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The next stage in the modern system of
criminal justice, after the police have made an arrest, is the
preparation of the prosecution and the court trial. The evolution of the
modern system involved a number of key developments which took place
during the late eighteenth and nineteenth centuries
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The increased use of the courts and the
decline of community based processes-such as compensation arranged
between the parties- for sorting out everyday offences. People
increasingly handed over their problems to the police and the
magistrates to sort out. As Nils Christie (1977) put it, "our
conflicts become their property." Of course the settlement of
everyday conflicts never becomes entirely the property of the
criminal justice system.
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The state authorities take over
prosecution from the victim and reducing the latter to chief witness
for the state prosecution.
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The development of the modern police
system as a professional system of crime detection, replacing the
various decentralised community based or private amateur policing
schemes.
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Of course, working class communities
continue in many areas right up to the present to involve the police
and courts as little as possible and to let local families sort out
any 'trouble' (Evans et al. 1996) But generally, with the passing of
time, we come to see 'do it yourself' justice as arbitrary and
lacking 'justice' which we now associate with the rule of law.
Amateur forms of crime control come to take on the negative
connotation associated with the phrase 'taking the law into your own
hands.' In recent decades it is, however, true that non-criminal
justice methods of settling disputes and dealing with conflicts have
come back into vogue to a certain extent in the guise of 'informal
dispute settlement' and victim-offender reconciliation schemes'.
Nevertheless it remains the case that punishment or dealing with
crime other than by specialised personnel with a legal training come
to be seen as arbitrary.
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The development of humane punishments in
accordance with the 'rule of law' and the principal of
proportionality (the question of punishment will be dealt with in
the next lecture).
The Eighteenth Century Criminal Justice System
We have already discussed the nature of the 'old regime' in a
previous lecture (read it here) But it is worth
underlining some features of the old system. Three in particular are
worth mentioning.
The victim as prosecutor
In England well down to the middle of the nineteenth century the
responsibility for the initiation of criminal prosecution in the courts
rested on the victim. The victim was also usually left to decide on the
severity, and nature of the charges. Criminal prosecution was, in other
words rather more like civil litigation. Private prosecution was
expensive. Only wealthy people could afford to pay for a lengthy court
trial. The practice of paying magistrates to issue arrest warrants was
common. Often the threat of prosecution was hung over someone's head as
a guarantee of future good behaviour. During the 18th century
".. not only assaults by virtually all thefts and even some
murders were left to the general public. That meant that
responsibility for the initial expense and entire conduct of the
prosecution was thrown on the victim and his or her family... As late
as the mid 19th century no public official was responsible for
ensuring that even the most serious offences were prosecuted. "
(Hay and Snyder 1989: 27)
The difficulties of private prosecution were compounded by the
absence of an effective police force capable of tracking down offenders.
In cases of burglary it was difficult for victims to trace offenders.
The growth of newspapers in latter eighteenth century aided the process
- people would advertise and offer a reward for information. Wealthy
people. as noted in a previous lecture, would form Associations for
the Prosecution of Felons. These organisations took subscriptions
much like an insurance company and could hire 'thieftakers' (which today
would be called private detectives)
Court trials as personal confrontations.
We have noted in a previous lecture the fact that in country
villages- where, remember, during the eighteenth century the majority of
the population still lived- relations were mainly between people who
knew each other and were acutely aware of social status and 'standing'.
Douglas Hay mentioned, for example, the ability of local notables and
men of social status to interfere in trials by securing pardons.
Likewise a pardon by the actual victim - especially if the latter was
also a man of standing such as a local landowner pardoning a poacher -
reinforced the status of the former as a good ruler and a just man.
Of course the system of private prosecution itself made for a
personal element. Even at the last minute the prosecutor might decide to
pardon the offender in return for, for example, a private apology or
other compensation. Today in civil cases this is called 'settling out of
court'. This was often cheaper and avoided the costs of a long trial
which the victim/prosecutor would very likely have to pay. Again, this
seems less an interference with the rule of law when we remember that so
many relations of victim and offender were between people who knew each
other.
