#1664 - Criminal Procedure - History of English Law

Criminal Procedure

(1) Apprehension of the accused – Before modern police forces there was the perpetual difficulty in apprehending the accused. Methods of delaying or avoiding being prosecuted:

1. Sanctuary – Stemmed from the peace of sanctified places, i.e. churches. It was geographical. Available for all offences, but there was modification by royal and papal legalisation for treason.

Common law cts recognised sanctuary – would order someone to be returned if taken out of sanctuary.

Two types of sanctuary:

• Common sanctuary - available in every public church/churchyard. Gave 40 days of protection. After that it was still unlawful for you to be taken out, but those who brought you food could be charged as accessories for your offence, so it would starve you out.

• Special or private sanctuary – applied only in limited areas. The sanctuary privilege must have been confirmed by pope and accepted by king. E.g. Westminster Abbey, Durham Cathedral. Could last for life.

Common sanctuary – issue, what to do after 40 days:

1) Give yourself up;

2) Escape and go to another church and get another 40 days;

3) Escape, commit another crime and go back into same church and get another 4 days,

4) Escape and go to special sanctuary;

5) In case of felony only, abjure the realm.

1. Abjuration of the realm – Required a confession. The coroner would record in writing and assign a port to which the person abjuring must go to foot. He must then leave country on a ship and never return. Treated as dead at law – treated as in escheat to feudal lord, so possessions forfeited except for essential clothes. The abjurer would be given a cross to show what he was doing.

Most people who abjured left the port. If people were found at wrong port you could then be hanged, having confessed the felony. Judges not lenient:

• R v. Preston (1491); Felon said he tried to find a ship for 2 weeks, then so hungry he went in land for food. Ct said he should have begged for arms and stayed.

• R. v. Danby (1532); Felon said he boarded ship but the ship taken was brought back to land by gales. Crew threw him off as they thought he brought bad luck. Returned to London. Hanged. He should have stayed at port and waited for another ship.

The Attack on Sanctuary - In early Tudor times there was a strong reaction against them:

• Judges sought to curb them by holding that sanctuaries could not be claimed by prescription or papal grant alone, without the king’s consent, and it became doubtful whether new sanctuaries could be created after 1189. Proof of special sanctuary was very difficult.

• Late 15^th c: Special sanctuary was attacked. Argued that criminal gangs took permanent refuge in private or special sanctuaries, usually in large monastic houses, by day and committed offences at night. Imprisonment could be imposed as a sanction for misbehaviour by the head of the religious house, but it is unclear how well this was enforced.

• Campaign against sanctuary: In 1482 a Parliamentary bill to reform sanctuary failed.

• Last decades of the 15^th c: Judges acted against special sanctuary.

  • R v. Stafford (1486); Said in KB that only the King, not the pope, could grant sanctuary for treason. Or even that only grants of the privilege of special sanctuary before legal memory (1189) were capped, so king himself could not create special sanctuary after 1189. Must be proved justices in eyre had recognised the existence of privilege.

  • + Chief Justice Huse of KB (Hussey) CJKB (1481-95) and Fyneux CJKB (1495-1525): Huse said sanctuary was ‘dens of thieves’ so sanctuary could not be acquired by long use, only by statute.

  • R. v. Boswell (1513); All judges held that pleading the privilege of special sanctuary on basis only of papal rolls and prescription would not suffice. Must be royal grant and acceptance of privilege by justice in eyre.

  • Pauncefote v. Savage (1516); The crisis!

Facts: Concerned special sanctuary privileges claimed by Order of St. John of Jerusalem. P was shot dead and mutilated on way to ct – horrific crime. Murderers took sanctuary outcry. Matter discussed in Star Chamber – under Wolsey (Lord Chancellor) the bishops said they would resist any change in status quo in relation to sanctuary. P’s widow started an appeal of murder in KB against Ds (including S). S said he was in sanctuary in house in Middlesex belonging to order of St. John, that he was then taken and imprisoned in tower.

Issue: Was there privilege of sanctuary for this house?

Decision: Held no, not in the buildings the priory owned, only in the region. Fyneux said you could not acquire special sanctuary privilege by prescription. In his view the Order had no more privilege than an ordinary church. Further argument: sanctuary could not be created by papal prescription.

