paragraph 2.17. Thus offence names now form part of the offence definition, while offence definitions across the Draft Criminal Code now have the form: “A person commits the offence of x if he or she…” Similarly, where relevant, exemptions from liability are rendered in the form: “A person does not commit an offence under this Head if…” (d) The role of element analysis 11. Second, by way of promoting consistency and certainty in the application of the law, the actus reus of each offence has been broken down into three component parts in accordance with the principles of element analysis: viz., conduct, circumstance and result elements. By the same token, mens rea has been disaggregated as intention, knowledge and recklessness, and each of these terms has in turn been defined to reflect the exigencies of the particular objective element to which it is being applied. The details of this aspect of the technique of codification, together with the principles of element analysis on which it is based, are set out in the Explanatory Notes to Heads 1102 (Objective Elements) and 1106 (Fault Elements). The practical benefits of element analysis are illustrated in the analytic grid accompanying each codified offence. (e) Offence names 12. In contradistinction to current legislative policy on the matter, an attempt has been made to fashion a consistent approach to the naming of offences. Broadly speaking, the following principles have been applied: (i) offence names should accurately reflect, though not necessarily spell out exhaustively, the content of an offence; (ii) where possible, offence names should be reasonably generic so as to facilitate future amendment without excessive degradation; (iii) in the interests of accessibility, offence names should be reasonably short so that they can be incorporated into the text of offence definitions without adding undue bulk. These principles should be read in conjunction with the discussion of code degradation in sections (g) and (h), below. (f) The policy of “one offence per Head” 13. Generally speaking, a policy of “one offence per Head” has been pursued throughout the draft. The advantages of the “one offence per Head” policy are twofold. First, it aids accessibility by aligning cross headings with offence names, and by making the Code’s table of contents clearer and more informative for professional and ordinary users alike. Second, by ensuring that each offence Page 5 of 329 Doc. No.: DC/04 has a distinct section number, the “one offence per Head” policy arguably helps to reduce the risk of error by Gardaí and prosecutors when charges are being framed. (g) The aggravating factor model 14. Where it was felt that the pursuit of the “one offence per Head” policy would lead to needless offence proliferation, what might be described as an integrated aggravating factor model has been employed. The essence of this model is that the aggravating factor is provided for within the Head dealing with the baseline offence, instead of being treated as a separate offence in a standalone Head as per the non-integrated version of the aggravating factor model – as used, for example, in aggravated assault in Head 3105.