Criminal Law Reform in England Research Paper

Two factors have combined to make the pace of reform of the criminal law particularly slow. The first has been the influential presence in both houses of Parliament of considerable numbers of lawyers: many of the most senior judges, as well as other lawyers, sit in the House of Lords, and many magistrates and practicing lawyers have been members of the House of Commons. The second is the British parliamentary practice that permits the scrutiny and debate of the detail, and not just the principle, of proposed legislation. Until the 1900s, every substantial reform was opposed by either the judiciary or the practicing profession.

In 1786 the lord chancellor, Lord Loughborough, said that any proposal for changing the criminal law should either originate from the judges or be approved by them before being submitted to parliament, and this convention was generally followed (at least by governments). Many of the reforms would have curtailed the powers and discretion of the judiciary, the wide extent of which has always been one of the most striking characteristics of English criminal law. Judicial and professional opposition to reform remained the rule. Moreover, the breadth of this judicial discretion, coupled with both the absence of any rule or machinery compelling the prosecution of known offenders, and the uncontrollable liberty of juries to acquit in the teeth of the evidence, often made it possible for the worst of the law’s defects to be palliated in response to public opinion. It could therefore be argued that in practice the law was nowhere near as objectionable as it was in theory, and that reforming legislation was, accordingly, unnecessary and might well result in unforeseen harm. At least two generations commonly elapse between the proposal and the enactment of a reform. Furthermore, the amount of parliamentary time likely to be consumed in considering any comprehensive legislation has constantly deterred the promotion of those reforms of the substantive law that even the legal profession has come to recognize as—in principle—desirable.

The Unreformed Law

In 1818 the youthful Thomas Macaulay described English criminal law as ‘‘a penal code at once too sanguinary and too lenient, half written in blood like Draco’s, and half undefined and loose as the common law of a tribe of savages . . . the curse and disgrace of the country’’ (Cross, p. 520). He did not exaggerate. The law had been growing haphazardly for more than five centuries. Much had been added, often under the influence of temporary alarms. Very little had been taken away. As a result the criminal law was seriously defective both in substance and in form, and many aspects of the procedure under which it was applied were equally unsatisfactory.

For over a century and a half, Parliament had sought to compensate for the absence of any adequate nationwide machinery for enforcing law and order (such as police forces would later provide) by threatening the severest penalty for those few offenders unlucky enough to be caught. In 1818 there were more than two hundred statutes in force imposing the death penalty for a wide variety of offenses, both serious and trivial. These offenses ranged from treason and murder to forgery and even to criminal damage and petty theft when committed in a host of specified circumstances, as well as to several sex offenses, including sodomy. There was, however, no question of implementing all the death sentences that the judges were required by this undiscriminating legislation to pass whenever a prosecutor with the necessary nerve (or malice) found a jury willing to convict. Capital sentences were carried out, in 1810, in less than once case in twenty, although as might be expected the proportion varied greatly from crime to crime. Fewer than one convicted person in twenty was executed for theft unaccompanied by personal violence, but about one in six was put to death for the more serious offenses of murder, rape, arson, counterfeiting, forgery, and attempted murder.

Whether or not the convicted defendant was reprieved largely depended on the trial judge, although in cases tried in London his recommendations were reviewed by the Privy Council. His discretion was affected, but not controlled, by public opinion, professional expectations, and the influence of persons in high places. The judge did not have to give any reasons for his decision, which was as likely to be determined by matters irrelevant to the defendant’s guilt and to the jury’s verdict as by anything that the defendant himself had actually done: the defendant’s past record, the reputed prevalence of his offense in the locality, the extent of the perjury committed by witnesses called on his behalf, and the number of other defendants sentenced to death at the same assizes. But although the trial judge had a wide (or, as many critics said, an arbitrary) discretion to decide whether a defendant convicted of a capital offense should die, he had no discretion as to what should happen to the defendant if he was allowed to live.

The alternatives to the death penalty were whipping, a short term of imprisonment, or transportation—after 1787, generally to an Australian colony (the American ones being no longer available for this purpose) for a fixed period, which was usually seven years, but for some offenses fourteen years, and for a few, life. However, by no means all the defendants who had been sentenced to death and then reprieved on condition of being transported left English shores. Whether a convict was in fact transported or merely served a short (two- or three-year) period in an English prison hulk before being released depended not on the nature of the offense, but on purely administrative and practical considerations with which the judges were not concerned—the Australian demand for convict labor, and the availability of the requisite shipping.

The law governing these capital offenses was thus inefficient, as well as cruel and capricious. The chances of an offender actually suffering the extreme penalty with which the law threatened him were small, and its deterrent effect was therefore slight. Yet the chance that he might suffer the death penalty deterred many victims from prosecuting, many witnesses from giving evidence, and many juries from convicting.

The form of the law was chaotic and extremely obscure. In 1821 it was estimated that there were 750 acts of Parliament concerning the criminal law in force, together with another 400 relating to proceedings before magistrates.

These statutes were the product of three centuries of parliamentary activity. Not only had almost all of them been enacted without regard to any of the others, but they also presupposed the ‘‘unwritten’’ common law of crime, without a knowledge of which the statutes themselves were more often than not quite unintelligible. Such matters as the definitions of the basic offenses (murder, rape, robbery, burglary, theft, forgery, and assault), the rules governing the liability of accomplices, and general defenses were a matter of judicial tradition sustained by three seventeenth- and eighteenth-century authorities— Edward Coke’s Third Institute (1644); Matthew Hale’s History of the Pleas of the Crown (first published in 1736); and William Hawkins’s Pleas of the Crown (1716–1721). These were supplemented by a very small amount of reported case law. Although the judges recognized that either immemorial custom or an act of Parliament was required to make conduct a felony and a capital offense, they exercised a wide power to declare an act criminal as a misdemeanor, and to punish with the pillory, whipping, imprisonment, or a fine, any conduct which they happened to consider immoral or antisocial.

