Structuring the Criminal Code: Functional Approaches to Complicity, Incomplete Offences, and General Defences

The structure adopted by the United Kingdom's Law Commission for its 1989 draft Criminal Code for England and Wales in several key respects mimics rather too closely for either comfort or simplicity traditional, but no longer very useful, ways of thinking about criminal liability. This is notably so in the way it deals with the law of complicity and incomplete (inchoate) offences. Three lengthy clauses elaborately distinguish, among those who commit crimes, ‘principals’ and ‘accessories’. Then, in three equally lengthy clauses dealing with those who try, but fail, to do so, it distinguishes between ‘incitements’, ‘conspiracies’, and ‘attempts’. Another instance of the draft criminal code's poor structuring is its provisions for general defences. The currently fashionable, but muddled, concept of ‘duress of circumstances’ is associated with ‘duress of threats’ and distinguished from the ‘justifiable use of force’, but no provision is made for justifiable contraventions of the criminal law which do not involve the use of force, or for those which are done for purposes as worthy and acceptable (and accepted) as those which are provided for.