This is a fairly lighthearted paper based on the work I have done recently for Gibraltar and St Helena in updating and codifying their criminal legislation (offences and procedure). It looks at the problems of updating the statute book of a small jurisdiction to incorporate 50 years of UK criminal legislation, and the need for adaptation and simplification of complex legislative schemes. It looks at the stylistic changes in UK criminal law drafting in recent years and shows some of the ways in which small jurisdictions can lead the way in clarifying the law.

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Clarity in criminal law – dream or reality?
John F Wilson (UK)
Summary
This paper is based on the work I have done recently for Gibraltar and St Helena in updating
and codifying their criminal legislation, both the offences and the procedure.
- It looks at the statement of the criminal rule and considers how it can be clarified
- It shows that codification of criminal law can make the law more accessible and easier to
follow.
Introduction
I am glad to be here in Lisbon during the 100th
anniversary celebrations of the Portuguese
Constitution (5 October 1910.)
My theme is - Dream or reality? Dreams are something of a theme in my work. A few years
ago, while working in Fiji, I wrote a piece for the ‘Loophole’ – the house magazine of the
Commonwealth Association of legislative Counsel (CALC). It was called ‘Prince Splendid and
the Dream Machine’ and was a fairytale about the perfect drafting instructions leading to
perfect legislation. Prince Splendid (PS) is the Permanent Secretary, and he is aided by the
Jovial Friendly Wizard (JFW) – who can sometimes be a Jolly Fierce Warlock if the
instructions are no good – or if not enough time is allowed for the drafting.
This is not the place for a disquisition on drafting instructions, but we can agree that it is
everyone’s dream to have a set of criminal laws that are coherent and accessible and clearly
expressed. Why does this seem so impossible?
I am a generalist and not a criminal law expert. But during the past 2 years I have been
engaged on a codification of the criminal law for Gibraltar and for St Helena, and it is my
experience in that project that I would like to share with you.
Both are still British Overseas Territories, but they have significant differences.
Gibraltar has a Ministerial system; St Helena is still governed by the Governor.
Gibraltar has an existing criminal code in the form of the Criminal Offences Act and the
Criminal Procedure Act. It only applies English law selectively so is free to choose which UK
laws to include in the updated version.
St Helena has a couple of local criminal statutes and a small Criminal Procedure Ordinance,
but otherwise applies English law wholesale up to January 2006.
Gibraltar has a sophisticated legal profession whereas in St Helena there are no lawyers
except the Public Solicitor. Instead there are 4 or 5 Lay Advocates, who need to have the law
stated as clearly as possible for obvious reasons. This is how the law should always be
stated, but it is particularly important on this small island of 4,000 people, in the middle of
the Atlantic Ocean (where Napoleon spent the last 6 years of his life.)
Working for small jurisdictions shows the problems in updating the statute book to
incorporate 150 years of UK criminal legislation and the need for simplification of complex
legislative schemes. It can also show the dangers of 'cut and paste' drafting. Using the word
search and replace facility can result in such absurdities as “adGovernor in Council” instead
of “administer”. I did however manage to avoid saying ‘this Act applies to Scotland’ which is
said to have happened in one overseas jurisdiction.

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Three requirements for clear criminal law –
A. Clarity in stating the legal rule
B. Certainty as to the contents of the law
C. Coherently organised material
A. Clarity in stating the criminal rule
The first requirement for clarity in criminal law is a clear statement of the criminal rule. But
this is not always easy to achieve. People say the Ten Commandments are simple and clear -
‘Thou Shalt not Kill’ and ‘Thou Shalt not Steal’. Yet no sooner did Moses come down from
the mount (for the second time remember; he did have to rewrite the Commandments) –
than scribes and scholars started explaining them. They are in fact very far from being a
straightforward code of laws.
It should be possible to state a criminal rule clearly e.g. ‘Keep off the grass’. But even this
begs the question of how the grass is to be cut.
Note that these rules – ‘Thou shalt not steal’, and ‘Keep off the grass’, are directed to the
potential offender. Is that the best way to state the criminal law? It would be rather odd to
frame a criminal rule that way – ‘If you break into a house, you will be committing an
offence and liable to (prison etc.)’
This might be how a Ministry leaflet explains the law. But it is surely not for Parliament to
address potential lawbreakers.
Everyone in England thinks they know another clear criminal rule - ‘Trespassers will be
prosecuted’. But even if trespass were an offence (which it is not usually unless there is
violence or damage) this statement would not create the offence.
In English legislation, the criminal rule has in the past been stated in a number of ways, most
of them defective -
1 - “No person shall cause or permit a vehicle to wait ...” (from UK Traffic Regulation
Orders).
This uses ‘shall’ and implies that some person might or may do the thing. It cannot be cured
by replacing ‘shall’ with ‘must’ – “No person must...” is not right.
2 - “A person who ....... commits an offence”. This is the ‘sandwich clause’ which separates
the verb from the subject, sometimes by several phrases. It is only suitable for very short
statements of the offence.
3 – “If a person ......... he commits an offence”. This is gender-specific as well as being a
sandwich. It cannot be cured by saying ‘he or she’ as the person might be a company.
Repeating ‘the person’ becomes tedious and confusing.
4 – “Whosoever shall ....... shall be guilty of felony”. This from 1861; no further comment
needed.
Sometimes ambiguity is built into the rule. Driving in Germany this summer, my wife and I
saw speed limit signs on the autobahns, expressed as a number (i.e. kilometres per hour.)
Some signs also showed a lower number and the words “Bei Nasse”. We gathered that it
means a lower limit applies when the road is wet. (Some signs read “Bei Nebel” which
means “When foggy.”) There is obvious scope for dispute as to when the road is wet (or
foggy) but it seems to suit Germany so why should a mere English drafter object?