Once the criminal trial was underway it retained the character of a
personal and direct confrontation between prosecutor and defendant. As
Douglas Hay (1975) puts it "Such acts were personal ties, not the
distant decisions of bureaucracies." The accused would not employ a
lawyer but rather had to appear him or herself and babble excuses. Poor
people would turn up with lots of character witnesses.
Bail was rare, and once the date for the trial was set the accused
would languish in gaol- and would have to pay their own board and
lodging - until the trial. The main function of prisons up to the end of
the century was what today is called remand - holding unconvicted people
awaiting trial. Convicted prisoners were much less likely to be sent to
prison as punishment. We shall deal with this issue in the next lecture.
The rarity of bail was no doubt at a practical level because it was
relatively easy in those days for the accused to flee the area and never
be found. But at a more general level the fear by the ruling elites of
the mass of working class people as the 'mob' and the 'dangerous
classes' produced an idea among the magistrates that once one of these
'brutes' had been caught, he was probably going to be found guilty and
hanged anyway so it was best to keep him in gaol.
Criminal Justice as a last resort
Finally, these features of the system, in particular the expense of
the litigation, meant that for the masses of the poor recourse to
criminal justice was very much a last resort as it had been since the
Middle Ages. Most petty conflicts were sorted out between the parties
even if such 'taking the law into your own hands' was not always a
peaceful process of 'restorative justice'
Problems with private prosecution
The system of private prosecution came to be seen as increasingly
problematic during the second part of the eighteenth century. The London
magistrate, John Fielding, had argued that responsibility for
prosecution should be taken out of the hands of the victim. Two problems
in particular were clear:
The problem of reprisals
Where the decision to prosecute is in the hands of a private
individual rather than the state the issue of the accused or their
associates taking reprisals against the prosecutor can become an issue.
There are plenty of records of what during the eighteenth century was
known as the 'rough musicking' of a prosecutor. The public had their own
ideas about who should or should not be prosecuted, especially in an era
of 'social crime' - when which activities were to be seen as crime was a
contested issue between different social classes. Emsley says:
"the occasional attack on, or 'rough musicking' of, a
prosecutor is suggestive of communities which felt that certain
offenders should not have been prosecuted, or at least should have
been proceeded against on a lesser charge." (page 139)
Down as far as 1862 in Blackburn (Lancashire) the crowd outside the
court house turned on gamekeepers who had given evidence in a poaching
case, the house of the landowner was besieged and troops were called in
to restore order. This is not to say that once the state takes over
prosecution then there is sudden agreement about what activities should
be prosecuted. Far from it. Government prosecutions of those courageous
working men and women who fought to establish the early trade unions led
to massive protests and demonstrations. The point is purely that where a
private individual is responsibly for a prosecution, and where that
individual may be well known in the community then there is always an
issue of personalising the question and taking reprisals against an
individual rather than challenging the authority of the state. On the
other hand, the community itself may know much more about the
circumstances of the offence and its participants than police officers
and magistrates. The 'handing over' of the right to sort out conflicts
by the community to the state authorities can be seen, in many respects
a negative process: a loss of competence. In recent years the role of
the community as a resource for sorting out conflicts has been
rediscovered in the form of various attempts to establish localised restorative
justice.
The costs of litigation
Taking a case to the courts was an expensive business. If a
magistrate bound over witnesses to appear in court and they failed to
show up, then sometimes the court would fine the prosecutor! From the
middle of the eighteenth century, this began to be recognised and a
system, similar to that of awarding costs in civil litigation,
developed. Parliament passed Reimbursement of the Prosecutor Acts in
1770, 1818 and in the Criminal Justice Act of 1826. Nevertheless if the
offender could not pay due to poverty, the court might still turn around
and charge the prosecutor.
It is therefore unsurprising that under such a system there was, as
we have said already, a widespread tendency to settle out of court
through a monetary payment between the parties. If the crime was a
matter of the theft of property then, again, a private settlement could
be arranged and even if a magistrate was paid to supervise the
settlement it was cheaper than taking the case to court. The courts were
used, for lesser offences, only as a last resort when all other attempts
to settle had failed. Such is the case today for example in civil
matters, where only as a last resort when repeated requests for you to
pay your telephone bill or Council Tax have failed, will you be taken to
court. In the eighteenth century criminal justice was rather more like
this.
