Criminal Law and Historical Focus - Essay Example

________ Roll ________ _________ Criminal Law and Historical Focus During the period 1700-1800 significant changes occurred throughout England's system of criminal justice not only in the criminal law, but also in criminal procedures, in prisons, and in punishments and cumulatively these procedures acted as the grounds for transforming the system of judicial administration. While exploring some of the distinctive ways in which eighteenth-century common lawyers attempted to identify and delineate criminal law as a discrete and specific component of the legal order, it is quite easy to distinguish the legal category of "criminal" from that of "civil". (Landau, 2002) In presenting England's criminal law, Blackstone a common lawyer of earlier generation, chose not to highlight settled procedural distinctions and arcane terms, but instead he invoked a distinctive kind of legal wrong he identified as "public" in nature. Crime vs. Criminal Law The terms crime and criminal law, while enjoying wide linguistic currency, were not always the part of technical vocabulary of the law. In the medieval period, English law was explicitly differentiating between civil and criminal materials. And as is immediately disclosed by the titles of such works as Lord Kames "History of the criminal law" (1758) and William Eden's "Principles of penal law" (1771), eighteenth-century jurists certainly supposed there existed a general category of law that might serve as the object of their scholarly attention. English law, according to a familiar complaint, simply lacked much by way of system or coherent organization, particularly as compared with Roman law, which hitherto dominated university law studies and which set the relevant standard for juristic elegance. "It was thought impracticable to bring the Laws of England into a Method", explained by one of Blackstone's eighteenth-century precursors, "and therefore a Prejudice was taken up against the study of our Laws, even by Men of Parts and Learning". On this basis, English law along with the Canadian law was unable to become an object of rational learning, and instead had to be mastered through the practical, craft-like techniques of legal apprenticeship. Blackstone, as a lawyer was confident of the English law's credentials as a rational system, but the efforts of other lawyers were not considered "failure" to bring changes in the system after negotiations. Law Reform Law reform was supposed to be the one and only asset, exclusively the preserve of lawyers, and Bentham's combination of the wisdom of the reformer and the craft of the lawyer recognized its potential to divide the legal profession. The common lawyer's innate respect for existing institutions and his appreciation of the subtleties of the status quo not only made novelty in the early years of entering into the criminology, but also it particularize the concept of jurisdiction in the early years of reform, as an object of suspicion. The means and scope of amendment were a further cause for division, even after its need was established. There was a disturbing element of self-examination in law reform to which some lawyers found it difficult to respond with enthusiasm. The status quo would always find friends in influential positions, particularly in respect of criminal law reform amongst the judiciary. Law - A Profession towards Criminal Trial Process As the pace and scale of law reform increased it became an intense preoccupation of the legal profession and for the eighteenth century lawyers, acted as a charm to enter into such a jurisdiciary profession. It was the dominant theme of professional literature of that period that lasted the debate over the role of counsel and advocacy in the criminal trial, for a longer period of time and consideration in this work, could be traced in parliamentary debates, select committee minutes, the evidence and reports of the Criminal Law Commissioners, periodical and professional journals, biographies and other professional literature, pamphlets, newspaper editorials and letters, and the private correspondence of barristers and judges. (Cairns, 1998) The criminal trial process achieved its modern adversarial shape during this period of reform. It assumed this new shape to a significant degree through the common law's ubiquitous technique of adaptation, but there was also a decisive legislative intervention in the form of the Prisoners' Counsel Act whose immediate impact was followed by the introduction of Act into criminal trials of speeches by defense counsel, but the major intellectual and forensic adjustments that accompanied this change, encouraged by the spirit of the age, guaranteed the acceptance of adversarial procedure. Lack of Prosecution Council The most dilemmatic situation, which was to be faced by the then criminal trials, was that such criminal trials were always conducted without any council. During the early decades of that century prosecution counsel began to appear in a small number of cases, especially in murder trials, and their appearance stimulated the employment of defense counsel by prisoners. By the end of the eighteenth century counsel had, had an immense impact on the conduct of criminal trials. They had ushered into criminal procedures the divisions between examination-in chief and cross-examination and between evidence and argument, nourished the growth of the law of evidence, changed the nature of the judicial involvement in the trial, and supplemented the haphazard efforts of prisoners to defend themselves with professional advocacy. The merits of advocacy, and particularly its effect on the discovery of the truth in criminal trials, were a major question in the Prisoners' Counsel Act debate. The opponents of full defence by counsel, which included the majority of barristers and judges, argued that there was no need for speeches from prisoners' counsel in criminal trials because juries were able to discern the truth from the examination and the cross-examination of witnesses and from the statements that prisoners made in their own defence. Full defence by counsel would only enable counsel to distort the truth with sophistical and emotive arguments. The supporters of reform, by contrast, argued that juries would be assisted