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(Perhaps this is why in the UK the term ‘incitement’ has recently been replaced by
‘encouraging or assisting’ which creates two offences and is not very different from ‘aiding
and abetting’.)
In recent years new formulations have been used -
5 – “No person may ...” (Not liked by the Working Group on TROs).
6 – “A person must not ....”
7 – “It is an offence for a person to .......”
8 – “The following are prohibited ....” (followed by a statement that it is an offence to do a
prohibited thing.)
One of the most useful devices, both to avoid the gender problem and to achieve clarity in
other ways, is to use letters. This has been done in the UK in recent years, though
sometimes the choice of letter - D or P or V - can seem rather arbitrary. I prefer to use ‘A’
and ‘B’ even though the letter ‘A’ can be confused with the word ‘A’.
To illustrate this and other aspects of the statement of the criminal rule, I offer my version
of the offence of bigamy. (I recently had to include this in the St Helena Crimes Bill, though
in Gibraltar it was not needed as the offence is in the Marriage Act.)
Section 57 of the UK Offences against the Person Act 1861 reads -
“Whosoever, being married, shall marry any other person during the life of the former
husband or wife, whether the second marriage shall have taken place in England or Ireland
or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable . . . to be
kept in penal servitude for any term not exceeding seven years . . . :
Provided, that nothing in this section contained shall extend to any second marriage
contracted elsewhere than in England and Ireland by any other than a subject of Her
Majesty, or to any person marrying a second time whose husband or wife shall have been
continually absent from such person for the space of seven years then last past, and shall
not have been known by such person to be living within that time, or shall extend to any
person who, at the time of such second marriage, shall have been divorced from the bond
of the first marriage, or to any person whose former marriage shall have been declared void
by the sentence of any court of competent jurisdiction.”
(This is still the law in the UK.)
My redraft is -
“XX. (1) Subject to subsection (2), a married person (‘A’) who marries any other person
during the life of A’s former husband or wife commits an offence for which the maximum
penalty on conviction is imprisonment for 7 years.
(2) Subsection (1) does not apply to a person (‘A’) who marries a second time if –
(a) A’s husband or wife has been continually absent from A for at least 7 years
up to the date of the second marriage and has not been known by A to be living
within that time;
(b) at the time of the second marriage, A has been divorced from the bonds of the
first marriage; or
(c) A’s first marriage has been annulled or declared void by a court of competent
jurisdiction.”

