Criminal Law Reform: England

English criminal law, like almost every other English legal, political, religious, educational, and social institution, has undergone substantial reform since the second quarter of the nineteenth century; but reform has taken place piecemeal and very slowly. There has been no decisive break with the past as has occurred in many European countries with the promulgation of a penal code and code of criminal procedure. Not only is England still without either, but dozens of reforms cogently urged by publicists, parliamentary committees, and royal commissions in the first half of the nineteenth century had to wait until the second half of the twentieth to be implemented. Some, like the complete abolition of common law offenses, as well as codification itself, are still awaited.

Two factors have combined to make the pace of reform of the criminal law particularly slow. The first has been the influential presence in both houses of Parliament of considerable numbers of lawyers: many of the most senior judges, as well as other lawyers, sit in the House of Lords, and many magistrates and practicing lawyers have been members of the House of Commons. The second is the British parliamentary practice that permits the scrutiny and debate of the detail, and not just the principle, of proposed legislation. Until the 1900s, every substantial reform was opposed by either the judiciary or the practicing profession.

In 1786 the lord chancellor, Lord Loughborough, said that any proposal for changing the criminal law should either originate from the judges or be approved by them before being submitted to parliament, and this convention was generally followed (at least by governments). Many of the reforms would have curtailed the powers and discretion of the judiciary, the wide extent of which has always been one of the most striking characteristics of English criminal law. Judicial and professional opposition to reform remained the rule. Moreover, the breadth of this judicial discretion, coupled with both the absence of any rule or machinery compelling the prosecution of known offenders, and the uncontrollable liberty of juries to acquit in the teeth of the evidence, often made it possible for the worst of the law's defects to be palliated in response to public opinion. It could therefore be argued that in practice the law was nowhere near as objectionable as it was in theory, and that reforming legislation was, accordingly, unnecessary and might well result in unforeseen harm. At least two generations commonly elapse between the proposal and the enactment of a reform. Furthermore, the amount of parliamentary time likely to be consumed in considering any comprehensive legislation has constantly deterred the promotion of those reforms of the substantive law that even the legal profession has come to recognize as—in principle—desirable.