Dr John P. Byrne*
Abstract
More than 20 years have passed since publication of Codifying the Criminal Law (2004), a report of the Expert Group on Codification of the Criminal Law; and 12 years have passed since printed copies of the ensuing Draft Criminal Code and Commentary, prepared by the Criminal Law Codification Advisory Committee, were made available for purchase from Government Publications. As far as one can tell this was the most recent development in the drive to codify the criminal law in this jurisdiction. Yet, the issue has been to the fore again recently with various eminent criminal jurists endorsing a codification drive. This article looks to those comments and considers what’s next for the Criminal Code project in the Republic of Ireland.
Introduction
Now, more than 20 years have passed since publication of Codifying the Criminal Law (2004),[1] the report of the Expert Group on Codification of the Criminal Law, under the chairmanship of Professor Finbarr McAuley, which recommended codification of our criminal law; 12 years have passed since printed copies of the ensuing Draft Criminal Code and Commentary, prepared by the Criminal Law Codification Advisory Committee, were made available for purchase from Government Publications.[2] As far as one can tell, and we’re very much reliant on publication, this was the most recent development in the drive to codify the criminal law in this jurisdiction.
The webpage of the Criminal Law Codification Advisory Committee, on http://www.gov.ie, is, however, updated regularly[3] and it displays Annual Reports to the Minister for Justice between commencement of the relevant Part of the Criminal Justice Act 2006[4] (the “2006 Act”), which established the Committee, and the year 2010 – pursuant to the obligation under s.175 of the 2006 Act to provide such reports annually.[5] There are no Annual Reports after this date, but it still appears the relevant provision remains in force: in fact, upon a reading of the Law Reform Commission’s Revised Act, all the provisions of Part 14 of the 2006 Act remain extant and unamended.[6]
It appears the last time the issue of the Criminal Law Codification Committee was raised in the Oireachtas was in 2012 when the Minister for Justice and Equality, Mr Shatter, solicitor, in response to a question put, stated:
“The criminal law codification project envisages the replacement of the existing primary sources of criminal law, both statute and judicial interpretation, by a comprehensive code. The purpose of the code is to enhance the clarity and accessibility of the criminal law. It is not intended to provide for substantive law reform. A draft partial code was prepared by the Criminal Law Codification Advisory Committee and published on my Department’s website on 23 June 2011. While I am favourably disposed towards the concept of codification, I have to have regard to the fact that enactment of a criminal code would involve a substantial legislative programme over a number of years which has implications for the use of scarce State resources. Having reviewed the project in the light of the current constraints facing the Government, I will be bringing proposals to Government shortly in relation to the project. An announcement will be made after the Government has considered the matter.”[7]
The Times reported the Minster had planned to scrap the project, after a cost of €1.7m, in a piece published earlier in September 2012. The chairman of the project Professor McAuley had been quoted by that publication as saying the decision was “utter folly”.[1]
Codification in Ireland today
Yet, despite the apparent easing off in efforts, several jurists have kept the embers of codification alight. Mr Justice Peter Charleton, Supreme Court, among them, wrote in the preface to Charleton & McDermott’s Criminal Law and Evidence as follows on the subject:
“Those following criminal law will know that in all common law jurisdictions since the 1870s, there has been a drive towards codification, attractive though the common law is and sensible in much of its judgment. The common law still largely prevails in Ireland, certainly more so than in any other country; but with multiple twists and turns through statutory intervention. External elements change from offence to offence, but many are possession offences or inchoate forms of crime or are founded on liability through participation or are assault offences or importation offences. Why not define all these concepts for all legislation? Modern Irish statutes require that for the accused to be guilty he or she be ‘in possession of’ or ‘in control of’ or ‘have with him or her’; that the accused act ‘with intent’ or ‘with a view to’ or ‘for the purpose of’ or ‘which has the effect or purpose of’; that he or she ‘be reckless’, undefined or occasionally defined; or ‘believe’, undefined, or ‘believe that probably’; or act ‘without lawful authority or excuse’ or ‘without reasonable excuse’; or, the best ever, that the accused shall not suffer imprisonment, but is still guilty, unless the action or neglect was wilful. (…) Why no standard definitions and conforming usage throughout all our criminal law? Why ‘words mean exactly what I say they mean’ but changing from offence to offence, or don’t say at all? There seems to be a fear on high of complete codification, as if some prevailing wind of legal formalism will leave trials straddling, in fear of castration, the fence between the current ill-fitting jigsaw of laws and a comprehensive statute. (…) Maybe it is felt that a huge job is needed? No. It’s the central definitions that are most wanting. (…) [T]he right approach to putting together the equivalent of a taxation code in criminal law, is to go slowly but deliberately: putting common definitions of intention, recklessness, possession, knowledge and the defences into all major criminal legislation and painstakingly then codify violence and property offences around that core. It can be done. It’s not that hard either. If done gradually, by the inch it’s a cinch, as salespeople say. Much has been done, comprehensive statutes on dishonesty offences, criminal property and on malicious damage exemplify this, but it is the coordination of inter-statutory authority and with the common law that is wanting to an alarming degree”[8]