Trial procedure (and also powers of arrest and ancillary liability) was determined by whether the offense with which a defendant was charged was a treason, a felony, or a misdemeanor, although with the shifts and changes in the law that had occurred over the years these distinctions had become more than a little arbitrary. Theft, for example, was a felony, however small the amount stolen, but obtaining by false pretenses was a misdemeanor, however valuable the property obtained. A defendant could not be tried simultaneously for a felony and a misdemeanor, however closely related in point of fact the two charges might be (as, for example, the inchoate offense to the completed offense). Indeed, only one felony could be tried at a time. Most importantly, at a felony trial the defendant’s counsel could only examine witnesses and argue points of law: he was not allowed to address the jury, although he might at treason or misdemeanor trials. A defendant was not entitled to any prior notice of the case against him beyond the information provided by the indictment itself; and since it was a general rule that neither party to the proceedings nor anyone who had any pecuniary interest in the result of a trial could give evidence at it, not only the defendant but frequently also the victim was excluded from the witness stand. (Defendants were, however, usually allowed to make a statement at the very end of the trial, when it was difficult for anyone to test its correctness.)

There were no special procedures for youthful offenders. Everyone over the age of seven was subject to the same law, modes of trial, and penalties; and though children were very rarely hanged, they were sentenced to death and imprisoned. This reflected the fact that the common law knew only one form of criminal trial, trial by jury. Statutes had in specific instances given to magistrates, sitting singly or in small groups, the power to try persons charged with certain statutory offenses (for example, under the game laws and the revenue legislation), but there was no general provision for the summary trial of offenses of a minor character. There was, finally, no system of criminal appeals, either on the facts, on account of the judge’s misdirection of the jury, or from a sentence in those cases in which the judge had discretion. Only a very limited and rarely invoked remedy existed for the review of procedural and similar technical errors.

Movements for Reform

The literary movement for the reform of English criminal law began in 1771 with the publication of William Eden’s Principles of Penal Law. The parliamentary movement was initiated in 1810 by Samuel Romilly’s (unsuccessful) attempt to make three forms of petty theft noncapital crimes, and by the establishment in 1819, on the motion of James Mackintosh, of a select committee of the House of Commons, ‘‘to consider so much of the criminal laws as relates to capital punishment in felonies, and to report their observations and opinions upon the same.’’ Both Romilly and Mackintosh were the friends as well as the disciples of the philosopher Jeremy Bentham (1748–1832), whose ideas and writings (published and unpublished) pervaded every proposal for the reform not only of the criminal law but of most other legal and political institutions for more than half a century.

William Blackstone (1723–1780) had not been uncritical of several aspects of the criminal law in the fourth volume of his Commentaries on the Laws of England; but Eden’s book, published when the author was only twenty-six, and strongly inspired by Montesquieu and Beccaria, was the first attempt at a critical examination of the law’s structure and principles. It was also the first effort to evolve a comprehensive plan for its reform. Although he favored retaining the death penalty for a substantial number of crimes (including maiming, rape, sodomy, arson, and burglary), Eden argued that the severity of penal laws should be controlled first by ‘‘natural justice’’ and second by ‘‘public utility,’’ and that punishments should bear some relation to the gravity of offenses. He accordingly identified scores of crimes that should no longer be capital—a bold suggestion at a time when Parliament was still readily adding to their number. Eden disapproved of transportation, on the ground that if it did not kill the convict, it often conferred a benefit on him. He also disapproved of imprisonment, which he considered a dead loss to everyone. On the other hand, he favored flogging, fines, and compulsory labor in public works. Finally, he proposed the outright repeal of all obsolete statutes, and the consolidation of those that were to remain. Nearly all of Eden’s reforms (with the exception, of course, of the disuse of imprisonment) were ultimately implemented by Parliament, but the process took more than seventy years.

In 1808, Romilly sought the repeal of a statute imposing the death penalty—one dating from 1565, for stealing ‘‘privately’’ from the person (that is, pickpocketing)—but it was his speech in the House of Commons on 9 February 1810 (printed, with additions, as Observations on the Criminal Law of England as It Relates to Capital Punishments, and on the Mode in Which It Is Administered) that reopened public debate on the state of the criminal law. Romilly’s argument was a masterly exposure (still well worth reading) of the fallacies of the orthodox justifications for the law’s indiscriminate threats, but relatively infrequent and largely arbitrary imposition, of the death penalty. Since the three statutes whose repeal he unsuccessfully sought covered a considerable proportion of all nonviolent offenses against property, Romilly’s proposed reform was a substantial one going to the heart of the existing law.

Mackintosh’s committee of 1819 made the first official large-scale investigation into the criminal law and its effects, and its report, with detailed statistical returns of convictions and executions, as well as a chronological review of the statute law, served as a model for official reports on the criminal law for the rest of the nineteenth century. The committee recommended: (1) that twelve obsolete statutes be repealed and fifteen others amended; (2) that Romilly’s proposed reform of 1810 (for the repeal of three capital theft offenses) be carried out; (3) that the statute law of forgery be consolidated; and (4) that all forgery offenses other than the actual forging of Bank of England notes, as well as a second conviction for uttering forged notes, should cease to be capital. The fourth of these reforms was strongly supported by bankers and businessmen, who found it virtually impossible to obtain convictions while the offenses remained capital. Although the committee’s recommendations met with determined opposition and were at first rejected by Parliament almost all of them were implemented during the 1820s after Home

Secretary Robert Peel, keen that the government should control the pace and extent of reform, had in 1823 committed it to an extensive review of the criminal law.

