Law, Power and Justice in England and Wales (Law, Power, and Justice in Comparative Perspective,)


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On various occasions a person who enjoyed some social status, particularly an employer, came forward to testify to the accused's good character or statements or letters to that effect were submitted to the bench The suggestion that victims, particularly in the case of minor, casual offences committed by first offenders, were given some leeway can also be used to improve our understanding of prosecution practices. Usually the court was prepared to meet a prosecutor's request of leniency by recording a fine. What transpires is that this strategy was most likely to be allowed in assault cases related to a family dispute.

The court decided to bind over the defendant on the understanding that he left the house Evidence further suggests that this sort of arrangement was always allowed in spouse abuse cases, provided they did not constitute an aggravated assault For a fuller understanding it is extremely useful to place these findings in a comparative perspective.

The state prosecutor's office was responsible for initiating and forwarding most publicly funded criminal prosecutions In other words, the decision to bring a case into a trial court, which in this period was more often made by the Public Prosecutor than by judges sitting in private, was not conditional on the victim registering a formal complaint with either of these agencies. First of all, a word of caution about the relationship between police and parquet is important.

LLM Criminal Justice: Law Enforcement

Our evidence has confirmed the observation made by several historians that in spite of the stipulations of French criminal procedure, Police Commissioners and Inspectors exercised a measure of discretion in referring reported misdemeanours and felonies to the parquet Although legally immaterial, the victim's consent seems to have been, under certain circumstances, a significant consideration even beyond this stage. For example, in one instance the Public Prosecutor decided not to initiate proceedings against a maid charged with stealing 40 fr.

Something more about this practice can be inferred from evidence on correctional sentencing in Caen. The reason is that there appears to have been an inverse correlation, at least in the s, which was a period when a suspended sentence sursis was an appreciable penalty in dealing with deserving first offenders, between its application and the parquet's willingness to take on board the complainant's opinion about prosecution Therefore, judging from the evidence on suspended sentencing, we would suggest that the weight of an intervention by the owner hinged, among other things, on the suspect being a first offender and having offered restitution or compensation.

We have also analysed a mixed bag of cases prosecuted despite the retraction of the complaint. This tends to show, rather unsurprisingly, that another major precondition was the small value of the goods appropriated Occasionally an employer put a case of embezzlement in the hands of the Public Prosecutor on the express understanding that no proceedings be started if the money embezzled was returned within a set number of days The records also include various examples of theft committed by a domestic servant or charwoman where proceedings were stopped due to a retraction of the complaint and restitution The notion that embezzlement and employee theft constituted a distinct category is corroborated by evidence suggesting that this type of consideration was acted upon by the police.

The overall impression is that rather than having to register a complaint with a senior police official and seeing it referred to the parquet, if the matter was to be taken any further, employers brought employees to the police station only for the police to supervise and sanction some kind of arrangement between the parties This term seems to have covered all but serious wounding Victims could only formally participate as anything other than a witness in a capacity as civil litigant partie civile bringing simultaneously an action for monetary damages against the accused.

Extremely few were able to do so and the only known instances were assault proceedings To be sure, this does not mean that the complainant's opinion made no impact at all on sentencing. This was marked in assault cases related to a family dispute. Furthermore, there is evidence suggesting that the victim's views could affect the reduction of a charge of assault to a minor violation and could thus indirectly influence the severity of the sentence Contrary to the letter of the law, this minor violation covered a huge range of acts of aggression.

In the final analysis, however, the qualitative difference with the English case lies in the fact that the victim's opinion was not formally, nor systematically, nor publicly articulated, nor were trial judges allowed as much room to accommodate private interests. To further our analysis we will now present the Dutch case which displayed many similarities with the French case.

The new state prosecution bureaucracy replaced a polycentric, republican system of public prosecutors who represented the interests of a local or provincial authority. Despite alterations in and , the essentials of the French system were kept in place. A significant change was that private citizens relied by law exclusively on public prosecutors, that is, with the exception of certain crimes e. The impact of annexation on law, the court system and the judiciary was equally revolutionary and long-lasting. An indication of the growing distance between the two legal systems was that following legislation in regarding Cantonal Judges, those at the bottom of the judicial hierarchy, all Dutch judges were legally educated Firstly, as with French historiography, Dutch writing has now incorporated the idea that the police which was the main agency reporting offences to the Public Prosecutor Officier van Justitie , displayed a degree of discretion in dealing with crimes that reached them What we would add is that its scale was much larger in Maastricht than in Caen.

One of the pieces of evidence is that more than eight out of every ten cases of minor property crime sent on by the municipal police to the prosecutor's office ended in a prosecution, which calls for an explanation along the lines suggested Further proof can be deduced from a preserved set of police case books that include reported thefts that were never recorded on an official form proces-verbaal , let alone sent on to the prosecutor's office On a day-to-day basis, substantial powers were delegated from the judicial authorities to the municipal police.