In a follow-up piece published in The Irish Times the Supreme Court judge is quoted as saying:
“[T]his jurisdiction should do more to set out in law (codify) identical definitions of key concepts such as intention, recklessness and possession, to be applied across different pieces of legislation. For instance, in relation to sexual offences, ‘there has been lots of reform in that, and I can’t say that any of it is other than sensible, but the problem now is that you have got lots and lots of Acts. If all this legislation was consolidated in one Act, as has been done with the Criminal Justice (Theft and Fraud Offences) Act 2001, then the same definitions of key concepts could apply to all the varying offences of this category of crime, rather than having the current situation where there are variations between Acts. Why can’t we pull them together and codify things? It would be a massive task to try to do this across the whole of criminal law, but it could be done progressively by area of law.”[9]
News of that position was warmly received by the Law Society of Ireland, with its President, Michele O’Boyle, issuing a statement that said:
“Although it would, no doubt, be a huge undertaking, the concept of codification of criminal law in this jurisdiction had gathered quite some momentum in the past. A good deal of work has already been done to develop a framework within which the various categories of criminal law could be separated and codified in a phased approach. Codification of law involves consolidating existing legislation on an area of law, such as criminal law, into a single, modern piece of legislation, with the aim of providing clarity and consistency in the application of the law. The clarity and consistency would be of benefit to all – lawyers, judges, defendants, and the victims of crime as well.[10]
It should be noted that support for the drive to codify the law was to be found across the spectrum of the legal profession in 2003/04 – and from a very early stage: membership of the original Expert Group on Codification, which met fortnightly during that period, and which ultimately proposed to advance the issue, were representative of academia (Professor Finbarr McAuley, Professor J. Paul McCutcheon); Government (Ms Geraldine Larkin, Principal Officer, Department of Justice, Equality and Law Reform – as it then was, now CEO, National Standards Authority of Ireland); the Office of the Attorney General (Matthew Feely, Advisory Counsel to the Attorney); the Office of the Director of Public Prosecutions, (Ms. Elizabeth Howlin, Solicitor, subsequently Deputy Director); The Bar of Ireland (Dr Paul Anthony McDermott S.C.); and the Law Society (Mary Keane, Solicitor, subsequently Director General). The subsequently established Criminal Law Codification Advisory Committee was equally distinguished.[11]
Among its provisions, the Law Reform Commission’s Fifth Programme of Law Reform includes the “Review and Consolidation of the Law on Sexual Offences” – an area potentially earmarked for any codification drive. Professor Tom O’Malley S.C., during the course of a speech published by the Law Reform Commission, states on this inclusion within the context of a possible codification:
“The main justification for this exercise is that the criminal law should be clear and accessible to all. Ideally, the substantive criminal law, or most of it, should be contained [in] a relatively small number of statutes dealing with cognate offences.”[12]
As Professor O’Malley SC points out, this has already been done with assault offences and property offences: The Non-Fatal Offences Against the Person Act 1997 and the Criminal Justice (Theft and Fraud Offences) Act 2001 are measures that “have proved to be remarkably resilient”.[13] These provisions had also been singled out for praise by the original Expert Group on Codification of the Criminal Law.[14] Broadly concomitant with the overarching position of that original Expert Group, Professor O’Malley SC continued:
“When any exercise in statutory codification or consolidation is being undertaken, three key values should be to the fore: economy, clarity and comprehensiveness. Economy entails an effort to include all of the conduct which it is desired to prohibit in as few offences as possible. An unnecessary multiplicity of offences with overlapping definitions serves to obscure the law and make it less accessible. (…) Criminal offences should also, of course, be clearly defined. This is an element of the principle of legality as protected under both the Constitution and the European Convention on Human Rights. (…) Thirdly, a codified or consolidated statute should be comprehensive and coherent, by including all necessary offences defined in such a way that they overlap as little as possible.”[15]