Legislation, 1823–1849

The review promised by Peel resulted in very substantial improvements in the form of the law, but only in relatively minor reductions in its severity and arbitrariness. Peel was accordingly able to secure the support of the judiciary in carrying a considerable body of legislation through Parliament. Three hundred and sixteen acts of Parliament were consolidated in four statutes, which covered nearly four-fifths of all offenses (the Larceny Act, 1827, 7 & 8 Geo. 4, c, 29, consolidating ninety-two statutes; the malicious Injuries to Property Act, 1827, 7 & 8 Geo. 4, c, 30, consolidating forty-eight statutes; the Offences against the Person Act, 1828, 9 Geo. 4, c. 32, consolidating fifty-six statutes; and the Forgery Act, 1830, 11 Geo. 4 & 1 Will. 4, c. 66, consolidating 120 statutes). Peel’s acts also totally repealed obsolete statutes, filled small gaps in the law, and made other minor amendments; but being merely consolidating statutes, they did not incorporate the common law rules. Thus, the Larceny Act contained no definition of larceny (which was not provided until 1916); the Forgery Act, no definition of forgery (not provided until 1913); and the Offences against the Person Act, no definitions of murder, manslaughter, assault, or rape (only rape has since been defined, and then not until 1976). This legislation did not therefore amount to codification, as Bentham and his followers would have wished, and as Edward Livingston was contemporaneously projecting for Louisiana. Nor did it do much to mitigate the severity and arbitrariness of the law relating to capital punishment. Even in 1830 Peel, against the wishes of the banking and commercial community, favored retention of the death sentence for forgery, although no one was in fact executed for this offense after that date.

Only four reforms were effected in the substance, as opposed to the form, of the law under Peel’s leadership. First, in 1823, two of the three capital offenses of theft that Romilly had singled out in 1810 were repealed, as well as another eight whose abolition had been proposed by Mackintosh’s committee. Four more were repealed in 1825, and two others (larceny in booths and larceny in churches), in 1827. Second, another statute of 1823 provided that death sentences should not be pronounced if the judge intended to recommend a reprieve. This meant that the judge had to decide openly for, rather than privately against, the carrying out of the death sentence. This statute thus increased the number of cases in which the death penalty was commuted. Third, in 1827 Parliament abolished the technicalities of benefit of clergy (a medical jurisdictional rule that had been manipulated so as to give, unless a statute otherwise provided, what was in effect a conditional discharge to every felon on his first conviction) and the distinction between grand and petty larceny, with the result that a second conviction for the theft of more than twelvepence was no longer capital. The practical consequence was not any reduction in the number of death sentences carried out but rather that such thefts became triable at quarter sessions, which was much more convenient for prosecutors than trial at assizes. Fourth, many changes were introduced in the scale of punishments for lesser offenses, which had the same effect.

The formation of Earl Grey’s Whig reform ministry in November 1830 made possible more radical changes. In 1832 William Eden’s son, George Eden, president of the board of trade and master of the mint, successfully sponsored the Coinage Offences Act, 1832, 2 & 3 Will. 4, c. 34 (repealed), which not only consolidated the existing law but also carried through the drastic reform of abolishing the death penalty for all counterfeiting offenses. During the next two years, and in the face of opposition from Peel and the judges, the death sentence was abolished for several forms of four offenses (larceny, housebreaking, forgery, and robbery), being replaced by mandatory sentences of transportation, either for life or for not less than seven years.

In 1835 the appointment as home secretary of Lord John Russell, a disciple of Romilly and a member of Mackintosh’s committee, stimulated another reform. Between April and July 1837, Russell carried ten reforming bills through parliament, seven of them directly concerned with the death penalty. The total number of capital offenses was thereby reduced from thirty-seven to sixteen, nearly all of those that remained involving some element of violence against the person. The principle that no offense against property alone should be punishable by death, for which the reformers had long contended, was at last implemented. In the same year a motion in the House of Commons seeking the abolition of the death penalty for all crimes ‘‘save those of actual murder’’ failed by a single vote. By 1839 the only offenses still subject to the death penalty were treason, riot, arson of naval ships and of naval and military stores, murder and other offenses involving attempts on or risks to life, rape, buggery, sexual intercourse with girls under ten years of age, and robbery and burglary when accompanied by personal violence—much the same list as that proposed by Eden in 1771. Rape ceased to be a capital crime in 1840.

The opposition of twelve of the fifteen judges notwithstanding, Russell also carried in 1836 a bill that allowed counsel or solicitor (attorney) representing a defendant charged with a felony to address the jury on his behalf. (Previously he might only examine and cross-examine witnesses.) The law and practice governing proceedings before magistrates (both committal proceedings and summary trial), however, remained in its unreformed state until John Jervis, as attorney general, took the matter in hand, piloting through Parliament in 1848 and 1849 three statutes that laid down basic procedures and procedural standards for those jurisdictions. This reform made it politically possible to increase the number of minor offenses that might be tried summarily (a process inaugurated by the Criminal Justice Act, 1855, 18 & 19 Vict., c. 126) and, as a consequence, the number of offenders who were in fact prosecuted. And in 1847 the first step was taken toward creating a separate jurisdiction for young offenders, when it was provided that children under fourteen (after 1850, under sixteen) charged with simple larceny could be tried summarily with their parents’ consent. This procedure was extended to all offenses, other than homicide, in 1879, but it was not until 1908 that juvenile courts, held at different times from those for adults, were established.

