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In criminal law we find the principle of legality (and similar or subsumed principles such as nulla poena sine lege, or everything that is not forbidden is allowed, etc.). According to a prominent and very reasonable interpretation of this principle by Beccaria, a criminal prohibition has to be published and clearly stated in order to have validity. But in common law systems, and especially in the UK, there is no criminal code, nor even are the offences codified in separate statutes, in the general case. One has to be familiar with rulings, to a professional extent even, and this is much too much to require of citizens.

Isn't it the case that the England and Wales system bluntly defies the principle of legality? Or is there something I don't know that mitigates the tension? Is there any theorizing about this that might help me get my head around this?

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    This is outside my area of expertise, but my understanding is that the UK has largely codified its criminal law. What kind of scenario are you imagining where a citizen could haplessly stumble into common-law criminal liability?
    – bdb484
    Commented May 29 at 12:12
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    Canada has a criminal code and each state in the U.S. has a criminal code, and I know that at least in the state where I currently reside (Minnesota), common-law crimes were abolished a long time ago. Commented May 29 at 20:48
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    @MichaelHardy A dozen U.S. states still have common law crimes. en.wikipedia.org/wiki/Criminal_law_of_the_United_States
    – ohwilleke
    Commented May 29 at 22:00
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    "But in common law systems, and especially in the UK, there is no criminal code, nor even are the offences codified in separate statutes": that's not true. Here's a list of common law offences in England & Wales. All the myriad other offences in E&W are defined in statute. Commented May 30 at 8:04
  • @SteveMelnikoff A list on Wikipedia isn't a codification. It's not a recognised source of law. Anyone can edit it. It can be incomplete or wrong. It doesn't set out the precise legal elements of the crime. It isn't binding on any court. Etc.
    – JBentley
    Commented May 31 at 14:23

3 Answers 3

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The rough idea is that people are expected to know that it's wrong to bash other people over the head with a snooker cue, even if they can't cite the exact legal reason why this might be a criminal offence. A precise knowledge of the boundaries of the relevant law is not essential in that instance.

Jurisprudence by the European Court of Human Rights on this topic says:

Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.
(Sunday Times v United Kingdom, no. 6538/74 of 26 April 1979, at para 49)

It is also the case that

the level of precision required of the domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument considered, the field it is designed to cover and the number and status of those to whom it is addressed
(Chorherr v Austria, no. 13308/87 of 25 April 1993, at para 25)

The first cited case was about contempt of court, which is not defined in statute law, and the second was about detention in the context of public order. The Chorherr statement has been followed in subsequent ECHR cases dealing with "breach of the peace" in UK law, another concept that does not have a statutory definition.

It's important to note that challenges like these arise from particular circumstances. The court isn't being asked to decide that the English law of murder (for another example of an uncodified offence) is inadequate in the abstract, but rather a question like "was the arrest of Joe Bloggs for murder on 15 April lawful?". So, for example, in Eiseman-Renyard v United Kingdom (no. 57884/17 of 28 March 2019), where the applicants said that their preventative detention around the wedding of the then Duke of Cambridge was unlawful, the Court found that "the offence of breach of the peace which all the applicants were charged with was sufficiently concrete and specific in the circumstances". In different factual surroundings, it might be that the supposed legal prohibition is indeed too vague to be justly applicable.

The idea of the passage from Sunday Times is that people do not always need to know the exact legal definition and boundaries of all criminal offences. It speaks of foreseeing consequences "to a degree that is reasonable in the circumstances". Most people, whether living in a country where the law of murder is codified or not, have a sense that it would be illegal to kill somebody on purpose. Very few people could recite the exact circumstances under which the French penal code prescribes a life sentence for murder (Article 221-4) but that doesn't negate the code's validity. But for a different criminal provision, the line could be drawn differently - for example, for the Scottish common-law offence of cheating the public revenue (i.e. tax fraud), there could be considerations about the level of foresight and advice that's applicable to a director of a public company. Normal people don't know the ins and outs of tax law, but they also don't have to.

An old legal power that is definitively unacceptable is the "declaratory power" of the High Court of Justiciary in Scotland to create a new criminal offence in novel circumstances. This was used in HM Advocate v Bernard Greenhuff (1838) 2 Swin 236 where operating a gambling-house was deemed to "threaten[] such evils to the public at large" (at 258) that the court allowed an indictment to proceed, even though the conduct was not a crime under the law as previously understood. The power is now considered to be completely obsolete, because there is no way at all that it can be squared with the requirements of justice.

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  • But see ASBOs, generally only given to people who can't afford to litigate very far
    – Rich
    Commented May 30 at 4:01
  • Gambling used to be illegal in general in England, to the extent for example that gambling debts were unenforceable in law, but only a few specific behaviours were criminal and there were regulated gambling clubs.
    – Henry
    Commented May 30 at 20:27
  • @Henry one of the issues in Greenhuff was whether certain statutes against gambling passed by the UK Parliament extended to Scotland or not - it was decided that since they were couched in terms of English law, they only extended to England and Wales. These days the laws are more explicit about scope. But in any event the High Court found a reason why they were willing to allow the indictment to proceed.
    – alexg
    Commented May 31 at 7:49
  • Thanks for the answer, it's very useful. Commented May 31 at 8:01
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Isn't it the case that the England and Wales system bluntly defies the principle of legality? Or is there something I don't know that mitigates the tension? Is there any theorizing about this that might help me get my head around this?