Nevertheless it should not be thought that the masses of poor people
did not use the courts. Trials were not just the used by the ruling
classes to prosecute the unfortunate poor for violations of the game
laws. In the Essex Quarter Sessions between 1760-1800 a sixth of the
prosecutors were labourers.
The nineteenth century
The main developments during the 19th century are the decline in
private prosecution and the extension of use of the courts by the
working class. The march of the criminal justice system, in particular
the magistrates courts, into the working class areas of the expanding
cities is part of the same dynamic that resulted in the formation of the
modern police
Legal reform
During the early part of the nineteenth century there was a sustained
movement for legal reform. The innovative thinkers of the second part of
the eighteenth century such as Jeremy Bentham and Cesare Beccaria
stressed the rule of law and the humanity of law: the consistent
application of humane laws to all, irrespective of class and status.
This was gradually coming to be accepted as the norm of a humane liberal
society. The consistent and regular application of law required a degree
of codification such that the same law consistently applied between
cases. By the end of the eighteenth century a jumbled mass of common law
and statutes, often repeating each other or differing only in
application to particular places, had become a prime target for
reformers such as Sir Samuel Romilly (another close fried of Jeremy
Bentham) and Sir Robert Peel. In Continental Europe reformers like
Cesare Beccaria: had inspired the production of modern codified systems
of criminal law. Bentham was especially interested in this approach,
believing that the corpus of law should be derived from a few basic principles.
However the dispersed tradition of English Common Law did not easily
lend itself to such codification. Nevertheless reformers such as Romilly
and Peel led a movement for the reform of much of the criminal law.
A prime target was of course the Bloody Code (see earlier
lecture). In order to be consistently applied across a range of
criminal activities laws had to be not only clearly formulated but to be
associated with humane and proportional punishments. Thus the reformers
argued that a vast group of capital statutes (offences carrying the
death penalty) applying to anything from murder to sheep stealing,
undermined respect for law (as evidenced by the increasing reluctance of
juries to convict in such cases) There was a massive reduction in
capital statutes during first part of the nineteenth century. In the
minds of reformers the irrational brutality of punishment could be
replaced as an effective deterrent to crime by a rising level of
detection consequent upon the formation of the new police forces. (for
more on the decline of capital punishment see next
lecture )
Another issue, also attributable to the influence of Bentham was an
increased concern criminal liability i.e. the motives and intentions of
the criminal offender. Under the old regime, as
we have seen, criminal trials were more of a battle between
prosecutor and accused in which all manner of what were increasingly
seen as irrelevant issues such as the social standing and character of
the parties, were brought to bear. Under a regime of the rule of law
such issues are not relevant (except perhaps as mitigating
circumstances) and are displaced by the focus on the establishment of
the facts of the case--whether the accused committed the offence,
whether he or she did so intentionally etc.
Increasing use of the courts
As we have already seen in looking at the development of the new
police, the criminal justice agencies gradually move into the working
class areas of the city. And not only criminal justice but other
agencies of social regulation. Close behind the police constable comes
the truancy officer and the public health inspector. As regards criminal
justice the expansion of police is matched by the expansion of cheap,
easily available summary jurisdiction. The percentage of offences in
England and Wales tried in front of lay magistrates rose from 66 percent
in 1857 to 80 percent by 1911. (See Gatrell 1980: 268) Today it is
nearly 90 percent. Much of this extension of regulation was, in the
English case, directly administered locally by the middle classes who
both provided the lay magistrates and, through local government Watch
Committees, supervised the new police forces which expanded in cities
outside London modeled on Peel's Metropolitan Police
The increasing use of the magistrates courts (known, appropriately,
as police courts) by the masses was a key feature of nineteenth century
developments. The main vehicle of this change was the extension of availability
of litigation and access to the courts for the masses through the
expansion of summary jurisdiction. Summary jurisdiction is the process
of allowing a case to be handled entirely by a magistrates court. All
cases would begin in the magistrates court but more serious ones would
be committed to the Crown Courts (Quarter Sessions, Assizes etc.) for
trial by jury in front of a Judge. This was where things got expensive
and time consuming if the accused was responsible for prosecution.
