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You are here: BAILII >> Databases >> The Law Commission >> Law Commission's 39th Annual Report 2004/05 (Report) [2005] EWLC 294(5) (14 June 2005) URL: http://www.bailii.org/ew/other/EWLC/2005/294(5).html Cite as: [2005] EWLC 294(5)

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PART 5

CRIMINAL LAW, EVIDENCE AND PROCEDURE

TEAM MEMBERS^[1]

Government Legal Service

David Hughes (Team Manager)

Jayne Astley, Raymond Emson

Elizabeth Finlason, Clare Wade

Research Assistants

Ruth Armstrong, Ben Bridge, Jeremy Easton,

Elizabeth Emery, Helen Law,

Laura McGowan



Dr Jeremy Horder

Commissioner

Assisting and encouraging crime

5.1      In 1999 the Commission considered the scope and structure of the law relating to the liability of those who assist and encourage others to commit offences.^[2] This area of law is complicated, uncertain and anomalous, while the policy decisions that it raises are both important and difficult. We are in the process of further simplifying and clarifying the recommendations for a consultative report and draft bill, which we expect to publish in August 2005.

Codification of the criminal law

5.2      In its July 2002 White Paper "Justice for All"^[3] the Government confirmed their intention to codify the criminal law. In 2001, after discussion with the relevant Government Departments, it was agreed that we would review and revise the Criminal Code of 1989.^[4] The project consists of seven tranches. We intend to publish discrete consultation papers on three of the seven tranches during 2005-06. These will be on fault, preliminary offences and intoxication.

Partial defences to murder

5.3      In June 2003 the Commission was asked by the Home Office to review, with particular reference to murders committed in the context of domestic violence, the operation of two of the partial defences to murder namely, provocation and diminished responsibility. In addition, the Commission was asked to consider whether there should be a new partial defence to murder where a person kills in circumstances in which the current complete defence of self-defence is not available because the force used was excessive.

5.4      We issued our provisional proposals in April 2004 followed by a report in summer 2004.^[5] The main recommendation followed from the conclusion that the law of murder "is a mess". The Law Commission recommended that there should be a general review of the law of murder, including the application of the mandatory life sentence.

5.5      In addition, the report recommended that the partial defence of provocation should be reformed in line with principles that are set out in the report. With regard to diminished responsibility, the report recommended that for as long as the law of murder remains as it is and conviction carries a mandatory life sentence, there should be a partial defence of diminished responsibility. Pending a review of the law of murder, the Commission recommended that there should be no change to the statutory provision that governs the defence.^[6] The Commission did not recommend a specific separate partial defence to murder based on the excessive use of force in self-defence, as it was felt that the reformed provocation defence would include those cases which involve excessive use of force in self-defence where culpability is sufficiently reduced to warrant a partial defence.

5.6      On 28 October 2004 the Government announced that it accepted the Commission's recommendation that there should be a review of the law of murder, but that it was committed to the mandatory life sentence.

Judicial review of Crown Court decisions

5.7      Following a reference by the Home Office, the Law Commission embarked on this project in September 2004. As a general rule, the decisions of courts are not amenable to Judicial Review. There are, however, exceptions. Decisions of the Crown Court are an illustration. Such decisions can only be reviewed if they are not "matters relating to trial on indictment".^[7]

5.8      The rationale for the exclusion is easily identifiable. Judicial Review should not be a means of delaying trials and clogging up the criminal justice process. However, although the rationale is clear, the problem has been in locating the boundary of the exclusion. The expression "matters relating to trial on indictment" has proved to be a fertile source of argument, giving rise on numerous occasions to lengthy, time-wasting and expensive litigation.

5.9      In accordance with its terms of reference, the Commission is considering the origin and nature of and the limitations upon the High Court's criminal jurisdiction over the Crown Court, how the jurisdiction might be simplified and, if appropriate, modified, and the implications for the High Court's criminal jurisdiction over magistrates' courts and courts martial.

5.10      The Commission intends to issue a discussion paper in the Summer of 2005. This will be followed by a series of meetings with interested parties and organisations. The Commission intends to publish a consultation paper in autumn 2005 followed by a final report in the second half of 2006.

Misuse of trade secrets

5.11      The Commission previously considered the possibility of creating an offence of misusing a trade secret.^[8] We provisionally proposed that the unauthorised use of disclosure should, in certain circumstances, be an offence. In addition, we provisionally concluded that for the purpose of any new offence of trade secret misuse, it would be necessary to provide a definition of a trade secret. Further work has been postponed, pending the completion of our work on fraud. Since then, other commitments have prevented a return to this topic.

5.12      The majority of respondents to the consultation paper in principle supported the criminalisation of the unauthorised use or disclosure of a trade secret. At the same time a minority were very strongly opposed. The Commission has concluded that, despite the majority view, it would not be right to continue with this project. There are a number of reasons:

(1) Amongst respondents there was considerable criticism of the lack of empirical research to substantiate the Commission's main justification for provisionally proposing a new offence, namely that civil remedies alone are insufficient to discourage trade secret misuse.

(2) The Commission is now of the view that a more coherent and principled approach would be to consider the issue in the context of all intellectual property rights.

(3) Clause 4 of the draft Bill appended to our report on Fraud^[9] covers fraud by abuse of position. This potentially covers certain forms of misuse of trade secrets. If the Government proceeds with a Bill that includes the equivalent of clause 4, forms of misuse of trade secrets will be covered and that is a strong argument for not creating a separate overlapping offence. If the Government decides as a matter of policy not to enact such an offence, it might be thought to be anomalous to propose an offence that would apply to misuse of trade secrets regardless of whether or not there was an abuse of a fiduciary relationship.

(4) The Commission is not aware of a widespread feeling amongst business, industry, commerce, the legal profession and government that it should return to the project as a matter of priority. Currently, the Commission's resources are fully committed to the projects that have been outlined. A return to this project, even if it were limited to consideration of trade secrets, is beyond our current resources.

Note 1    Including those who were at the Commission for part of the period.    [Back]

Note 2    Assisting and Encouraging Crime (1993) Consultation Paper No 131.    [Back]

Note 3    Cm 5563.    [Back]

Note 4    Criminal Law: A Criminal Code for England and Wales (1989), Law Com No 177.    [Back]

Note 5    Partial Defences to Murder (2003), Consultation Paper 173 and (2004) Law Com No 290.    [Back]

Note 6    Homicide Act 1957, s.2.    [Back]

Note 7    Supreme Court Act 1981, s.29(3).    [Back]

Note 8    Legislating the Criminal Code: Misuse of Trade Secrets (1997), Consultation Paper No 150.    [Back]

Note 9    Fraud (2002), Law Com No 276.    [Back]