Herring’s Theory of Criminal Law

English criminal law entails sanction for various behaviors/actions and/or results; and these prohibitions are sprawling throughout numerous statutes and judgements. Generally speaking, the law categorizes criminal liability in two types of crimes; those whose result is prohibited; result crimes and those which carry sanction on a particular conduct, conduct crimes. Additionally, it must be remembered that although a crime may either be result or conduct, it always has two elements to it; the Actus Reus & the Mens Rea. In Latin the maxim states “actus non facit reum nisi mens sit rea” which means that “an act is not criminal in the absence of a guilty mind”; R v. Miller[1]. The physical actions/inactions, circumstance & consequences are covered by the Actus Reus, thus each crime punishable by state sanction will prescribe a prohibited action or omission with its consequences in order to determine the guilt of the accused. On the other hand, Mens Rea refers to the defendant’s state of mind; and allows the court to assess whether the accused intended or was either reckless or negligent; in committing the crimes that s/he is accused of. Both these elements need to be proved by the prosecution, “beyond reasonable doubt”, Woolmington v DPP [2], for the accused to be held guilty of the crime.

The Law Commission in its reports paid heed to the necessity of a consolidated and coded criminal law regime[3]. They procrastinated that the criminal code will style the law in a “…more accessible, comprehensible, consistent and certain” [4] manner. However, in 2008, the Commission was finally liberated from its ever long pursuit of realizing a consolidated criminal code, in England & Wales. The editors of the Criminal Law Review, expressed their profound displeasure, in their editorial named “RIP: The Criminal Code (1968-2008)”[5] stating that it was a ‘sad end for a noble ideal’; but, in reality, this idea of the criminal code was rather unattractive, amid several other jurists.

Herring in his book, explores the idea of the criminal code, and finds that surely the code would provide “certainty”; as it will clearly demark the rules which provide for the determination of a person’s guilt[6]. This process, was hoped, to simplify the lengthy and exuberant, common law methodology; where principles of offence are enshrined in case law; rather, sometimes ambiguously and with loose interpretations, tailored by judges as aids to justice, in particular scenarios. Although, Herring never meant that common law interpretations are inaccurately based but rather explores the idea that a codified criminal law will strengthen the principle of legality, in rather constitutional terms; i.e. it will uphold the separation of powers, by limiting the creation of the law to the Parliament, not the judiciary.

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Secondly, Herring acknowledges that the principal advantage that a written criminal code will serve in its accessibility; as it will serve to the members of the public, a reminder of their rights, liberties and duties. However, in Chambers[7], Toulson LJ, a senior member of the judiciary himself, criticizes the limited access to statute law, as a hindrance to access to justice. Thus, theoretically supporting the idea of a criminal code, all encompassing, and in the process providing instant access to the judiciary & awareness to the general public as well. Furthermore, Smith & Hogan, rightly points out that the adoption of a criminal code would figuratively deliver transparency on the state’s position, in relation to criminal behaviors[8].

Paul Robinson[9] in his book, proposes a code which distinguishes rules of conduct, which he proposes are aimed at the public at large and provide clarity and guidance; from those of attribution, which direct instructions to judges and juries, in determining verdict. He views rules of conduct as taking a ‘communicative function’, serving as a guidance for the public and thus must be kept as precise and clear as possible. However, his critics, point out that such rules of conduct, firstly disregard situations where crimes are a result of a prohibited action, i.e. result crimes [10] and secondly they exclude any indication of the state of the mind of the accused, i.e. Mens Rea[11]. Consequently, Antony Duff fittingly points out that the criminal code must first reflect the moral wisdom of the public; rather than focus its efforts on linguistic clarity [12]. Herring, further points out that such a code will also provide efficiency to the court system, as the code will provide clarity and accessibility, thus enabling judges to give timely verdicts. Proponents of the code also claim that the process of drafting the new criminal code will itself clear most of the contradictions and ambiguities. Thus, Herring claims that updating the code will rather extinguish old, and unsustainable laws, not practiced in today’s society, he gives the example of s.36 Offences Against the Person Act 1861[13].

