View/Open - CORA - University College Cork

In terms of regulating the criminal justice system, the Expert Group on the Codification of
the Criminal Law made a convincing argument for the paramountcy of legislation as “the
only true source of law” other than the Constitution (Expert Group 2004:12). In their
criticism of the common law they suggest “… significant portions of the criminal law
lacked the crucial element of democratic legitimacy conferred by legislation” (Expert
Group 2004:25) and they further suggest inter alia “… the need to reinforce the legitimacy
of the criminal law through legislative approval” (Expert Group 2004:24). They suggest
that the haphazard, unsystematic and disorganised state of the sources of the criminal law
in both the common law and under legislation lead to inefficiencies in the criminal justice
system. When referring to the French Civil Code, the Expert Group fixed upon the
supremacyof legislation andthe abandonment of judicial legislation. Theystated:
Hence the moratorium on judicial legislation associated with the modern concept of
codification. Although judges were free to interpret the code, they were to be
encouraged to seek answers to their problems within its four corners. The code was
a symbolic statement about the respective roles of parliament and the courts and
should be construedaccordingly.” (Expert Group 2004:13)
If one applies the above dictum to the emergence of the suspended sentence in Ireland, it
is arguedthat such a practice wouldnot have been permissible within a codified system. It
would in effect have been tantamount to judicial legislation. Essentially, the codification
of the criminal law, which would include the issue of sentencing, would result in one clear
corpus of lawto regulate the creation and enforcement of the criminal law. It would not
allow for the co-existence of competing common law and statutory offences or
jurisdictions within the same legal system. Specifically, upon the making of a criminal
code, whether of the general part or the special part, there should be no residue of law
remaining from the previous regime which is not integrated fully into the new code as a
replacement.
The presumption against implied repeal or revocation by statute is well recognised in
statutoryinterpretation (C.W. Shipping Ltd – v – Limerick Harbour Commissioners [1999]
ILRM 416). The courts will favour the survival of common law rights unless the
Oireachtas employs clear statutorylanguage where it is sought to interfere with such rights
360