Criminal Justice Act 1948

Criminal Justice Act 1948 ^[1]

Act of Parliament
Parliament of the United Kingdom
Long title	An Act to abolish penal servitude, hard labour, prison divisions and sentence of whipping ; to amend the law-relating to the probation of offenders, and otherwise to reform existing methods and provide new methods of dealing with offenders and persons liable to imprisonment; to amend the law relating to the proceedings of criminal courts, including the law relating to evidence before such courts; to abolish privilege of peerage in criminal proceedings; to regulate the management of prisons and other institutions and the treatment of offenders and other persons committed to custody; to re-enact certain enactments relating to the matters aforesaid; and for purposes connected therewith.
Citation	11 & 12 Geo. 6. c. 58
Introduced by	Attlee ministry
Territorial extent	England and Wales [2]
Dates
Royal assent	30 July 1948
Status: Amended
Text of statute as originally enacted

The Criminal Justice Act 1948 (11 & 12 Geo. 6. c. 58) is an Act of the Parliament of the United Kingdom. It implemented several widespread reforms of the English criminal justice system, mainly abolishing penal servitude, corporal punishment, and the right of peers to be tried for treason and felony in the House of Lords. The act also dealt with more minor aspects of criminal law, such as the procedure regarding bail. Early versions of the bill attempted to abolish the death penalty, but this would not occur until 1965.

Reforming the criminal justice system by removing penal servitude and whipping had long been a goal of Labour, and the Attlee government was felt capable of bringing those reforms into effect. Peers in the House of Lords, who considered being tried by the House to be a bothersome duty rather than a privilege, added a provision abolishing peer trials by peers, which was accepted by both houses.

Background

Penal servitude

Main article: Penal servitude

From at least the 17th century, the Kingdom of England and its successor states maintained the penalty of transportation to English colonies for felons. Originally these colonies were in North America, and after the loss of most such colonies transportation moved to Australia. Non-felon settlers in Australia began to resent the transportation of felons to their lands, however, so the practice was abolished in 1852. In its stead arose a system of penal servitude; while such servitude could be and sometimes was for a productive purpose, more often than not it was meaningless labour intended to be physically exhausting, such as the penal treadmill.

By the mid-1930s, most servitude was of the latter type, being in public prisons.

Corporal and capital punishment

Main articles: Judicial corporal punishment and Capital punishment in the United Kingdom

Both corporal punishment and capital punishment had long been staples in British criminal law; death was the mandatory sentence for many offences since time immemorial, as was whipping.

Trial of peers by peers

Main article: Privilege of peerage § Trial by peers

Mediaeval courts were limited in their scope; lords generally held their own courts, which had jurisdiction over the lord's subjects. The king's main advisors, who would in time evolve into the peerage, were subjects directly to the King and so could only be tried by royal courts. Eager to limit royal authority wherever possible, mediaeval barons asserted for themselves the right to be tried only by fellow barons rather than the usual royal courts. A statutory authorisation of this right that would have granted peers the option, but not requirement, to be tried by peers was passed in 1391 but quickly repealed under royal pressure. ^{[lower-alpha 1]} The 1391 repeal, combined with the practical inability of peers to secure the right to try peers for any and every offence, ended up forming a settlement that peers were required to be tried in the House of Lords for treason and felony, and could not waive such a trial in favour of a trial by jury. Technically speaking, the House of Lords tried such trials only when Parliament was in session, and the Court of the Lord High Steward tried them at other times. This latter court comprised those lords, known as "Lords Triers", whom the monarch empowered for the purpose. ^{[lower-alpha 2]} Monarchs could and did empower peers favourable to their desired verdict to the Court, but this ended when Parliament passed the Treason Act 1695 requiring that all peers be summoned to the Court, rendering the two courts virtually indistinguishable.