Judging from Table 1, an above average proportion of prosecutions for minor property crime in the Dutch case were for offences discovered by the police. The question that arises next is why this should have been so. At the same time, our findings will be placed in a wider, interpretative framework.

Criminal justice has increasingly been interpreted as a mechanism that served to reinforce the power of the sovereign in the eyes of the population It is obvious that judicial centralisation in France and the limited discretionary powers of judges were about much more than the set of factors usually mentioned e. Drawing on our own case study, we believe due attention should be given to two points.

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First, the municipal police, which was in the first place a local government institution, was arguably one of the major constituent agencies of criminal justice. Secondly, to dispel generalisations about French criminal justice more emphasis also needs to be placed on the major role of private citizens in law enforcement, instead of concentrating on the legal powers of public officials. In particular, our study proposes that individuals rather than the police were responsible for channelling the majority of minor property and violent crime to the authorities, as well as for detecting most suspects in these areas.

Although victims rarely bore legal responsibility further in the criminal process, our contention is that in practice there was a degree of flexibility which allowed complainants to express their opinion as to whether proceedings should be initiated and to substantially influence the decision, provided the offence in question was relatively minor and the guilty party a first offender.

We have suggested that in the case of assault there is no need for such a qualification. As far as trial proceedings are concerned, although complainants were formally virtually excluded and the court was given very little leeway to take on board their opinion, to claim that the former had no say at all would be incorrect. The accepted view is that the period was a decisive accelerating phase e.

However, partly because major political divisions only emerged after and the franchise was only extended in phases after , a major impetus for more intensive state intervention was largely absent for much of the 19 th century Historians have started to substantiate the notion that judicial centralisation lagged behind the French pattern Our own observation is twofold. First, we need to theorise the extent to which even in this period legal powers regarding medium-range crime were delegated, on a day-to-day basis, from judicial officials to police officers.

Secondly and more interestingly, we would suggest that the nature of the Dutch state carries a considerable burden of explanation for variations in prosecution levels for common property crime that existed between Maastricht and Caen. With our case study of small property and violent crime in turn-of-the-century Ipswich we have tried to stress two points. We have mainly emphasised that private individuals continued to play a considerable formal and practical role in running the system. Interestingly, trial procedure even allowed third parties to voice their opinion about the preferred judicial outcome.

She argued that criminal courts, using their discretionary powers, tended to administer justice in a way that was in keeping with the local community's values and priorities e. In line with British sociological thinking about the criminal law and E. Again, the comparative perspective provides some useful insights. Our proposition is that a weightier ideology was articulated around the notion of justice as being based on a consensus within the local community.

Two analytically different aspects of this ideological agenda have to be separated out. One, well-known side of the argument refers to the accommodation of popular or commonsensical ideas of crime and justice vide Conley This exercise could be genuine but could just as well be designed merely to give the impression that justice was done in accordance with popular notions.

The other side of the argument, to do with the role of private individuals at successive stages of law enforcement, has remained under-developed. A sound analysis of this theme depends on integrating our findings with a study of the lowest tier of criminal justice. Activities such as drinking, street trading, gambling and prostitution became the objects of a disciplinary enterprise which bore to a very large degree on working-class culture The argument generally goes that they were instrumental in law enforcement given the extremely wide scope for legitimate arrest, their use of techniques of cautioning and move-on as well as physical force, and the deployment of preventative strategies.

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Implied is that the low scale of punishment, combined with a range of other factors, contributed to the rise of a criminal justice machine that was routine, impersonal and bureaucratic. The best-known aspect of this process is the generalisation, in France and the Low Countries, of an inquisitorial criminal procedure, whilst England maintained its long-standing tradition of accusatorial criminal justice.

The growing delegation of law-enforcement functions from law courts to the police and new administrative bodies is another well-known facet of procedural rationalisation We begin by examining the pace of the criminal process, with further sections drawing into the equation the question of the public character of criminal procedure and prosecution levels.

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However, starting with a study of criminal procedure, there is no doubt that the pace of the English variant was extremely rapid. Under summary jurisdiction procedure cases could be directly brought into court to be tried.


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If no arrest had been made, the police would lay an information before a magistrate and the accused would either come into court voluntarily or be summoned to appear, generally about a week later In Maastricht and Caen minor violations were always deferred to the public prosecution which was responsible for summoning the accused However, to understand why the time span between the reception of a charge by the judicial authorities and court proceedings was comparatively greater in these two places, two other factors have to be considered.

It is estimated that in the Netherlands the average length of time was one month The French evidence is as yet too impressionistic to make any strong assertions Significant for our further argument is the idea that procedure was generally simplified, be it to varying degrees. Magistrates dispensed with much of the procedural complexities of higher courts, whereas trial procedure in the Cantonal Court and in the Police Court was, by comparison, nominally fairly sophisticated.