by the comments of counsel on the evidence. They saw the zealous advocacy of counsel as the best means to ensure that juries were fully informed of all the facts, and all the possible interpretations of the facts, in reaching their verdicts. The enactment of the Prisoners' Counsel Act and the rationalization of vigorous advocacy, which accompanied it, meant that by the middle of the century the criminal trial had largely achieved its adversarial form, which is familiarized even today. New penal ideas, procedural reforms, the duties of counsel, the development of advocacy and the emergence of the adversarial trial cluster together in the history of the Prisoners' Counsel Act. The Act, however, has received only passing attention from scholars of the criminal law. Recent studies of the historical role of counsel in the criminal trial have concentrated on the eighteenth century, and often reduced the Act to a postscript. There is an artificial division in modern scholarship between the trial and punishment, the former largely the preserve of lawyers and the latter of criminologists, who applied retrospectively, has meant the neglect of trial procedure in accounts of the amelioration of capital punishment in the 1820s and 1830s. The history of advocacy has never been a subject for scholarly consideration as it became for the lawyers those days. One objective of this work is to redress these oversights. It examines the influence of the new penal ideas on procedural reforms, and argues that the supersession of punitive severity with mild and certain punishment gave a strong impetus to full defence by counsel. It demonstrates that the shift from restricted to full defence by counsel had a dramatic effect on the development of advocacy and adversarial procedure in the criminal trial. The relationship of the Prisoners' Counsel Act to contemporary penal reform, its importance to the development of advocacy, and its contribution to adversarial procedure justify a major place for the Act in the history of the modern criminal trial. The purposes of advocacy were proof and persuasion and as proof and persuasion were crowned by favourable decisions, so advocacy had a strong affinity with the decision-making of judge and jury. This not only strengthened jurisdictions but also acted as a charm for the fresh lawyers who were beginners in this profession. Advocacy and forensic decision-making both operated within the framework of the trial established by the rules of law, procedure and evidence. These rules directed the skills of judge and advocated but considerable personal discretion remained, and while these rules ensured the identities of the forensic actors were irrelevant to the outcome of a trial, the manner the outcome was reached, the evidence called, the questions asked, the arguments made reflected individual choices. While observed with a more realistic approach, royalty may have had a darker influence on the persistence of the felony counsel restriction. It was convenient for the Bar to be prohibited from speaking against the Crown in the most important criminal trials, and especially in state trials. In the reigns of the Tudors and the early Stuarts juries were sometimes imprisoned or fined for returning verdicts contrary to royal pleasure. Counsel for the prisoner, if permitted, might have received the same treatment. At a time when advancement in the profession depended upon royal favour, ambitious lawyers had to display a willingness to serve their royal masters, with an enthusiasm like that displayed by Sir Edward Coke in the prosecution of Sir Walter Raleigh. Counsel structurised criminal trials to that extent, where the accused and witnesses were replaced by distinct prosecution and defence "cases", which in turn encouraged evidential objections and the recognition of burdens of proof. Defence counsel also exploited cross-examination and legal arguments to challenge suspected evidence such as confessions. These activities altered the dynamic of the jury trial in two ways. First, counsel began to silence the prisoner, for if counsel conducted the cross-examination the prisoner did not need to take any part in his defence until the completion of the prosecution case. If counsel could establish grounds for an acquittal at this stage then the prosecution terminated without a word from the prisoner, and if the prisoner did need to address the jury in his defence, his participation in the trial was at least deferred until the prosecution evidence was fully known. In this development Langbein saw the conception of the trial moving from an older "accused speaks" theory to the modern "testing the prosecution" trial. Secondly, Langbein showed that in the late seventeenth century, before the arrival of counsel, the judge dominated the criminal trial and could exercise considerable influence over the jury's verdict. During the eighteenth century, he argues, "there was a significant shift in power from the judge to the parvenu lawyers". In the late seventeenth century, before the arrival of counsel, the judge dominated the criminal trial and could exercise considerable influence over the jury's verdict. During the eighteenth century, there was a significant shift of power from the judge to the lawyers. By 1820 these two trends had progressed so far that judge and accused were yielding the center stage to the lawyers for prosecution and defense. The inability of defence counsel to address the jury by reason of the felony counsel restriction meant counsel were unable to comment on their own cross-examinations or the credibility of witnesses at the conclusion of the evidence due to which the council faced of judicial hostility and a new style had emerged by the 1780s, which Landsman demonstrates through a review of a number of "classic cross-examinations" and Beattie through the cases of William Garrow, the leading Old Bailey practitioner of the time. A trend emerged towards adversaries, which linked these developments in procedure, evidence and advocacy. It is apparent also in the attitude of counsel who "became more aggressive, more actively committed" to their clients' interests, and more challenging of the rules under which they were allowed to work. Ultimately after all the efforts, the criminal trial process was reconstructed by the