Criminal Law Reform: England

The different shifts and compromises made when the death penalty was removed from various offenses had left the law governing maximum penalties for serious crimes in a chaotic state. This led Lord Brougham, lord chancellor in Earl Grey's ministry, and another of Bentham's friends and disciples, in 1833 to initiate what proved to be the first of three projects for the codification of English criminal law. (The second, initiated by James Fitzjames Stephen, was to come before Parliament between 1877 and 1881; the third, initiated by the Law Commission in 1967, is still notionally continuing.) A royal commission, composed of five practicing lawyers, was appointed to "digest into one statute all the enactments concerning crimes, their trial and punishment, and to digest into another statute all the provisions of the Common Law touching the same; and to enquire and report how far it might be expedient to combine both these statutes into one body of the Criminal Law, repealing all other statutory provisions; or how far it might be expedient to pass into law the first mentioned of these statutes." This was a mammoth assignment, but it was completed in a little over ten years, despite the commissioners' work on their principal task being interrupted by requests from Lord John Russell to consider and report on the special question of the right of counsel for a prisoner to address the jury in felony cases. He also asked the commissioners to consider which offenses should continue to incur capital punishment (Second Report (1836), which formed the basis for Russell's legislation on these matters), and procedures for the trial of juvenile offenders (Third Report (1837), which was applied, as noted above, to charges of simple larceny in 1847, but not to all other offenses until 1879).

The commission's First Report (1834) considered the need for codification and the best way of achieving it. It contained a draft digest, with a commentary, of the law of theft—as complicated and difficult a subject as any in the criminal law. As a result of this report, the commissioners' terms of reference were widened to include recommendations as to "what partial alterations may be necessary or expedient for more simply and completely defining crimes and punishments and for the more effective administration of criminal justice." That is, the commissioners were authorized to make recommendations for the reform, as well as the restatement, of the criminal law. In the ensuing years they accordingly reported (with draft legislation) on homicide, offenses against the person, theft, fraud, and criminal damage (Fourth Report (1839)); on burglary, offenses against the executive power and the administration of justice, forgery, and offenses against the public peace (Fifth Report (1840)); and on treason and other offenses against the state and religion, libel, coinage offenses, and offenses against the revenue (Sixth Report (1843)). The Seventh Report also contained a complete draft code of the substantive criminal law, revising the digests contained in previous reports, and was complemented in the Eighth Report (1845) by a draft code of criminal procedure.

The royal commission's eight reports contain the most thorough and principled examination of English criminal law ever made by an official body. The commissioners recommended many reforms that were ultimately to reach the statute book, though it was more than one hundred years before the felony-murder rule (under which a death accidentally caused while committing a felony amounted to murder) and of the distinction between a felony and a misdemeanor, and theft based on an appropriation rather than a taking and carrying away. They succeeded in producing codes that combined in legislative form the rules of both the common and the statutory law of crime. These codes would, therefore, have ended the judges' freedom to extend the criminal law to include any conduct of which they disapproved. Equally importantly, the commissioners, utilitarians to a man, followed Livingston's example and offered a classification of offenses that sought to reflect their relative gravity in an elaborate scheme of graduated penalties. To be justified punishments, they believed, must deter, and the graver the crime the greater the deterrent needed to be. They would, moreover, not deter unless they were imposed uniformly, not erratically. Had it been accepted, this classification would have considerably reduced judicial discretion in sentencing, which had by now replaced the mixture of rigidity and arbitrariness that had characterized the eighteenth century law. In an appendix to the Fourth Report (1839), the commissioners demonstrated that, leaving aside death and various obsolete penalties, forty different penalties were provided for felonies and ninety-six for misdemeanors. In the commission's Seventh Report (1843), only forty-five classes of punishment were specified. The number was reduced to thirteen by the revising commissioners (see below) in their Second Report (1846); it rose to thirty-one in their Third Report (1847), but finally dropped to eighteen in their Fourth Report (1849).

The draft code of substantive criminal law was introduced as a bill in the House of Lords by Lord Brougham in 1844 but it was withdrawn when the lord chancellor, Lord Lyndhurst, announced the appointment of a new royal commission to reconsider and revise it. This commission, which included three of the five 1833 commissioners, published five reports between 1845 and 1849 that recommended further reforms and revisions—but no radical alterations—in their predecessors' draft. The revised code of substantive law, which was published in the Fourth Report (1848), was introduced into the House of Lords in the same year by Lord Brougham, and referred to a select committee. Its report led to division of the draft code that was submitted to Parliament piecemeal. The Criminal Law Amendment (No. 1) Bill, dealing with the general principles of liability, defenses, homicide, and offenses against the person, was accordingly prepared and given a second reading by the House of Lords in 1853. A second bill, dealing with larceny and other offenses of dishonesty, was also tabled. Lord Cranworth, who had recently become lord chancellor, circulated these bills to the judges, seeking their comments. He asked in particular whether the policy of bringing the whole of the criminal law—statutory and common law—into one statute (that is, codification, not merely consolidation) was likely to be beneficial to the administration of criminal justice. The judges' replies showed them ready to concede the advantages of further consolidation, but unanimously opposed to reducing the common law to statutory form. As one judge put it, "to reduce unwritten law to statute is to discard one of the great blessings we have for ages enjoyed in rules capable of flexible application"; according to another, it was "inadvisable to lose the advantage of the power of applying the principles of the common law to new offences, and combinations of circumstances, arising from time to time."

In the face of this adverse judicial reaction, the bills were not reintroduced. It was decided that the draftsman (C.S. Greaves, Q.C.) should confine himself to producing consolidating statutes that would replace Peel's acts, which were now obsolescent as a result, first, of the removal of the death penalty for many offenses in the 1830s and, second, of the abolition—by the Penal Servitude Act, 1857, 20 & 21 Vict., c. 3—of the sentences of transportation that had taken the place of capital punishment. The latter reform, which had been urged by Eden in 1771, as well as by many subsequent publicists, had been strongly recommended by Molesworth's Select Committee in 1838. Six of these consolidating statutes were enacted in 1861. Since the 1840s only murderers had been executed (and by no means all of them), so this legislation brought the law into line with practice. The death penalty was retained only for murder, treason, and arson of naval vessels. Seven years later, public executions came to an end, when the Capital Punishment Amendment Act (1868) provided that executions should take place within the prison in which the prisoner was confined.

Substantial parts of two of the 1861 acts (the Accessories and Abettors Act and the Offences against the Person Act) still remain in force. The other four lasted well into the twentieth century: the Larceny Act until 1916, the Malicious Damage Act until 1971, the Forgery Act until 1913, and the Coinage Offences Act until 1936. Sexual offenses, many of which had been included in the Offences against the Person Act, were not consolidated again until 1956. In some of these twentieth-century statutes the draftsman was at last allowed to incorporate statutory formulations of some of the common law rules without provoking a howl of protest from the judiciary. Most notably, definitions of the offenses were incorporated in the Larceny Act (1916), the Forgery Act (1913), and the Perjury Act (1911). However, other statutes, such as the Sexual Offences Act of 1956, were merely consolidating statutes that presupposed, but did not state, the common law rules. This legislation, although a small step forward, was still, therefore, a long way from the codification recommended by the criminal law commissioners in 1834.