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Judges: Don't know the law? It's understandable

Legal shapeshifting is rampant - would a database help?

The common assumption is that "ignorance of the law is no excuse" – but if a recent case in the Court of Appeal is anything to go by, even highly paid officers of the court are finding it increasingly difficult to know what the law says on any given matter.

Late last year, an appeal in R. v. Chambers [2008] EWCA Crim 2467 was halted at the 11th hour when it turned out that the regulation which the defendant was appealing and under which he had previously been found guilty had in fact been superseded by new law... some seven years previously.

This only came to light when a draft judgment on the case was passed to a lawyer at Revenue and Customs, who spotted the error and instantly alerted the court. Confusion all round, and while the court dialogue didn’t quite match exchanges regularly heard under the jurisdiction of the infamous Justice Cocklecarrot, it is possible to detect prosecution counsel shrivelling beneath the displeasure of Lord Justice Toulson

Echoing recent comments by Lord Phillips, head honcho in our legal system, Lord Justice Toulson blamed this chaos on four factors - first, that "the majority of legislation passed today is secondary legislation". That is, it is not passed directly by parliament, but is the result of Ministers laying regulations before parliament (statutory instruments).

Then, "the volume of legislation has increased very greatly over the last 40 years". In 2005 alone, there were "2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments" – to which should be added another 5,000 pages of European Directives and Regulations, plus the outpourings of our new devolved assemblies.

Thirdly: "On many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation." And finally, "there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic".

This makes it very difficult to find out what the law on any particular issue is quickly and easily. Individuals wishing to determine the likely penalties for the recently passed law on extreme porn would need to look at the highly detailed schedules to the Criminal Justice Act, which defines the penalties in terms of amendments to other Acts.

Or to find out who will have access to the Contactpoint database, you must read the primary legislation which, together with the secondary regulations, sets out those groups entitled to access it. Unfortunately, a precise definition of these is scattered through half a dozen further Acts of Parliament each of which, in turn, reference further Acts.

In the "good old days", lawyers wishing to argue obscure points of law had to hie themselves to their nearest law library and pore over all of the above in hard copy format. The difference, however, is that much of that study was about researching legal precedent – not trying to work out what the law actually said.

If you want to know what the law was at the point when it was passed, then you need to look at the Office of Public Sector Information listing of Acts of Parliament. Sadly, this is not comprehensive, and grows progressively less so as you delve into the distant pre-1988 past. Nor does it help that government is amending laws passed as recently as 18 months ago.

A better guide to what the law actually is can be found at statutelaw. This aims to provide an up-to-date compendium of the current state of play on any given law by adding the effects of subsequent legislation, repeals, amendments and statutory instruments. It also permits a comparison of law between jurisdictions – England and Scotland, for instance.

There are two problems with this approach: the search engines are optimised for searches by Law, as opposed to topic. In addition, statutelaw has long been notorious for its backlog in getting material online, sometimes as long as 18 months. Nor is it quite comprehensive, as some legislative revision - particularly amends to secondary legislation and some primary legislation post-2002 - is excluded.

This has not been helped by the recent transfer of responsibility for its upkeep from the Ministry of Justice to the National Archive. However, a spokeswoman for the National Archive said: "This move is about consolidating expertise and bringing the legal and statute database together. In the long-term, the public can expect a more integrated effective service."

Just as well: if the prosecution in the Chambers case had accessed Lawtel or Westlaw – two commercial legal databases – they would have discovered the amends to the relevant regulations quoted in full. But is it really acceptable that the diligent citizen can only discover what the law on a given subject is by spending a small fortune on a service aimed at professionals?

A comprehensive, publicly available legal information service is long overdue – and for once El Reg would applaud the government for building a shiny new database to support it. ®

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