Of course, there would be issues and decisions that would arise in any drive to codify the criminal law. Within the context of the sexual offences that jurist went on to consider specific aspects: among them the codification/consolidation of rape into one offence (currently there are two); and the treatment of incest (which overlap with defilement offences which carry heavier maximum sentences).[16]
Draft Criminal Code and Commentary in Ireland
The original driver of the codification project in Ireland, Professor Finbarr McAuley,[17] on publication of an extensive Draft Criminal Code and Commentary, which arose from the work of the Criminal Law Codification Advisory Committee, described its publication as “a watershed in Irish criminal law”.[18]
“The draft code (…) attempts to draw together in a single instrument the disparate sources of law in four areas of major importance. These are offences against the person, theft and fraud and related offences, criminal damage offences, and public order offences, respectively.”[19]
A preface in the publication Criminal Liability, first edition, 2000, which advocated for codification, was followed by another call in its second edition, which included an assessment of the significance of the Draft Criminal Code and Commentary.[20] As well as being a welcome new edition of a highly influential text on the general principles of criminal liability (referred to as “the General Part”),[21] the authors took the opportunity to discuss the importance of codification of Irish criminal law, including codification of the main criminal offences (known as “the Specific Part”).[22] In this respect, the text discusses the work of the Committee[23] and the significant benefits that enacting such a code would bring to the law. It would also bring Ireland into line with other major common law jurisdictions such as Australia, New Zealand and the United States of America, where codified Crimes Acts have been enacted (in the US, state-enacted criminal and penal codes have been influenced by the American Law Institute’s Model Penal Code). These were all developments which the original Expert Group on Codification had noted.
Codification Still Mentioned
Nor has the issue of codification been settled abroad: a recent article in one publication considers whether there exists a General Part of transnational criminal law and undertakes a general survey of all primary instruments to explore the level of consistency of terminology and to show how this consistency has potentially shaped the scope of culpability and criminalisation in participating states. That survey concluded that there is an embryonic general part in transnational criminal law:
“[T]here is considerable consistency in the terms used in the suppression instruments that set out definitional elements and auxiliary elements, while some relatively stable supervisory elements can also be inferred, suggesting an embryonic general part for transnational criminal law.”[24]
The author states:
“Consistency, certainty and precision in defining the scope of criminalisation preserve the principle of legality by providing fair warning of criminality. Normative ambiguity can lead to uncertainty about the scope of crimes and to over-criminalisation and compounds problems of normative variance between states engaging in international cooperation against transnational crime.”[25]
The author looks at the origins of the General Part and states:
“Even the agnostic Anglo-American systems began to develop general parts in the 20th century to aid law reform. The 1860 Indian Penal Code’s general provision, the general part introduced into English criminal law in the 1950s and the 1962 American Model Penal Code have all been highly influential in the common law world. A variety of social processes spread these models across the globe, cultivating a normative field that was receptive to a general part. Thus, for example, while Islamic law appears not to have developed a general part, hybrid systems such as Iran’s have embraced this distinction. That fertile normative soil in domestic criminal law globally has been a necessary condition in enabling transnational criminal law to develop a ‘general part’. Another important pragmatic harmonising factor has been the process of drafting itself. Consistency of terminology has arisen from the continuity among drafters, working in transnational epistemic communities, on congruent problems using previously agreed language that is compatible where possible with the extant general parts of the contracting states. They have chosen, for example, commonly used concepts like ‘intention’ in pursuit of efficiency and to garner state support.”[26]
It’s difficult to understand, on one view, the reticence in Ireland to codify. Certainly there is a body of work required to be done in its adoption, there is no question about this, but, as this article has hopefully elucidated, there is no shortage of support for the endeavour in the criminal law community in Ireland: consequently, no shortage of assistive hands can be anticipated when the wheels of the process are put into motion once more. A great deal has already been achieved: The Draft Criminal Code and Commentary, in its introduction, had envisaged a “review” on the codification project by the Department of Justice, Equality and Law Reform (as it then was) to follow publication of the Report[27] and this was mentioned by Minister Shatter in the Dáil in his contribution mentioned earlier. While the General Part as published in that document was “incomplete in the sense that it is currently confined to the rules of inculpation affecting such matters as the objective and fault elements of an offence, causation and consent”, and had initially omitted other material,[28] there seems little doubt that what remained was achievable.