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Note that the clause says nothing about the national status of the offender, because St
Helena would not claim extraterritorial jurisdiction over such an offence anyway. That is just
one of the many adaptations I have had to make in incorporating English statute law into
the law of an overseas territory.
Note also that the penalty is stated as a maximum, without specifying whether it is on
indictment or summary. Nowadays statements of penalty normally do not say they are
maxima but do say whether they are on indictment or summary. In St Helena, we are using
wording which allows the Attorney General to have the choice of venue i.e. summary trial or
trial by jury.
Plain English drafting
To achieve clarity of expression, I have, needless to say, adopted Plain English principles. So
‘shall’ becomes ‘must’ (in most cases); ‘where’ becomes ‘if’ etc.
My drafts use short sentences and the active voice rather than the passive. They use the
present tense rather than the future e.g. ‘nothing prohibits’ rather than ‘nothing shall
prohibit’.
Many of you will be aware that Parliamentary Counsel in Whitehall have now adopted most
of these principles and it is good that the Mother of Parliaments is now falling into line with
what has been done to clarify criminal law around the Commonwealth for years.
Politically correct drafting
My draft Bills for Gibraltar and St Helena also adopt politically correct terminology. This is
to avoid demonising people caught up in the criminal law system and to make rehabilitation
more likely. They avoid using ‘the offender’ unless the person has been convicted; they say
the ‘defendant’ rather than ‘the accused’ unless then person is not yet in court; they say
‘impose a penalty’ rather than ‘inflict punishment’; they refer to ‘mental disorder’ rather
than ‘insanity’.
The second requirement for clarity in criminal law is to know what the law is, and to be able
to access it readily. This means that all the criminal offences should be legislated, rather
than leaving some to the common law. At present the offence of murder is not statutory in
Britain. Nor is manslaughter, and nor is kidnapping. These offences are still common law
offences and their meaning can only be ascertained by studying case law or textbooks.
B. Certainty as to the contents of the law
My Crimes Bill makes murder, manslaughter and kidnapping statutory offences. It does not
include all common law offences, such as outraging public decency, or piracy. It does not
include defences such as self-defence, ejection of trespassers and necessity. Nor does it
include purely regulatory offences such as liquor licensing. But it does include summary
offences such as criminal trespass and public nuisance.
The Bill does not deal with road traffic offences, drugs, money-laundering, or firearms,
which are the subject of separate legislation. Nor does it include official secrets legislation,
terrorist offences, maritime and aviation security, or international criminal offences (except
genocide). However, it does set out in one document the vast bulk of criminal offences,

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including contempt of court. The other offences are the subject of other recent statutes so
that the law on all criminal offences can be easily accessed.
Certainty as to contents also requires that criminal procedure law should be set out in one
Act, as far as practicable. My Criminal Procedure & Evidence Bill sets out in one document
the bulk of criminal procedure rules, including forfeiture etc. It incorporates the latest
amendments to the UK PACE legislation (Police and Criminal Evidence Act 1984) on
retention of DNA profiles etc.
The CPE Bill does not include provisions of the UK law which give additional powers of
search and seizure and detention in relation to gangs, suspected terrorists, etc. Nor does it
include the Proceeds of Crime Act 2002 which provides for confiscation orders against
people who live a ‘criminal lifestyle’.
The Bill does not specify the order of proceedings in a trial by jury, but does regulate
consecutive and concurrent sentences which are left to procedural practice in the UK.
The Bill does not include all the UK Criminal Procedure Rules, nor AG’s or DPP’s guidelines
on cautions etc. However, the rules can be made or adopted under the Bill and other items
can be taken note of by the courts in the conduct of proceedings.
In order to know what the criminal law is in England and Wales, a practitioner has to buy
Archbold’s Criminal Pleading, Evidence & Practice or Blackstone’s Criminal Practice which
are published every year. They come with 3 or 4 supplements, and with a monthly
newsletter. They still do not include the Codes of Practice published under the Police &
Criminal Evidence of 1984 (‘PACE’). In Gibraltar and St Helena the practitioners and courts
will only have to refer to my two statutes, plus the Schedules and the Codes of Practice, to
guide them for most of the time.
The Bills are up to date to May 2010 when the UK Parliament was dissolved. They therefore
include the UK Bribery Act 2010 and changes made to criminal laws by the Policing & Crime
Act 2009, the Coroners & Justice Act 2009 and the Crime & Security Act 2010. It is
something of a scandal that so many major pieces of criminal legislation were rushed
through Parliament in April under the ‘wash-up’ procedure before dissolution.
Every year for the past several years in the UK there has been at least one major statute
adding offences or changing procedure. Such a rapid rate of change is not conducive to
clarity in criminal law.
Some provisions of those Acts are not yet in force in the UK and one of the problems of
trying to draft clear laws on the basis of UK legislation is knowing what laws are in force.
Many commencement dates are deferred and some provisions are not brought into force
for several years; this is to be deplored.
C. Coherently organised material
The third requirement for clarity in criminal laws is that the material should be coherently
organised. I hope I have achieved that with my two consolidating Bills.
Inevitably, the Bills are long – 600 clauses and 4 Schedules for the Crimes Bill; 700 clauses
and 12 Schedules for the CPE Bill. They are divided into Parts – 27 for the Crimes Bill and 30
for the CPE Bill. They are not divided into Chapters or Divisions but the longest Part is 45

