The Invisible palace —part I 'judge-made' law

murder if his victim died within a year and a day of his attack. With the advance of medical science a person might be subject to a murderous attack, and kept alive in hospital, possibly on a life-support machine, for years. Under the common law, if he then died, the attacker could be charged with serious assault, but not murder. The courts decided that this old rule was still the law, and would remain so until Parliament changed it. In fact, the Law Commission (responsible for suggesting reforms of the law) did recommend that it should be abolished, and by an Act of Parliament passed in 1996 its abolition was effected.

• Another old (common) law rule was that children between the ages of 10 and 14 were presumed to be incapable of committing a crime unless it could be proved by clear evidence that they knew that what they were doing was seriously wrong. As recently as 1995, judges sitting in the House of Lords, the highest appeal court in the land, were asked to decide whether this law still applied. The Taw Lords' said this was a law with important social consequences, and that it must be for Parliament to decide whether it should be changed. Parliament has now abolished this ancient law, so as to make it easier for the authorities to prosecute children.

These are not the only examples of laws that have been shown to be out of date, for just as a great palace requires constant maintenance and renovation, so does the common law—and it does not always get it. Many people are concerned that because the common law has served us so well in the past, we have been too ready to revere and preserve some of our ancient laws, and believe that much needs to be done by Parliament to simplify and modernise certain parts of our law. Of these, the criminal law is thought to be in the greatest need of reform. Here both the common law and statute law have become outdated. Over 140 years after its enactment, the Offences Against the Person Act 1861 still governs the majority of cases of violence (covering more than 80,000 cases each year). In 1999 Mr Justice (now Lord Justice) Carnwath, then Chairman of the Law Commission, referred to it as a 'tired and confused old workhorse long overdue for reform¹'. There is a move towards the creation of a Criminal Code which would, as in other European countries, set out in one document in an understandable and straightforward way the main principles of our criminal law.

With few exceptions, judges have never liked to see themselves as creators of laws, regarding that as the province of Parliament. They are happy to be seen as applying and interpreting the law as it is, but no more. Some of the most creative judges who have played a significant part in the evolution of the law

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