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At the same time Herring, lists the potential pitfall of the code, primarily, he criticizes that there is no guarantee that the criminal code would become a “bestseller”; indicating doubts in public interest in the code[14]. Furthermore, he notes that the drafter overemphasized the benefits of the code, he points out that cases which require an examination of law & morality will remain outside its scope; the notorious conjoined twins case [15]. Correspondingly, De Burca[16] states that the fascination with simplifying the code pays no heed to the fact that a particular criminal offence represents an examination of a plethora of “political, ethical, and practical” concerns, affecting the way a particular law develops for a particular offence.

But, the final nail in the coffin, is stuck by J. Verbruggen[17] and his examination of this concern; where he asserts that “a structural transformation of a judge-made norm into a codified norm would be unsuccessful.” He states that it is necessary to appreciate that the Law Commission was primarily concerned with structural reforms, rather than any substantive reform; and stated that the drafters were “not concerned with law reform”, but rather employing codification to make the law simpler (11).  He draws distinction within a legal norm as having two dimensions; firstly, its “organic identity”, i.e. its form under which it exists. And a second dimension, he mentions, is the “normative space” under which a norm exists; this could range from wide-ranging legal norms to precise policy contemplations. He says that it is the combination of both these elements which makeup the structure of a norm and emphasized that the drafters aimed at altering the organic identity of judge-made norms; i.e. the structure in which case law exists; while guarding its normative space, i.e. the common law doctrines. He claims that any effort to modify the organic identity of judge-made norms and still maintain its normative space; would be “structurally impracticable”. He suggests that an examination of judge made norms reveals “normative considerations” without any specific appointment of priority. He purports that when such norms are to be transplanted into a code, certain normative considerations will be given priority over the other; which, otherwise, would eventually lead to “editorial choices” amongst the drafters. He concludes that the drafters failed to realize that judge made norms are organically different to codified norms, as the latter are more restrictive in nature, than the former; and that codified norms do not in their entirety, represent the exact scope of normative considerations that exist in judge-made law.

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The Criminal Code as envisaged by the Law Commission was a gallant idea and a through effort, but sadly it came to a halt, amid juristical considerations. Admittedly, it must be concluded that because codification is not fundamentally capable of respecting the normative space of a judge-made norm, it creates doubts. Although, it seems fair to state that the Code does provide for accessibility, as rightly reported by Herring; but, these doubts which exist to the core of the matter of codification; effectively defeats the crucial criteria set forth by the Law Commission of consistency and certainty.


[1] R v. Miller [1983] 2 AC 161, 174 (HL)

[2] Woolmington v DPP [1935] AC 462

[3] Law Commission, ‘Criminal Law – Codification of Criminal Law – A Report to the Commission’ (Law Com No 143, 1985) & Law Commission, ‘Criminal Law – A Criminal Code for England and Wales’ (Law Com No 177, 1989).

[4] Law Commission, ‘Criminal Law – A Criminal Code for England and Wales’ (Law Com No 177, 1989) [Para. 1.15].

[5] ‘RIP: The Criminal Code (1968-2008)’ – Editor of the Criminal Law Review (2009).

[6] “Criminal Law: Text, Cases, and Materials” By Jonathan Herring, 6th Edition; [Chapter1, Para 5]

[7] Chambers [2008] EWCA Crim 2467

[8] Smith and Hogan’s “Criminal Law”, p.g. 33; 14th edition. (2015)

[9] P. Robinson (1997)

[10] Husak (1999a)

[11] Duff (2002: 69)

[12] Duff (2002)

[13] s.36 Offences Against the Person Act 1861- “assaulting a clergyman in the discharge of his duties in a place of worship or burial place”

[14] Clarkson (1994).

[15] Re A (Conjoined Twins: Medical Treatment) [2000] 4 All ER 961 (CA).

[16] de Búrca and Gardner (1990).

[17] “THE CODIFICATION OF JUDGE-MADE NORMS IN THE CRIMINAL LAW: A RESPONSE TO THE LAW COMMISSION REPORTS” by JACK VERBRUGGEN – NORTH EAST LAW REVIEW pg.83

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