7 criminal laws and practices we’re really glad to see the back of

Read this and never moan about the criminal justice system again

magnacarter

It’s easy to bash our criminal justice system.

It’s slow, underfunded and its sentencing guidelines are questionable — but a brief glimpse of its rather miserable history will make you feel very grateful it is how it is now and not how it was then.

The living and breathing nature of the law means our legal landscape is always changing, sometimes very much for the better.

Legal Cheek takes a look back at seven of the craziest criminal laws and practices, which are now, thankfully, confined to the history books.

1. Modes of proof

trialbybattle

Nowadays, it’s any of a judge, jury or magistrates who determine the guilt or innocence of the accused. But things didn’t used to be so simple, and there were all sorts of wacky ways of ‘testing’ someone’s guilt. One method, abolished by statute in the early 19th century, was trial by battle, where witness and accused would literally fight it out (if the accused won, the witness could be punished for bringing a false claim). There was also trial by ordeal, for example, throwing the accused in water and seeing if he or she floated. Sounds irrational, but in a society characterised by dedication to and belief in God, these methods were judged as sound.

2. Capital punishment

capitalpunishment

It seems alien to young lawyers, but death — plus property forfeiture to the monarch — was seen as an appropriate punishment for defendants convicted of very serious crimes, known as felonies or capital offences. Hanging was the most common method of all, though there were some exceptions: nobles were beheaded; heretics and women who killed their husbands were burnt; and there were additional mutilations for treason. Despite popular perception, witches were also hanged, not burnt. Efficiency wasn’t a consideration when it came to the death penalty: people died slowly and publically.

3. Rape

violence against w

Even today, it’s very difficult to secure a rape conviction. But it was even harder in the past, especially because the onus was on the victim to make his or her case. Immediate action had to be taken to signal to the authorities that the offence had occurred. The victim had to inform the neighbouring townships, the king’s serjeant, the coroner, and the sheriff, and had to show bloody clothing and torn garments. Any indication of carelessness on the part of the victim could destroy a case: in 1879, a young man accused of raping a woman was acquitted because she had agreed to let him walk her home. But England wasn’t actually particularly harsh in its treatment of rape victims; in some civil law jurisdictions, there was a requirement of two witnesses before the victim could even make a complaint.

4. Lawyers

oldbailey

Defendants had it tough throughout English legal history. There was no presumption of innocence until the 1930s. They weren’t allowed to call witnesses, and weren’t allowed to have a copy of the indictment with the precise charges against him or her. There was also no defence counsel until the early 18th century. Judges were keen to get to the truth of the matter, and there were fears that defence counsel would obstruct this, plus land law cases were better paid so lawyers weren’t too keen on criminal trials either.

5. Peine forte et dure

peine

Back in the 13th century when trial by jury was adopted, it was voluntary: one had to choose it. Prisoners who pleaded not guilty to a capital charge would be asked how they wished to be tried (the correct answer being by jury). If he or she refused, they’d be sent to prison for want of a better solution. While there, some prisoners were subject to ‘peine forte et dure’. Enacted by the 1275 statute of Westminster, this grim practice involved laying heavy stones on the stubborn prisoner to encourage them to accept a jury trial. Shockingly, this practice continued for 500 years, and led to the death of many prisoners who chose to accept this punishment and die unconvicted (saving their property from being forfeited to the monarch).

6. Being an incorrigible rogue

rogue

Good news for incorrigible rogues everywhere came thanks to the Protection of Freedoms Act 2012. Thankfully, it repealed the offence of ‘Being an incorrigible rogue’ which, until then, had existed under the Vagrancy Act 1824. How many people were actually prosecuted for being this roguish? We have no idea but praise be to the statute makers of 2012. It’s good to know people can go about their business, decently or as an incorrigible rogue, without fear of the law.

7. Witchcraft

witches

Witchcraft became an offence during the Tudor period, and has got to be up there as one of the most dubious crimes in the entirety of English legal history. Though the offence was actually gender neutral, it disproportionately affected women, mainly because people believed witches coupled with the devil. Trying someone for witchcraft was — from a law of evidence perspective — close to impossible, so a number of ‘witch tests’ were invented to accommodate the offence. Defendants were searched for ‘witch marks’, allegedly imprinted on their bodies by the devil. In fact, these were just moles, warts, and other skin complaints. It was also believed that if the accused was scratched to draw blood, and her bewitched victim was temporarily relieved, then she was guilty. Trial by ordeal, particularly the swimming test, was also revived in the period of witch-mania.

26 Comments

Anonymous

“especially because the onus was on the victim to make his or her case.”

You mean the accused didn’t to prove his innocence… unlike modern days?

(15)(8)
meimei

It has always been a case of proving the guilt of the accused beyond reasonable doubt, so the burden of proof is always on the strength of the prosecution’s evidence and not on the weakness of the evidence of the accused. So even in the modern days, the accused does not need to prove his innocence since it is the job of the prosecution to prove his guilt beyond reasonable doubt. It’s never the other way around.

(2)(0)
The professor

Yes, sometimes it is indeed the other way around. This is because we have many reverse burdens of proof. I guess you have never studied the law of criminal evidence.

