Tuesday, 22 February 2011

Crime and the courts

There has been an unprecedented growth of academic research and publications in the history of crime.[1] Until recently, most books dealing with crime tended to be ‘popular’ rather than narrowly ‘academic’ in character and concentrated on particular, notorious events or personalities and many depended on largely anecdotal and literary sources. Since the 1970s, historians have increasingly turned their attention to crime and how former societies understood it and sought to deal with it.

Some historians have made a distinction between ‘real crime’ such as murder, rape and theft and ‘social crime’ or offences that had a degree of community acceptance or that can be linked with social protest.[2] John Rule has suggested that it is useful to think of two main types of social crime during the late-eighteenth and first half of the nineteenth century. First, some crimes drew society’s support because of their protest nature. In this category he includes rioting over the high cost of food, over enclosures, recruiting for the army or navy or over turnpike tolls.[3] Secondly, some crimes were not regarded as criminal by those who committed them. ‘Perks’ or the appropriation of things from the workplace became increasingly the object of criminal prosecution by employers in the nineteenth century. Poaching fell into the same category.[4] The poor did not look upon it as a crime

...they almost universally look upon game, when in a wild state, as not being the property of any individual. [5]

Crime 1

Bow Street court c1910

The degree to which the state criminalises certain types of behaviour and not others has always been a matter of debate. The traditional view is that humanitarian reformers like Sir Samuel Romilly and Sir James Mackintosh gradually created awareness both inside and outside Parliament that England’s Bloody Code needed drastic revision. While such men stressed the barbarity of the legal code, other reformers like John Howard paved the way for improvement in the penal system. This picture fitted well with the Whig idea of history as progress and implied a logic that neglects the economic, social and political context for change.

Crime 2

Christabel Pankhurst, Mrs Pankhurst and Flora Drummond at Bow Street Magistrates’ Court, 1913

Eighteenth century Parliaments tended to pass laws to deal with local problems but gradually government saw crime in its national context. Sir Robert Peel‘s reorganisation of the criminal law during the 1820s was symptomatic of this change. Yet national laws still had to be implemented at local level by local people, whose perceptions were not always the same as those in Parliament. The law may have been seen as impartial but, it had to be interpreted and enforced by local agents such as the magistracy who had their own assumptions, interests and prejudices and who could, on occasions, be at odds with each other. [6]

Offenders in England and Wales were brought before three main kinds of court during the nineteenth century.[7] Before the appointment of professional prosecutors in the late-nineteenth century, criminal cases were initiated by complaints from private citizens, usually the victims, to local magistrates. Their role was to assess the allegations and, if proceedings seemed warranted, to choose the appropriate course of action. Criminal prosecution was rather more like civil litigation. Private prosecution was expensive and only wealthy people could afford to pay for a lengthy court trial. The cost of the litigation meant that for the masses of the poor recourse to criminal justice was not possible and often they ‘took the law into their own hands’.

The main developments during the nineteenth century were the decline in private prosecution and the extension of use of the courts by the working class. The criminal justice system, in particular the magistrates courts, moved into the working-class areas of the expanding cities and was part of the same dynamic that resulted in the formation of the modern police. The increasing use of the magistrates’ courts, known, appropriately, as police courts, by the masses was a key feature of these developments. The main vehicle of this change was the extension of access to the courts for the masses through the expansion of summary jurisdiction. The percentage of offences in England and Wales tried in front of lay magistrates rose from 66 percent in 1857 to 80 percent by 1911. Misdemeanours, the least serious offences such as drunkenness, soliciting, and vagrancy were dealt with summarily by magistrates sitting alone or in pairs on the bench, although those accused were allowed to employ a defence counsel. These summary powers were extended during the nineteenth century to include some cases of petty larceny and assault with the passage of the Juvenile Offenders Acts in 1847 and 1850 and the Criminal Justice Acts of 1855 and 1879.[8] At the beginning of the nineteenth century, individual magistrates frequently tried summary offences in their own home but this became less common by the 1830s and was abolished in 1848 by the Summary Jurisdiction Act. After this, all summary trials took place at formally constituted Petty Sessions, before at least two magistrates. Petty Sessional courts had since the eighteenth century but in 1828, legislation had tightened up procedures and carefully defined Petty Sessional divisions within counties. In the larger towns and cities, stipendiary or paid magistrates, acting in what were increasingly referred to as ‘police courts‘ took on more and more of the burdens of summary justice.[9] Summary jurisdiction benefitted the working-classed by making access to the courts quick and cheap but also entailed ‘handing over’ to the police and increasingly middle-class magistrates by the masses of the right to sort out their conflicts.

