The Evolution of the  Modern System of Criminal Justice

The Anglo-Saxon Legal System

By the time the concept of a breach of the king’s peace had been introduced the whole of England had been divided into counties (shires) and these had been subdivided into more manageable units called hundreds.

Each hundred had a court which administered the law and endeavoured to spread equitably the fiscal demands of the king. (The origin of this court was the less structured public assemblies called folk-moots.) Most men living in the hundred could attend its court and its judgments were decided by them.  The men were guided, but not controlled, by the sheriff (the ‘king’s reeve’) who presided. All crimes committed in the hundred were presented to the court and those which were outside its jurisdiction were to be forwarded to a biannual county court which was presided over by an eorl and a bishop.  This court met in public and it dealt with cases of murder, theft, affray and wounding. When a person accused of committing a crime came to court and swore under oath that he was guiltless he had to produce sufficient ‘oath-helpers’ to vouch for his character on oath. If he were unable to find sufficient oath-helpers, he had to undergo an ordeal administered by the Church.

Survival of the ordeal was proof of innocence, but most subjected to the ordeal died.  Important as these community courts were, they probably did not serve as a great deterrent as the summary justice handed out to those caught in the act of committing a crime, those who fled from a crime or those who unexpectedly left a village. For most of these actions they could expect to be hanged and their land and goods were forfeited to the king. The king also received the fines imposed on those who committed lesser offences.

From the late Anglo-Saxon period a more local enforcement of law and order was conducted through a system called ‘tithing’. Under this system all adult men had be part of a group which was responsible for reporting any offences committed by members of the group to the hundred court. If a group failed to ensure that the offender was brought to justice it had to pay compensation for any damage the offender had caused. The sheriff was responsible for ensuring that all eligible males were members of a tithing group and each group had to pay a sum of money annually to the sheriff to cover his expenses. In many parts of the country each group contained ten men but in large settlements (‘vills’) all adult males sometimes formed a larger tithing group.

The first major changes to the Anglo-Saxon legal system were made during the reign of Henry II (1154-1189) and they were continued by his successors. By the middle of the thirteenth century the recording of serious crime was reported to royal officials, called coroners, who were appointed in every county. However, the duty of identifying and producing the persons believed to have committed each crime remained the responsibility of the community. The appointment of the coroner reduced the role of the sheriff who was left with the jurisdiction over personal actions such as (i) debt and private wrongs  (ii)  the responsibility for collecting the king’s taxes, (iii) the frankpledge system and (iv) prisons.

The Prisons were not primarily intended for punishment because most offences were punishable by death or, from 1718, by transportation. They were used to (i) keep prisoners until they were brought to trial or before sentence was carried out (ii) to hold prisoners on state charges or (iii) to detain debtors until their obligations had been settled. Most of the early prisons were established in castles.  The Sheriff had two prisons in Suffolk - Ipswich (1163) and Orford (1244) – while the prisons for the Liberties of St Edmunds and St Etheldreda were in Bury St Edmonds and Melton.

Royal Justices

From 1166 royal justices toured the country and presided over at both criminal and civil cases at the country courts. At these biannual courts, which later were called the assizes, representatives of each hundred and township were called upon to present all those accused of serious crimes for judgment. A ‘grand jury’, which had representatives of all hundreds in the county, then had to examine each case and to decide whether there was sufficient evidence to warrant the accused being tried.

When the accused appeared before a judge and declared they were not guilty they were given the option of being agreeing to be tried “by God and country” or of being sent to prison where they would meet a slow death by pressing under stone and lead. Some, with little hope of acquittal, choose this horrible fate, in order to die innocent and thus not deprive their families of their land and goods.

Agreeing to be tried “by God and country” resulting in the evidence being assessed by a ‘petty jury’ of twelve men from the hundreds in the county, some of whom might have been from the grand jury. It is not till 1352 that men from the grand jury were prohibited from serving on the petty jury.  The accused had the right to challenge the appointment of up to thirty-five jurors without giving any reason, and the twelve who were selected had to be unanimous before they could convict him.

