Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

160 Legal History in the Making
general crime of manslaughter based on negligence was a consequence of
Macaulay's aversion to constructive liability which in turn entailed what
he regarded as ineffectual punishment: it did not deter harmful action. As
Whitley Stokes (legal member of the council from the late 1870s) critically
noted in his commentary on the Code: The framers do not seem to have
troubled themselves much about the rival theories of punishment respecting
which German jurists and philosophers have written so copiously'. 71 This
was a probable allusion to the various retributive schools of thought which
rested punishment on notions of just deserts, whereby guilt was purged or
annulled by proportionate punishment levels. Indeed Stephen's criticism of
the omission of a general offence of negligence-based manslaughter was that
the retributive aspect of punishment had been ignored. Therefore even though
only 'bad luck' might distinguish one risk taker from another, punishment of
the one accidently causing death 'gratifies a natural public feeling ... for
punishment of one who has actually caused great harm'. 72
Two further instances may be briefly offered illustrating Macaulay's pursuit
of a general rationale of founding liability and punishment largely on the
culpability surrounding the defendant's act and paying less heed than English
law to the chance occurrence of any harmful consequences. First, the Code
introduced a series of offences where endangering actions without harm
materializing was the basis of criminality. 73 A second example relates to
criminal attempt where for some reason the full offence in the particular
circumstances was impossible, such as in picking an empty pocket. The
Code, at least in some cases, contrary to English law of the time, sought to
remove impossibility as a bar to conviction; the implicit rationale being that
the defendant's mental culpability remained unchanged whether the criminal
objective was achievable or not. 74
V. Delay in the Code's Enactment
Through a combination of external events (largely the politically highly
contentious Afghan campaigns) and for reasons intrinsic to the Code,
twenty-three years elapsed before it became law; by nineteenth- or even
twentieth-century standards perhaps unremarkable. The history of the
delay of an enterprise which began with such tremendous panache offers
a classic illustration of the great dead weight power of governmental and
administrative inertia, indolence and the desire for a professionally quiet
71 Op. cit.,26.
72 H.C.L., iii, 311. Arguably Stephen's own denunciatory theory of punishment was quasi-utilitarian
in that it aimed at strengthening society's common condemnation of and aversion to harm causing
behaviour, thus ultimately decreasing the incidence of such conduct.
73 Sections 279-89.
74 Section 511. But see W. Stokes, op. cit. n.49, 68-70 for the constructional difficulties of these
provisions.