During the nineteenth century various legislation widens the scope of
offences which can be tried and disposed of entirely in magistrates
courts without the necessity for a Crown Court trial.
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the Juvenile Offenders Act of 1847 permitted summary trial for
larceny by offenders aged under 14. This was raised to 16 in 1850.
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the Criminal Justice Act of 1855 extended summary jurisdiction
with the consent of the accused (i.e. you could press to go to
higher court) to all cases of simple larceny.
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the Summary jurisdiction Act of 1899 extended it to all offences
of whatever type by juveniles under 16. Growing recognition of
particular nature of juvenile crime
If the growth of summary jurisdiction brought the advantages of
cheapness, speed and accessibility for the working class to the court
system, there were also some disadvantages.
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The magistrates themselves were lay members of the propertied
middle class. Notwithstanding the growing practice of appointing
professional (Stipendiary) magistrates in large cities, the growth
of summary jurisdiction reinforced role of the middle class amateur
- and perpetuated the role of the old elite, joined by the new urban
middle classes in directly passing judgment on the poor. Thus in
industrial towns the local magistrate would most likely be one of
the local employers and factory owners sitting in judgment, in
effect, upon his own workforce. This, in fact, rather
perpetuated the eighteenth century system of local squires judging
their farm labourers and tenants. Property qualifications for
becoming a magistrate were abolished in 1906 and women were admitted
to the Bench in 1918. Not until 1945 was the need for training of
magistrates admitted! Today there are systems of nomination for the
appointment of magistrates, but they are still overwhelmingly middle
class.
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While summary jurisdiction can be seen as benefiting the working
class by making access to the courts quick and cheap, summary
justice is dispensed by a magistrate sitting without a jury. The
jury has been defended from well before the eighteenth century as
the guarantor of the rights of the accused. The presence of the jury
of 12 ordinary people who give the verdict 'guilty or not guilty'
means that the prosecution has to convince ordinary folk that the
defendant is guilty. This has been seen as a counterbalance to the
power of the state, the police and judges to undermine civil rights.
The extension of summary jurisdiction placed the vast bulk of petty
crime to be sorted out directly by Magistrates - amateur gentlemen,
some of whom would be sympathetic to the poor and others not - and
who could not but act from their own 'class instincts' when it came
to judging cases.
The 'handing over' by the masses of the right to sort out their
conflicts to the police and the middle class magistrates was a complex
process. It went hand in had with a withdrawal of the community (though
never entirely of course) from the practice of settling conflicts out of
court (using family members, respected members of the local community
rather than magistrates). It was also accompanied by a decline in the
active participation of the community as an 'audience' to criminal
trials. This latter was very much the case when trials were seen as
conflicts between individual private prosecutor and the accused. We have
already noted the habit of 'rough musicking'. In a similar vein, Louise
Jackson (2000) in a study of reactions to child abuse in Victorian
England reports a Bow Street (London) magistrate in 1830, unable to
convict an alleged child molester for lack of evidence, encouraging in
his closing speech the 'rough justice' of the mob waiting outside the
court house who acted accordingly. Similarly, older traditions of
settling disputes within the community with monetary payment persisted.
Jackson cites an example, as late as 1860 of a jury regarding a prior
monetary payment as indication of the prior settlement of a case (of
child molesting) and acquitted the defendant accordingly. Increasingly,
however, the community withdrew. The crowd outside the courthouse came
to be seen as disturbance and illegitimate public disorder while
attempts to make compensation payments were seen as evidence of guilt
and regarded as illegal. (Jackson 2000: 38-40)
It would be a mistake, however, to see the increasing working class
accommodation to, and use of, the criminal justice agencies in
preference to older methods as simply a result of the increased
availability and accessibility of the former, as if community based
regulation of conflicts and harms had only existed due to the expense
and difficulty hitherto of making use of criminal justice. The process
of accommodation to the state and the agencies of governance are also a
result of the profound changes in working class life and in the nature
and organisation of criminality during the nineteenth century which we
have already discussed. (read
previous lecture) The extension of the governance of crime, as with
other areas of governance, is part of the process of socialisation
conducted jointly by capital and the state, the former drawing the
masses into wage labour while the latter develops new forms of expert
knowledge concerning the inner workings of the class-its family
structure educational problems, health and dietary habits,
disorderliness. The result is that the working class comes to constitute
a stable population whose cultural aspirations, forms of conduct,
masculinity, femininity, cohere with the requirements of capital
accumulation. An important part of this new stability is the
marginalisation of crime from the working class community.
