Codifying the Law of Criminal Evidence

Abstract

This paper revisits the case for codification of the criminal law of England and Wales. It proposes that the Law Commission’s codification project should be revived and should begin with codifying the law of criminal evidence. The arguments in favour of codification are strong and the arguments against are weak. The paper suggests that codification of the law of criminal evidence would not be an unduly difficult exercise. Most of the law is contained in a collection of modern statutes, the provisions of which could be simply consolidated. The remaining law is a mix of older legislation and common law that would require restating in a consistent modern style. There are relatively few issues requiring important decisions of policy. The experience of Australia and New Zealand shows that the drafting of an evidence code is a feasible undertaking and need not result in an excessively lengthy Act.