Consultation and Controversy
In any event, the original Expert Group on Codification was keen to emphasise the importance of consultation with the wider legal community.[29] There had been failed attempts at codification before: notably a previous failed attempt to reform the New Zealand Crimes Act in 1989, which had been attributed, by one commentator, to the proposed definition for intention, which had proved controversial – the proposal had turned on the concept of “high probability”.[30] In a Report by the Crimes Consultative Committee, in that jurisdiction, in the wake of the failure, that Committee advanced the view that the formulation put forward had tended to “stray into the territory of recklessness”.[31] Still, this failed attempt at codification should be viewed within the context then prevailing in that legal system at the time – New Zealand already had a codification instrument entitled the Crimes Act 1961 – so upset over the proposals in a new instrument may well have turned on the view that the extant enactment was already adequate. In any event, the 1961 Crimes Act in that jurisdiction has been successfully amended several times since 1989, including pursuant to the Crimes Amendment Act (No.2) 2008,[32] which inserted, inter alia, provisions in respect of retrials of previously acquitted persons[33] and the right of appeal against conviction and sentence.[34]
Furthermore, on controversial provisions, and returning to the issue of codification of the sexual offences, mentioned earlier, a lesson may well be learned from Australia: in that jurisdiction the Standing Committee of Attorney’s General (SCAG) established a committee in order to advance the concept of “[t]he development of a National Model Criminal Code for Australian Jurisdictions”.[35] The committee was named the Model Criminal Code Officers Committee (MCCOC). In November 1996, the MCCOC published a Discussion Paper on Sexual Offences Against the Person. Goode, a member of the committee, states[36] that the committee was unprepared for the “storm which broke over its collective heads based upon complete, and often wilful misunderstanding and misrepresentation of the Committee’s proposals.”[37] The committee, amongst other matters, had addressed the question of the age of consent. Goode states that:
“[E]ssentially, the committee recommended a two tiered age of consent. The first was a ‘no defence age’, below which any sexual contact at all would have no defence whatsoever. The Committee suggested that this age should be 10. The second was ‘true age of consent’. This was suggested to be set at 16. Between the ages of 10 and 16, the committee proposed a number of limited defences: (a) marriage or reasonable belief that there was a marriage; (b) the accused and the victim were not more than 2 years different in age (the sexual experimentation defence); and (c) reasonable belief that the victim was of or above the age of consent.”[38]
According to Good, in the wake of these proposals, the then Queensland Attorney-General took the “extraordinary step” of placing a large public advertisement in the newspapers condemning the MCCOC and disassociating himself from its discussion paper. Goode states that “[i]n a letter to the editor of The Australian, the Attorney-Generaldeclared he would have “no part of the Model Criminal Code, and in so doing, repeated the entirely false interpretation of the MCCOC recommendation about the age of consent.” His press release was “somewhat stronger” stating: “[i]t is an outrage our Federal taxes are being spent on this rubbish.”[39] The MCCOC was “left with no choice but to say, in its Final Report, that it could find no rational basis to depart from the principles that it had formulated, but that, since the general age of consent was quite clearly revealed as a political issue, it could not recommend a fixed age.”[40]
Other Issues Addressed by the Expert Group
It should also be noted that the original Expert Group report had addressed the argument, occasionally proffered, that codification is a foreign civilian concept, which is false. For as the Report states:
“[T]he idea of codification is part of a common European legal heritage; it is a res nullius, belonging to no one in particular and, therefore, to everyone, common lawyer and civilian alike.”[41]
The Report illustrated how codification, in its modern sense, has long been a flourishing technique in the common law tradition and that ever since its transplant into the common law during the age of codification in the 19th century, its “reception was genuine and has proved to be long-lasting.”[42]
Modern codification, explains the Report, is a “child of the European Enlightenment” and the ideas which inspired codification stemmed from the ideology of that age and that as such they showed “no respect for national borders” and “easily straddled the divide between the two great European legal traditions.”[43]
