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.
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.
The following common law offences once existed, but in England and Wales are now statutory (codified), part of other statutory offences, or completely abolished.
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]
Radzinowicz, Sir Leon. A History of English Criminal Law and Its Administration from 1750. 5 volumes. 1948 to 1990.
John Hostettler. A History of Criminal Justice in England and Wales. Waterside Press. 2009.
Google Books
John Hamilton Baker. An Introduction to English Legal History. Third Edition. Butterworths. 1990. Chapters 28 and 29.
John Hamilton Baker, "Pleas of the Crown" (1978) 94 Selden Society annual volumes 299
J M Kaye et al. "The Making of English Criminal Law" (1977 to 1978) Criminal Law Review
John G Bellamy. Criminal Law and Society in Late Medieval and Tudor England. Alan Sutton. 1984.
Google Books
Edward Powell. Kingship, Law, and Society: Criminal Justice in the Reign of Henry V. Clarendon Press. Oxford. 1989.
Google Books
John H Langbein. Prosecuting Crime in the Renaissance: England, Germany France. Harvard University Press. 1974.
Google Books. Lawbook Exchange. Clark, New Jersey. 2005.
Google Books
J S Cockburn (ed). Crime in England 1550–1800. Meuthen. 1977.
Google Books
David Bentley. English Criminal Justice in the 19th Century. Hambledon Press. 1998.
Google Books
John G Bellamy. The Criminal Trial in Later Medieval England. University of Toronto Press. 1998.
Google Books
^see, Pennington, Kenneth (1993) The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition, University of California Press
^Codified by the
Criminal Law Act 1977 and, other than the exceptions mentioned, abolished in respect of acts that are not criminal offences.
^The statutory provisions that created this offence were repealed by the
Theft Act 1968: Griew, Edward. The Theft Acts 1968 and 1978. Fifth Edition. Sweet and Maxwell. 1986. Paragraph 2-01 at page 12.
^R v Newland [1954] 1 QB 158, 37 Cr App R 154,
CCA: held, no longer to exist, if it ever had