The Criminal Law Commissioners, 1833–1849

The different shifts and compromises made when the death penalty was removed from various offenses had left the law governing maximum penalties for serious crimes in a chaotic state. This led Lord Brougham, lord chancellor in Earl Grey’s ministry, and another of Bentham’s friends and disciples, in 1833 to initiate what proved to be the first of three projects for the codification of English criminal law. (The second, initiated by James Fitzjames Stephen, was to come before Parliament between 1877 and 1881; the third, initiated by the Law Commission in 1967, is still notionally continuing.) A royal commission, composed of five practicing lawyers, was appointed to ‘‘digest into one statute all the enactments concerning crimes, their trial and punishment, and to digest into another statute all the provisions of the Common Law touching the same; and to enquire and report how far it might be expedient to combine both these statutes into one body of the Criminal Law, repealing all other statutory provisions; or how far it might be expedient to pass into law the first mentioned of these statutes.’’ This was a mammoth assignment, but it was completed in a little over ten years, despite the commissioners’ work on their principal task being interrupted by requests from Lord John Russell to consider and report on the special question of the right of counsel for a prisoner to address the jury in felony cases. He also asked the commissioners to consider which offenses should continue to incur capital punishment (Second Report (1836), which formed the basis for Russell’s legislation on these matters), and procedures for the trial of juvenile offenders (Third Report (1837), which was applied, as noted above, to charges of simple larceny in 1847, but not to all other offenses until 1879).

The commission’s First Report (1834) considered the need for codification and the best way of achieving it. It contained a draft digest, with a commentary, of the law of theft—as complicated and difficult a subject as any in the criminal law. As a result of this report, the commissioners’ terms of reference were widened to include recommendations as to ‘‘what partial alterations may be necessary or expedient for more simply and completely defining crimes and punishments and for the more effective administration of criminal justice.’’ That is, the commissioners were authorized to make recommendations for the reform, as well as the restatement, of the criminal law. In the ensuing years they accordingly reported (with draft legislation) on homicide, offenses against the person, theft, fraud, and criminal damage (Fourth Report (1839)); on burglary, offenses against the executive power and the administration of justice, forgery, and offenses against the public peace (Fifth Report (1840)); and on treason and other offenses against the state and religion, libel, coinage offenses, and offenses against the revenue (Sixth Report (1843)). The Seventh Report also contained a complete draft code of the substantive criminal law, revising the digests contained in previous reports, and was complemented in the Eighth Report (1845) by a draft code of criminal procedure.

The royal commission’s eight reports contain the most thorough and principled examination of English criminal law ever made by an official body. The commissioners recommended many reforms that were ultimately to reach the statute book, though it was more than one hundred years before the felony-murder rule (under which a death accidentally caused while committing a felony amounted to murder) and of the distinction between a felony and a misdemeanor, and theft based on an appropriation rather than a taking and carrying away. They succeeded in producing codes that combined in legislative form the rules of both the common and the statutory law of crime. These codes would, therefore, have ended the judges’ freedom to extend the criminal law to include any conduct of which they disapproved. Equally importantly, the commissioners, utilitarians to a man, followed Livingston’s example and offered a classification of offenses that sought to reflect their relative gravity in an elaborate scheme of graduated penalties. To be justified punishments, they believed, must deter, and the graver the crime the greater the deterrent needed to be. They would, moreover, not deter unless they were imposed uniformly, not erratically. Had it been accepted, this classification would have considerably reduced judicial discretion in sentencing, which had by now replaced the mixture of rigidity and arbitrariness that had characterized the eighteenth century law. In an appendix to the Fourth Report (1839), the commissioners demonstrated that, leaving aside death and various obsolete penalties, forty different penalties were provided for felonies and ninety-six for misdemeanors. In the commission’s Seventh Report (1843), only forty-five classes of punishment were specified. The number was reduced to thirteen by the revising commissioners (see below) in their Second Report (1846); it rose to thirty-one in their Third Report (1847), but finally dropped to eighteen in their Fourth Report (1849).

The draft code of substantive criminal law was introduced as a bill in the House of Lords by Lord Brougham in 1844 but it was withdrawn when the lord chancellor, Lord Lyndhurst, announced the appointment of a new royal commission to reconsider and revise it. This commission, which included three of the five 1833 commissioners, published five reports between 1845 and 1849 that recommended further reforms and revisions—but no radical alterations—in their predecessors’ draft. The revised code of substantive law, which was published in the Fourth Report (1848), was introduced into the House of Lords in the same year by Lord Brougham, and referred to a select committee. Its report led to division of the draft code that was submitted to Parliament piecemeal. The Criminal Law Amendment (No. 1) Bill, dealing with the general principles of liability, defenses, homicide, and offenses against the person, was accordingly prepared and given a second reading by the House of Lords in 1853. A second bill, dealing with larceny and other offenses of dishonesty, was also tabled. Lord Cranworth, who had recently become lord chancellor, circulated these bills to the judges, seeking their comments. He asked in particular whether the policy of bringing the whole of the criminal law—statutory and common law—into one statute (that is, codification, not merely consolidation) was likely to be beneficial to the administration of criminal justice. The judges’ replies showed them ready to concede the advantages of further consolidation, but unanimously opposed to reducing the common law to statutory form. As one judge put it, ‘‘to reduce unwritten law to statute is to discard one of the great blessings we have for ages enjoyed in rules capable of flexible application’’; according to another, it was ‘‘inadvisable to lose the advantage of the power of applying the principles of the common law to new offences, and combinations of circumstances, arising from time to time.’’