Uncodified law, state McAuley and McCutcheon, in the first edition of Criminal Liability, is seen by some as “an unacceptable relic of an uncouth legal past”.[44] Nor will this “comprehensive instrument” solidify the criminal law, for the law, as set down in the criminal code, would need to be amended and maintained – said the authors of the Report. This would involve ongoing review to take account of “unforeseen circumstances”, “new developments”, and “judicial interpretation of the provisions of the Code”.[45]
The Report set out the principal virtues of codification in some detail before summarising that these include:
- that it brings order to the sources of the criminal law, where formerly there was chaos and confusion;
- that it improves access to the criminal law by digesting it into a single authoritative instrument;
- that it provides an opportunity to reinforce the democratic legitimacy of the criminal law by recasting it in the form of a modern enactment binding judges and citizens alike;
- that it enhances comprehension of the criminal law, rendering it in a uniform drafting style and intelligible idiom;
- that it promotes conceptual consistency and logical development throughout the general and special parts of the criminal law;
- that it requires the moral ranking of criminal offences in terms of their relative seriousness and fixes the maximum levels of punishment accordingly; and
- that it engenders a process of systematic review leading to the identification and removal of uncertainties and lacunae in the criminal law.[46]
The Report recommended that there should be a “systematic statement” of the general principles of criminal liability within the codifying instrument. This would, states the Group, encourage conceptual consistency across the entire spectrum of offences and would thus assist in strengthening the integrated character of the codifying instrument.
Further the Report noted that the general part should be defined in a manner that is demonstrably compatible with the requirements of the principle of legality, in the sense that citizens are “entitled to clear notice as to what the law expects of them and to be given a fair opportunity to act in conformity with its provisions.”[47] This is particularly so as the general principles “mark the limit of permissible conduct”.[48] In that regard, the Report recommended that the fault elements, especially intention and recklessness, “should be defined in detail rather than, as at present, left to the mercy of the common law.”[49]
This practice, of defining the fault elements, is the preferred approach in that the most recent common law codifications have comprehensively defined the heads of criminal fault.[50] The Report noted that the effect of leaving these concepts to the mercy of the common law “is no guarantee of conceptual consistency when it comes to interpreting and applying them.”[51]
The Report also addressed the “emotive subject” of the fate of the common law, and noted that discussion of this topic “marks a psychological boundary” which common lawyers are “naturally disinclined to cross”.[52] Indeed the Report went further when it proffered a connection between the continuing hostility[53] which common lawyers feel towards “codes and anyone associated with them” with the “historical tendency to see codification in abolitionist terms” and as something which “devours everything in its path, ordinary legislation and the common law included.”[54]
The Report notes that,
“[I]n the common law world, the traditional judicial role is guaranteed by the imperative of explaining the provisions of the code to juries, on the one hand, and the need to resolve conflicts of interpretation between opposing counsel, on the other.”[55]
Finally, as regards the common law, the Report made the observation that the abolitionist strand in current legislative policy – resulting in the enactment of a series of “mini-codes” – such as the non-Fatal Offences Against the Person Act 1997 – has already resulted in the abolition of a considerable number of common law offences as well as “several venerable common law rules and principles”. The Group observed that “the sky has not fallen as a result of this process”.[56]
Conclusion
More than 20 years have now passed since the publication of the original report of the Expert Group on Codifying the Criminal Law in Ireland. Since then, we have moved to establish a Criminal Law Codification Advisory Committee. That Committee, including its research unit, has produced a considerable body of work – principally a Draft Criminal Code and Commentary. The webpage of the Committee has been kept up to date, with recent updates in 2025, though there have been no annual reports under the relevant legislation since 2010. It appears the last Ministerial announcement on the matter dates back to 2012, when the matter was subject to proposals to be brought to Government with a further announcement to follow.
