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A History of Criminal Justice in England and Wales John Hostettler A History Justice of Criminal A History of Criminal Justice An ideal introduction to the rich The book looks at the Rule of Law, history of criminal justice charting the development of the criminal A History of all its main developments from courts and the people who work the dooms of Anglo-Saxon times in them, police forces, the jury, to the rise of the Common Law, judges, magistrates, crime and struggles for political, legislative punishment. It deals with all the and judicial ascendency and iconic events of criminal justice in England and Wales Wales in England and Criminal Justice the formation of the innovative history and reform to show how Criminal Justice System of today. criminal justice evolved. in England and Wales Contents include John Hostettler • The Origins of Criminal Justice • Victorian Images • Anglo-Saxon Dooms and Early Laws • A Century of Criminal Law Reform • Norman and Angevin Legacies • Criminal Incapacity • Medieval and Early Modern England • A Revolution in Procedure • The Common Law in Danger • The Early Twentieth Century • The Commonwealth • Improvements After World War II • The Whig Supremacy and Adversary Trial • Twenty-First Century Regression? • The Jury in the Eighteenth Century • The Advent of Restorative Justice • Punishment and Prisons • Famous Cases, Inquiries and Reports • Nineteenth Century Crime and Policing • Select Bibliography John Hostettler is well-known to readers of Waterside Press books. He is just as at home discussing the Star Chamber or Seven Bishops as he is the impact of the Hostettler executions of King Charles I, Timothy Evans or Ruth Ellis. From Victorian policing to madness and mayhem, hate crime and miscarriages of justice to radicals, ter- rorism, human rights or restorative justice, A History of Criminal Justice in England and Wales contains an extensive supply of facts, information and analysis. WATERSIDE WATERSIDE WATERSIDE PRESS PRESS WATERSIDE PRESS A History of Criminal Justice in England and Wales ii A History of Criminal Justice A History of Criminal Justice in England and Wales John Hostettler Published 2009 by Waterside Press Sherfield Gables Sherfield on Loddon Hook Hampshire United Kingdon RG27 0JG Telephone +44(0)1256 882250 Low cost UK landline calls 0845 2300 733 E-mail [email protected] Online catalogue www.WatersidePress.co.uk ISBN 9781904380 511 (Paperback) Copyright © 2009 This work is the copyright of John Hostettler. All intellectual property and associated rights are hereby asserted and reserved by the author in full compliance with UK, European and international law. No part of this book may be copied, reproduced, stored in any retrieval system or transmitted in any form or by any means, including in hard copy or via the internet, without the prior written permission of the publishers to whom all such rights have been assigned. Cataloguing-In-Publication Data A catalogue record for this book can be obtained from the British Library. Cover design © 2009 Waterside Press. North American distributor International Specialised Book Services (ISBS), 920 NE 58th Ave, Suite 300, Portland, Oregon, 97213-3786, USA Tel: 1 800 944 6190 Fax 1 503 280 8832 [email protected] www.isbs.com e-book A History of Criminal Justice in England and Wales is available electronically at leading i-libraries and e-suppliers (e-book ISBN 9781906534790) iii A History of Criminal Justice in England and Wales John Hostettler WATERSIDE PRESS iv A History of Criminal Justice Dedication and acknowledgements I dedicate this book to Dr Richard Vogler, Senior Lecturer in Law at Sussex Univer- sity and a good friend, who has been an inspiration to me during the last decade. Richard suggested this title, which has not been attempted before, read the manu- script and made a number of valuable suggestions for which I am deeply in his debt. Needless, to say, any errors that exist are my responsibility alone. Once again I wish to thank my publisher, Bryan Gibson, for his support and encouragement in the production of the book. His dedication to initiating and communicating ideas and knowledge about criminal justice is as unequalled as his friendly interest and knowledge of the law and legal history are outstanding. I should also like to thank the staff at the London Library for their courtesy and help when needed. John Hostettler January 2009 Contents v A History of Criminal Justice in England and Wales CONTENTS Dedication and acknowledgements iv Preface vii About the author x 1. Origins of Criminal Justice in Anglo-Saxon England 11 2. Saxon Dooms—Our Early Laws 24 3. The Norman Influence and the Angevin Legacy 40 4. Criminal Law in Medieval and Early Modern England 64 5. The Common Law in Danger 80 6. The Commonwealth 99 7. The Whig Supremacy andAdversary Trial 114 8. The Jury in the Eighteenth Century 125 9. Punishment and Prisons 146 10. Nineteenth-Century Crime and Policing 167 11. Victorian Images 182 12. A Century of Criminal Law Reform 194 13. Criminal Incapacity 214 14. A Revolution in Procedure 225 15. Early Twentieth Century 244 16. Improvement After World War II 252 17. Twenty-first Century Regression? 