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King of the Pedants

Must be a slow news day. Some of these entries seem to have been lifted from childrens’ history books and are not even accurate.

e.g. Capital punishment was not only used for “serious offences”. Have you never heard of the Bloody Code of the 18th century, when one could be hanged for stealing a sheep.

The presumption of innocence well pre-dates the 1930s, and defence counsel have been around for at least 300 years, though it is true that until the 1870s one could not testify in ones own defence, but could only call character witnesses or defence witnesses as to fact.

(6)(1)
Scep Tick

One of the fun things about reading Old Bailey Online is finding cases where jurors find someone guilty of stealing goods worth 39 shillings – when the prosecution suggested the goods were worth a lot more. As £2 was the capital crime threshold. Evidently many jurors thought someone guilty but didn’t want to see them swing.

(12)(0)
Anonymous

Witchcraft remained an offence until 1951 and the last prosecution occurred during the war!

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The professor

A prosecution under the witchcraft Act, but not a prosecution for witchcraft, because the allegation was in effect one of fraud – the offence in question was one of falsely pretending to have such powers

(3)(0)
Scep Tick

“One method, abolished by statute in the early 19th century, was trial by battle, where witness and accused would literally fight it out (if the accused won, the witness could be punished for bringing a false claim).”

You may wonder why it was only abolished in the early 19th century. That was because everyone had forgotten about it and assumed it had been abolished. Until a chap called Abraham Thornton, prosecuted for the murder of Mary Ashford, turned up for trial in battle-armour and pleaded that he would prove his innocence by body.

After much panic with old statutes, the courts had to concede that, actually, nobody had abolished trial by combat, and as the victim’s brother was not willing to step up to the line (Thornton was apparently something of a unit), Thornton was acquitted.

To be fair, the evidence against him was extremely circumstantial, and he had already been acquitted by a jury once. The aborted trial by battle was on appeal.

Anyway, after such a farrago, Parliament quickly moved to outlaw trial by battle. Very quickly – the Appeal of Murder Act 1819 went through three readings in one night.

Quick note: one of the prosecuting counsel on appeal was Joseph Chitty, whose sons wrote the famous book. No wonder they stuck to contract law.

(42)(0)
Anonymous

There was a presumption of innocence before the 1930s. I think you are misreading Woolmington as introducing the concept, rather than restating it (hence it being the golden thread running through English law, not inserted into it).

(8)(0)
Anonymous

There are a few witches in public life who should be put on trial…

(2)(1)
Anonymous

regarding number 1, in 2002 a 60 year old man decided to invoke his right to ‘trial by combat’ by challenging a representative of the DVLA to a fight to the death rather than paying a £25 parking fine. he asked the DVLA to nominate a champion whom he would fight with either “samurai swords, Ghurkha knives, or heavy hammers”.

the DVLA declined. wimps.

(2)(1)
Joshua Sanderson - Kirk

Perhaps, in light of the homophobia it still engenders and on today of all days, the ludicrous criminalization of the private acts of gay men should have been included in this list.

(1)(1)
Anonymous

Quite. Even though all of our statutes are now conducive to equal rights and equal treatment, until a case is brought at common law for outraging public decency by, for example, two men kissing or holding hands in public, and an appeal court then rules that such conduct is no longer contrary to common law, said conduct remains (technically) an offence.

(1)(0)
Anonymous

You are correct – there is no mention of this offence in the Protection of Freedoms Act 2012, in fact it was removed by the Criminal Justice Act 2003, but only at a date to be appointed – that date has yet to be so appointed so it remains in force.

Also, the Vagrancy Act was made in 1824, not 1924.

0/10 for accuracy!

(4)(0)
Boh Dear

‘Publically’ is presumably a public, misspelled narrow passageway?

Publicly is something that take places in public.

(3)(0)
Lord Lyle of Scolds Ducking and Witchin

Oh Dr Bonham stole my thunder. The offence of scolding was only abolished in 1969.

It is the unanimous opinion of the men of my village that the offence should be re-instated along with the ducking.

O and causing an abortion by way of witch craft is still an offence and witch trials ocurr daily in child care and criminal proceedings, but called by other names.

(0)(0)
Lord Lyle of Going Abroad

O a barrister once told me of the offence of “going abroad” (going on a roguish Jolly in public drunk or otherwise).

Anyone heard of it?

(0)(0)
Litigator

“Sounds irrational, but in a society characterised by dedication to and belief in God, these methods were judged as sound.” Adding blasphemy and mocking god or religion makes you lose a great deal of respect. Your beliefs have nothing to do with this article and it just looks misplaced. I would have shared this article, but I won’t with that sentence. Many people can separate the religion from the folklore infatuated in the Criminal Justice system of the past, there is a reason why one surpassed all time periods and the latter was left behind in each respective time period. You can’t ridicule God and compare him to folklore, I mean, you can do whatever you please, but when you are writing an article such as this, it’s somewhat uncalled for.

(1)(0)
Boh Dear

Chill out, there’s no god anyway. Plus I have no idea what you’re getting at.

(1)(0)

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