Codification brings together many desirable attributes which many other jurisdictions, both common law and civil law alike, have moved to address through the enactment of respective codes. Relatively recent published views from distinguished members of the legal profession have also clearly lent support to the project.
*BCL, LLM, Barrister-at-law, PhD. This article was first published in the Irish Criminal Law Journal 2025 (Round Hall, Ireland)
[1] https://www.thetimes.com/world/ireland-world/article/shatter-scraps-10-year-criminal-law-project-6g6nhkrk80h
[1] Codifying the Criminal Law, Report of the Expert Group on the Codification of the Criminal Law, (Dublin: Stationery Office, November 2004).
[2] Available at https://www.gov.ie/en/criminal-law-codification-advisory-committee/publications/draft-criminal-code-and-commentary/.
[3] The latest update is recorded as 12 April 2025.
[4] Part 14, ss.167 to 175.
[5] 175.—(1) “The Committee shall, not later than 3 months after the end of each calendar year, prepare and submit to the Minister a report on the performance of its functions and activities during the preceding year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas within a period of 2 months from the receipt of the report.”
[6] Available at https://revisedacts.lawreform.ie/eli/2006/act/26/front/revised/en/html.
[7] Available at https://www.oireachtas.ie/en/debates/question/2012-09-18/1276/ responding to a question put by Deputy Anne Ferris, Labour Party.
[8] Preface, Charleton & McDermott’s Criminal Law and Evidence, 2nd edn (Bloomsbury, 2020), ix to x.
[9] Available at https://www.irishtimes.com/news/crime-and-law/the-life-of-a-supreme-court-judge-the-law-is-above-you-1.4403658.
[10] Available at https://www.lawsociety.ie/gazette/top-stories2/momentum-gathers-for-criminal-law-codification.
[11] Professor Finbarr McAuley, Chairman, Conal Boyce, Valerie Fallon, Matthew Feely, Elizabeth Howlin, Dr Richard Humphreys, The Hon. Mr Justice Patrick J. McCarthy, The Hon. Mr Justice Patrick J. McCarthy, Patrick MacEntee S.C., Professor Paul O’Connor.
[12] Available at https://tinyurl.com/yknda6t9.
[13] Available at https://tinyurl.com/yknda6t9.
[14] These enactments, fruit of the “policy of modernisation” being pursued by the legislature, have brought, in the opinion of the Expert Group, a “much-needed measure of order to the sources of the criminal law and greatly improved its comprehensibility”. Codifying the Criminal Law, Report of the Expert Group on the Codification of the Criminal Law, (Dublin: Stationery Office, November 2004) at p.5. Although see also Senator Ivana Bacik (as she then was) in the Oireachtas, where she states, in relation to an amendment to the 2001 Act: “Now we should really be looking at a more wholesale codification of the 2001 Act and its subsequent amendments to ensure we have a criminal theft code. Theft and fraud offences are not the only area, indeed, they are not by any means the most problematic area, where we see this sort of piecemeal and ad hoc reform and amendment. Sex offences law is a real area crying out for codification. Many of us have spoken on this many times. We need to see a proper codifying Act that brings together the vast array of these different offences, and especially sex offences against children, on which I did some work a few years ago.” (Available at https://www.oireachtas.ie/en/debates/debate/seanad/2020-11-05/13/). In the same debate, Senator Barry Ward, as he then was, referred to “the great work the Law Reform Commission does in providing access to consolidated legislation, which makes it a great deal easier for anybody who wants to parse what is in the legislation to look at a consolidated Act. Again, there is possibly an opportunity for these Houses to consider consolidating the theft and fraud offences legislation into a single Act in order that we have easy access to all the relevant considerations.”