The easiest way to address this question is to put it into a stylized, oversimplified myth about the way that contrasting legal systems in Europe worked.

Cesare Beccaria was an Italian Enlightenment era legal theorist drawing on the legal traditions of Roman law which were "received" by feudal lords and legal authorities in its former domain in the era just before widespread national codifications of the laws (he died five years after the French Revolution) and his philosophy was to a great extent a political argument for the codification of laws.

The legality principle was one of the founding axiomatic principles of the codification movement that is a defining feature of European and global civil law legal systems right up to the present day. It was a key idea that was in the right place at the right time and was burned into the DNA of the French legal codes and the other legal codes created in its image all around the world. It is a positivist legal worldview in which a state bureaucracy takes center stage.

England's common law legal system doesn't come from that place or that legal worldview. It was a fusion of the Germanic "barbarian" concept of the customary laws and practices of a people (most of whom at its inception were illiterate), and the feudal concept that all power and authority flowed from the Norman King and his dynasty which bound all of his subjects both aristocratic ones and commoners.

English aristocrats, and later specialist judges who were counselors to those aristocrats acting in their stead, resolved disputes among their junior lords and commoner subjects based upon local understandings of customary law, "natural law" and common sense. In this worldview, law was made up of threads of the overall cultural of the society that wise men could tease out, and that societal culture was something that every member of society was part and parcel of. In modern terms, the idea was that members of the society had shared norms that had developed organically.

When there were conflicts in the substance of these ad hoc laws devised by this seat of your pants system in different parts of the Kingdom, the King's senior lords and the King's top advisors were free to pick and choose whose ad hoc determinations to give credit to, and whose to overrule by virtue of his supreme authority. Thus, in modern terms, the King and his senior lords and advisors participated actively in harmonizing the norms shared by members of his Kingdom as tensions arose when different parts of his kingdom shared different norms. (And it wasn't just laws that the King harmonized. The King also harmonized the religious faith of his peoples and the English language, to the extent that he could manage it, as part of a larger, long term nation building effort.)

This English legal worldview had been firmly entrenched for about five hundred years when Beccaria started devising his pro-codification legal theories.

The positivist vision of Beccaria that envisions organized top down formulation of a whole system of laws in written codes by a governmental legislative institution of some kind was a fairly novel concept. This isn't how the Roman legal system upon which the substances of those codes was based arose anyway. The Roman legal system was basically the result of digesting all available legal decisions of independent arbiter judges and Roman officials over hundreds of years from the bottom up, and organizing them in a way that made them look like a coherent whole in a digest similar to the West Digests of case law decisions that exist today in the United States.

Beccaria's "legality principle" came even later to the English King's domains than it did to the Continent. Beccaria was dead and gone for the better part of a century before his ideas gained much traction in English law. In England, this conception of the law wasn't really part of the English worldview until Parliamentary supremacy had been firmly established long enough to be the foundational cornerstone of English political and legal thought. And, even then it took a long time for the English Parliament to codify key portions of its laws in a way that was back compatible to the legal system that had come into being before this idea received wide acceptance.

Even now, Beccaria's legal worldview and elevation of concepts like the legality principle is just one competing philosophical legal theory idea in the mish mash stew of English legal thought, and not the almost sacred foundational axiom that it is in the European civil law tradition.

The English are firm believers in Ralph Waldo Emerson's observation that:

A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.

The ethos of English law and politics sees itself as above such artificial demands of consistency. It focuses instead on the practical needs of the Crown in particular places and particular circumstances, without fear that this might lack theoretical perfection, so long as its laws are sufficient to get the job done in a workable and tolerable way.

Even in U.S. law, the positivist and power based concept that the common law was law made by judges when it was not made by legislators, as opposed to something that was fundamentally universal that existed in a Platonic ideal "out there" in idea space to be "discovered" by judges, was not firmly entrenched in U.S. legal theory and thought until well into the early 20th century. The positivist conception of what the common law was, was widely accepted in British legal thought perhaps two or three decades before it was in the United States.

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The common law distinguishes between malum prohibitum and malum in se

These Latin phrases translate as "wrong [as or because] prohibited" and “wrong or evil in itself” and are inherited through Church law from Roman law into the common law system. And also the civil law system with different application.

A malum prohibitum offence is illegal because a statute says it is, a malum in se offence is illegal even if it is mentioned nowhere in the law because it is morally repugnant to society. Murder is the quintessential malum in se crime, parking offences are an example of malum prohibitum.

A malum prohibitum offence must be promulgated to exist. For a UK act, that happens with Royal Assent, which is announced in both Houses of Parliament and is therefore, public knowledge. In a practical sense, after Royal Assent, the courts will not impose punishment for breach of the law until it is printed because they need a copy as evidence of what the law is. Copies are on sale to the public and, these days, available free on line. Subordinate legislation is promulgated differently but it still printed.

A malum in se offence exists out there in the ether and people are deemed to know what they are because they know the difference between right and wrong.

That said, AFAIK, in most common law jurisdictions, most common law crimes have been codified giving them the best of both worlds. Sometimes the common law crime is abolished and replaced with statutory crimes, sometimes the codification clarifies and anchors the common law without abolishing it.

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    I think there's English case law that says that secondary legislation does not have to have been printed for it to be effective (i.e. enforceable). Do you have an authority for a court requiring a printed form of an Act to enforce it? My recollection is that Parliamentary procedure would always print a bill before it received Royal Assent anyway, the question may be abstract, but it would be nice if you could back that up with some authority. Commented May 30 at 2:50

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