Criminal Law Reform: England

The first half of the twentieth century saw very few reforms in the criminal law. Such attention as was given to problems of criminal justice centered on the conditions and effects of—and alternatives to—imprisonment, and especially on ways of dealing with young and first offenders. As far as the criminal law itself was concerned, apart from the already-mentioned revisions of the 1861 acts and the consolidation of statutory offenses of perjury (which, being misdemeanors, had not previously been undertaken), the most important pieces of legislation were the act that established the Court of Criminal Appeal in 1907 (Criminal Appeal Act, 1907, 7 Edw. 7, c. 23 and the Indictments Act, 1915, 5 & 6 Geo. 5, c. 90), which effected a very substantial simplification in the form of indictments. All these statutes were sponsored by the reforming Liberal government that took office in 1906. Its principal reforms were, however, directed at other aspects of English life, politics, and law. For the rest, royal commissions and departmental and select committees were from time to time established to consider particular matters. Their recommendations were rarely implemented, and then only after considerable delay.

Among the chief of these bodies was the Departmental Committee on Insanity and Crime (1922), whose report, recommending widening the insanity defense to include cases of "irresistible impulse" (a meaningless phrase), was put aside after ten of the twelve King's Bench judges said they were opposed to its proposals. (A new offense of infanticide, punishable as manslaughter rather than murder, committed by the mentally disordered mother who killed her newly born child—a reform recommended by the 1866 Royal Commission on Capital Punishment—was, however, created.) Others were the Select Committee on Insanity and Crime (1930), the Departmental Committee on Sexual Offences against Young Persons (1925), and the Interdepartmental Committee on Abortion (1939). The Royal Commission on Betting, Lotteries and Gaming (1951) resulted in the Betting, Gaming and Lotteries Act, 1963, c. 2; the Royal Commission on Capital Punishment (1953), in the Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11; the Select Committee on Obscenity (1958), in the Obscene Publications Act, 1959, 7 & 8 Eliz. 2, c. 66; and the Departmental Committee on Homosexual Offences and Prostitution (1957), in the Sexual Offences Act, 1967, c. 60, and the Street Offences Act, 1959, 7 & 8 Eliz. 2, c. 57.

This list shows that in the 1950s, after the interruptions and dislocations caused by two world wars and a major economic recession, there was a long-overdue revival of public interest in the need to reform the criminal law so that it would be less out of accord with contemporary standards and expectations. (Another sign was the foundation in 1957 of JUSTICE, the British section of the International Commission of Jurists, which has produced a valuable series of reports drawing attention to defects in criminal law and procedure, and proposed many reforms.) But all this interest was confined to very specific matters. The concern shown by the nineteenth-century reformers for the principles that should govern the criminal law, and for its overall structure, was absent.

Thus, when the Royal Commission on Capital Punishment returned to problems that had occupied the criminal law commissioners in the 1830s and the royal commission of 1866, its terms of reference were limited to considering ways in which the incidence of capital punishment might be restricted: it was not asked to say whether capital punishment should be retained. The commission accordingly recommended (and the Homicide Act of 1957 implemented) the abolition of the felony-murder rule, the widening of the defense of provocation to include provocative words, and the creation of two new forms of manslaughter in cases where the intentional killer was mentally disordered (but not insane) or had acted in pursuance of a suicide pact. The commission recommended that degrees of murder (of which only the first would carry the death penalty) should not be introduced, but this recommendation was rejected by the Conservative government, which, in an attempt to stymie the campaign for the total abolition of capital punishment, distinguished in the 1957 act between capital and noncapital murders. This distinction quickly proved to be so unacceptable that it was discarded in 1965, when the death penalty for murder was suspended for an experimental period of five years, a suspension made permanent in 1970. The Homicide Act of 1957, did not, however, include a statutory definition of murder (or any other homicidal offense). There was, consequently, the astonishing spectacle of the definition of murder, still a matter of common law, being the subject of no less than six appeals to the House of Lords within the next forty years (Director of Public Prosecutions v. Smith [1961] A.C. 290; Hyam v. Director of Public Prosecutions [1975] A.C. 55; Regina v. Cunningham [1982] A.C. 566; Regina v. Moloney [1985] A.C. 905; Regina v. Hancock [1986] A.C. 455; Regina v. Woollin [1998] 4 A11 E.R. 103 (H.L.)).