Manorial Courts

Around the middle of the thirteenth century there seems to have been an increase in the number of minor disputes being settled at manor courts. Written records of manor courts appear in the 1230s and proliferate after the 1260s.  Many historians believe it was the expansion of royal justice which gave impetus for the increased use of manor courts. They argue that manorial lords sought to distract their free tenants from using the emerging royal courts by developing their own manorial courts along the same lines. The manors were created after the Norman invasion by redistributing the Anglo-Saxon land holdings among the Norman Lords who arrived with William I. By the middle of the thirteenth century the original land holdings had been fragmented by being distributed amongst lesser lords. They varied in size and although some encompassed a village some large villages and townships might contain the land of several manors.

In each manor there were peasants who held some land from their lord and to whom they were tied by a number of obligations which became more formalized during the late twelfth and early thirteenth centuries. Within Suffolk there were also a number of freemen who held land from a lord without these obligations. The earliest manor courts dealt predominantly with civil litigation between these freemen, especially personal actions and land transactions.  However, the function of the manor courts was soon extended to regulate many aspects between the lord and the unfree peasants, i.e. those tied to the lord, and in particularly to recording land transactions, resolving disputes over property rights and cases of damage and trespass. The court also dealt with disputes the between unfree peasants.

A manorial court was presided over by the lord or his representative and the frequency at which it was held varied from season to season and from place to place. At most they were held about every three weeks and attendance was normally compulsory for all unfree peasants. The court was presided over by the lord or his representative. The way in which cases were examined was similar in form to those used in the other courts but strenuous efforts were made by the court to get the parties to agree to a settlement before a ruling was made.  The manor court also appointed a number of unpaid parish officials. One of these was a constable who was initially just responsible for keeping the peace and good order but, in 1285, The Statue of Winchester gave the manorial constable royal authority for maintaining the King’s peace in his manor.

Some manorial lords also had the right to hold a leet court once or twice a year.  The right to hold a leet court, which had jurisdiction of a vill (a settlement) rather than manor, was granted by the Crown. The leet court was responsible for running the frankpledge system in the vill and the annual fee that its members had to pay went to the manorial lord rather than the sheriff. The leet court had the power to decide what constituted a minor offence, which it could rule on itself, or whether the offence were serious enough to warrant it being forwarded to the hundred court of the royal justices. All adult males in the vill had to attend the leet court and it was from them that a jury was selected. Most punishments took the form of small fines although some offences were punished by a period in the stocks or pillory.

Although manor courts were still active in 1500, their importance in regulating local life was substantially undermined by successive Acts of Parliament. These bestowed wider powers upon the parish vestry for the issuing of local by-laws, the regulation of agriculture, social control, poor relief, and so on. Consequently, many of the activities that might once have fallen within the jurisdiction of the manor were now assumed by the parish vestry, which itself was accountable to an increasingly centralized system of government.

Justices of the Peace

Keepers of the peace were appointed for each county in 1277 to instigate proceedings against people who were believed to have broken the law, and to have them held in custody until they could be brought before a royal justice. The functions of the keepers of the peace were eventually taken over by justices of the peace. In 1388 there were eight justices of the peace in each county and they were enabled to try criminal cases, but not civil ones, at the ‘courts of quarterly sessions’ held at four set times each year. The justices of the peace were mainly leading landowners and, by 1565, there were 30 or 40 per county.

At each quarter session two or more justices of the peace sat with a jury and tried the criminal offences within their remit. Justices investigated lawbreakers charged by village constables, and other officials, for all ‘misdemeanours' – crimes not punishable by death. The quarter sessions thus took the jurisdiction of the hundreds courts. From 1500 the justices of the peace also played an increasing role in local government.
 

When, in the course of the seventeenth century, the manorial courts over large districts of England either ceased to be held or omitted to appoint a constable, the choice was by statute transferred, to any two Justices of the Peace in Petty or Quarter Sessions.

By the end of the seventeenth century all the elements of the modern criminal justice system were in place but the ways in which offenders were apprehended, tried and punished were very different from today.

Apprehending Offenders

The response to crime depended very much on individual and community initiative. The manorial and parish constables were unpaid and did not investigate crimes. The victims of crime usually had to discover the culprits themselves and then fetch the constable to arrest them and bring them before the magistrates. Moreover, the victim was expected to pay the constable for his services.

