Shaping the law

With an encyclopaedic knowledge of criminal law, intellectual rigour and practitioner focus, Professor David Ormerod QC is driving ambitious law reform. David Wurtzel meets the universally respected Law Commissioner

I met with Professor David Ormerod QC, one of the four Law Commissioners, in a tiny room in the Ministry of Justice building.

In the cramped space, and both of us wearing suits, it took some imagination to visualise him running down a wind-swept beach in Suffolk or his native Lancashire, indulging in his hobby of stunt kite flying. More than simply blowing away the cobwebs from a strenuous and demanding job, however, one can see an analogy: the huge energy behind what he does; the sense of openness; the determination that every proposal should be well-crafted and practical, and that nothing should be sent aloft until it was fit to withstand the buffeting it would get from the legal and political worlds.

Ormerod became a Law Commissioner in 2010 and will serve until 2020. His career as an academic was blessed with brilliant mentors. He studied at Essex University (‘the people on the academic side were practically focused’) and there he found his metier in criminal law and particularly in criminal evidence. He spent 12 years teaching at Nottingham University which he found ‘particularly fortunate’ because ‘the wealth of criminal law knowledge at the time was unsurpassed’. There his colleague Professor John Smith, already in his 80s, asked if he would help him to edit Smith and Hogan which since 1965 has been the seminal textbook on criminal law in England and Wales and used throughout the common law world. Smith sadly died not long afterwards, leaving Ormerod with the sole editing task.

Because it is such an influential work, he clearly sees his involvement with Smith and Hogan as the most important of the several editorial jobs he has undertaken. He spent a sabbatical year at University College London to do his first edition. ‘I would change a paragraph and then reinsert it the next day. Over the years I have become braver at changing Smith’s text.’ In due course he would succeed to Professor Hogan’s chair at Leeds. He also became involved in the Criminal Law Review and in addressing Circuit and Criminal Bar Association conferences.

He found that he was commenting frequently on cases and these were ‘very practically focused’. ‘Practical’ is the key word which came up again and again in our meeting. As he said later in our talk: ‘I was never in the camp of those who wrote things that would only be read by colleagues. I wanted to be read by practitioners and politicians and policy makers and to influence them.’ After Peter Carter QC (then) of Red Lion Chambers suggested that he come to Bar, he qualified and did pupillage. He did a lot of advisory work and was frequently led in appeals in which his knowledge of the law was obviously invaluable. He migrated down to London with his wife (who despite her own legal background is not a practitioner) and took up a post at Queen Mary. Oxford University Press approached him to co-edit Blackstone’s with Lord Justice Hooper, thus achieving an academic and practitioner balance. I asked him how one does this task: ‘There is a list of material that needs to be covered, new cases to update.’ The practitioner authors send in their amendments. He reads half, his co-editor reads the other half and then they swap when the proofs come in: ‘Since 2007 I have read the whole book at least once every year.’ Ormerod is also the general editor of the criminal law volume in Halsbury’s.

Fortunately when taking up the Law Commission post, he was allowed to carry on with Smith and Hogan and Blackstone’s and which he enjoys in themselves. ‘It looks as if I am doing a lot but I am only reading the Court of Appeal case once. Then it makes its way into the Criminal Law Review and then it makes its way into Smith and Hogan and then it makes its way into Blackstone’s.’

Ormerod explained his role at the Law Commission as ‘going beyond what you do as an academic’. You are applying your ideas to legislation, and that requires ‘you to have that vision of how the law should respond to the practical’. For the 13th programme, there was a national consultation on what the Law Commission should look at next. There were over 1,300 responses to that. Once the Law Commission decides what it wants to look at, the Lord Chancellor must approve it. In addition to the programme work they receive references direct from ministers. For example, the Cabinet Office asked them to work on the Official Secrets Act, recognising the opportunity for input from a trusted body which is independent from government. The consultation went live in February. It is a substantial document which analyses the present state of the law and asks the public for its views on the preliminary proposals on how to change it.

We discussed three new areas and also his method of achieving his goals. Traditionally, the approach of the Law Commission criminal team was to do a great deal of library research and then to put out its recommendations for consultation and then engage with the stakeholders. Ormerod has re-ordered things. He still starts with the library research. From there he approaches the stakeholders, eg barristers who appeared in significant cases and judges who dealt with this aspect of the law and have criticised the status quo: ‘I would rather have the iterative process; I go back to practitioners time and time again to get to the bottom of these problems.’ By the time the Commission has got to the consultation paper stage, ‘not only would we have spoken to a wide range of stakeholders, we will have reached some form of workable solution’.

