Introduction
This essay explores the complex interplay between common law crimes and the concept of a written constitution in the UK, with a specific focus on whether such crimes can persist if Parliament fails to legislate corresponding punishments. While the UK operates under an unwritten constitution, the hypothetical adoption of a written constitution raises significant questions about the legitimacy and survival of common law offences. This discussion will examine the nature of common law crimes, the impact of a written constitution on legal certainty, and the role of parliamentary sovereignty in defining punishments. The essay argues that without legislative intervention, common law crimes may struggle to survive under a written constitutional framework due to principles of legality and the rule of law.
The Nature and Status of Common Law Crimes
Common law crimes, historically developed through judicial precedent rather than statute, form a foundational part of the UK legal system. Offences such as murder and manslaughter originated from judicial decisions and remain uncodified in many respects, though aspects of their application are now governed by statutes like the Homicide Act 1957. These crimes demonstrate the flexibility of the common law to adapt to societal needs without immediate parliamentary intervention (Herring, 2020). However, their reliance on judicial interpretation raises concerns about legal certainty and predictability—issues that become more pronounced under a written constitution, which typically prioritises explicitly defined rights and rules.
Indeed, the principle of legality, a cornerstone of the rule of law, demands that no one should be punished except for a breach of clearly defined law (Raz, 1979). Common law crimes, lacking statutory codification, could be challenged as insufficiently precise if subjected to constitutional scrutiny, particularly if punishments remain undefined by Parliament. This tension highlights a potential incompatibility between uncodified offences and the structured clarity expected within a written constitutional framework.
Impact of a Written Constitution on Legal Certainty
A written constitution typically enshrines fundamental principles and legal certainties, often protecting citizens from arbitrary state action. In such a system, the survival of common law crimes without legislated punishments arguably undermines the constitutional guarantee of fair notice regarding criminal liability. For instance, the European Convention on Human Rights (ECHR), integrated into UK law via the Human Rights Act 1998, emphasises under Article 7 that no one should be held guilty of an offence not clearly defined by law at the time of commission (Council of Europe, 1950). This principle could challenge the legitimacy of common law offences if a written constitution were to adopt similar protections.
Furthermore, historical cases such as Shaw v DPP [1962] AC 220, where a common law offence of conspiracy to corrupt public morals was upheld, demonstrate the judiciary’s past willingness to create offences. However, under a written constitution prioritising legal certainty, such judicial creativity might be deemed unconstitutional without parliamentary endorsement of specific punishments.
Parliamentary Sovereignty and the Need for Legislated Punishment
Parliamentary sovereignty remains a bedrock of the UK’s unwritten constitution, granting Parliament the ultimate authority to define criminal law and punishment. If a written constitution were introduced, it might constrain this sovereignty through entrenched provisions or judicial review mechanisms, yet Parliament would likely retain a critical role in legitimising punishments for common law crimes. Without statutory intervention, these offences risk being perceived as lacking democratic legitimacy, as punishments determined solely by judicial discretion could contravene constitutional principles of separation of powers (Bogdanor, 2009).
Moreover, the practical implication of undefined punishments is evident in the abolition of many common law offences or their codification over time, reflecting a trend towards legislative clarity. Without such codification, common law crimes might not only fail to meet constitutional standards but also struggle to command public and judicial confidence in their application.
Conclusion
In conclusion, the survival of common law crimes under a written constitution appears precarious if Parliament does not legislate corresponding punishments. The principles of legality and legal certainty, likely central to any written constitutional framework, demand clear and predictable laws—qualities often lacking in uncodified common law offences. While the flexibility of common law has historically been a strength, its reliance on judicial discretion for punishment risks conflict with constitutional guarantees of fairness and due process. Therefore, parliamentary intervention to codify punishments is arguably essential for the legitimacy and survival of such crimes in a written constitutional context. This analysis highlights broader implications for the balance between judicial creativity and legislative authority, suggesting a need for reform to align common law traditions with modern constitutional expectations.
References
- Bogdanor, V. (2009) The New British Constitution. Hart Publishing.
- Council of Europe. (1950) European Convention on Human Rights. Council of Europe.
- Herring, J. (2020) Criminal Law: Text, Cases, and Materials. 9th edn. Oxford University Press.
- Raz, J. (1979) The Authority of Law: Essays on Law and Morality. Oxford University Press.
