Saturday, 7 June 2008

Revising the 'Bloody Code'

The 'Bloody Code' in 1800 had about 200 or so capital offences. The most serious offences against persons and property tried at assizes or at the Old Bailey were punishable by death. County quarter sessions and all but two borough sessions had no such power. Execution was usually by hanging. Individuals convicted of capital offence could claim benefit of clergy, a medieval right extended to men and women who could demonstrate basic literacy, until the law was rationalised in the 1820s by Peel. Gaols held the accused before trial and some petty offenders were sentenced to short periods of imprisonment but their function did not extend to long-term incarceration. Transportation, after 1787 to Australia, was seen as a solution for hardened criminals.

Reformers and anti-reformers

There was growing unease about the operation of the legal code, beginning in the eighteenth century, that resulted in demands for reform of the criminal law. Campaigners like Sir Samuel Romilly protested that there was a 'lottery of justice'. There was uncertainty about the punishment for different offences and that even when the death sentence was passed it was far from certain that it would be carried out and, as a result, there was no lesson for the public. Judges, he feared, had too much discretionary powers and responded to different offences in their own individual ways. Romilly and reformers like him have been portrayed as far-sighted humanitarians beset on all sides by die-hard reaction. But how great were their achievements?

  1. There never were 200 or so separate and completely different offences that were liable to a capital sentence and the use of capital punishment as a solution had been questioned long before Romilly began his campaign. In 1783 the procession of Tyburn was abolished and public executions began to be sited outside Newgate Prison. In this context Romilly's achievement is perhaps less pronounced.
  2. Romilly and other reformers were able to get things done because an increasing amount of parliamentary opinion, across the political spectrum, was beginning to line up behind the arguments being employed. For example, the bill to abolish the death penalty for pickpockets went through Parliament in six weeks in 1808 without a division.

The opponents of criminal law reform had a more coherent case than contemporaries or subsequent historians have given them credit. Anti-reformers insisted that justice was not a lottery and that judicial discretion was sensible and conscientiously practised. Reformers could point to injustices but anti-reformers could point to many examples that showed the system working with mercy and moderation. The strongest argument of traditionalists concerned whether there could ever be a significant measure of certainty on the way that a punishment was meted out to fit a particular crime. The Criminal Law Commissioners who were appointed in 1833 ran into major problems when they tried to establish a rational system of sentencing. In their second report in 1836 they specified four overall classes of crime each with two alternative penalties; by 1839 there were fifteen overall classes of crime each with a far greater range of penalties and by 1843 the scale of penalties had reached forty-five. The attempts of the Commission to establish precise offences eventually foundered.

Traditionalists were defending an aristocratic and paternalistic image of justice that focused on the practice of the courts and the use of mercy. Reformers focused on existing severity and proposed an image of impersonal justice in which the law was above the suspicion of being dependent on the discretion of the judiciary. The problems for the opponents of reform were that moderate and influential Tories like Peel were sympathetic to the reformers' image of justice. However, what has to be recognised is the logic of the traditionalists' case and what has to be rejected is the notion that the reformers had a far-sighted vision of nineteenth century progress that would culminate in the modern legal system.

Reforms in criminal law

By the eighteenth century, some of the more savage physical punishments of the Tudor period were rarely used. People were still whipped – the public whipping of women did not stop until 1817. Branding, ear-slicing and nose-slitting had stopped. Also in decline were those punishments like the stocks or the pillory. This was largely because they no longer worked. Some of those pilloried lost an eye or were even killed; some wore armour to protect themselves. On the other hand, someone like the bookseller John Williams who sold newspapers criticising the government in 1765 was cheered in the pillory and raised £200 in a collection.

Reform of the criminal law began in the first decade of the nineteenth century and was associated with individual MPs like Sir Samuel Romilly. In 1822 Sir Robert Peel became Home Secretary. This marked the beginnings of reform by successive governments.

 

Date

Event
1808 Samuel Romilly persuaded Parliament that convicted pickpockets should no longer be sentenced to death
1810-1818

The House of Commons passed four Bills abolishing the death penalty for stealing 5s from a shop but the House of Lords rejected all four

1818

A House of Commons committee was set up to report on capital offences. Obsolete laws were repealed.

1823-1830

Sir Robert Peel, as Home Secretary persuaded Parliament to abolish the death penalty for over one hundred offences.

1832

Death penalty ended for house-breaking, horse-stealing, sheep-stealing and coining false money.

1837

Death penalty ended for all offences except murder, attempted murder and treason.

1847

Magistrates could deal with children less than 14 accused of theft. They were given powers to discharge them even if they were found guilty.

1850

Age limit of 1847 Act raised to 16.

1854

Magistrates given powers to send young offenders to reform school instead of prison

1861

Death penalty abolished for attempted murder

At the same time there were reforms of both the criminal and civil court system.

 

Date

Event

1813

Manchester appointed paid or stipendiary magistrates. Their example was followed by Liverpool in 1836, Birmingham in 1856 and Leeds in 1859.

1828

Peel abolished fees in some courts and paid official salaries instead.

1830

Lord Brougham became Lord Chancellor. He abolished sinecures and made court procedures simpler.

1836

Prisoners accused of felonies were allowed to have counsel to represent them in court.
1844

Imprisonment for debts less than £20 was abolished

1846

Systems of county courts set up to allow people to sue cheaply for small debts.

1861

All imprisonment for debt abolished.

1873

Whole system of courts simplified.

1879

The Director of Public Prosecutions [DPP] was appointed to organise the prosecution of serious criminal cases.

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