That is not always easy. For example, the consultation on firearms produced a wide spectrum of opinions, but ‘by repeatedly meeting and sharing ideas’ they were able to produce recommendations contained in Part 6 of the Policing and Crime Act 2017, which was granted Royal Assent in January. The whole process on the firearms matter took 11 months, a combination of speed and thoroughness which clearly recommended itself to the government. In addition, he organises a conference for every project: ‘You get the stakeholders together in the same room, there are a series of short presentations, people get their ideas together and there is an opportunity for debate.’ That forms part of the consultation. I attended one of these, on the fitness to plead project, along with judges, barristers and academics, and can attest to its efficacy.

One of the potential upcoming projects is on proceeds of crime. The existing legislation has clearly not produced the desired effect: judges have been obliged to make confiscation orders under the Act but only about £200m is estimated to be recoverable from the outstanding ‘debt’ of £2bn. The Home Affairs Committee and the Public Accounts Committee have been very critical of the scheme. So was the Supreme Court whose justices Ormerod has already consulted on this (‘Judges have to deal with the law as it is, but they have ideas about how the law should change.’) The Home Office is keen for the Law Commission to work on this and to consider what a proceeds of crime/confiscation law should look like. ‘We need to do some innovative thinking,’ he said, as how best to disrupt activity and to disgorge criminal profits.

An even more ambitious project is the current attempt to codify the whole of sentencing law. ‘That is making great progress,’ and he expects that by this summer there will be a draft Bill with several hundred clauses. The maximum sentences will remain in their original statutes but the new code would deal with all aspects of procedures. It will overcome the current institutional problem that valuable guidance from the Sentencing Council is made against the backdrop of legislation that was created without regard to the wider issue of sentencing. The new code will sweep away historic sentencing procedures with the idea being that everyone who is convicted after the code has been enacted will be dealt with under it, irrespective of the date the offence was committed. It should make things much less complicated for the courts. At the moment, about a third of all appeals against sentence include an element of unlawfulness despite counsel’s professional obligation to ensure that the judge does pass a lawful sentence.

Other potential projects under consideration include those in the field of emerging technology. Autonomous cars, drones and block chain technology present new opportunities for criminal behaviour and the law will need to keep up. Offensive online communications eg cyber-bullying and trolling proved a popular topic in the latest consultation – with over 200 judges, practitioners and members of the public getting in touch to suggest the law in this area is unfit for purpose and requires reform. He has already met with Facebook, Twitter, Google and others to find out what their policies are and to understand how they already deal with it. ‘Because we are independent of government, they can be more candid with us’. Ormerod’s openness and respect for outside expert help in turn has driven up the number of people who want to respond to the Law Commission’s criminal work: ‘Because you engage with them and want to listen to them and not just sit in the library, they respond.’ The meteoric rise in the number of responses the criminal consultations produce attest to this success.

And yet he knows that not everything which is proposed will be enacted: ‘It can be frustrating but sometimes it is about persisting. If you are confident about the recommendations, it is about continuing the pressure but in an appropriate way.’ It is a question of ‘stoking the embers’. He speaks at conferences. He notes that Court of Appeal decisions sometimes refer to the relevant report. He encourages his researchers to write up the issues and to get published (‘they are brilliant young lawyers, most of them want to practise at the Bar’).

What will he do after he leaves the Law Commission in 2020? Some of his predecessors went on the bench. In any event, he has a chair at UCL, whose law faculty embraces a number of ‘very exciting projects’. He has already been involved with some of them.

Towards the end Ormerod volunteered what the highlight of his career was: being awarded honorary Silk, in 2013. ‘That was really the recognition by the practitioners of the fact that my work has had an impact.’

Contributor David Wurtzel is a member of the Counsel Editorial Board

Professor David Ormerod QC

  • Door tenant, Red Lion Chambers.
  • Professor of Criminal Justice, University College London.
  • Law Commissioner of England and Wales (second term).
  • Editor of Blackstone’s, Smith & Hogan and the Criminal Law Review.
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David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.