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.

Crown Prosecution

Main article: Crown Prosecution Service § History

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.

Common law offences

Main article: Common law offence

Abolished offences

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.

Offences held no longer to exist or never to have existed

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

Offences against the person

Main article: Offence against the person

Fatal offences

Extant offences

• Murder
• Manslaughter

Abolished offences

• Petty treason
• Capital murder
• Felo de se

Sexual offences

Main article: Sexual offences in the United Kingdom

Extant offences

• Rape

Abolished offences

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

Non-fatal non-sexual offences

• Common assault

Offences against property

Main article: Property crime

Extant offences

• Criminal damage in English law#History

Abolished offences

• Larceny
• Embezzlement
• Fraudulent conversion^[22]

Firearms and offensive weapons

See also: Gun law, Gun politics in the United Kingdom, and Offensive weapon

Forgery, personation and cheating

Abolished offences

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:

Offences against the state or Crown or government and political offences

• Attainder

Abolished offences

• 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

Harmful or dangerous drugs

Offences against religion and public worship

Abolished offences

• Blasphemy
• Blasphemous libel

Offences against the administration of public justice

Abolished offences

• Misprision of felony
• Compounding a felony
• Embracery

Offences held no longer to exist or never to have existed

• 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]

Public order offences

Main article: Public order offence

Abolished offences

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

Offences against public morals and public policy

Abolished offences

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

Protection of children and vulnerable adults

Protection of animals and the environment

Main articles: Cruelty to animals § United Kingdom, and Environmental crime

Road traffic and motor vehicle offences

Main article: United Kingdom traffic laws

Participatory offences

See also: Accomplice, Aid and abet, and Inchoate offenses

Abolished offences

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

Classification of offences

Abolished classes

• Felony
• Misdemeanour
• Arrestable offence

Defences

Abolished defences

• Provocation

Procedure

Abolished proceedings

• Criminal information

See also

• Criminal law