In the face of this adverse judicial reaction, the bills were not reintroduced. It was decided that the draftsman (C.S. Greaves, Q.C.) should confine himself to producing consolidating statutes that would replace Peel’s acts, which were now obsolescent as a result, first, of the removal of the death penalty for many offenses in the 1830s and, second, of the abolition—by the Penal Servitude Act, 1857, 20 & 21 Vict., c. 3—of the sentences of transportation that had taken the place of capital punishment. The latter reform, which had been urged by Eden in 1771, as well as by many subsequent publicists, had been strongly recommended by Molesworth’s Select Committee in 1838. Six of these consolidating statutes were enacted in 1861. Since the 1840s only murderers had been executed (and by no means all of them), so this legislation brought the law into line with practice. The death penalty was retained only for murder, treason, and arson of naval vessels. Seven years later, public executions came to an end, when the Capital Punishment Amendment Act (1868) provided that executions should take place within the prison in which the prisoner was confined.

Substantial parts of two of the 1861 acts (the Accessories and Abettors Act and the Offences against the Person Act) still remain in force. The other four lasted well into the twentieth century: the Larceny Act until 1916, the Malicious Damage Act until 1971, the Forgery Act until 1913, and the Coinage Offences Act until 1936. Sexual offenses, many of which had been included in the Offences against the Person Act, were not consolidated again until 1956. In some of these twentieth-century statutes the draftsman was at last allowed to incorporate statutory formulations of some of the common law rules without provoking a howl of protest from the judiciary. Most notably, definitions of the offenses were incorporated in the Larceny Act (1916), the Forgery Act (1913), and the Perjury Act (1911). However, other statutes, such as the Sexual Offences Act of 1956, were merely consolidating statutes that presupposed, but did not state, the common law rules. This legislation, although a small step forward, was still, therefore, a long way from the codification recommended by the criminal law commissioners in 1834.

The Indian Penal Code, 1835–1860

While the criminal law commissioners were at work on a code for England, Macaulay, who had gone to India in 1834 to be the law member of the governor-general’s council, was drafting a penal code that was intended to apply to the entire population—native and expatriate—of British India. Instructions were issued to four commissioners in June 1835, but because of the illnesses and absences of the others, Macaulay was virtually the sole author of the draft that he submitted in October 1837 to the governorgeneral, Lord Auckland. The governor-general maintained the Eden family’s interests in the criminal law that he had demonstrated when promoting the Coinage Offences Bill in England in 1832. Macaulay’s code was a most able piece of drafting, ‘‘the first specimen,’’ as Stephen said, ‘‘of an entirely new and original method of legislative expression’’ (1883, p. 299). The work of a master of English prose, the code was concise, lucid, and free of legal jargon. It paid careful attention to the degree of fault required for each offense, and was accompanied by a well-argued introduction and set of notes. Influenced by the thinking of Bentham and John Austin (1790– 1859), as well as by the First Report (1834) of the English commissioners (in which they had outlined their program for codification), the substance, but not the language, of Macaulay’s code was to a large extent an improved version of the English law of the 1830s. He also, however, drew on Edward Livingston’s code for Louisiana and on the French Code Pénal, for he was not under the restraints that forced the English commissioners to restate as closely as possible the existing law, and to justify any departure from it.

Despite, or because of, its virtues, Macaulay’s draft had a very hostile reception from the contemporary Indian judiciary (composed of English lawyers doing a tour of duty abroad). It was not enacted until 1860, in the aftermath of the Indian Mutiny of 1857, with amendments that were by no means all improvements, and came into force in 1862. The code worked well, and is still law in India, Pakistan, Sri Lanka, and northern Nigeria (and, until recently, the Sudan) having been adopted while these latter territories were under the jurisdiction or influence of the British Colonial office. It also strongly influenced the second attempt—Stephen’s—to provide England with a code of criminal law.

Stephen’s Codes, 1877–1883

James Fitzjames Stephen served in India as law member of the governor-general’s council from 1869 to 1872, and was involved in the revision of the Criminal Procedure Code and the passing of the Indian Evidence Act of 1872 and the Indian Contract Act of the same year. He was much impressed by the Penal Code. ‘‘To compare [it] to English criminal law,’’ he wrote on his return, ‘‘is like comparing cosmos with chaos.’’ Shortly after his return to England, Stephen joined in the drafting of the Homicide Law Amendment Bill, which offered a statutory definition of murder, abolished the felony-murder rule, and made infanticide a lesser offense than murder. This bill was introduced in Parliament in August 1872. It was reintroduced in May 1874 and referred to a select committee, where it was to founder. Although the committee agreed that a redefinition of murder was ‘‘urgently needed,’’ it found the judiciary very critical of the bill.

In particular, the Lord Chief Justice, Alexander Cockburn, although professing himself a strong supporter of codification (and, if so, the first chief justice of whom this could be said), argued that the ‘‘partial and imperfect codification’’ of the bill, which included clauses dealing with the insanity defense, necessity, and the presumption of intention, applying only to homicide cases, would be fatal to the prospects of a complete code (Stephen, 1877, p. v). Stephen responded to this challenge by publishing in 1877 A Digest of the Criminal Law (Crimes and Punishments), in which he showed the form that a complete code might take, and outlined a program for the reform of the criminal law which has still scarcely been traveled beyond. Modeled on the Indian Code, and in marked contrast to the Criminal Law Commissioners’ bills, the Digest was a masterly condensation of a mass of law into manageable form. As a result, Lord Cairns, the lord chancellor, later that year instructed Stephen to draft two bills: one a penal code, the other a code of criminal procedure. The first was introduced into Parliament as the Criminal Code (Indictable Offences) Bill in May 1878, and was sufficiently well received to be referred to a royal commission composed of three judges (two English and one Irish) and Stephen himself. The commission was to consider and report on the bill and also to suggest any other alterations in the existing law or procedure that seemed desirable, it being recognized that Parliament itself could not give the bill the detailed technical legal scrutiny required.

