The quality of English justice: a Victorian invention

The quality of English justice: a Victorian invention

There can be little doubt that the English legal system is held in the highest international regard, making England & Wales the international jurisdiction of choice for the resolution of disputes arising all over the world. English is the language of international business while English law is seen as being transparent, predictable and more flexible than many other jurisdictions.   

English courts, particularly those in London, play host to multiple parties from overseas: at the specialised Commercial Court, more than 70% of cases involve a foreign claimant or defendant. Equally, the judges who sit in them command respect for their impartiality, experience and skill in dealing with complex cases. Judicial independence has long been recognised as a key principle of the UK’s unwritten constitution. Meanwhile English judgments can be enforced in many key international jurisdictions.

This preeminent reputation is often said to have its roots in Magna Carta, which in 1215 established the principle that no one, not even the king, was above the law. Lord Denning described it as “The greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.” Indeed, lawyers throughout the world came to London to join the 800th anniversary celebrations in 2015. But in reality, it was arguably thanks to Victorian legislators that English courts, English judges and English justice became so highly esteemed.  

After the judicial lottery and harsh punishments for trivial offences that continued to prevail during much of Georgian Britain (1714-1830), there followed a drive for sustained reform that would lay the cornerstone for English justice to become the envy of the world by the end of the nineteenth century. Just as the Reform Acts of 1832, 1867 and 1884-5 hastened the process towards universal suffrage, so the Judicature Acts of 1873 and 1875 completely reorganised the higher court system, which had existed largely unchanged since the Middle Ages.  

These acts were the culmination of a reform process which had started in the lower courts. Here, the workload increased dramatically: between 1805 and 1842, prosecutions in courts of assize and quarter sessions rose from 4,600 to 31,300. This was a direct consequence of the introduction of police forces and an enlarged urban population which grew exponentially – thanks, in turn, to rapid industrialisation.

But many of the new arrivals who made their way from the fields and villages of Britain’s countryside to its rapidly expanding cities were poor, often very poor. Crime therefore grew because of poverty. Young male offenders were most commonly charged with petty theft offences, while the most common offences committed by women were linked to prostitution. By the 1870s, up to 80,000 prostitutes worked in London because of economic necessity. The age of consent, which had remained at 12 since 1285, was raised to 13 in 1875, primarily as a result of concerns about the high level of child prostitution. Ten years later, the Criminal Law Amendment Act 1885 raised it to 16.

As the population swelled, the courts played catch up. In London, most serious offences were tried at the higher court of the Old Bailey. In 1834, the Central Criminal Court Act changed the name of the court and enlarged its jurisdiction for the trial of ‘treasons, murders, felonies and misdemeanours’ committed in London and Middlesex and parts of Essex, Kent and Surrey.

In 1848, Parliament passed the Summary Jurisdiction Act as a further pragmatic response, giving the petty sessions (magistrates’ courts) greater powers to try a broader range of criminal cases. For lesser offences, the Act also enabled defendants to be tried without a jury.

Alongside crime, poverty also created debt. Since the 14th century, non-payment of debts had frequently resulted in being sent to prison. Insolvent debtors, who were not traders and owed less than £100, could be imprisoned indefinitely until the debt was repaid and, until 1861, only those who bought and sold goods for a living could be declared bankrupt. Among several London prisons devoted to debtors, the Fleet in Farringdon Street was one of the most notorious: built 20 years before the Magna Carta was signed, it was still in use more than 600 years later. Deaths from starvation, exacerbated by the Fleet’s appalling conditions, were reasonably common.

The legal management of debt was reformed by the Small Debts Act of 1846. Courts of requests that dealt with civil matters were replaced by a national network of 500 county courts, often known as ‘the poor man’s court’, which soon developed a reputation for efficiency. In the first nine months of operation, March-December 1847, they dealt with 429,215 claims. Their remit was later extended to include personal injury and bankruptcy. Meanwhile, imprisonment for debt only ended in 1869.

Those convicted of criminal offences typically fared even worse than their counterparts in the debtors’ prisons. In 1800, there were 220 separate offences on the statute book punishable by death. These included stealing horses and committing homosexual acts, a crime for which the last execution took place in 1835 when James Pratt and John Smith were hanged at Newgate.

Use of the death penalty diminished, albeit gradually. By 1861, only five capital offences remained: murder, arson in a naval dockyard, espionage, piracy, and high treason. While capital punishment for murder was finally abolished in 1969, hanging remained available until a House of Lords amendment to the Crime and Disorder Act 1998, when the death penalty was abolished for treason and piracy.

Successful reform in the lower courts eventually turned legislators’ attention to reforming higher court procedures. By the 1870s, demands for reform were being made by Britain’s leading industrial and commercial enterprises, and from those financing them, as Britain’s empire reached its peak across the globe. The original impetus for building an empire had been to improve trade and businesses found that complex commercial disputes often required the attention of different branches of law in different courts, making the process slow and cumbersome.

The higher court system, which had existed since the Middle Ages, was completely reorganised by the Judicature Acts of 1873 and 1875. Under the 1873 Act, the old system was abolished and a new Supreme Court of Judicature created, consisting of the High Court of Justice and the Court of Appeal. 

The High Court was divided into five specialist divisional courts: King’s Bench, Common Pleas, Exchequer, and Chancery, plus the new Probate, Divorce and Admiralty division. In 1880, the Common Pleas and Exchequer divisions were abolished. This radical restructuring unified the system, dispensed with ancient, laborious practices, and speeded everything up.

A single Court of Appeal also simplified civil procedures. But it was not until the Criminal Appeal Act 1907 that Parliament created the right of appeal against criminal convictions and established a new Court of Criminal Appeal. The final piece of the legislative jigsaw, the Appellate Jurisdiction Act of 1876, formalised the role of the House of Lords as the highest court of appeal.

This Act provided for the appointment of lords of appeal in ordinary, a small group of senior, experienced judges who would have the final say on appeal cases. Although further changes were made in the twentieth century, the essence of this structure remained much the same until October 2009 when the Supreme Court for the United Kingdom replaced the House of Lords.

It is tempting to think that all was set fair for English justice once King John put his royal seal on each copy of the Magna Carta. But it took an army of eminent Victorians – lawyers, judges, MPs and parliamentary draftsmen – to create a strong foundation for the English court system that is now so widely admired. Perhaps they should be celebrated too.

Dominic Carman

Written by:

Dominic Carman, journalist, writer and legal commentator.


Author: Dominic Carman