State/church relations: no final decision. P abandoned claim to sanctuary. But from that date claims in relation to special sanctuary were regularly contested by crown and frequently rejected by courts.

• Statute of 1531, 22 Hen. VIII, c. 14: Gov concerned in 1530s that able-bodied English men were joining foreign armies. So those abjuring now had to go to special sanctuaries in England and remain there for life.

• Statute of 1534, 26 Hen. VIII, c. 13: In 1534 Parliament abolished sanctuary for high treason.

• Statute of 1535, 27 Hen VIII c. 19: Modest reform – statute controlled conduct of sanctuary men.

• *Statute of 1540, 32 Hen. VIII, c. 12: Final step – radical reform:

  • Abolished special sanctuary for murder, rape, robbery and arson. Was left only for theft.

  • All special sanctuaries not expressly named in the statute were abolished.

  • All sanctuaries were limited to 40 days, with few exceptions.

  • Abjuration disappeared.

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(2) Courts in which a criminal prosecution might be brought once accused apprehended

• Eyres - Significant criminal jurisdiction. Died out with general eyre in late 13^th c.

• Assizes - Circuit basis twice a year staffed by royal justices or serjeants. Take judgment at nisi prius. Also take commissions of gaol delivery and oyer and terminer. Normal forum for trying serious crime until 1970s, when abolished and replaced by crown court.

• Magistrates - Keepers and justices of the peace; quarter sessions. Have criminal jurisdiction in court of sessions, which meet 4 times a year. Jurisdiction in criminal matters was in principle similar to assizes, but in practice the more serious crimes left for royal judges in assizes. Dealt with less serious ones. Majority of criminal prosecutions happened in assizes or ct of sessions (locally) – that is a start to finish jurisdiction. In the civil side of assizes they judge then take jury verdict, but on criminal side it all took place at once – criminal justice was decentralised.

Central courts:

• King’s Bench - Had criminal jurisdiction. CP in practice did not deal with crime.

• Star Chamber - Only dealt with misdemeanour, not felony.

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(3) Initiation of proceedings: 13^th c. and later

In Norman times felons caught red-handed could be summarily executed after a swift trial before an ad hoc court. Progressively limited, very little by 14^th c, apart from for a felon who cannot be apprehended.

Classic common law ways of initiating proceedings:

1. Appeal – Essentially an oral accusation of crime made by someone closely affected: either by the victim, or by approvers (an accomplice whose neck was spared in return for his undertaking to prosecute some agreed number of fellow wrongdoers). Oldest procedure.

Process: By late 12^th c. it is an appeal of felony, brought by V or his kin (if V is dead) against the accused. Involved raising the ‘hue and cry’ and getting local people to help to capture the accused and bring him before an officer of the hundred and a coroner. Appeal/complaint then made in county ct. In early days you waited to answer before justices in eyre, during which time appeal might be compromised (settled between parties by compensation).

If appeal went forward the appellor would make an accusation – appellee might make a denial or justification, or ask a jury if the appeal had been brought maliciously. Otherwise parties had to swear oaths to their positions and proceed to trial by battle. Battle died out before 1250 (changed to jury). Inquest de odio et atia; restriction of trial by battle.

[One case where battle survived: approvers; later uses of the appeal; someone pardoned for appealing co-accused.]

By 13^th c: Nearly all appeals were tried by jury.

With the decline of the eyre system it became more usual to commence appeal at the assizes or at Westminster, with trial at nisi prius. By the late 14^th c about half of all appeals were begun in the KB. Jury trial in an appeal (if commenced in KB) would be at nisi prius - on the civil side of the assizes, not with the criminal cases. In KB rolls the appeals were listed with civil cases - so appeal is a private prosecution, and resulted in punishment for the accused, but it is not the same thing as community public criminal cases (2 differences).

The real purpose of the appeal was to secure compensation, so the threat of a death penalty in the appeal was a better bargaining factor than the uncertain prospect of damages in an action of trespass.

Problems with the appeal:

• Strict form of proceeding which in the 13^th c frequently collapsed on...