Criminal Law Reform: England

In 1818 the youthful Thomas Macaulay described English criminal law as "a penal code at once too sanguinary and too lenient, half written in blood like Draco's, and half undefined and loose as the common law of a tribe of savages . . . the curse and disgrace of the country" (Cross, p. 520). He did not exaggerate. The law had been growing haphazardly for more than five centuries. Much had been added, often under the influence of temporary alarms. Very little had been taken away. As a result the criminal law was seriously defective both in substance and in form, and many aspects of the procedure under which it was applied were equally unsatisfactory.

For over a century and a half, Parliament had sought to compensate for the absence of any adequate nationwide machinery for enforcing law and order (such as police forces would later provide) by threatening the severest penalty for those few offenders unlucky enough to be caught. In 1818 there were more than two hundred statutes in force imposing the death penalty for a wide variety of offenses, both serious and trivial. These offenses ranged from treason and murder to forgery and even to criminal damage and petty theft when committed in a host of specified circumstances, as well as to several sex offenses, including sodomy. There was, however, no question of implementing all the death sentences that the judges were required by this undiscriminating legislation to pass whenever a prosecutor with the necessary nerve (or malice) found a jury willing to convict. Capital sentences were carried out, in 1810, in less than once case in twenty, although as might be expected the proportion varied greatly from crime to crime. Fewer than one convicted person in twenty was executed for theft unaccompanied by personal violence, but about one in six was put to death for the more serious offenses of murder, rape, arson, counterfeiting, forgery, and attempted murder.

Whether or not the convicted defendant was reprieved largely depended on the trial judge, although in cases tried in London his recommendations were reviewed by the Privy Council. His discretion was affected, but not controlled, by public opinion, professional expectations, and the influence of persons in high places. The judge did not have to give any reasons for his decision, which was as likely to be determined by matters irrelevant to the defendant's guilt and to the jury's verdict as by anything that the defendant himself had actually done: the defendant's past record, the reputed prevalence of his offense in the locality, the extent of the perjury committed by witnesses called on his behalf, and the number of other defendants sentenced to death at the same assizes. But although the trial judge had a wide (or, as many critics said, an arbitrary) discretion to decide whether a defendant convicted of a capital offense should die, he had no discretion as to what should happen to the defendant if he was allowed to live.

The alternatives to the death penalty were whipping, a short term of imprisonment, or transportation—after 1787, generally to an Australian colony (the American ones being no longer available for this purpose) for a fixed period, which was usually seven years, but for some offenses fourteen years, and for a few, life. However, by no means all the defendants who had been sentenced to death and then reprieved on condition of being transported left English shores. Whether a convict was in fact transported or merely served a short (two- or three-year) period in an English prison hulk before being released depended not on the nature of the offense, but on purely administrative and practical considerations with which the judges were not concerned—the Australian demand for convict labor, and the availability of the requisite shipping.

The law governing these capital offenses was thus inefficient, as well as cruel and capricious. The chances of an offender actually suffering the extreme penalty with which the law threatened him were small, and its deterrent effect was therefore slight. Yet the chance that he might suffer the death penalty deterred many victims from prosecuting, many witnesses from giving evidence, and many juries from convicting.

The form of the law was chaotic and extremely obscure. In 1821 it was estimated that there were 750 acts of Parliament concerning the criminal law in force, together with another 400 relating to proceedings before magistrates. These statutes were the product of three centuries of parliamentary activity. Not only had almost all of them been enacted without regard to any of the others, but they also presupposed the "unwritten" common law of crime, without a knowledge of which the statutes themselves were more often than not quite unintelligible. Such matters as the definitions of the basic offenses (murder, rape, robbery, burglary, theft, forgery, and assault), the rules governing the liability of accomplices, and general defenses were a matter of judicial tradition sustained by three seventeenth- and eighteenth-century authorities—Edward Coke's Third Institute (1644); Matthew Hale's History of the Pleas of the Crown (first published in 1736); and William Hawkins's Pleas of the Crown (1716–1721). These were supplemented by a very small amount of reported case law. Although the judges recognized that either immemorial custom or an act of Parliament was required to make conduct a felony and a capital offense, they exercised a wide power to declare an act criminal as a misdemeanor, and to punish with the pillory, whipping, imprisonment, or a fine, any conduct which they happened to consider immoral or antisocial.

Trial procedure (and also powers of arrest and ancillary liability) was determined by whether the offense with which a defendant was charged was a treason, a felony, or a misdemeanor, although with the shifts and changes in the law that had occurred over the years these distinctions had become more than a little arbitrary. Theft, for example, was a felony, however small the amount stolen, but obtaining by false pretenses was a misdemeanor, however valuable the property obtained. A defendant could not be tried simultaneously for a felony and a misdemeanor, however closely related in point of fact the two charges might be (as, for example, the inchoate offense to the completed offense). Indeed, only one felony could be tried at a time. Most importantly, at a felony trial the defendant's counsel could only examine witnesses and argue points of law: he was not allowed to address the jury, although he might at treason or misdemeanor trials. A defendant was not entitled to any prior notice of the case against him beyond the information provided by the indictment itself; and since it was a general rule that neither party to the proceedings nor anyone who had any pecuniary interest in the result of a trial could give evidence at it, not only the defendant but frequently also the victim was excluded from the witness stand. (Defendants were, however, usually allowed to make a statement at the very end of the trial, when it was difficult for anyone to test its correctness.)

There were no special procedures for youthful offenders. Everyone over the age of seven was subject to the same law, modes of trial, and penalties; and though children were very rarely hanged, they were sentenced to death and imprisoned. This reflected the fact that the common law knew only one form of criminal trial, trial by jury. Statutes had in specific instances given to magistrates, sitting singly or in small groups, the power to try persons charged with certain statutory offenses (for example, under the game laws and the revenue legislation), but there was no general provision for the summary trial of offenses of a minor character. There was, finally, no system of criminal appeals, either on the facts, on account of the judge's misdirection of the jury, or from a sentence in those cases in which the judge had discretion. Only a very limited and rarely invoked remedy existed for the review of procedural and similar technical errors.