When the offence appeared more serious, the magistrate drafted a bill of indictment for a grand jury which, if satisfied that there was a case to answer, sent it for trial by jury in one of two venues.[10] More serious offences or felonies were prosecuted on indictment and were heard at Quarter Sessions that met four times a year in the county town and in those boroughs where the right for a borough session was included in its charter. These courts were held before a bench of county justices or magistrates appointed by a borough corporation, with a jury. Quarter Sessions were regarded as consistently poor throughout the nineteenth century due to failure by chairmen, who did not have to be legally qualified, to take proper note of evidence, often displaying open hostility to prisoners and the severity of sentences compared to the Assizes.

The most serious offences were tried before professional circuit judges and juries at Assizes that generally sat twice a year. Before 1842, when legislation assigned all capital offences and those with life imprisonment for the first offence to the Assizes, the line between Assize and Quarter Sessions cases was rather blurred. It has been estimated that in the early-nineteenth century, trials lasted about 20 minutes with Assizes hearing 20-30 cases a day. Traditionally, English felony trials consisted of a relatively unstructured exchange between the victim of the felony or a hired prosecutor and the accused generally appearing without a lawyer.[11] In cases of high treason, the right to make a defence had been established in 1696 [12] but it was not until 1836 that the Prisoners’ Counsel Act recognised the defendant’s right to legal counsel in felony trials and lifted many restrictions on the activities of defence lawyers.[13] This recognised the growing practice, which had developed during the previous century, of judges allowing counsel to examine witnesses on the defendant’s behalf.[14] In the early-nineteenth century, there were two assizes per year held in the major county towns of most counties at Lent and during the summer. Emergencies, such as food riots or other types of public disorder, could lead to a special assize being called. The metropolitan equivalent of the assizes was the court at the Old Bailey that, by the 1750s, held eight sessions a year. In 1834, it was enlarged and re-housed in the new Central Criminal Court.[15]

The King’s or Queen’s Bench was the monarch’s personal court concerned with protecting the interests of the Crown. Cases could be referred to it where it was believed that a fair hearing in a particular locality was impossible. It was also a court of review for magistrates, who could ask it to rule on points of law. Judges at the Assizes normally consulted their colleagues on points of law but, in 1848, the Court for Crown Cases Reserved was set up for this. During the nineteenth century, there was no appeals procedure or court of appeals. A convicted criminal’s only hope was the Royal Pardon, in practice delegated to the Home Secretary. A Court of Criminal Appeal was finally established in 1907.[16]

Magistrates and judges were not the only agents of the law who were called upon to interpret the law. The nineteenth century saw the creation of a new police force in Britain. The police had some discretion in identifying behaviour as criminal or not and in deciding what action to take. It was largely victimless crimes that were open to such discretion: drunkenness, prostitution, street gaming and especially Sunday street-selling.

[1] Emsley, C., Crime and Society in England 1750-1900, 4th ed., (Longman), 2010 is the most recent general text and should be read in conjunction with his Policing and its Context 1750-1870, (Macmillan), 1983 and ‘Crime in Nineteenth Century Britain’, History Today, Vol. 38, (4), (1988), pp. 40-46, Gattrell, V., ‘Crime, authority and the policeman-state‘, in Thompson, F.M.L., (ed.), The Cambridge Social History of Britain 1750-1950: Vol. 3 Social Agencies and Institutions, (Cambridge University Press), 1900, pp. 243-310 and the older study by Tobias, J.J., Crime and Industrial Society in the Nineteenth Century, (Batsford), 1967. See also, Taylor, David, Crime, policing and punishment in England, 1750-1914, (Macmillan), 1998, and McLynn, Frank J., Crime and punishment in eighteenth-century England, (Routledge), 1989.

[2] Taylor, H., ‘Rationing Crime: The Political Economy of Criminal Statistics since the 1850s’, Economic History Review, Vol. 51, (1998), pp. 569-590 and Sindall, R.S., ‘The criminal statistics of nineteenth-century cities: a new approach’, Urban History, Vol. 13, (1986), pp. 28-36 consider the problem of crime statistics.