275 18. Placing Criminal Justice in Perspective 303 Select Bibliography 311 Index 321 vi A History of Criminal Justice Preface vii Preface I cannot say that I know much about the law, having been far more interested in justice. 1 William Temple, Archbishop of Canterbury, at the Inns of Court. Criminal justice is the complex system, with many aims and agencies, which is used in the main by government to maintain social control, curtail crime, enforce laws and administer justice. It also allows the State to interfere in people’s lives and even coerce them. In doing so it is crucial that the rights of both victims and accused per- sons are balanced and related to each other and the community. Further, the govern- ment should adhere strictly to the Rule of Law and protect individual human rights. The importance of the principle of the Rule of Law cannot be overemphasised. It was defined by Dicey as stating that: No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the Rule of Law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint … No man is above the law, but … whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals … the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.2 To the last point should now be added the human rights protected by legislation. It will be considered how far government is keeping to this principle which runs through much of English criminal justice. The modern system has evolved since ancient times with different forms of policing, courts, procedures and punishments along the way. It is not surprising that at different stages of history these have re- flected changes in the country’s culture, customs, laws, political theories and power, and economic circumstances. In the past some eminent legal historians have underestimated the significance of the criminal law in English society and considered it to have no intellectual pedi- gree. For instance, in 1969, Professor S F C Milsom claimed that: [t]he miserable history of crime in England can be shortly told. Nothing worth-while was created ... Centuries of civilization have passed the subject by …. The criminal law had by the eighteenth century reached an incoherence which seemed to defy even the modest order of the alphabet.3 1. Sir Alfred Denning. (1955) The Road to Justice. London, Stevens & Sons Limited. p.1. 2. A V Dicey. (9th edn. 1950) Introduction to the Study of the Law of the Constitution. London, Macmillan & Co. Limited, pp. 188-95. 3. S F C Milsom. (1969) Historical Foundations of the Common Law. London, Butterworths. pp.353, 365. viii A History of Criminal Justice Modern research has shown that such a view is no longer tenable and it is to be hoped that what follows will reveal just how much of what we treasure in our Criminal Justice System owes to the past and to the struggles of the peoples of this country to effect successive improvements. In particular, this applies to the jury system and the lay magistracy in which large numbers of men (and latterly, women) have participated directly in the administration of justice. The history that unfolds in these pages runs from the blood-feud and vengeance of the dwellers in Anglo-Saxon England to the vast cumbersome structure of the Criminal Justice Act of 2003 and onwards to the year 2008. Like a river, although its flow is choppy and uneven at times, it is continuous. We can see the shadow of the gallows, even for minor offences, stretching over centuries and, until modern times, being at the very heart of the Criminal Justice System. The conception of what is involved in offences such as homicide, theft and rape has changed over the centuries but they are always with us, although the punishments for them differ at various times. Redress for the victims of crime was there at the beginning but faded away and was lost, only to re-emerge in recent years with the concept of restorative justice. Like crime, law and punishment have existed in all human history.
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