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17 Sep 18

Dr J. Rogers


From little acorns … criminal law making in Wales

Dr Jonathan Rogers (CLRNN Co-Director)


If you are an English criminal lawyer, you have likely missed the opportunities created by the Wales Act 2017 for the Welsh assembly to legislate on substantive criminal matters within the Welsh jurisdiction. I know of some Welsh criminal lawyers who missed it too. “From little acorns, etc” one later commented.


The end of chastisement?


The competence of the Welsh Assembly is limited, as we shall see, but the First Minsiter’s first topic for reform in the area of criminal law is an eye catching one. It is no less than the outright abolition of the defence of parental chastisement, which will live on as a defence in England (by some kind of automatism, I almost wrote “in England and Wales” just there) to charges of assault and battery (or assault by beating as it seems often to be called). If it happens, then naturally the pressure to remove the defence altogether in England will increase too (and should Labour come to power soon, one could easily imagine a Corbyn-led party taking action where Tony Blair’s party shrank from the task in the 2001-2004 years).


“From little acorns”, quite possibly, then. The proposal did follow a commendable process in public engagement. The Welsh Minister for Children and Social Care, Huw Irranca-Davies, released a consultation paper on 9 January 2018, which included details of plans of how better to educate parents in dealing with their children.


To judge by the written responses, the Welsh public were not much convinced (they had been more convinced of the merits of Brexit), agreeing with the proposal by only 50.3% against 48.1% disagreeing; although fieldwork surveys which included small workshops of participants seemed to have some impact (57% agreeing, against just 25% in opposition).


On 6th August 2018 the First Minister confirmed the intention to bring a bill in the 2018-2019 session to remove the defence. But, reasonably informed opposition to reform (noting that even now, the defence does not automatically succeed to charges of assault and battery) certainly still exists, as can be seen online.


I pause here to say that I myself have not yet seen any version of the Bill as drafted, and would be very grateful if any readers are able to assist.


What exactly are the powers of the Assembly to legislate?


For now, readers may be as curious to know more about the new powers of the Welsh assembly altogether. As from April 2018, the Wales Act 2017 changed the Welsh devolution settlement from a “conferred powers” model to a “reserved powers” model. In other words, no one has expressly given the Welsh Assembly the competence to make criminal law provisions, because it is no longer a question of Westminster “conferring” any such powers in the first place. It is now a question of Westminster “reserving powers” to legislate on matters on which it is most anxious to remain sovereign and to ensure that the same law applies on both sides of the River Severn.


And indeed, Westminster has reserved powers to amend anything connected to criminal procedure: that is, these matters cannot be touched by the Welsh. Schedule 1 to the Wales Act 2017 amends creates a new Schedule 7A to the Government of Wales Act 2006, para 8 of which provides:


8(1) The following are reserved matters—


  • courts (including, in particular, their creation and jurisdiction);


  • judges (including, in particular, their appointment and remuneration);


  • civil or criminal proceedings (including, in particular, bail, costs, custody pending trial, disclosure, enforcement of orders of courts, evidence, sentencing, limitation of actions, procedure, prosecutors and remedies);


  • pardons for criminal offences


  • private international law;


  • judicial review of administrative action.


(See also paragraphs 3 and 4 of Schedule 7B (restrictions on modifying private law and criminal law).)


That last sentence, of course, sends us to the also-amended Schedule 7B to the Government of Wales Act, which clarifies that powers to legislate on matters of substantive criminal law are only partly reserved:


Criminal law

4(1) A provision of an Act of the Assembly cannot—

(a) make modifications of, or confer power by subordinate legislation to make modifications of, an offence in a listed category;

(b) create, or confer power by subordinate legislation to create, an offence in a listed category.

(2) The listed categories of offences are—

(a) treason and related offences;

(b) homicide offences (including offences relating to suicide) and other offences against the person (including offences involving violence or threats of violence) that are triable only on indictment;

(c) sexual offences (including offences relating to indecent or pornographic images);

(d) offences of a kind dealt with by the Perjury Act 1911.

(3) A provision of an Act of the Assembly cannot make modifications of, or confer power by subordinate legislation to make modifications of, the law about—

(a) criminal responsibility and capacity,

(b) the meaning of intention, recklessness, dishonesty and other mental elements of offences,

(c) inchoate and secondary criminal liability, or

(d) sentences and other orders and disposals in respect of defendants in criminal proceedings, or otherwise in respect of criminal conduct, and their effect and operation.

