Perceptions of Security and Reassurance at the ... - School of Law

Principled Criminal Law Reform:Could Macaulay Survive the Age of Governing through Crime 37Mark FindlayIn response to the detailed discussion of histories and characteristics of codification described in the chapters of thisbook, these thoughts are designed to identify essential challenges to principled law reform. It is conceded that thepolitical imperatives and pragmatic control agendas driving contemporary criminal law and procedure are moreinfluential in constructing future directions for liability and sanction determinations than the integrity of a principledapproach to criminal law, codified or otherwise.The intention of these reflections is to briefly and thematically examine the fate of principled lawreform in modern criminal jurisdictions. In so doing, codification, and Macaulay’s code for Indiaas an exemplar are reflected against the inconsistent expediency of contemporary criminal lawreform. The political utility of the penal sanction in an era of ‘governing through crime’ issuggested as the reason why criminal law as we know it may be a ‘lost cause’.Why is it that more than 150 years on, Macaulay’s criminal code would, if presented today, benothing less than a model of principled law reform despite its roots in early 19 th century legaltheory and British imperial concerns? In his chapter Chris Clarkson identifies the state ofcodification in the contemporary criminal law and process of England and Wales as a ‘tale of woe’.Despite a brighter picture being painted by Matthew Goode as to the state of codification inAustralian Commonwealth law, the take up rate for the model Criminal Code in vital state andterritory legislation is, he admits, sporadic at best. How might we explain the radical aversion tocriminal law codification in current common law law-making?The anti-codification environment cannot be explained through any political reluctance to explorethe utility of the penal sanction. Quite the contrary! We live in an age where, up until the costbenefitcritique on government in the wake of global financial collapse, the industries of criminaljustice such as surveillance and risk assessment are flourishing under an aggressive politicalsponsorship and a punitive popular wisdom. Parliaments and their bureaucracies spend more timelegislating and institutionalizing the penal sanction, than any other regulatory form at theirdisposal. Bob Sullivan critiques the burgeoning of a prophylactic criminal law through a radicalreliance on strict liability offences and civil sanctions that short-circuit even the most meagerremaining protections of criminal justice due process. Protective orders, preventive detention,confiscation of assets and the assertion of victim interests have been manifest through anexplosion of patchy micro-reform which has left the criminal law even in code states devoid ofconsistency and predictable principle. Attacks on the principles which would underlie any codified‘General Part’ are a feature of present day ‘law and order’ legislative activity. Strict and absoluteliability rejections of subjective responsibility, omissions and duty founding criminal conduct andconstructing causation, and reverse onus provisions for exculpation, are just some of the legislativerush from foundational features of traditional criminal justice. And as Michael Hor notes regardingjoint criminal enterprise, activist judicial interpretation has complimented moves away fromsubjective fault.Additional impediments against a codification sentiment in contemporary politicized criminal lawreform are the rejection of central considerations behind the code project, identified in NeilMorgan’s chapter as the jewels in Macaulay’s crown. Symmetry, simplicity and consistentsubjective standards of liability cannot be found even in the conservative and protectionist37 J. Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear(Oxford: Oxford University Press, 2007).60