The commission sat daily from November 1878 to May 1879, discussing, according to Stephen, ‘‘every line of and nearly every word of each section’’ of the two bills. Although it added 127 sections to Stephen’s draft (in particular, detailed provisions concerning the use of force in self-defense, defense of property, and the prevention of crime), the royal commission agreed to recommend to Parliament both the principle of codification and a revised bill. This was a considerable achievement, especially since the commission’s chairman, Lord Blackburn, the most eminent judge of the day, had previously been opposed to codification.

The Criminal Code Bill had its first two readings in the House of Commons in April and May 1879, but no third reading that session. It was reintroduced in February 1880, but there was a change of government in April of that year, and although the part of the code dealing with criminal procedure was announced as a government measure in the Queen’s Speech in both 1882 and 1883, Parliament’s time and attention were dominated by the struggle for Irish home rule. Consequently, nothing further was done to secure the code’s enactment. Since it not only consolidated and codified the existing law but also included a considerable number of reforms, its passage through Parliament would almost certainly have been controverted and, therefore, time-consuming.

The fact that Lord Chief Justice Cockburn was again highly critical (on the ground that even this code was incomplete, because it omitted some obsolescent statutory offenses, as well as all summary ones) inevitably cast a shadow. However, Cockburn’s objections were easily answered by Stephen, and they need not have proved fatal to the code if parliamentary time had been made available for its consideration. More significantly, perhaps, the Statute Law Committee, which had been established in 1868 to promote statutory consolidation and revision, favored a more gradual program of reform and consolidation. In addition, doubts came to be felt about the quality of Stephen’s drafting, and comparisons (not to Stephen’s advantage) were drawn with the code that R.S. Wright had drafted between 1874 and 1877 for the colony of Jamaica to be a model, or so the Colonial Office hoped, for the rest of the empire. Among the changes envisaged by Stephen’s code that had to wait many years before they were finally effected were (1) abolition of the felony/misdemeanor distinction (first recommended in 1839 but implemented only in 1967); (2) abolition of the felony-murder rule (recommended in 1839 and implemented in 1957); (3) allowing words as well as acts to constitute provocation, reducing an intentional killing from murder to manslaughter (implemented in 1957); (4) the coalescence of larceny and the other offenses of dishonest appropriation in a single offense of theft (achieved in 1968); (5) abolition of the defense of marital coercion (still surviving); (6) allowing the defendant always to be competent witness at his own trial (implemented in 1898); and (7) establishment of a court of criminal appeal (a bill for which was first introduced in 1844 and which was finally implemented in 1907, after a protracted public campaign).

The public debate over Stephen’s code showed that the judges were no longer opposed to codification in principle, as they had been in the 1850s. But the fact that the project was allowed to lapse reveals how little concerned they or the profession were that the law should, as Cockburn had put it, ‘‘be suffered to remain in its present state of confusion, arising from its being partly unwritten and partly in statutes so imperfectly drawn as to be almost worse than unwritten law’’ (Stephen, 1877, p. v). In 1901 Courtney Ilbert, the principal government draftsman, lamented that ‘‘it was impossible to view . . . without a certain degree of humiliation, the entire cessation during recent years of any effort to improve the form of English Law, and the apathy with which that cessation has been regarded’’ (p. 162). He observed that the lack of a criminal code and a code of criminal procedure ‘‘produced practical and substantial inconveniences.’’ Revised versions of Stephen’s codes were, however, adopted in Canada, New Zealand, Queensland, Western Australia, many of the British territories in East and West Africa, Cyprus, and Palestine, and proved quite satisfactory.

Royal Commissions and Departmental and Select Committees, 1900–1960

The first half of the twentieth century saw very few reforms in the criminal law. Such attention as was given to problems of criminal justice centered on the conditions and effects of—and alternatives to—imprisonment, and especially on ways of dealing with young and first offenders. As far as the criminal law itself was concerned, apart from the already-mentioned revisions of the 1861 acts and the consolidation of statutory offenses of perjury (which, being misdemeanors, had not previously been undertaken), the most important pieces of legislation were the act that established the Court of Criminal Appeal in 1907 (Criminal Appeal Act, 1907, 7 Edw. 7, c. 23 and the Indictments Act, 1915, 5 & 6 Geo. 5, c. 90), which effected a very substantial simplification in the form of indictments. All these statutes were sponsored by the reforming Liberal government that took office in 1906. Its principal reforms were, however, directed at other aspects of English life, politics, and law. For the rest, royal commissions and departmental and select committees were from time to time established to consider particular matters. Their recommendations were rarely implemented, and then only after considerable delay.

Among the chief of these bodies was the Departmental Committee on Insanity and Crime (1922), whose report, recommending widening the insanity defense to include cases of ‘‘irresistible impulse’’ (a meaningless phrase), was put aside after ten of the twelve King’s Bench judges said they were opposed to its proposals. (A new offense of infanticide, punishable as manslaughter rather than murder, committed by the mentally disordered mother who killed her newly born child—a reform recommended by the 1866 Royal Commission on Capital Punishment—was, however, created.) Others were the Select Committee on Insanity and Crime (1930), the Departmental Committee on Sexual Offences against Young Persons (1925), and the Interdepartmental Committee on Abortion (1939). The Royal Commission on Betting, Lotteries and Gaming (1951) resulted in the Betting, Gaming and Lotteries Act, 1963, c. 2; the Royal Commission on Capital Punishment (1953), in the Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11; the Select Committee on Obscenity (1958), in the Obscene Publications Act, 1959, 7 & 8 Eliz. 2, c. 66; and the Departmental Committee on Homosexual Offences and Prostitution (1957), in the Sexual Offences Act, 1967, c. 60, and the Street Offences Act, 1959, 7 & 8 Eliz. 2, c. 57.