[15] These enactments, fruit of the “policy of modernisation” being pursued by the legislature, have brought, in the opinion of the Expert Group, a “much-needed measure of order to the sources of the criminal law and greatly improved its comprehensibility”. Codifying the Criminal Law, Report of the Expert Group on the Codification of the Criminal Law, (Dublin: Stationery Office, November 2004) at p.5. Although see also Senator Ivana Bacik (as she then was) in the Oireachtas, where she states, in relation to an amendment to the 2001 Act: “Now we should really be looking at a more wholesale codification of the 2001 Act and its subsequent amendments to ensure we have a criminal theft code. Theft and fraud offences are not the only area, indeed, they are not by any means the most problematic area, where we see this sort of piecemeal and ad hoc reform and amendment. Sex offences law is a real area crying out for codification. Many of us have spoken on this many times. We need to see a proper codifying Act that brings together the vast array of these different offences, and especially sex offences against children, on which I did some work a few years ago.” (Available at https://www.oireachtas.ie/en/debates/debate/seanad/2020-11-05/13/). In the same debate, Senator Barry Ward, as he then was, referred to “the great work the Law Reform Commission does in providing access to consolidated legislation, which makes it a great deal easier for anybody who wants to parse what is in the legislation to look at a consolidated Act. Again, there is possibly an opportunity for these Houses to consider consolidating the theft and fraud offences legislation into a single Act in order that we have easy access to all the relevant considerations.”
[16] These enactments, fruit of the “policy of modernisation” being pursued by the legislature, have brought, in the opinion of the Expert Group, a “much-needed measure of order to the sources of the criminal law and greatly improved its comprehensibility”. Codifying the Criminal Law, Report of the Expert Group on the Codification of the Criminal Law, (Dublin: Stationery Office, November 2004) at p.5. Although see also Senator Ivana Bacik (as she then was) in the Oireachtas, where she states, in relation to an amendment to the 2001 Act: “Now we should really be looking at a more wholesale codification of the 2001 Act and its subsequent amendments to ensure we have a criminal theft code. Theft and fraud offences are not the only area, indeed, they are not by any means the most problematic area, where we see this sort of piecemeal and ad hoc reform and amendment. Sex offences law is a real area crying out for codification. Many of us have spoken on this many times. We need to see a proper codifying Act that brings together the vast array of these different offences, and especially sex offences against children, on which I did some work a few years ago.” (Available at https://www.oireachtas.ie/en/debates/debate/seanad/2020-11-05/13/). In the same debate, Senator Barry Ward, as he then was, referred to “the great work the Law Reform Commission does in providing access to consolidated legislation, which makes it a great deal easier for anybody who wants to parse what is in the legislation to look at a consolidated Act. Again, there is possibly an opportunity for these Houses to consider consolidating the theft and fraud offences legislation into a single Act in order that we have easy access to all the relevant considerations.”
[17] Appointed as Chairman of the original Expert Group on Codification by Mr Michael McDowell, Minister for Justice, Equality and Law Reform.
[18] Available at https://www.irishtimes.com/news/crime-and-law/draft-code-aims-to-correct-flaws-that-bedevil-criminal-law-1.590965.
[19] Available at https://www.irishtimes.com/news/crime-and-law/draft-code-aims-to-correct-flaws-that-bedevil-criminal-law-1.590965.
[20] McAuley and McCutcheon, Criminal Liability, (Dublin: Round Hall, Thomson Reuters, 2022.
[21] See Codifying the Criminal Law, Report of the Expert Group on the Codification of the Criminal Law, (Dublin: Stationery Office, November 2004).
[22] See Codifying the Criminal Law, Report of the Expert Group on the Codification of the Criminal Law, (Dublin: Stationery Office, November 2004).
[23] Published in 2010 and available at https://www.criminalcode.ie.
[24] N. Boister, “The ‘General Part’ of Transnational Criminal Law”, European Journal of International Law, 2025, chaf025, available at https://doi.org/10.1093/ejil/chaf025.
[25] N. Boister, “The ‘General Part’ of Transnational Criminal Law”, European Journal of International Law, 2025, chaf025, available at https://doi.org/10.1093/ejil/chaf025.
[26] N. Boister, “The ‘General Part’ of Transnational Criminal Law”, European Journal of International Law, 2025, chaf025, available at https://doi.org/10.1093/ejil/chaf025.
[27] Available at https://assets.gov.ie/static/documents/draft-criminal-code-and-commentary.pdf.
[28] “Remaining matters of preliminary and general concern (such as provisions on the objectives of the Code, scope of the General Part, principles of construction, as well the articulation of the rules governing proof of criminal responsibility, double jeopardy, jurisdictional issues and general time limitations etc) and the general
defences to a criminal charge” were specifically omitted at the outset. Available at https://assets.gov.ie/static/documents/draft-criminal-code-and-commentary.pdf.