Because the machinery for catching criminals was very imperfect, historians suggest that as few as 20% of those who were said to have committed crimes were brought before the courts. This was probably just as well since the volume of civil disputes was more than sufficient to support a large and influential legal profession.

Trials

At a trial the proceedings started by calling for witnesses, with evidence against the accused, to come forward. Those who did were sworn to tell the truth and, when telling their story, they had to be prepared to have disputes with the accused.  In all other respects the accused was at considerable disadvantage compared with those facing modern trials.

The accused did not have the right to call witnesses and, if any came forward to suggest that the accused was not guilty, they were not sworn.  Nor did the accused have the opportunity to have counsel to argue points of law relating to the indictment. When the witnesses had finished giving their evidence, the judge’s remarks to the jury were usually short and uninformative. He was not required to summarize the evidence.

Punishment

During the Tudor period the severity of the law was increased. From 1327 to 1485 only six new offences which carried the death penalty were introduced.  Over the next 150 years, however, thirty others offences were made punishable by death. Even for minor offences, punishments were often cruel and were intended to stigmatise and dishonour an offender. The stocks, in which the offender was held in a public place, with his ankles locked in a frame, were used to punish offences such as petty theft, vagrancy, drunkenness and resisting a constable, and by 1406, it had become compulsory for every town to have them. For some minor offences, but also for sedition, libel, forgery and using false measures of selling substandard goods, the culprit was placed in a pillory. Here his head and wrists were locked in a frame and he was exposed to public ridicule. Whipping was a common punishment for simple larceny.

By 1688 the number of the felonies - crimes which carried a death sentence – had risen to 50.   Trial juries, however, were often sympathetic to the accused who were brought before them. About a quarter of those indicted for felonies were found not guilty and that juries often decided that the value of stolen goods had been overvalued to make the offence a felony. Moreover, not all those convicted of felony were executed because judges substituted other sentences, such as service in the navy. For lesser crimes the prisoner could be sentenced to transportation for anything from five years to life. This meant that he was sent to America to work as a slave. Transportation appears to have been inaugurated in 1614-15 and was enshrined in the Transportation Act of 1718.

From 1688 to 1776 the number of offences on the statute book which were punishable by death almost quadrupled and it reached 220 by the end of the century. By then theft of goods worth 12p carried the death penalty even though 12p was by then only one tenth of a weekly wage for a skilled worker. Stealing a handkerchief from a person's pocket, a sheep from a field, or apples from a shop without being seen,  all carried the death penalty. Stealing fruit growing on a tree, or stealing while the shopkeeper was watching, were less serious, and were thought to merit only 14 years transportation. Poaching was usually a capital offence and no blame was attached to the landowner who killed a thief in his woods by means of a trip wire and spring gun, or who hacked off his leg in one of the fiendish man-traps which were often placed where part of the park wall had been deliberately pulled down.

Although the penalties for committing offences were severe, the chances of getting caught were not high. It was still up to the victims of crime or their families to identify the culprit and to initiate a criminal prosecution. The parish constables could be asked to arrest somebody accused of a crime, and they could apprehend somebody they saw committing a crime or a nuisance, but they did not investigate crimes. This proved inadequate to control the epidemic of crime in London.

During the mid eighteenth century, what became known as the ‘Bow Street Runners’ was formed there in 1749. By the early years of the next century the effectiveness of this force provided the catalyst for the creation of a police force.

Most of the new capital offences were directed at protecting property and some commentators have interpreted this as a form of class suppression of the poor by the rich. It is also noteworthy that from 1692 the petty jury, which delivered the final verdict on the accused had become less democratic. From that year only those who owned freehold land rated at more than £10 per annum could serve on a petty jury. In practice this meant that that only about 1% of the population was eligible to serve.

The grand jury made the initial decision on whether a case should be tried. It meet in secret and heard only the prosecution case without the defendant bring present and, if all the members could not agree, it reached its decision by a majority. The accused had no say in the selection of the jury.  Members of the grand jury were meant to be, and usually were, men of substance who were chosen by two men nominated by the bailiffs in each hundred. By end of the eighteenth century both the secrecy and prosecution bias of grand juries was causing concern but no changes were made until the middle of the following century.

