Book Review

Citation(2013) 25 SAcLJ 641
Date01 December 2013
Published date01 December 2013

1 The “general Part” Is A Distinct Formal Part Of The Division Between The “general Part” And The “special Part” In Many Criminal Codes, Especially Those From Continental European Countries. Lord Thomas Macaulay Adopted That Form When He Produced The Indian Penal Code 1860,2 On Which The Singapore Penal Code (“penal Code”)3 Is Based. English Criminal Law Is Not Based On A Codified System, But Glanville Williams Was Credited For Introducing That Division Informally Into English Criminal Law.4 Hitherto, In England, The Areas Which Concerned The General Part Were Disparate, And Did Not Seem To Have As Great An Influence As They Do Today. Blackstone's Commentaries On The Laws Of England5 Covered Criminal Law In The Fourth Volume, Of Which Only The First Three Chapters (roughly 10% Of The Volume) Concerned Matters Of The General Part. Even A History Of The Criminal Law Of England By James Fitzjames Stephen6 Had Only Roughly 13% On The General Part In The Entire 1,300-page Work. However, The Established And Conventional Jurisprudential View In The Common Law World Now Is That “a System Of Criminal Law Can Claim To Be Coherent, Rational And Principled Only In So Far As It Is Structured By An Extensive General Part”.7 The Role Of The General Part Is To Lay Down The General Principles That Can And Ought To Apply Throughout The Vast Expanse Of The Criminal Law.

2 Any attempt to review the criminal law naturally identifies the General Part as the starting point because it occupies the heart of this

branch of law. The authors of Criminal Law for the 21st Century — A Model Code for Singapore devoted their effort entirely to the General Part. They profess to revitalise the Penal Code, making the fair comment that “the Penal Code has for so long been incomprehensible and inaccessible to the layperson that the law has become virtually the sole domain of lawyers”.8 Indeed, if we are to maintain that ignorance of the law is no excuse, lawyers, judges and legislators share the responsibility of making sure that the law is, at least, clear, precise and comprehensible to the public. The authors agree with the lavish praise by Sir James Stephen, who had described the Indian Penal Code as a finished picture compared to a sketch, and “much better expressed, than Livingstone's Code for Louisiana”.9 Nonetheless, two reasons may be given for a need to “revitalise” the Penal Code, in spite of the amendments made in 2007. The first is the number of amendments to the Penal Code over the years and the creation of new offences in other statutes may create doubt or ambiguity towards the existing General Part. The authors are of the view that “some concepts underlying the Penal Code are problematic or have become obsolete”.10 The second is that new ideas and theories about crime and punishment, the twin foundations of the criminal law, have developed tremendously in modern times. A General Part must take into account such developments in jurisprudence.

3 Using the current General Part in the Penal Code as a base, the authors' model comprises of seven parts, namely:

Part 1: Purpose and Application;

Part 2: Proof of Criminal Responsibility and Establishing Guilt;

Part 3: External Elements of Offences;

Part 4: Fault Elements of Offences;

Part 5: Offences which do not require Fault;

Part 6: Extensions of Criminal Responsibility; and

Part 7: Defences.

Every Part is divided into individual chapters to deal with its subsections. In each Part, the authors begin with their draft proposal (including explanations and illustrations) and a general explanatory note on the salient features of the provision. Finally, the authors present a commentary on the current law and the reasons for the proposed

changes. In this segment, the authors compare their draft with similar provisions from other jurisdictions such as England, Australia and also the Statute of the International Criminal Court (“ICC Statute”).

4 In explaining the Purpose and Application of the proposed General Part, the authors take to heart the basic idea of a criminal code, citing Macaulay: “Not only ought everything in the code to be the law; but nothing that is not in the code ought to be law.”11 They thus expressed the ideal that once in place, “the exercise can commence of gradually revising other existing penal legislation to accord with the general principles and rules of interpretation found in the General Part”.12 Part 2 of the book proposes to codify the presumption of innocence and the standard of proof in criminal law. The proposed s 2.1(1) reads: “No person may be convicted of a criminal offence unless each and every fact necessary to constitute criminal liability has been established beyond a reasonable doubt.” This provision (and its illustration) may seem basic but it serves the important function of a beacon in a major criminal code, where hitherto, lawyers rely on experienced hands passing on the wisdom of Viscount Sankey's “golden thread”: “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject to any statutory exception.”13 The authors may perhaps claim in mitigation that they are criminologists and not legislative draftsmen.14 Sub-paragraph (3) begins with “Exceptionally, Parliament may by law derogate from the requirements of this section in order to impose on the accused either a burden to prove any fact on a balance of probabilities, or to adduce supporting evidence, which, if unrebutted, would be sufficient to raise a reasonable doubt.” The legislative draftsman is unlikely to use the word “exceptionally” here. The rest of this provision can also benefit from a revised version. The reluctance to use the small Roman numeral throughout the book has created a slight disorderliness, particularly obvious in s 2.1(2) at page 26.15 Section 2.2 of Part 2 deals with the proposal to codify the coincidence between the actus reus of the offence with the mens rea. As they do in s 2.1, in which “burden of persuasion” is used instead of “the legal burden of proof” (and “burden of production” in place of the

evidential burden), the authors adopt the more modern descriptions “fault element” and “physical element” (in s 2.2) in place of the older terminology of “mental” and “physical” elements of the offence. Here the authors propose a proper match between the physical act and the mental element required for the offence. Hence, if A strikes B with the intention of killing him but B does not die; A thinking that B has died, throws him into the sea causing B to die by drowning, there will be a concurrence of the mental and physical elements of the offence of killing B. However, if A's intention is to cause hurt without...

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