In practice, this trial was far more a detriment than a privilege for accused peers. Whereas a commoner could challenge certain individuals from being empanelled in his or her jury, peers had no such right since all lords were involved in the deliberations and verdict ^{[lower-alpha 3]} of the court. Furthermore, whilst a commoner could appeal a decision to higher courts, the House of Lords was the highest court in the land so no appeal was possible for a convicted peer except for royal pardon. Nor were there any substantial benefits in terms of sentencing compared to a commoner convicted of the same offence; the privilege of a peer to be excused for the first offence he committed other than murder or treason was abolished in 1841, and the vote of the Lords to determine the convicted's punishment was constrained by law. In addition, the actual proceedings of such trials were almost invariably controlled by the advice of royal justices, the same people who tried commoners; as early as the 18th century, the Lord High Steward asked a justice for advice on all but one of his motions and decisions.

The persistence of these trials was in large part because so few of them occurred in latter centuries; only one in the 19th century, and only two in the 20th. The last trial was in 1935, when Lord de Clifford was charged with vehicular manslaughter. In a display of the farcical nature of such trials, the only deliberation of the House was to ask the attorney his opinion on the case before unanimously voting to acquit de Clifford based on his answer. By the mid-1930s, the majority opinion of the Lords was that the privilege ought to be abolished; the holders of this view were generally holders of recently-created peerages who chafed at the burden imposed on them, whereas the minority who defended the practice were generally holders of older peerages who considered it a privilege of the House as a whole.

In 1936, the former Lord Chancellor Viscount Sankey proposed, and the House voted, to abolish the privilege, but the government did not give time for the motion to be considered by the Commons before the session ended. A similar vote was passed in the Lords in 1937 but likewise died in the Commons.

Legislative history

The act is "one of the most important measures relating to the reform of the criminal law and its administration". ^[3]

Other substantive provisions still in force are:

• s. 27, as amended by (in particular) the Children and Young Persons Act 1969, which provides for remand of defendants between 18 and 20 years old to remand centres, and s. 49, which regulates them;
• s. 31(1), which gives English courts extraterritorial jurisdiction in respect of Crown servants committing indictable offences abroad while in the course of their duties;
• s. 37, relating to bail on appeal;
• s. 41, which makes certain kinds of evidence admissible via a signed certificate instead of oral submissions;
• s 42, on a procedural rule in cases on indictment;
• s. 66, partly defining "custody";
• s. 70(2), authorising pensions to be paid notwithstanding disqualification from office under section 2 of the Forfeiture Act 1870 due to conviction for a crime.

Territorial extent

Except for the parts abolishing the privilege of peerage, the act applied only to England and Wales. Some of its content is mirrored in the Criminal Justice (Scotland) Act 1949 and the Criminal Justice Act (Northern Ireland) 1953.

Subsequent act

The act was partially repealed in 1977; it was modernised and recast in Acts including the Criminal Law Acts 1977 and 1997.

See also

• Criminal Justice Act
• UK labour law

Notes

1. Soon after granting royal assent to the bill, Richard II revoked it after Parliament displeased him; insisting that Parliament alone could repeal laws, Parliament quickly did so under Richard's will.
2. Technically speaking, the Lord High Steward could be a commoner, in which event he would merely preside over the proceedings and be unable to speak or deliberate; the position –filled in latter centuries only during coronations and trials of peers –was in practice held always by a peer, and for trials usually by the Lord Chancellor.
3. Lords Spiritual participated in the deliberations but walked out before a verdict was voted on, a custom that dated from mediaeval concerns of ecclesiastical judges participating in lay courts, especially when a possible death sentence was involved.

References

1. The citation of this Act by this short title is authorised by section 83(1) of this Act
2. This is the effect of sections 81 and 82 and the presumption that an Act extends to the United Kingdom unless the contrary is specified. Some of the provisions formerly extended to those countries.
3. Halsbury's Statutes, volume 12(1)

External links

• The Criminal Justice Act 1948, as amended from the National Archives.
• The Criminal Justice Act 1948, as originally enacted from the National Archives.