The Complexity of Law

The law has always been a complex area of human activity. It is easy to state principles, such as the Ten Commandments, but the practical application of those principles is complex, because human activity is complex and humans have an ability to do new things or old things in a new way and laws must protect and control society from good and bad developments in human behaviour. Thus there are tens of thousands of words written about the interpretation of the Ten Commandments, and millions of words written in the statute books and in legal judgments that create precedents.

Criminal law is very complex.  a flavour of the complexity can be gleaned from the law of England and Wales about procedure in criminal cases. These rules are set out in the Criminal Procedure Rules 2012 and the first rule is to require criminal cases to be dealt with “justly”.

The overriding objective

Rule 1.1. states “(1) The overriding objective of this new code is that criminal cases be dealt with justly.”

Dealing with a criminal case justly is an uncontroversial concept, but unfortunately, the concept of dealing with cases justly is not the same as Plato’s concept of justice.  Plato considered justice as part of the duties of individuals and included in it concepts of morality and righteousness; for Plat justice is the quality of soul, and to be just or do justice you must eschew the desire to taste every pleasure and to avoid satisfying yourself selfishly but rather act as though you are part of society and therefore must act for the general good. This is not the concept that applies under the Criminal Procedure Rules, which amplify what dealing with a case justly .

(2) Dealing with a criminal case justly includes―

(a) acquitting the innocent and convicting the guilty;

(b) dealing with the prosecution and the defence fairly;

(c) recognising the rights of a defendant, particularly those under Article 6 of the European

Convention on Human Rights;

(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the

progress of the case;

(e) dealing with the case efficiently and expeditiously;

(f) ensuring that appropriate information is available to the court when bail and sentence are

considered; and

(g) dealing with the case in ways that take into account―

(i) the gravity of the offence alleged,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the defendant and others affected, and

(iv) the needs of other cases.

Listing what justice includes is a rather lazy way of directing courts to deal with criminal cases, but you will see in this list there are several matters which seem inappropriate.

I do not see how respecting the interests of witnesses victims and jurors enables a court to deal with cases justly; a case might involve witnesses, victims and jurors but the point of a criminal case is not to provide justice for victims but to provide justice for society. Victims have other remedies; punishing a criminal does not compensate the victim, although it might satisfy him or her, in a selfish way. Punishing a criminal is not a compensatory act undertaken for the criminal’s victim, but an act under which society attempts to punish the wrong of a crime to society.

I also fail to understand how justice in one criminal case must take into account the needs of other cases. It seems to be a rule to enable cases to be dealt with efficiently and as less costly as possible, rather than a rule to promote justice.

If you were to print the criminal procedure rules you will find that they cover about three under pages of print in small font; they are exceedingly complicated and require detailed study, if you are a defendant in a criminal case, in order to understand the rules of the game that the prosecution are playing. If you fall foul of the rules you will lose the game, whether you are innocent or guilty, and I very much doubt whether the overriding objective will come to your assistance.

You will bear in mind that I have been writing about criminal procedure rules, not the law of what constitutes a crime.

The vast majority of people do not commit crime but the vast majority of people do pay taxes. They need to understand what their duties are when they fill in a tax form which may ask a hundred questions or more, and the only way to get that understanding is by reading tax law. Income tax, for example, should be easy to understand but the following is an overview from the Income Tx Act 2007.

Charges to income tax

3.Overview of charges to income tax

 (1)Income tax is charged under—

(a)Part 2 of ITEPA 2003 (employment income),

(b)Part 9 of ITEPA 2003 (pension income),

(c)Part 10 of ITEPA 2003 (social security income),

(d)Part 2 of ITTOIA 2005 (trading income),

(e)Part 3 of ITTOIA 2005 (property income),

(f)Part 4 of ITTOIA 2005 (savings and investment income), and

(g)Part 5 of ITTOIA 2005 (miscellaneous income).

(2)Income tax is also charged under other provisions, including—

(a)Chapter 5 of Part 4 of FA 2004 (registered pension schemes: tax charges),

(b)section 7 of F(No.2)A 2005 (social security pension lump sums),

(c)Part 10 of this Act (special rules about charitable trusts etc),

(d)Chapter 2 of Part 12 of this Act (accrued income profits), and

(e)Part 13 of this Act (tax avoidance).

Some tax law is virtually incomprehensible: can you make sense of this regulation about Capital Gains Tax, recently published?

Amendment to the Capital Gains Tax Regulations 1967

2.—(1) Regulation 15 of the Capital Gains Tax Regulations 1967(1) is amended as follows.

(2) For paragraph (b) substitute—

“(b)A person shall not be treated as being at any date a person whose liability to capital gains tax may be affected by the market value of an asset or by the apportionment of any amount or value paid, payable or ascertained in connection with an asset unless on or before that date, but since 6th April 1965, there has been (or is deemed to have been) a disposal or acquisition of the asset by that person, or by personal representatives from whom they may acquire the asset as legatee, or by a company or trustees whose chargeable gains may to any extent be treated as accruing to that person under section 13 (attribution of gains to members of non-resident companies)(2), 86 (attribution of gains to settlors with interest in non-resident or dual resident settlements)(3) or 87 (non-UK resident settlements: attribution of gains to beneficiaries)(4) of the Taxation of Chargeable Gains Act 1992.”

Now of necessity law must be complex, but many lawyers and even some law makers are beginning to realise that law is unnecessarily complex. Richard Heaton is first parliamentary counsel and permanent secretary at the Cabinet Office. He thinks that our laws are unacceptably over complex, and he is right. Over complex law is bad law; it makes it hard to administer justice and makes it hard for citizens to understand their legal rights and duties; in many cases their legal rights and duties directly conflict with their moral duties, which should be the foundation of all law, but is not.

In Britain Parliament enact laws and does so in a way that simply builds on what exists, whether what exists can support the new extensions and whether even lawyers can understand what the law it.

This has inevitably led to a very unfortunate amount of specialisation amongst lawyres in all jurisdictions. Knowing a lot about just one area of law rarely serves clients better than know a lot about general law, but a good generalist will have to spend time understanding particular specialisms which are written in laws that are almost incomprehensible. A good specialist will have huge areas of ignorance which he or she will find it difficult to fill. The sole purpose of law, which is a device which controls our freedom, is to ensure the freedom of people as a whole. If we cannot understand the law we risk our freedom and we have no chance of creating a just society.


One Response

  1. How on earth does one deal with things like this.

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