(4) For the purposes of this paragraph, a modification of the law relating to defences to an offence is a modification of the offence.

(5) This paragraph does not affect the reservation, by virtue of Schedule 7A, of the creation or modification of offences in relation to reserved matters.

(See also paragraph 8 of that Schedule (single legal jurisdiction of England and Wales).)


The procedure/substance division


So, there is competence to legislate in areas that are not reserved by virtue of the above. Abolishing the defence of chastisement to assault and battery does apparently escape all the above strictures, including those within paragraph 2 (b) since those charges are not “triable only on indictment”.  (Incidentally, much of the rhetoric around the debate in Wales has been about whether the proposals would bring in a “new offence of smacking” or just remove a “defence to an existing offence”. This however is just about persuading the public, one way or the other, and has nothing to do with legislative competence under the new Schedule 7B).


Why, one might ask, should any amendment to the substantive law be possible, while all matters of evidence and procedure are reserved? Where, even, is the borderline? One might assume that matters relating to the burden of proof are to do with procedure, but they are of course specific to the substantive offence itself, and the reservation in para 8 (1) (c) of Schedule 7A teasingly refers to “procedure” but the word “evidence”. Similarly, are some types of abuse of process to do with procedure or as much to do with substance?


Assuming that burdens of proof and abuse of process are reserved matters under para 8 (1) (c)  of Schedule 7A, then it seems to be possible for the Welsh to provide that drunk driving should be a matter of strict liability whether D realised that he had consumed alcohol, but not possible for them to reverse the burden of proof on the same matter. It would also be open to the Welsh to create a substantive defence of police entrapment to charges of possessing controlled drugs with intent to supply (that offence not falling within any of the broadly defined categories above) but not to legislate on when the court might stop such prosecutions as an abuse of process. Readers can no doubt think of other examples.


In terms of constitutional competence, the substantive/procedural distinction itself is questionable: it is not at all necessary to restrict ourselves to pointing out apparent anomalies such as those noted above. (For what it is worth, in terms of fair warning, one might expect it to be the substantive law which is the same in both jurisdictions and for matters of procedure to be subject to variation).



The substantive reservations


Then we might wonder about the next division, between those areas of substantive law which are, and are not, reserved. It seems that what criminal lawyers call the “general part” of the criminal law is reserved, by virtue of para 3 (a): so there is to be no separate Welsh jurisprudence on capacity, mens rea or complicity. By contrast only a few sensitive areas of the special part are reserved, under para 2. It is not obvious why this should be. And again, it is easy to unpick the legislation.


One might look at loose definitions, for example. Does the reservation relating to “criminal responsibility” preclude legislation relating to, say, liability for failing to attempt an easy rescue of a person in mortal danger (para 3 (a) of Schedule 7B)? Consider too the point that legislative competence is only reserved for those offences against the person which are triable “only” on indictment (para 4 (2) (b)). The word “only” seems to suggest that offences triable either way are not reserved. Does that mean, then that liability for recklessly transmitted diseases through sexual intercourse, contrary to s.20 Offences Against the Person Act 1861, are not reserved?


Nor is it clear, at least not to me, what the defendant, or even the prosecution must do if they wish to argue that an unfavourable legislative change related to a reserved matter. Must they raise the matter at the criminal trial or elsewhere? Any reader who can assist on this would again be welcome to contact us.


Final remarks


My UCL colleague Professor Rick Rawlings tells me that the substance/adjectival distinction reflects a desperate fight by the MoJ “to maintain the unified England and Wales legal system in the face of continued legislative divergence between Cardiff and London”. In his article “The Strange Reconstitution of Wales” 2018 Public Law 62, he writes that “to put it charitably, scrutiny in the House of Commons of this major constitutional Bill was muted” (at 74) and there was a “lost opportunity in the quest for a stable, secure and intelligible devolution settlement” (at 81).).


I have no doubt that this is right. But at the same time, avenues of substantive law reform are so difficult to open that we should not perhaps be too chary of any new ones that arise. Outlawing chastisement in Wales would undoubtedly embolden further the campaign for abolition in England. One imagines, as in England, further substantive reforms are likely to need to have clear political angles, and it may be that will be little follow-up in the area of criminal law further to the outlawing of chastisement. But who knows what other acorns may grow?