Read this and never moan about the criminal justice system again
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
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
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.
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.
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
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
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.
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.