History of English criminal law

The first signs of the modern distinction between criminal and civil proceedings were during the Norman conquest of England in 1066.^[1] The earliest criminal trials had very little, if any, settled law to apply. However, the civil delictual law was highly developed and consistent in its operation (except where the king wanted to raise money by selling a new form of writ).

A local lord of the manor (or family) could hold their servants and tenants responsible in a manorial court and was among wealthy people who could more easily enlist the help of a county or city bailiff, posse comitatus if one existed and the justices of the peace. The sheriff was the often-armed representative of the king in a city, town or shire, responsible for collecting taxes and enforcing his laws. The church could hold ecclesiastical courts to resolve offences in its canon law and on its narrow territorial jurisdiction.

Justice for crimes sought in older forums and by private prosecution declined—instead the state courts, and increasingly the state paying lawyers to prosecute became the normal route to justice for matters that conceivably affect or endanger the community at large. In the 18th century European countries began operating police forces; in 1829 the first force formed in England which began its own prosecutions. Consequently criminal law had a more harmonised way of enforcement.

Historically in England, with no police forces and no prosecution service, the only route to prosecution was through private prosecutions brought by victims at their own expense or lawyers acting on their behalf. From 1829, as the police forces were formed, they began to take on the burden of bringing prosecutions against suspected criminals.^[2]

Sir John Maule was appointed to be the first Director of Public Prosecutions for England and Wales in 1880, operating under the Home Office; his jurisdiction was only for decisions as to whether to prosecute in a very small number of difficult or important cases; once prosecution had been authorised, the matter was turned over to the Treasury Solicitor. Police forces continued to be responsible for the bulk of cases, sometimes referring difficult ones to the Director.^[2]

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, although technically the prosecuting police officers did so as private citizens. The Royal Commission's recommendation was not implemented by all police forces, however, and so in 1978, another Royal Commission was set up, this time headed by Sir Cyril Philips. It reported in 1981, recommending that a single unified Crown Prosecution Service with responsibility for all public prosecutions in England and Wales be set up. A White Paper was released in 1983, becoming the Prosecution of Offences Act 1985, which established the CPS under the direction of the Director of Public Prosecutions, consisting of a merger of his old department with the existing police prosecution departments. It began in 1986.

The following common law offences once existed, but in England and Wales are now statutory (codified), part of other statutory offences, or completely abolished.

• Petty treason^[3]
• Arson^[4]
• Larceny^[5]
• Robbery^[5]
• Burglary^[5]
• Concealment of treasure trove^[6]
• Cheating, except in relation to the public revenue^[7]
• Forgery^[8]
• Sedition^[9]
• Seditious libel^[9]
• Misprision of felony^[10] (disputed - alleged never to have existed)
• Compounding a felony^[10]
• Riot^[11]
• Rout^[11]
• Unlawful assembly^[11]
• Affray^[12]
• Defamatory libel^[13] (aka criminal libel, aka criminal defamatory libel)
• Obscene libel^[14]
• Blasphemy^[15]
• Blasphemous libel^[15]
• Incitement^[16]
• Maintenance (not including embracery)^[17]
• Champerty^[17]
• Bribery^[18]
• Embracery^[18]
• Challenging to fight^[17]
• Eavesdropping^[17]
• Being a common barrator^[17] – see Barratry
• Being a common scold^[17]
• Being a common nightwalker^[17]
• Forcible entry^[19]
• Forcible detainer (occupying property belonging to another with "menaces, force and arms" and without lawful authority)^[19]
• Attempt^[20]
• Conspiracy (except for conspiracy to defraud, conspiracy to corrupt public morals and conspiracy to outrage public decency)^[21]

See also criminal libel for general information about the common law libel offences listed above.

• Effecting a public mischief^{[citation needed]}
• Conspiracy to effect a public mischief^{[citation needed]}

• Murder
• Manslaughter

• Petty treason
• Capital murder
• Felo de se

• Rape

• Buggery
• Assault with intent to commit buggery
• Gross indecency between men
• Indecent assault on a man
• Indecent assault on a woman

• Common assault

• Criminal damage in English law#History

• Larceny
• Embezzlement
• Fraudulent conversion^[22]

This section needs expansion. You can help by adding to it. (April 2011)

See forgery:

• Offences under section 18 and section 20 of the Pharmacy Act 1954 repealed by The Pharmacists and Pharmacy Technicians Order 2007

See personation:

• Offences under section 13 of the Customs and Excise Management Act 1979
• Offences under section 12 of the Inland Revenue Regulation Act 1890

(Both repealed by the Commissioners for Revenue and Customs Act 2005)

See cheating:

This section needs expansion. You can help by adding to it. (March 2011)

• Attainder

• Sedition
• Seditious libel
• Incitement to mutiny, contrary to section 1 of the Incitement to Mutiny Act 1797
• Offences under the Unlawful Drilling Act 1819
• Various forms of statutory piracy

This section needs expansion. You can help by adding to it. (April 2011)

• Blasphemy
• Blasphemous libel

• Misprision of felony
• Compounding a felony
• Embracery

• In 1954, the judgment of the Queen's Bench in the case of R v Newland contraindicated the offence of effecting a public mischief,^[23] whereas in Shaw v DPP (1960), the House of Lords ruled that indeed it had existed and continued to exist.^[24]
• Conspiracy to effect a public mischief^[25]

• Rout
• Unlawful assembly
• Breach of the peace
• Defamatory libel

• Obscene libel
• Offences under the Prevention of Corruption Acts 1889 to 1916^[26]
• The common law offence of bribery

This section needs expansion. You can help by adding to it. (April 2011)

This section needs expansion. You can help by adding to it. (April 2011)

This section needs expansion. You can help by adding to it. (April 2011)

• Incitement
• Accessory to felony: Secondary principal/Principal in the second degree, Accessory before the fact, Accessory after the fact

• Felony
• Misdemeanour
• Arrestable offence

• Provocation

• Criminal information

• Criminal law

^[2]

• Hale, Matthew. Historia Placitorum Coronæ (History of the Pleas of the Crown) (1736).
• Stephen, Sir James Fitzjames. History of the Criminal Law of England (1883).
• Radzinowicz, Sir Leon. A History of English Criminal Law and Its Administration from 1750. 5 volumes. 1948 to 1990.
• John Hostettler. A History of Criminal Justice in England and Wales. Waterside Press. 2009. Google Books
• John Hamilton Baker. An Introduction to English Legal History. Third Edition. Butterworths. 1990. Chapters 28 and 29.
• John Hamilton Baker, "Pleas of the Crown" (1978) 94 Selden Society annual volumes 299
• J M Kaye et al. "The Making of English Criminal Law" (1977 to 1978) Criminal Law Review
• John G Bellamy. Criminal Law and Society in Late Medieval and Tudor England. Alan Sutton. 1984. Google Books
• Edward Powell. Kingship, Law, and Society: Criminal Justice in the Reign of Henry V. Clarendon Press. Oxford. 1989. Google Books
• John H Langbein. Prosecuting Crime in the Renaissance: England, Germany France. Harvard University Press. 1974. Google Books. Lawbook Exchange. Clark, New Jersey. 2005. Google Books
• J S Cockburn (ed). Crime in England 1550–1800. Meuthen. 1977. Google Books
• J. M. Beattie. Crime and the Courts in England 1660–1800. OUP. 1986. Google Books
• David Bentley. English Criminal Justice in the 19th Century. Hambledon Press. 1998. Google Books
• John G Bellamy. The Criminal Trial in Later Medieval England. University of Toronto Press. 1998. Google Books