Those who were sent for trial faced a difficult time in court. In the unlikely event of them being able to afford counsel, the lawyer was not allowed to cross-examine the witnesses, nor allowed to address the jury. The accused was not permitted to see the written evidence laid against him and was, in effect, forced to conduct his own defence.  The judge and prosecution could do just as they liked with the terrified wretches before them.

The inmates of the prisons were left to the tender mercies of a keeper who augmented his own income by the labours of those under his charge. In most case prisoners spent their days in idleness and despair, in overcrowded unsanitary conditions where smallpox and the dreaded gaol fever flourished.

Transportation to America was first introduced in 1614 but it had to stop after the War of Independence (1775 to 83). Long-term prisoners were then housed in rat-infested, de-masted, rotting ships known as hulks and employed in chain gangs digging gravel and stones for roads.

In the last years of the eighteenth century the prisoners were once again transported, this time to the newly-discovered land of Australia, the first load of convicts landing in Botany Bay in 1788. Those convicted of lesser crimes, that is with sentences of up to five years imprisonment, were sent to the local gaols to serve their time with those awaiting trial and those still waiting for release.

By the late 18th century there was pressure for reform lead by people, such as John Howard, who addressed three areas:-

Security - secure buildings and alert staff, instead of slovenly, careless officers

Health - cleanliness, fresh air and medical care to combat disease.

Separation - segregation of prisoners according to sex and crime to prevent petty offenders being influenced by hardened criminals.

As a result of this pressure many new houses of correction were erected towards the end of the eighteenth century.

Trials

The adversary trial system, which is now widespread across the world, started in England when those on trial were allowed lawyers to present their case and to question witnesses. Historians disagree on when this first occurred but there is consensus regarding the two factors that initiated the change.

The first was a series of statues from the end of the seventeenth century which enabled prosecutors, and their witnesses, to receive substantial sums of money from the state for information that led to a conviction. This created a reward culture and an increased risk that evidence was being fabricated for financial gain.

The second was the willingness of political reformers to pay for defence lawyers. It is these defence lawyers who, from the 1730s, fought to establish the rules of evidence, and the presumption of innocence that are now taken for granted. The most famous of these lawyers being Sir William Garrow who first started to appear for the defence in the 1780s. However, it was not until the passing of the Prisoners’ Counsel Act of 1836, that counsel for defendants could address the jury. In 1867 the defence was given facilities, comparable to those of the prosecution, for calling witnesses to depose evidence before the trial and having such witnesses bound in recognisance to attend at the trial. Then, in 1898, the accused was allowed to testify under oath but they still retained the option not to give evidence if they did not wish too.

From 1827 (although some sources suggest earlier) justices of the peace, who by then were being referred to as magistrates, were authorised to divide their counties into Petty Session Districts. At the petty sessions two or more magistrates (a bench) were able to try minor offences without a jury and have a local attorney to act as a clerk. The Summary Jurisdiction Act of 1848 both clarified and enlarged the power and duties of magistrates and granted them a new power to issue a summons or warrant for every indictable offence committed within their area, or elsewhere if the suspect had entered the area of their jurisdiction.

The Criminal Justice Act of 1855 enabled cases of theft of money of less than ten shilling, or of goods of less than ten shilling in value, to be tried at the petty sessions without a jury. Previously the limit had been 12p. Within 5 years of this change the number of cases dealt with by higher courts had decreased by 34.9%. For some of the cases that could be handled in the petty sessions the accused was given the option of being tried by jury at a higher court but most defendants chose not to do so because the penalties in petty sessions were less onerous than those in the higher court. Later Acts widened the number of cases that could be dealt with by a magistrate sitting without a jury. Today only 5% of criminal cases are tried by a jury.

All magistrates were unpaid and by the early nineteenth century it was clear that this was causing a shortage of magistrates in some urban areas. To rectify this the Municipal Corporations Act of 1835 created paid officials called stipendiary magistrates. Originally stipendiaries were not required to have any qualifications, however, from 1839, they could only be appointed from the ranks of barristers. Then, from 1849, this criterion was widened to included solicitors.

The courts of assize, or assizes together with the quarter sessions were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The magistrates' courts were not affected by this change and they continue to be used for the initial remand proceedings before the case is committed to the Crown Court.

