A history of legal advocacy in the criminal courts is inextricably linked to the rise of the barrister. A barrister, often referred to as ‘counsel’, acts as a representative for either the prosecution or the defendant.
While advocates could appear for either the prosecution or the defence from medieval times, it was not until 1836 that the official role of the defence advocate in serious criminal trials was extended beyond the limitation of the questioning of witnesses and ensuring that court process was properly followed (Beattie, 1986). Prior to 1836, if the defendant wanted to put forward a coherent defence statement, they were required to do so themselves. From the 17th to the 19th century, the criminal trial was full of contradictions: counsel was allowed for misdemeanours but not felonies; counsel was not allowed for felony trails, but were for appeals; and counsel could speak to matters of law but not to matters of fact. There were a number of justifications for the limiting of the role of defence counsel, one of which has been identified by John Langbein (2003) as the ‘accused speaks’ trial, meaning that the prisoner was seen as the most beneficial source of information for ascertaining their own guilt or innocence. It was believed that should the prisoner speak only through a barrister, this valuable source of information would be lost to the court.
Another reason that the role of the advocate was limited within the criminal trial was public and political mistrust of barristers.
In English law, benefit of clergy was a provision by which clergymen could claim that they were outside the jurisdiction of secular, royal courts and should be tried instead in an ecclesiastical court under cannon law. Through this mechanism, many defendants found guilty of certain felonies were spared the death penalty and given a lesser punishment (Briggs et al, 1996; Sharpe, 1999).
Benefit of clergy arose from medieval disagreements on many issues between the Church and the monarchy (Sharpe, 1999). As part of and during these disagreements, the Church claimed that its own courts had jurisdiction over the clergy. One significant difference between the two was that unlike the lay courts, Church courts did not have the power to impose the death penalty. The term ‘clergy’ included practically every minor (male) official associated with the Church, as well as priests and bishops. To claim that one was part of the ‘clergy’ and thus able to claim benefit of clergy, all a man had to do was read a passage from the Bible, normally the opening verse of psalm 51. This verse became known as the ‘neck verse’ since many people evaded the death penalty through being able to read it (Emsley et al, 2016).
Over time, it was assumed that every literate adult male could claim benefit of clergy for a first offence (Briggs et al, 1996). Those granted benefit of clergy, instead of being sentenced to death, would have the letter ‘M’ (for murderer) or ‘T’ (for thief) branded on the palm of his left hand or his thumb to prevent recidivism.
Hanging was the normal form of capital punishment in England from the Anglo-Saxon era onwards. It was used irregularly in the late Middle Ages but more frequently by the Tudor period, when it became a means to attempt to consolidate authority and exert ideological control (Sharpe, 1985). However, it was an enduring feature of the English death penalty that it was never applied as extensively as indicated by its enshrinement in statute. Ways of evading execution included, for certain crimes, being literate and, for women, pregnancy. Mercy was also an important constituent of justice, especially for property crimes and condemned deemed to be ‘respectable’.
In the early 18th century, transportation to the American colonies offered an alternative to hanging and this was instrumental in bringing about a decline in death sentences. During this century, there was a huge increase in crimes that were punishable with death but the number of executions was much lower than in the 16th and 17th centuries. This paradox can be explained by the specificity of many of the capital crimes, which meant that it was possible to convict people of similar, non-capital offences instead, and also the use of mercy. From the late 18th century and until the mid-19th century, transportation was to Australian penal colonies. Once transportation had ended, imprisonment was the alternative to death (Gatrell, 1996).
A significant aspect of capital punishment was its pedagogic role, which refers to the values and moral lessons that its use conveyed to the audience (Sharpe, 1985).
The history of crime and punishment is an important, yet under-resourced area of criminology and criminal justice.