One of these rules, that of rendering motivated decisions, could force judges to reserve judgement until the following hearing This is known to have been common in the Netherlands Although this requirement tended to lengthen the criminal process, the pre-judgement stages of Dutch and French petty trials were surprisingly swift regardless of their relatively elaborate rules.

We will develop this point in the next section. French and Dutch figures suggest that on average nine in ten of those convicted of a minor violation were fined For the English case we cannot rely on aggregate figures but research points in the same direction Historians have observed that English magistrates tended to be unwilling to allow those fined either an extension of payment or payment by instalments Legally, they were bound to first levy a distress on the goods of a fine defaulter in the case of a petty public order offence before resorting to a custodial alternative.

A legal loophole, however, allowed them to send fine defaulters to prison immediately after a judgement, a practice that appears to have been routine in Ipswich The French and Dutch enforcement procedures were, by comparison, time-consuming. Given few paid and most were as a result ordered to be imprisoned, court hearing and punishment were usually separated by a period of at least three months French defendants, for their part, with the exception of juveniles, were legally not entitled to an extension of payment, nor to payment by instalments.

However, due to the amount of red tape to do with enforcing sentences, which involved the Public Prosecutor's and the tax collector's offices, fine defaulters could be committed to prison usually only several weeks after the trial. Again, most of those convicted by Police Courts ended up as fine defaulters A second factor that affected the public character of court proceedings refers to the balance between its oral and written components.

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As has been mentioned before, some were brought to court in custody. Provided the offence was punishable only by a fine, magistrates could try the remainder by default, unless they issued a new summons or a warrant However, we would argue that those summoned or released on their own recognizances had an interest in attending. For one thing, the procedures for enforcing fines and for arranging an alternative method of payment acted as incentives Secondly, from a comparative perspective one might speculate that there was a greater sense among the accused that what they would say in their defence, would receive the court's attention And attendance levels at urban Police Courts are known to have been generally lower than at rural Police Courts The Dutch case, for its part, is more conclusive and more marked.

The fact that none of the accused were brought to court in custody and the nature of fine enforcement procedures are part of the explanation. In addition, we would propose that in the eyes of the accused it was very difficult, if not impossible, to set up a defence The Dutch evidence is unequivocal about the impact of such levels of trial by default on the conduct and public nature of court hearings. They generally consisted of little more than the calling of the accused's name and the application of a prescribed penalty. The official report was often not even read over, which merely served to convey the futility of putting one's case as a defendant This subversion of trial procedure inevitably contributed to the lack of public attention which Cantonal Court hearings attracted.

Public attendance was virtually nil by the start of the First World War The impression is that French Police Courts, for their part, were just as swift in hearing default cases, the effect of which on trial procedure, its oral character and, ultimately, on popular attendance and public attention is likely to have followed a similar pattern Some of it was to do with operational and procedural differences e.

A reliable basis of comparison is provided by the combined rates of prosecution for public drunkenness, drunk and disorderly behaviour and breach of the peace. Annually on average one inhabitant of Ipswich for every was prosecuted for one of these offences which were among the most significant petty public order offences Nevertheless, French case studies usually fail to properly scrutinise the latter's vast criminal business or, if they do, rely exclusively on aggregate data Within the jurisdiction of the Caen Police Court each year saw on average one prosecution for a minor violation for every 31 inhabitants.

The considerable influence which members of the public continued to have on the successive stages of law enforcement in modern times is particularly under-researched in French and Dutch historiography. We will limit ourselves to two major types of middle-ranking offences. Our findings generally confirm this picture. They are based on an analysis of cases of larceny, embezzlement, and receiving stolen goods, committed in the towns of Ipswich, Caen and Maastricht and prosecuted in the local courts between and the mids 8. As for Ipswich Table 1 gives a breakdown of all cases for four years, in total The case study of Caen is based on a compilation of samples over four years which cover three-quarters of all prosecuted cases Similarly, the Dutch case study is based on five samples from the Arrondissemental Court of Maastricht A tiny number were reported by a third party.

A third, more significant category includes crime discovered by the police, sometimes directly whilst on duty in the streets, sometimes indirectly as a result of an interrogation or property search of a person held in custody on account of some other offence. The Maastricht pattern is not as straightforward. Listed in the table are various strategies most likely to lead to arrest and prosecution.

The peculiarity of the Dutch case throws up a series of questions addressed further on. Similarly, our findings confirm the suggestion that the victim behind most prosecutions was a working person This last conclusion contains few surprises. The point here is to scrutinise prosecution arrangements with respect to medium-range crime in Ipswich.


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Only the generalities of prosecution are well known. There was no formal system of state prosecution in late 19 th century England, so far as the vast majority of crimes was concerned. Though the expense of prosecuting felonies e.

Research suggests that without acquiring new legal powers either to prosecute or to compel a party to do so, the local police were increasingly managing prosecutions for felonies, largely due to their extensive powers of arrest.

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