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Codifying legislation

  • 21-09-2019 12:48pm
    #1
    80j2lc5y7u6qs9
    Closed Accounts Posts: 957 ✭✭✭


    What exactly does it mean to codify legislation as in "Legislation defining police powers of arrest, search and detention should be codified, with statutory codes of practice." from The Future of Policing in Ireland

    I know laws around search is a bit vague but I understand arrest and detention are set out in statute . Is that different from codifying?


Comments

  • #2
    Victor
    Registered Users Posts: 78,239 ✭✭✭✭Victor


    In Ireland, each piece of legislation with a power of arrest (there are quite a few, but far from all), specifies to some degree the details of how people should be arrested and detained. In some cases, the details will have been amended by subsequent acts. The idea would be that this would be consolidated into a single act.

    It's not dissimilar to the Road Traffic Acts. There are about a dozen of them, each amending previous ones. While they have been consolidated, they are bloated and there are a few issues where overlaps have been missed.

    In the US, federal legislation has been codified, such that everything is readily available in its most up to ate form.


  • #3
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,707 Admin ✭✭✭✭✭hullaballoo


    Codification here means putting something on the statute book.

    In the case of AGS powers, many are common law or subject to judge-made law. Judges should not be making laws but have (an ever-waning) power to make laws if there is a lacuna in laws made by legislators (law makers), the Oireachtas.

    The preference is to have all laws on the statute books and not a hodge podge of statutes and judge-made law.

    The risk in codifying laws like those granting AGS their powers is that in introducing new laws, you have to repeal old ones and you might accidentally repeal a law that's quite useful or a bit more than quite useful and inadvertently neuter the entire police force.

    So, it takes time to codify things like this.


  • #4
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    hullaballoo wrote: »
    Codification here means putting something on the statute book.

    In the case of AGS powers, many are common law or subject to judge-made law. Judges should not be making laws but have (an ever-waning) power to make laws if there is a lacuna in laws made by legislators (law makers), the Oireachtas.

    The preference is to have all laws on the statute books and not a hodge podge of statutes and judge-made law.

    The risk in codifying laws like those granting AGS their powers is that in introducing new laws, you have to repeal old ones and you might accidentally repeal a law that's quite useful or a bit more than quite useful and inadvertently neuter the entire police force.

    So, it takes time to codify things like this.

    I think one issue with regards to codification of common law provisions is the extent of some common law provisions are obscure and not known to the average legislator, Guard or even Judge who often resort to specialists in the field for advice on such matters.

    It could be years before the mistake of an inadvertently removed provision could be realised. I think certain common law provisions are purposely left as is and there's good reason why Acts such as the Garda Síochána Act 2005 have specific provisions to state the Act will not affect or restrict any common law powers/privileges etc.

    One thing which I am surprised by however is why the actus reus of murder has never been codified.


  • #5
    IsaacWunder
    Registered Users Posts: 398 ✭✭IsaacWunder


    GM228 wrote: »
    One thing which I am surprised by however is why the actus reus of murder has never been codified.

    Murder is a common law offence.


  • #6
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    IsaacWunder wrote: »
    Murder is a common law offence.

    I'm aware of that hence my point, the mens rea is prescribed by statute.


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  • #7
    IsaacWunder
    Registered Users Posts: 398 ✭✭IsaacWunder


    GM228 wrote: »
    I'm aware of that hence my point, the mens rea is prescribed by statute.

    Indeed, but only because of the backlash against DPP v Smith. The legislature acted to steer the courts back to the position that originally stood at common law before Smith. Section 4 of the 1964 act should be seen in that context.

    In England, section 8 of the Criminal Justice Act 1967 which dealt with Smith is not specific to murder. I would bet that if the law in England had changed first we would have copied them.


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