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clauses and the groups of subjects have subject headings. The sequence of Parts is logical (I
like to think), and the sequence of clauses in each Part is consistent.
The definitions are at the start, as in other Commonwealth jurisdictions. So are the short
title and commencement provisions.
Because of the length of some UK sections, some clauses have over 20 subsections (contrary
to Plain English principles.) I have left the clauses long rather than split them into smaller
ones, so that the running sequence of the clauses is the same.
However, the clause numbering is not the same as the section numbering of the equivalent
UK Acts. The UK statutes sometimes have many sections inserted by amendments. This can
lead to e.g. 64ZN of PACE 1984. A rewrite removes this phenomenon and results in a clearer
statute, but means that if practitioners do need to look at Archbold or the case law on a
point they will have to work out which UK section is the model.
That is made easier by providing a Derivation Table, showing the UK (or local) source of the
provision. There is also a Destination Table so that people familiar with the existing local
laws can find out where they have got to.
The other apparatus to assist following the legislation is an Explanatory Note (or
Memorandum). This will be published with the Bill, but not with the Act, as it is in the UK.
I have drafted the Parts with letters and the clauses with numbers carrying those letters.
That makes it easier to change the sequence of Parts, to add to or remove Parts, or to add
to or remove clauses within Parts. Before enactment the Parts and clauses can be numbered
in sequence and cross-references will then need changing. But why should the Bill not be
enacted with lettered parts? This would avoid problems if amendments are made in future.
Advantages of a criminal code
The UK Law Commission has avoided trying to codify the criminal law except for a few
topics. Given the complexities I have mentioned, it is not hard to understand why.
But codification of criminal law can help realise the dream of clarity. It can –
• achieve clarity in the statement of the legal rule;
• achieve consistency of policy;
• make the law more accessible and easier to follow;
• state common law offences clearly e.g. murder;
• remove overlaps and duplication and inconsistencies;
• put all the definitions together in one place;
• allow penalties to be compared more easily;
• ensure that general principles are applied consistently e.g. corporations, forfeiture;
• enable the criminal rules to be stated in a consistent manner;
• use modern language even for old provisions e.g. Town Police Clauses Act 1847.
Disadvantages
The disadvantage of a consolidation are that it –
• results is an unwieldy document;
• is difficult to amend by adding or removing sections;
• might change the meaning and legal effect of some provisions;
• inhibits judicial development of the law.

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There is also the question of whether and if so how other changes to UK criminal legislation
should be incorporated in the Crimes Act and the Criminal Procedure & Evidence Act once
they are enacted.
(One solution might be for Acts to be re-enacted with the amendments incorporated.)
D. Conclusion
Clarity in criminal law does not have to be just a dream.
Perhaps it is a dream to have simple laws; but it should be possible to achieve –
• clarity of expression by the use of Plain English principles (though old statutes still
abound and some will not be replaced for generations);
• certainty as to what the laws are (though this will remain a dream while Ministers
introduce new laws every year, and if commencement dates are deferred
indefinitely);
• coherently organised material;
• easier access to the laws
All these can be achieved by codification, as I have endeavoured to show.
This was in effect done for most of Britain’s colonies (in the same way as written
Constitutions were given). I have redone it for Gibraltar and am now doing it for St Helena.
In future perhaps I will do similar work for other overseas territories. Perhaps even the
Falkland Islands.
Mention of the Falkland Islands reminds me of a perfect example of ambiguity. It is a
headline that appeared in an American newspaper at the time of the Falklands War -
“British left waffles on Falklands”. Does that joke work in Portuguese, I wonder?
JOHN F WILSON (UK)
13 September 2010
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English Barrister (practised for 10 years in Birmingham; now non-practising)
30 years government legal work in Pacific Islands, West Indies, Hong Kong
• Attorney General Tuvalu (1977 to 1978) and Montserrat (1979 to 1983)
• Head of the Localisation & Adaptation of Laws Unit in the Hong Kong AGs Chambers
(1985 to 1996)
• First Parliamentary Counsel Fiji, 1998 to 2000
• Law Draftsman Grenada 2002 to 2004
• Back to Law Drafting Division Hong Kong SAR (part of China) 2002 to 2004
Since 2004 based in the UK doing law drafting work for Commonwealth jurisdictions -
• Biosecurity law for the Pacific islands including Solomon Islands
• Environmental law for Fiji
• Medical and mental health legislation for Fiji
• Maritime Zones for Papua New Guinea.
Now drafting criminal codes for Gibraltar and St Helena
Also drafting model Traffic Regulation Orders for PATROL (Parking & Traffic Regulations
Outside London).
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