This valuable book provides concise but robust definitions of key terms and concepts, going well beyond a simple explanation of the word or theme. Offering a succinct approach to the vocabulary and terminology of historical and contemporary approaches to crime and punishment, it includes entries from expert contributors in a user-friendly A-Z format with clear direction to related entries and further reading. Including explanations of terms ranging from 'garrotting' to The Bow Street Runners, baby farming to juvenile delinquency, this easily accessible text will be ideal for the reader to draw on across the variety of modules and studies relating to the topic.
The concept of desistance is one that is certainly difficult to define as it is a term that is neither self-evident nor straightforward, and it has therefore naturally presented itself historically as difficult to operationalise. The continuing considerable indecisiveness in regards to being able to construct a universally accepted definition of desistance is due to the numerous theoretical interpretations that exist and are in contention with one another. Each of these individual theoretical explanations of desistance has their own distinctive justifications and cohort of supporters. All perspectives claim to accurately assert the reasoning as to why an individual desists from offending, how that individual is able to do so and when that individual can be deemed to have permanently ceased from offending.
The earliest notable theoretical perspective upon desistance to gain prominence was developed by Adolphe Quetelet (1833) in the early 19th century and came to be known as the ontogenetic perspective. The theory proposed that desistance is attributable to a natural process of an individual maturing with age and growing out of crime. It stipulated that an individual’s involvement in criminal activity begins in the early teenage years, and then such behaviour will rise rapidly in both frequency and severity during late adolescence until decreasing progressively throughout adulthood (Quetelet, 1833). The reasoning put forth is twofold: first, individuals’ health naturally deteriorates with age, reducing the ability to engage in criminal activity; and, second, repeated experiences of the criminal justice process become tiresome and stressful, specifically incarceration.
The detection of crimes began as a private occupation in the course of the 17th century with the rise of the thieftaker – hired by victims chiefly to pursue and apprehend the perpetrator and to recover stolen property. However, in the mid- 18th century, official steps were taken by the Bow Street Court in London to engage men who would help the authorities in the investigation and prosecution of crime, as well as in proactive anti-crime measures – an initiative extended to other police courts in the capital towards the close of the century (Beattie, 2012). Half a century later, in the wake of expanding industrialisation and urbanisation, and as part of the current police reform and the strengthening of the public police, fully fledged detective departments, of varying sizes, began to be formed within the newly established police forces in London and in several other large cities (Shpayer-Makov, 2011). From then on, this occupation, with its required skills, accumulated knowledge and norms, was developed in the uniformed police forces, principally in urban areas, where it was easier for offenders to escape the hand of the law. Private detectives continued to offer services to individuals and institutions for pecuniary gain, but it was police detectives, paid by the public purse as full-time employees of central or local government, who were overwhelmingly perceived as the definitive crime fighters in society. So entrenched was the linkage between the police and detection that, with very few exceptions, all police detectives had to have significant experience in uniformed work (Shpayer-Makov, 2011).
The political ideology of the far right has largely been associated with totalitarianism, anti-communism and ultra-nationalism. Many groups of the far right have also adopted (or tacitly approved of) anti-Semitic, anti-Islamic or racist creeds, which have stimulated the involvement in hate crimes by their supporters. Although far right regimes were established in Italy under Benito Mussolini (1921), Germany under Adolf Hitler (1933) and Spain under Francisco Franco (1939) during the interwar period in Europe, British democracy was never seriously threatened by politically extreme movements. Yet, the growth and activism of some far right movements has caused concerns from a public order perspective and has subsequently helped influence British law.
While early groups such as the British Fascisti and the Imperial Fascist League had harnessed some support, it was not until Sir Oswald Mosley formed the British Union of Fascists (BUF) in 1932 that a government response became necessary. Like the other fascist movements in Britain that were inspired by Mussolini, the BUF also adopted the Blackshirt uniform. By 1934, BUF membership was estimated at 40,000 and their members organised public meetings and uniformed processions across the country (Thurlow, 2009). Although under instruction from Mosley to obey the law, members frequently provoked and engaged in disorder. Furthermore, anti-fascist movements were also formed in some communities and they interrupted far right activism with heckles, singing and stone throwing. Many of the anti-fascist movements had links with the Communist Party of Great Britain.
