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.

42 Days

It appears that the DPP doesn't want it, neither do the previous Attorney General and Lord Chancellor, the police appear by their silence to be at least ambivalent about it and now a past prime minister in what must be his most pointed intervention since leaving office in 1997 has cast grave on yet another restriction on our civil liberties.  Or, as someone wrote during the 90 day fiasco, just pluck another figure out of the air!  So why is the government persisting with the 42 day proposal when it appears most people simply do not see or accept the justification being claimed.  Jacqui Smith has let the cat out of the bag in her Spectator article in which she says that if it were a vote of confidence in the government it would pass easily.  So it's all about macho-politics and the need for the Prime Minister to reassert his authority over his government.  That's no justification for policy.

The government's case appears to be this.  We might in the future need to keep a suspect without charge in custody beyond the current inflated 28 days so that we can collect evidence, so it's a valid insurance policy.  There is an old adage that says 'work expands to fill the time available' so if it's 42 days you can guarantee that, despite the spurious parliamentary safeguards, the time will be used.  Then there's the argument that we need to balance civil liberties with the need to combat the 'war on terror'.  Now that's a better position to take but has been fatally flawed by the use local authorities have made of anti-terrorism legislation to snoop on people who appear to be lying about where they live to get their children into the schools of their choice.  Whatever the justification of checking on those individuals who try to buck the system for their own or their families benefit, using anti-terrorism legislation to do this resembled the proverbial hammer and nut. 

Government of whatever hue appears to be under the impression that you can legislate problems away.  Whether it's knife crime or binge drinking or rubbish bins, the first inclination of government appears to be to head for the statute book.  Law only works effectively with consent and increasingly it appears that many people do not consent to having their behaviour changed by ham-fisted and often badly drafted legislation.  By legislating too much, government dilutes the value of all legislation, good or otherwise.  We should be legislating less rather than trying to micro-manage people's lives.  Yes, government should inform, advise and warn people.  It should pass legislation where necessary but defining personal responsibility in terms of legislation and not allowing individuals to take responsibility for their own actions will mean that increasingly legislative and personal responsibility will merge, the ultimate political control.

If there is justification for 42 days other than it might be needed, then the government should present it.  Global terrorism is real and needs to be combated since it threatens the fundamental values of a democratic society.  By increasing the powers of the state and reducing the liberties that have been won over centuries, we are in danger of doing the terrorists' job for them.  We are already have more camera surveillance than any country on the globe, our anti-terrorism legislation is seen as increasingly draconian and is increasingly being misused by officials who appear not to be accountable to anyone and we appear, in many people's eyes to be sleepwalking into a police state.  In these circumstances, macho-politics is inappropriate, offensive and dangerous.  Think again, Gordon.