[29] The Group recommended innovative strategies to achieve this end, including “the organisation of public seminars on the value of codification”; “imaginative use of information technology as a means of facilitating consultation”; “wide circulation of legislative proposals and draft instruments”; “detailed statutory memoranda on the structure and layout of criminal codes”; the “use of examples and illustrations to explain the meaning of key terms and provisions”; and “reliance on annotations indicating the origins of consolidating provisions”. (Paras 3.55–3.58).
[30] France, “Reforming Criminal Law—New Zealand’s 1989 Code” [1990] Crim. L.R. 827.
[31] Crimes Bill 1989, Report of the Crimes Consultative Committee (April 1991). This Committee was set up by the Minister of Justice in New Zealand and was chaired by the Hon. Justice Casey. The Committee was asked to examine the Crimes Bill 1989 and to prepare a report for the Minister of Justice on the changes that “might usefully be made to it”.
[32] Available at https://www.legislation.govt.nz/act/public/2008/0037/latest/DLM999013.html.
[33] Available at https://www.legislation.govt.nz/act/public/2008/0037/latest/DLM1378606.html#DLM1378607.
[34] Available at https://www.legislation.govt.nz/act/public/2008/0037/latest/DLM1378640.html.
[35] M.R. Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (published at https://search.informit.org/doi/abs/10.3316/agispt.20023020).
[36] M.R, Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (published at https://search.informit.org/doi/abs/10.3316/agispt.20023020).
[37] M.R, Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (published at https://search.informit.org/doi/abs/10.3316/agispt.20023020) at 11.
[38] M.R, Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (published at https://search.informit.org/doi/abs/10.3316/agispt.20023020) at 12. In Ireland, as O’Malley explains, since 2017, it has been 18 years in some circumstances because s.18 of the Criminal Law (Sexual Offences) Act 2017 makes it an offence for a person in authority to engage in certain sexual acts, including sexual intercourse, with a child aged between 17 and 18 years, and the child’s consent provides no defence. Available at https://tinyurl.com/yknda6t9.
[39] M.R, Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (published at https://search.informit.org/doi/abs/10.3316/agispt.20023020) at 13. In Ireland, as O’Malley explains, since 2017, it has been 18 years in some circumstances because s.18 of the Criminal Law (Sexual Offences) Act 2017 makes it an offence for a person in authority to engage in certain sexual acts, including sexual intercourse, with a child aged between 17 and 18 years, and the child’s consent provides no defence. Available at https://tinyurl.com/yknda6t9.
[40] M.R, Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (published at https://search.informit.org/doi/abs/10.3316/agispt.20023020) at 14. In Ireland, as O’Malley explains, since 2017, it has been 18 years in some circumstances because s.18 of the Criminal Law (Sexual Offences) Act 2017 makes it an offence for a person in authority to engage in certain sexual acts, including sexual intercourse, with a child aged between 17 and 18 years, and the child’s consent provides no defence. Available at https://tinyurl.com/yknda6t9.
[41] Para.1.28.
[42] Para.1.25.
[43] Para.1.26.
[44] McAuley and McCutcheon, Criminal Liability (Dublin: Round Hall, Sweet & Maxwell, 2000), p.95.
[45] Para.3.79-3.80.
[46] Para.1.91.
[47] Para.2.90.
[48] Para.2.90.
[49] Para.2.91.
[50] Citing (Australian) Commonwealth Criminal Code (1995) and the Australian Capital Territory Criminal Code (2002), both of which, notes the Report, follow the example of the American Model Penal Code. (Report at para.2.92).
[51] Para.2.91.
[52] Para.2.154
[53] Professor A.T.H. Smith quotes Professor J.C. Smith when he said that “no amount of abstract argument as to the virtues of codification is going to overcome the conservatism, inertia and actual hostility which will have to be faced if the Code is to be a reality”—A.T.H. Smith, “Codification of the Criminal Law—The Case for a Code”[1986] Crim. L.R. 285, citing J.C. Smith, “Codifying the Criminal Law” [1984] Statute Law Rev. 17 and 18.
[54] Paras 2.154 to 2.155.
[55] Para.2.157.
[56] Para.2.160.
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