JUDICIAL LEGISLATION IN CRIMINAL LAW

Abstract

In this article the authors examine the implications of the findings of the Court of Criminal Appeal and the House of Lords in the case of Shaw v. D.P.P.. Through an analysis of Viscount Simonds’s judgment in particular, the authors examine the debate surrounding the extent of the power of judicial legislation in criminal law. First, the authors discuss the history surrounding the connections between the executive power and the administration of criminal law, as well as between law and morals. The authors then examine the history surrounding the Star Chamber and the Court of King’s Bench, and the role of judges as custodes morum. After a brief examination of instances where the court has exercised its powers with restraint, the authors then examine some possible offences that may be said to exist if one follows the decision in Shaw v. D.P.P.. They conclude by discussing the problems of judicial legislation in the modern setting such as those surrounding the concept of nulla poena sine lege, negative judicial legislation, those encountered in defining generic crimes, and those surrounding conspiracy and the corruption of public morals.