Capital Offences

During the latter part of the eighteenth century there were those across Europe who were arguing that the punishments for many criminal acts were too barbarous and were not proportionate to the crime committed.

In 1808 and 1811 Parliament agreed to removed the death penalty for a few particular offences. The next major change came with the passing of the Judgement of Death Act 1823 which gave judges the power to commute the death penalty except for treason and murder. The Punishment of Death Act 1832 reduced the number of capital crimes by two-thirds and further Acts in 1832, 1837, 1841 and 1861 reduced the number of civilian capital crimes to five: murder, treason, espionage, arson in royal dockyards, and piracy with violence.

The Royal Commission on Capital Punishment 1864-1866 concluded that there was not a case for abolition but recommended an end to public executions. This proposal was included in the Capital Punishment Amendment Act 1868. From that date executions in Great Britain were only carried out only in prisons. The practice of beheading and quartering those executed for treason stopped in 1870.

By 1957 a number of controversial cases highlighted the issue of capital punishment again. Campaigners for abolition were partially rewarded with the Homicide Act 1957. The Act brought in a distinction between capital and non-capital homicide. Only six categories of murder were henceforth punishable by execution. These were (1) the murder of a police officer, (2) the murder of a prison officer by a prisoner, (3) the second of two murders committed on different occasions and (4) the murders committed in the course or furtherance of theft, by shooting or causing an explosion and while resisting arrest or during an escape.

Finally the success of a private members bill introduced by Sydney Silverman in 1965 led to the Abolition of Death Penalty Act 1965 which suspended the death penalty in England, Wales and Scotland for murder for a period of five years, and substituted a mandatory sentence of life imprisonment. In 1969 the Home Secretary, James Callaghan, proposed a motion to make the Act permanent, which was carried in the Commons on 16th December 1969, and a similar motion was carried in the Lords on 18th December. The death penalty still remains for certain crimes against the state and, until 1998, for certain military offences under the jurisdiction of the armed forces. However, no executions have been carried out in the United Kingdom for any of these offences after the abolition of the death penalty for murder in 1965.

Policing

By 1815 the Bow Street Runners in London had developed into a force of 70 plain clothed officers on the streets and a uniformed horse patrol. It was the success of this force which lead, in 1829, to Sir Robert Peel, the Home Secretary, setting up a police force for London. The result was a rapid reduction of the incidence of crime and soon the new force was being introduced in other cities and large towns. Eventually, an 1835 Act of Parliament made it compulsory for every municipal borough to create a police force along the same lines as that in London.

The County Police Act of 1839 ended the positions of most parish constables. This Act gave counties the opportunity to establish full-time police forces headed by a Chief Constable who was appointed by the justices of the peace of the county. The first county to implement this was Wiltshire, which appointed its first chief constable on 28th November 1839. Other counties soon followed this pattern.

Police officers could initiate criminal prosecutions (although technically the prosecuting police officers did so as private citizens).  In 1962 a Royal Commission recommended that police forces set up independent prosecution departments so as to avoid having the same officers investigate and prosecute cases. The recommendation was not implemented by all police forces and it was not until 1986 that a single unified Crown Prosecution Service, with responsibility for all public prosecutions in England and Wales, was established.

Prisons

During the 1830’s Robert Peel and others began to reform the prisons. Conditions were improved and convicts were taught how to read and write while serving their sentences. Peel and his fellow reformers then tried to persuade Parliament to make punishments less severe.

Criticism of transportation grew in the nineteenth century. In 1840 transportation to New South Wales was ended, and in 1846 transportation to Tasmania was suspended for two years.  Those sentenced to transportation served a period in a prison cell in Britain, then a period of hard labour either in Britain or a colony, and then an indefinite exile in a colony.

Transportation was extremely unpopular with the colonies and in the 1850’s the British public also turned against it. Tasmania ceased to be a penal colony in 1853, Norfolk Island was closed in 1856 and Western Australia in 1867. The prison hulks were gone by 1857.

The 1865 Prisons Act was designed to make imprisonment more uncomfortable and to emphasise deterrence at the expense of education or moral reform.

The 1877 Prisons Act brought all the local prisons under central government control and year later 38 of them had been closed.  This left 56 prisons.