The ‘garrotting panics’ describes a discrete period in the 1850s and 1860s in which Victorian London was gripped by fears of violent street crime. Garrotting, now known as ‘mugging’, connoted a particular style of committing violent robbery; specifically, it involved the use of strangling or, as it was termed in the mid-19th century, ‘putting the hug on’.
Crimes of all kinds were reported to be on the increase during the middle decades of the 19th century, but it was violent street crime that generated the most press and state attention. Anxieties about the activities of ticket-of-leave men and habitual criminals following the close of transportation in 1857, and the apparent ineffectiveness of the police and law in controlling crime, created a potent atmosphere in which the establishment drew sharp distinctions between the respectable and unrespectable working poor. The garrotter, as the work-shy savage with a propensity for gratuitous violence, was viewed as the dangerous figurehead of the ‘criminal classes’ – a criminal underclass that threatened to overthrow society in the middle of the 19th century. Fears over garrotting temporarily subsided in the late 1850s, but were reignited in the summer of 1862. It was the robbery of Hugh Pilkington MP in the respectable area of Pall Mall that sharpened the focus on garrotting in 1862. Pilkington was returning home from his work at the House of Commons when he was attacked by two ‘garrotters’ and robbed of his watch.
On 16 April 1745 at Culloden Moor above Inverness, about 8,000 of the Duke of Cumberland’s soldiers defeated a smaller number of Jacobites in one hour, killing 1,500 of them. Both sides had thought that history was on their side, but it was the Hanoverians who triumphed. The defeat was a turning point in the history of the Highlands as in the next few decades, the Gáidhealtachd (Gaeldom) would be transformed out of all recognition.
The government were determined that what happened in 1745 would never happen again. In the short term, this meant a policy of suppression and intimidation, with the symbols of Highland culture, such as the bagpipes, and Gaelic banned. However, there was also an attempt to incorporate these ‘noble savages’ into mainstream British culture by forming Scottish military regiments, such as the Seaforth Highlanders. It was estimated that a quarter of Highland men of military age were serving in the armed forces between 1792 and 1815. The drainage of men was part of what came to be known as the Highland Clearances. This was supplemented by outmigration, with around 15,000 Highlanders leaving for North America during the period 1770–1815.
The outward flow of people at this point was voluntary. After the end of the French wars and the onset of economic depression, the Clearances took on a very different hue. Sheep were preferred to people. The forced resettlement of the population on small pieces of land on coastal planes, known as crofts, was achieved on some estates by brutal means, as the following example makes clear.
As was the case in Britain, criminal law in the British Empire was primarily concerned with the protection of property, the security of persons and the maintenance of public order. Most scholars agree that race played a crucial factor in the differential prosecution of violent offences, murder most especially (Kolsky, 2010). The intertwined issues of race, violence, law and imperialism were particularly visible in instances of social disorder, which were more likely to be defined and prosecuted as riot or rebellion when Asian or African subjects were involved. Among the most famous of such instances was the 1865 Morant Bay Rebellion in Jamaica. The episode was triggered by the prosecution of a black Jamaican for trespassing on an abandoned plantation. When a group of protesters led by the Baptist preacher Paul Bogle attempted to disrupt the courtroom proceedings and failed to disperse on being read the Riot Act, a violent altercation ensued. Seven black Jamaicans were killed by the militia, and the protesters, in turn, killed 17 white colonists, including the presiding magistrate. The colonial governor, John Eyre, then deployed government troops to pursue and arrest Bogle and his supporters. In the days that followed, soldiers killed 439 Jamaicans and arrested many hundreds more. Of the latter, 354 would eventually be executed (including Paul Bogle), in several cases after highly questionable trials, and over 600 men and women would be flogged (Heuman, 1994). Eyre also ordered the arrest and execution, under martial law, of George William Gordon, a Jamaican politician and businessman who had vehemently criticised British colonial rule.