No CrossRef data available.
Article contents
The Bench, the Bar, and Crown Cases Reserved
Published online by Cambridge University Press: 14 February 2011
Extract
The three articles published in this forum address an aspect of judicial procedure which has, understandably, been shrouded in mystery. Until 1848, the process of judicial review of Crown cases remained informal and the records of that review are terse and elliptical. Teasing out their meaning and their implications for lawmaking is thus no easy task. And while the process was formalized and made public with the creation of the Court of Crown Cases Reserved (CCCR) in 1848, the activities of this court have not attracted sustained attention from legal historians. These articles are therefore to be commended for advancing our understanding of the operation of judicial review in criminal cases prior to the establishment of the Court of Criminal Appeal in the early twentieth century.
- Type
- Forum: Comments
- Information
- Copyright
- Copyright © the American Society for Legal History, Inc. 2011
References
1. Stephen, James Fitzjames, A History of the Criminal Law of England (London, 1883), 1:424Google Scholar. Working as he did from the State Trials rather than the Old Bailey Proceedings, Stephen mistakenly assumed that counsel did not participate in trials of felony until the second half of the eighteenth century. Langbein, John identified their earlier entry in “The Criminal Trial Before the Lawyers,” University of Chicago Law Review 45 (1978): 263–316CrossRefGoogle Scholar.
2. See Oldham, James, “Informal Lawmaking in England by the Twelve Judges in the Late Eighteenth and Early Nineteenth Centuries,” Law and History Review 29(1) (February 2011)CrossRefGoogle Scholar: 191, footnote 41.
3. It would astonish some contemporaries as well: Dr Parr famously referred, in 1808, to these same men as “furred homicides” and “sable bigots.” Quoted in Romilly, Samuel, The Life of Samuel Romilly (London, 1842), 2:95Google Scholar.
4. See Hay's, Douglas biography of Kenyon in the Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004)Google Scholar.
5. A similar argument was made by Simon Devereaux, albeit from the perspective of the convict rather than of the state, for an earlier period. The end of the Tyburn procession in 1783, and the new, more private ritual of execution at Newgate, deprived convicts of their traditional opportunity to declare defiance. Any such displays had now to take place in the courtroom rather than on the scaffold. See “Imposing the Royal Pardon: Execution, Transportation and Convict Resistance in London, 1789,” Law and History Review 25(1) (Spring 2007): 101CrossRefGoogle Scholar.
6. For contemporary professional discussion of public prosecution see “Conduct of Prosecutions by the Government,” Legal Observer, 35 (1847–48): 341Google Scholar and “A Public Prosecutor,” Law Magazine 39 (1848): 197–201Google Scholar. For the parliamentary campaign see Kurland, Philip B. and Waters, D.M., “Public Prosecution in England, 1854–79: An Essay in English Legislative History,” Duke Law Journal [1959]: 493–562CrossRefGoogle Scholar and Edwards, J.Ll.J, Law Officers of the Crown (London, 1964)Google Scholar, ch. 16 . For the role of treasury counsel in prosecutions see Edwards, Law Officers of the Crown, ch. 13.
7. Gurney practiced at the Central Criminal Court between 1835 and 1842. See May, Allyson N., The Bar and the Old Bailey (Chapel Hill, NC, 2003)Google Scholar, 251.
8. Hardcastle, Mary, ed., The Life of John, Lord Campbell (London, 1881), 1:283Google Scholar. For Campbell's criminal practice see May, The Bar and the Old Bailey, 62.
9. Crew, Albert, The Old Bailey: History, Constitution, Functions, Notable Trials (London, 1933)Google Scholar, 73. It would be interesting to compare John Silvester's record of asking for judgment to be reserved when he practiced as a barrister at the Old Bailey, and the number of cases he reserved during his (entirely disreputable) recordership (1803–22). Silvester, rather atypically, usually appeared for the prosecution but, as is evident from McGowen's article, used every tactic available when employed as counsel for the defense.