activities of counsel. The Old Bailey Sessions Papers were an early species of periodical journalism, purveying a diet of true-life crime stories for the interest and amusement of a non-lawyer readership. They were sold on the streets of London within days of the trials they reported. These reports were the major source for recent studies of the eighteenth century criminal trial. Their reliability were tested by their accuracy of comparing with the judge's notes of Sir Dudley Ryder, and concluded that they were never fictionalized, but suffered from extensive omissions. It is surprising that there has not been a systematic attempt to trace alternative pamphlet accounts of trials as a crosscheck on accuracy and to assess the significance of the omissions. Such pamphlets were sometimes printed after trials, which attracted public attention, such as the trial of Eliza Fenning in 1815. The Old Bailey Court The Old Bailey was the one and only criminal court and one common law court amongst many at the end of the seventeenth century. Its practitioners were members of the professional institution of the Bar, worked with other barristers, and joined in their membership of chambers, circuits and the Inns of Court. The royal judges were senior members of the same profession, drawn from the ranks of the Bar, who socialized with senior barristers on circuit and with the sergeants in London. The profession demanded certain standards of behaviour from its members, and these rules of etiquette, informally enforced by social pressure, might affect the representation of prisoners. An overzealous barrister on the Midland Circuit, for example, was expelled from the circuit mess in 1790 in respect of his handling of a prisoner's defence. The Queen's Case brought Queen Caroline's lawyers, led by Brougham, into conflict with the King's will and government policy, in a case with great political and constitutional ramifications. It was on this occasion, which justified majestic eloquence and defiance, that Brougham made his controversial statement of the duties of the advocate: "An advocate, by the sacred duty, which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means, to protect that client at all hazards and costs to all others, and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the alarm the suffering the torment the destruction which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client's protection"! (Simpson, 1998) This statement was anything rather than a deliberate and well-considered opinion. It was a menace, and it was addressed chiefly to George IV, but also to wiser men, such as Brougham referred to neither his own nor Erskine's statements of the advocate's duties in his article entitled "Rights and Duties of Advocates", which appeared in the Edinburgh Review of October 1836. Instead he sought to derive the duties of the advocate from the necessity for legal representation. He saw litigation as an inquiry into contested truth, which, in the absence of advocates, could suffer from an imperfect disclosure of the facts and worked in favour of the parties whose natural capacity, or study of the law, or experience in litigation, surpassed that of their adversaries. Professional advocates were necessary to clarify the facts and the law for the judge and to prevent injustice by establishing equality between the parties. From these premises Brougham delineated the representative character of the advocate: "It follows immediately from this obvious view of the matter, that the advocate cannot be said to appear at all in his own person; and that whatever he states to the judge must be considered as offered by the party whom he represents. He is that party endowed with legal knowledge, with the skill of applying it, and with the power of bringing forward the facts of the case. Therefore, whatever the party could have justly said for himself, the advocate may justly say for him." (Simpson, 1998) After this article that Brougham developed to represent character of the advocate wakened the leading advocates of that time who possessed considerable ability and scope to succeed. There was a rationalized reform of Criminal law which gradually enabled senior lawyers of parliament particularly Lord Brougham and Fitzroy Kelly to promote wide-ranging reforms of the criminal law. Outside Parliament there was a group of hard-working and able lawyers ready to gather information and arguments, write pamphlets and articles, appear before select committees, serve on royal commissions, prepare countless drafts of bills and otherwise provide advice and assistance so as to ensure reformers in positions of influence had the prerequisite raw material and support for a programme of legislative reform. These lawyers included Criminal Law Commissioners Thomas Starkie and Henry Bellenden Ker, whose labours culminated in draft codes of substantive criminal law in 1843 and of criminal procedure in 1845, and also Charles Spregal Greaves and John Pitt Taylor, who made their first contributions to criminal law reform in the early 1840s with a series of articles in the Law Magazine. The criminal law of the late eighteenth century prescribed the death penalty for all serious offences, and for many minor and obsolete crimes. This prevalence of capital punishment had a major impact on the conduct of felony trials. It affected the procedure of the trial in the survival of the life-saving device of benefit of clergy, and in the strict rules for the formal correctness of indictments and the construction of penal statutes. It meant the regular review of judicial sentences by the Crown, and their frequent commutation through the exercise of the royal prerogative. It invested the impressive ceremony and symbolism of the trial with meaning as part of a philosophy of the prevention of crime through awe and selective terror. Work Cited Cairns J. A. David, 1998. Advocacy and the Making of the Adversarial Criminal Trial, 1800- 1865. Publisher: Oxford University. Place of Publication: Oxford. Publication Year: 1998 Hall Jerome, 1960. General Principles of Criminal Law. Publisher: Bobbs-Merrill. Place of Publication: Indianapolis. Landau Norma, 2002. Law, Crime and English Society, 1660-1830. Publisher: Cambridge University Press. Place of Publication: Cambridge, England. Read More