Criminal Law Reform: England

James Fitzjames Stephen served in India as law member of the governor-general's council from 1869 to 1872, and was involved in the revision of the Criminal Procedure Code and the passing of the Indian Evidence Act of 1872 and the Indian Contract Act of the same year. He was much impressed by the Penal Code. "To compare [it] to English criminal law," he wrote on his return, "is like comparing cosmos with chaos." Shortly after his return to England, Stephen joined in the drafting of the Homicide Law Amendment Bill, which offered a statutory definition of murder, abolished the felony-murder rule, and made infanticide a lesser offense than murder. This bill was introduced in Parliament in August 1872. It was reintroduced in May 1874 and referred to a select committee, where it was to founder. Although the committee agreed that a redefinition of murder was "urgently needed," it found the judiciary very critical of the bill.

In particular, the Lord Chief Justice, Alexander Cockburn, although professing himself a strong supporter of codification (and, if so, the first chief justice of whom this could be said), argued that the "partial and imperfect codification" of the bill, which included clauses dealing with the insanity defense, necessity, and the presumption of intention, applying only to homicide cases, would be fatal to the prospects of a complete code (Stephen, 1877, p. v). Stephen responded to this challenge by publishing in 1877 A Digest of the Criminal Law (Crimes and Punishments), in which he showed the form that a complete code might take, and outlined a program for the reform of the criminal law which has still scarcely been traveled beyond. Modeled on the Indian Code, and in marked contrast to the Criminal Law Commissioners' bills, the Digest was a masterly condensation of a mass of law into manageable form. As a result, Lord Cairns, the lord chancellor, later that year instructed Stephen to draft two bills: one a penal code, the other a code of criminal procedure. The first was introduced into Parliament as the Criminal Code (Indictable Offences) Bill in May 1878, and was sufficiently well received to be referred to a royal commission composed of three judges (two English and one Irish) and Stephen himself. The commission was to consider and report on the bill and also to suggest any other alterations in the existing law or procedure that seemed desirable, it being recognized that Parliament itself could not give the bill the detailed technical legal scrutiny required.

The commission sat daily from November 1878 to May 1879, discussing, according to Stephen, "every line of and nearly every word of each section" of the two bills. Although it added 127 sections to Stephen's draft (in particular, detailed provisions concerning the use of force in self-defense, defense of property, and the prevention of crime), the royal commission agreed to recommend to Parliament both the principle of codification and a revised bill. This was a considerable achievement, especially since the commission's chairman, Lord Blackburn, the most eminent judge of the day, had previously been opposed to codification.

The Criminal Code Bill had its first two readings in the House of Commons in April and May 1879, but no third reading that session. It was reintroduced in February 1880, but there was a change of government in April of that year, and although the part of the code dealing with criminal procedure was announced as a government measure in the Queen's Speech in both 1882 and 1883, Parliament's time and attention were dominated by the struggle for Irish home rule. Consequently, nothing further was done to secure the code's enactment. Since it not only consolidated and codified the existing law but also included a considerable number of reforms, its passage through Parliament would almost certainly have been controverted and, therefore, time-consuming.

The fact that Lord Chief Justice Cockburn was again highly critical (on the ground that even this code was incomplete, because it omitted some obsolescent statutory offenses, as well as all summary ones) inevitably cast a shadow. However, Cockburn's objections were easily answered by Stephen, and they need not have proved fatal to the code if parliamentary time had been made available for its consideration. More significantly, perhaps, the Statute Law Committee, which had been established in 1868 to promote statutory consolidation and revision, favored a more gradual program of reform and consolidation. In addition, doubts came to be felt about the quality of Stephen's drafting, and comparisons (not to Stephen's advantage) were drawn with the code that R.S. Wright had drafted between 1874 and 1877 for the colony of Jamaica to be a model, or so the Colonial Office hoped, for the rest of the empire.

Among the changes envisaged by Stephen's code that had to wait many years before they were finally effected were (1) abolition of the felony/misdemeanor distinction (first recommended in 1839 but implemented only in 1967); (2) abolition of the felony-murder rule (recommended in 1839 and implemented in 1957); (3) allowing words as well as acts to constitute provocation, reducing an intentional killing from murder to manslaughter (implemented in 1957); (4) the coalescence of larceny and the other offenses of dishonest appropriation in a single offense of theft (achieved in 1968); (5) abolition of the defense of marital coercion (still surviving); (6) allowing the defendant always to be competent witness at his own trial (implemented in 1898); and (7) establishment of a court of criminal appeal (a bill for which was first introduced in 1844 and which was finally implemented in 1907, after a protracted public campaign).

The public debate over Stephen's code showed that the judges were no longer opposed to codification in principle, as they had been in the 1850s. But the fact that the project was allowed to lapse reveals how little concerned they or the profession were that the law should, as Cockburn had put it, "be suffered to remain in its present state of confusion, arising from its being partly unwritten and partly in statutes so imperfectly drawn as to be almost worse than unwritten law" (Stephen, 1877, p. v). In 1901 Courtney Ilbert, the principal government draftsman, lamented that "it was impossible to view . . . without a certain degree of humiliation, the entire cessation during recent years of any effort to improve the form of English Law, and the apathy with which that cessation has been regarded" (p. 162). He observed that the lack of a criminal code and a code of criminal procedure "produced practical and substantial inconveniences." Revised versions of Stephen's codes were, however, adopted in Canada, New Zealand, Queensland, Western Australia, many of the British territories in East and West Africa, Cyprus, and Palestine, and proved quite satisfactory.