This list shows that in the 1950s, after the interruptions and dislocations caused by two world wars and a major economic recession, there was a long-overdue revival of public interest in the need to reform the criminal law so that it would be less out of accord with contemporary standards and expectations. (Another sign was the foundation in 1957 of JUSTICE, the British section of the International Commission of Jurists, which has produced a valuable series of reports drawing attention to defects in criminal law and procedure, and proposed many reforms.) But all this interest was confined to very specific matters. The concern shown by the nineteenth-century reformers for the principles that should govern the criminal law, and for its overall structure, was absent.

Thus, when the Royal Commission on Capital Punishment returned to problems that had occupied the criminal law commissioners in the 1830s and the royal commission of 1866, its terms of reference were limited to considering ways in which the incidence of capital punishment might be restricted: it was not asked to say whether capital punishment should be retained. The commission accordingly recommended (and the Homicide Act of 1957 implemented) the abolition of the felony-murder rule, the widening of the defense of provocation to include provocative words, and the creation of two new forms of manslaughter in cases where the intentional killer was mentally disordered (but not insane) or had acted in pursuance of a suicide pact. The commission recommended that degrees of murder (of which only the first would carry the death penalty) should not be introduced, but this recommendation was rejected by the Conservative government, which, in an attempt to stymie the campaign for the total abolition of capital punishment, distinguished in the 1957 act between capital and noncapital murders. This distinction quickly proved to be so unacceptable that it was discarded in 1965, when the death penalty for murder was suspended for an experimental period of five years, a suspension made permanent in 1970. The Homicide Act of 1957, did not, however, include a statutory definition of murder (or any other homicidal offense). There was, consequently, the astonishing spectacle of the definition of murder, still a matter of common law, being the subject of no less than six appeals to the House of Lords within the next forty years (Director of Public Prosecutions v. Smith [1961] A.C. 290; Hyam v. Director of Public Prosecutions [1975] A.C. 55; Regina v. Cunningham [1982] A.C. 566; Regina v. Moloney [1985] A.C. 905; Regina v. Hancock [1986] A.C. 455; Regina v. Woollin [1998] 4 A11 E.R. 103 (H.L.)).

The Criminal Law Revision Committee 1959–1986

The most important manifestation of the revival of interest in criminal law reform during the 1950s was the establishment in 1959 (by Home Secretary R. A. Butler, largely at the instigation of Glanville Williams, the leading academic writer on English criminal law) of a standing Criminal Law Revision Committee. It was ‘‘to examine such aspects of the criminal law of England and Wales as the Home Secretary may from time to time refer to the Committee, to consider whether the law requires revision and to make recommendations’’ (First Report, Cmd. 835, 1959, p. 3). (The standing Law Revision Committee, first appointed by the lord chancellor in 1934 and reconstituted as the Law Reform Committee in 1952, had never considered any aspect of criminal law.)

The Criminal Law Revision Committee always included three of four senior judges, one or two circuit judges, the chief London stipendiary magistrate, and the director of public prosecutions, as well as several practicing and one or two academic lawyers. It thus maintained the convention, recognized since the eighteenth century, that the government should sponsor only those reforms in the criminal law that had the support of the judiciary. The committee produced eighteen reports on specific matters, of which the most important were the seventh (Cmnd. 2659, 1965) recommending the abolition of the felony/misdemeanor distinction (implemented in 1967); the eighth (Cmnd. 2977, 1966), on theft and related offenses (implemented in 1968); the eleventh (Cmnd. 4991, 72), proposing many important changes in the law of evidence; the fourteenth (Cmnd. 7844, 1980), on offenses against the person, including homicide; and the fifteenth (Cmnd. 9213, 1984), on sexual offenses.

As might be expected from its composition and sponsoring department, the committee adopted a very pragmatic approach to its work (Glanville Williams inspired almost all of it, but he was far from being always successful in getting his ideas accepted). It eschewed all interest not only in codification but also in restating the common law in statutory form, and its reports showed a readiness to retain common law rules whose vagueness and uncertainty (‘‘flexibility’’) was their chief attraction. Until the advent in 1979 of Mrs. Thatcher’s conservative government the Home Office was, accordingly, usually ready to promote legislation giving effect to the committee’s recommendations, though on the only occasion when radical proposals for rationalization and reform were made (in the eleventh report, on the law of evidence) it took fright after just one of many recommendations attracted a great deal of (ill-informed) criticism. This recommendation (to invite the drawing of inferences about the veracity of a defense which the defendant had failed to mention when first questioned by the police) had, therefore, to wait for more than twenty years before being implemented (by sections 34–38 of the Criminal Justice and Public Order Act 1994) though others were taken up when occasion offered, notably in the Police and Criminal Evidence Act 1984.