[3] Shakesheff, T., Rural conflict, crime and protest: Herefordshire, 1800 to 1860, (Boydell), 2003, pp. 78-112, 141-175 provides a good local study on this issue.

[4] Osborne, Harvey and Winstanley, Michael J., ‘Rural and Urban Poaching in Victorian England’, Rural History, Vol. 17, (2006), pp. 187-212 and Hopkins, H., The Long Affray: the poaching wars, 1760-1914, (Secker and Warburg), 1985.

[5] A Bedfordshire JP to the Select Committee on Criminal Commitments and Convictions, Parliamentary Papers 1826-7, Vol. 6, p. 34.

[6] Zangerl, C.H.E., ‘The Social Composition of the County Magistracy in England and Wales, 1831-1887’, Journal of British Studies, Vol. 11, (1971), pp. 113-125, Philips, D., ‘The Black Country Magistracy 1835-1860’, Midland History, Vol. 3, (1975), pp. 161-190 and Swift, R., ‘The English Urban Magistracy and the Administration of Justice during the early Nineteenth Century: Wolberhampton 1815-1860’, Midland History, Vol. 17, (1992), pp. 75-92.

[7] Cottu, Charles, On the Administration of Criminal Justice in England: and the Spirit of the English Government, (R. Stevens), 1822 provides a contemporary view. Bentley, D.J., English Criminal Courts in the Nineteenth Century, (Continuum), 1998 and Langbein, John H., The Origins of the Adversary Criminal Trial, (Oxford University Press), 2003. See also, King, Peter, Crime, Justice and Discretion in England, 1740-1820, (Cambridge University Press), 2000 and Cornish William, Anderson J. Stuart, Cocks Ray, Lobban Michael, Polden Patrick and Smith, Keith, (eds.), The Oxford History of the Laws of England, Volumes XI, XII and XIII, 1820-1914, (Oxford University Press), 2010, Vol. XI for detailed discussion of the development of the criminal justice system.

[8] The Juvenile Offenders Act of 1847 permitted summary trial for larceny by offenders aged under 14. This was raised to 16 in 1850. The Criminal Justice Act of 1855 extended summary jurisdiction with the consent of the accused to all cases of simple larceny.

[9] Davis, J., ‘A poor man’s system of justice: The London police courts in the second half of the nineteenth century’, Historical Journal¸Vol. 27, (2), (1984), pp. 309-335.

[10] Grand juries met to assess the indictments and decide whether there was sufficient evidence to try the case before a trial jury. At this point prosecutors and their witnesses, but not defendants, could testify. Those cases for which a grand jury believed the evidence was sufficient to warrant a trial were approved as ‘true bills’; those rejected were labelled ‘ignoramus’ or ‘not found’ and the case was dropped. There were repeated calls throughout the nineteenth century for the abolition of the grand jury but it was not until 1933 that England abandoned them in favour of a committal procedure. See, Hostettler, John, The Politics of Criminal Law Reform in the Nineteenth Century, (Barry Rose Law Publishers), 1992, pp. 150-154 and The Criminal Jury Old and New: Jury power from early times to the present day, (Waterside Press), 2004, pp. 109-125.

[11] Although victims could hire a lawyer to present their case before the courts but in practice few did so. In most felony trials, the judges were the only participants with any legal training. Consequently, they dominated the courtroom and orchestrated the brief confrontation between the accused and the victim that lay at the heart of the trial.

[12] See, Shapiro, Alexander H., ‘Political Theory and the Growth of Defensive Safeguards in Criminal Procedure: The Origins of the Treason Trials Act of 1696’, Law & History Review, Vol. 11, (2), (1993), pp. 215-255.

[13] Beattie, J.M., ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’, Law & History Review, Vol. 9, (2), (1991), pp. 221-267 examines the development of defence in felony cases.

[14] Langbein, John H., ‘The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors’, Cambridge Law Journal, Vol. 58, (1999), pp. 314-365.

[15] May, Allyson M., The Bar and the Old Bailey, 1750-1850, (University of North Carolina Press), 2003.

[16] In Scotland, the nineteenth century justice system consisted of two courts, the Sherrif Court and the High Court (based in Edinburgh). Both of these courts travelled on a circuit to different regional locations where cases would be tried. The most common crimes to be tried in the Sherrif Court were theft and assault while more difficult cases were referred to the High Court, the supreme criminal court of Scotland.

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