criminal law

criminal law. In Anglo-Saxon and Norman England, there was no distinction between criminal and civil law. Violence, or the causing of damage or harm to another's person or property, was subject to savage penalties if the offender was caught red-handed, but other cases, including homicide, were dealt with by a system of compensation whereby, according to a tariff, wrongs were recompensed by money payments. Where the offence was serious, in addition to the bot (compensation for injury) or wergeld (payment to the kin of a murdered person), a payment (the wite) was made to the king.

Certain offences which were especially serious were the ‘pleas of the crown’, declared by the Anglo-Saxon kings to affect the king's interests especially, such as a breach of the king's peace. The Normans adopted these notions and extended the pleas of the crown, as well as introducing the concept of felony. These pleas came to be dealt with by the king's own justice—i.e. by the king or his justices.

In the Assizes of Clarendon and Northampton (1166 and 1176), Henry II introduced a system of presentment, under which twelve men of each hundred were to present to the justices of the curia regis those suspected of serious crime (pleas of the crown). Some see this as the beginning of a true ‘criminal law’, since it acknowledged that it is the role of government in the person of the king to ensure that crime is dealt with. Those presented might then be put to the ordeal to ascertain their guilt or innocence. When the clergy were forbidden to participate in ordeals by the Lateran Council of the church in 1215, the justices turned to the verdict of a jury to decide guilt or innocence. Presentment soon superseded the appeal of felony as the principal means of bringing criminals to justice.

Lesser offences were presented to the sheriff at the periodic session of the hundred court (held four times a year), which was known as the ‘sheriff's tourn’. Where the lord of the manor held a court leet, the jurisdiction of the hundred was exercised in that court, and the fines collected were payable to the lord. Later, after the introduction of the justices of the peace, and especially after their jurisdiction was extended in 1361, lesser offences were tried by the JPs in petty sessions or quarter sessions.

The pleas of the crown became the basis of the English criminal law, which was administered in the sheriff's tourn and the court leet, and later in the courts held by the JPs (for minor crimes), and at quarter sessions, and before the judges of assize, where serious cases were heard with a jury. This system of criminal justice remained until the 19th cent. and was little changed until the 1971 Courts Act. In 1971 the assizes were abolished, as were quarter sessions. Serious criminal cases (indictable offences) are now tried in the crown court with a jury. Less serious cases (summary) are dealt with by magistrates sitting without a jury, or by a stipendiary magistrate. The ancient classification of crimes into treasons, felonies, or misdemeanours was abolished in 1967, and the law now divides crimes into indictable or summary (for purposes of trial) and into arrestable and non-arrestable.

The 18th and 19th cents. saw the introduction of large numbers of capital offences, partly in response to fear of revolution among the ruling élite. The so-called ‘bloody code’ imposed savage penalties for many offences and, even when transportation was introduced as an alternative to the death penalty, punishments remained severe. The severity of the penal system was modified by the use of fictions, especially the undervaluing of goods stolen at less than a pound; by the use of benefit of clergy to enable a defendant who had been found guilty to evade the death penalty; by the reluctance of juries to convict; and by the very widespread use of the power of pardon. Gradually, under the influence of reformers such as Bentham, Romilly, Mackintosh, and Peel, the ferocity of the penal code was mitigated.

Appeals against conviction could only be to the Court for Crown Cases Reserved, set up in 1848, and it was not until 1907 that a proper system of criminal appeals was introduced with the creation of the Court of Criminal Appeal. In 1966 the Court of Appeal was divided into the criminal and civil divisions, and there is a right of appeal to that court from the crown court.

Maureen Mulholland