The Thatcher government was hostile to royal commissions and departmental committees, which had continued to flourish as a means of finding solutions to controversial issues from which governments wished to distance themselves. Its immediate predecessors had remitted the law relating to official secrets (1972), contempt of court (1974), abortion (1974), obscenity (1979), and pretrial criminal procedure (1981) to them. These bodies were now portrayed as slow and cumbersome: their real vice was that their members could not be required, as civil servants could be, to do ministers’ bidding, who in turn were embarrassed by having to explain their failure to act on the advice they had been given. The Criminal Law Revision Committee was not, however, formally abolished: it was simply starved to death by not having further subjects referred to it. The Public Order Act 1986, a tawdry piece of lawmaking, which replaced the common law offences of riot, affray, and unlawful assembly with statutory substitutes, was produced without the committee’s help.

The Law Commission, 1966 to Present

The Law Commission, having been created by statute, could not be so easily disregarded: no government could be heard to say that the law was not in need of reform. It is a permanent governmental agency, composed of five lawyer commissioners (one of whom, in practice the chairman, must be a judge). It was established at the instigation of Lord Gardiner, lord chancellor in the labor government that came to office in 1964, who was convinced that too much of the law was in need of reform for the task to be left to commissions and committees appointed ad hoc. The Law Commissions Act, 1965, c. 22 (there is another commission for Scotland) places the commissioners under a duty ‘‘to take and keep under review all the law . . . with a view to its systematic development and reform, including in particular the codification of such law.’’ In 1967, after Home Secretary Roy Jenkins had stated that in the government’s view there was a pressing need for codification of the criminal law to begin, the commission included in its second program of law reform ‘‘a comprehensive examination of the Criminal Law with a view to its codification.’’

Since the commission has a responsibility to keep ‘‘all the law’’ (not just the criminal law) under review, it has devoted only a small proportion of its attention and staff to this work. Between 1967 and 1973 a working party

(subcommittee) investigated the general principles governing criminal liability. (Here, too, Glanville Williams was the leading spirit.) It published several working papers (discussion documents) on particular matters, including the mental element in crime, inchoate offenses, the liability of accomplices, and defenses. These working papers, which were to a considerable extent modeled on, and influenced by, the tentative drafts prepared for the American Law Institute’s Model Penal Code between 1952 and 1962, set out not so much to restate the existing law in statutory form, as to consider what the best rule on each point would be. This proved, however, to be too ambitious a project, and was discontinued.

The commission has nonetheless gone on to publish a series of reports recommending legislation on both the general principles of liability and the definitions of particular offenses. These include reports on the mental element in crime (1978), the inchoate offenses of conspiracy (1976) and attempt (1980), defenses of general application (1977), and the law’s territorial extent (1978), as well as on the offenses of criminal damage (1970), forgery and counterfeiting (1973), and interfering with the course of justice (1979). These proposals although made piecemeal, and poorly coordinated (both with one another and with the contemporaneous work of the Criminal Law Revision Committee), were intended to ease the work of codification, for which the elimination of the remaining common law offenses and the statutory statement of the general part of the criminal law are essential prerequisites. The Home Office showed little interest in them. Only four reports were implemented by legislation (some of it badly drafted): those relating to criminal damage (in 1971), conspiracy (in 1977), attempt (in 1981), and forgery (also in 1981); while the common law offenses continued to expand under cover of the rubrics of ‘‘public nuisance,’’ ‘‘conspiracy to defraud,’’ and ‘‘outraging public decency.’’

In 1981, in order to give fresh impetus to its codification program, the Law Commission appointed a team of four academic lawyers ‘‘(1) to consider and make proposals in relation to—(a) the aims and objects of a criminal code; (b) its nature and scope; (c) its content, structure and the interrelation of its parts; (d) the method and style of its drafting; and (2) to formulate, in a manner appropriate to such a code—(a) the general principles that should govern liability under it; (b) a standard terminology to be used in it; (c) the rules which should govern its interpretation.’’ Their report, with a draft bill governing the general principles of liability and (as an exemplar) offenses against the person was published in 1985 (Law Com. No. 143) and subsequently scrutinized by regional groups of judges and practicing lawyers before the commission itself published a revised, and more pusillanimous, version in 1989 (Law Com. No. 177).

All this work had proceeded on the (academically orthodox) basis that criminal liability ought to fall only on those who were aware that they were doing, or risking doing, what was forbidden, and that no one should be punished for causing harms that they had not actually foreseen. The intellectual climate was, however, changing and these assumptions were beginning to be challenged: retribution, as well as deterrence and rehabilitation, was once again being considered a proper function of criminal sanctions, and punishing people for causing more harm than they had contemplated, or for being careless, was no longer regarded as self-evidently unjust or unmerited. The 1989 draft code was also criticized for the selective and inconsistent way in which it incorporated certain reforms: changes in the law were, it was suggested, being smuggled in as part of a codification package without adequate public and parliamentary discussion. Doubts were also expressed as to whether all the time and effort required for the pursuit of the codifiers’ ultimately unattainable goals of accessibility, comprehensibility, consistency, and certainty might not be better devoted to the many particular rules that needed reforming.

The commission appears to have felt the force of these criticisms. While not formally abandoning its objective of producing a code, it announced in 1992 that it would seek to (redraft and) ‘‘legislate the code’’ in installments: which is self-contradictory. Even very small installments have been slow in coming (Offenses against the Person and General Principles (1993; revised and curtailed by the Home Office 1998); Conspiracy to Defraud (1994); Intoxication and Criminal Liability (1995); Involuntary Manslaughter (1996); Misuse of Trade Secrets (1997); Corruption (1999)), and as of 2000, none had resulted in legislation. In 1992 the House of Lords’ Appeal Committee endorsed a judicial foray into the field of law reform: the abolition of the centuries-old rule that a husband could not be convicted of raping his wife. And in 1998 the Lord Chief Justice, Lord Bingham, was to be heard asking whether England must wait for ever for a criminal code. These were remarkable instances of role reversal.

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