decline of private prosecution
The increasing use of the criminal justice system by the poor
involved the gradual penetration of the new police into the working
class communities. The expanding role of the new police laid the basis
for the decline of private prosecution through the police taking over
the responsibility for prosecution. The victim of the crime is removed
as the initiator of the criminal process to the status of witness for
the prosecution.
Victim based prosecution in criminal justice was a unique feature of
English system and was based on a distinction between serious crimes,
like murder, regarded as crimes against the King (heinous crimes) and
ordinary crimes which were a matter for the community. In other
jurisdictions the Monarch had achieved a much greater a monopoly of the
right to prosecute: In France and most continental countries the
powerful Monarchies had insisted on a Royal right to a monopoly of
criminal prosecution. In each town or region there would exist a King's
agent, usually known as the Procurator, who would arrange for and decide
which cases were to be prosecuted and would lead the prosecution in
court. Scotland has a similar system. Although in union with England
since 1708 Scotland has largely kept its own entirely separate legal
system. Prosecutions in Scotland are conducted by the local Procurator
Fiscal (also known as the Crown Office).
In England and Wales meanwhile the evolution of the state, rather
than the victim, as the prosecutor was a haphazard affair. The Tory
Prime Minister Robert Peel (who remember founded the Metropolitan Police
in 1829) was a great moderniser and legal reformer. In 1826 he expressed
sympathy with the idea of weeding out unnecessary prosecutions and
supporting weak victims. He suggested that the Scottish system be
imported to England and a special public prosecutor be created. This was
attempted again during the 1850s and the 1890s. But the Bills presented
in the House of Commons failed thanks largely to the opposition lobby of
the growing profession of solicitors who thought they would lose
business. At last, in 1897, the office of Director of Public
Prosecutions was created. But the 'DPP' is consulted only in the
prosecution of what are considered serious cases and generally has only
an advisory role. It was not until 1986 that a proper Crown Prosecution
Service was created in England and Wales, though it does not have quite
the same powers as the Crown Office in Scotland.
Thus in England and Wales the declining role of the victim as
prosecutor was met, not by the creation of a public prosecutor, but by
the police taking over responsibility for the majority of prosecutions.
This was a gradual process. Obviously the notion that it should be left
to the victim to decide and handle prosecution is unworkable in a
complex urban society - there are vast numbers of serious crimes and
public order offences, in many cases where the victim or victims do not
know the offender, and if they did, would suffer the danger of reprisals
(as many court witnesses in fact do today - witness intimidation is
regarded as a growing problem)
The 1829 Metropolitan police Act which founded the 'new police'
enabled police to prosecute and they rapidly became the main prosecutors
for public order and vagrancy offences - though anyone could prosecute
under the act and the famous novelist Charles Dickens prosecuted a young
woman for using bad language in the street under this Act!
The process whereby the police rather than the victim came to
initiate prosecution was a slow process. There is a lack of centralised
records of its progress. In the country of Staffordshire, for example,
by 1847 police handled 36 per cent of prosecutions. Nevertheless even in
London down to the 1880s the private prosecutor predominated. Clive
Emsley mentions prosecutions at Nottinghamshire Quarter Sessions: in
1846 the police initiated 3 out of 118 indictments, in 1856 22 out of
16, and in 1866 47 out of 95. In London until 1880s the private
prosecutor seems to have predominated. Emsley suggests that taking over
prosecutions helped police to get nearer the working class. "...
the police assumption of the role of prosecutor may have brought them
closer to the working class.." (page 193)
counsel and representation
A second respect in which both the victim of crime and the accused
withdrew from an active role in the trial process was the increasing
tendency to employ counsel (that is, a barrister) to argue your case.
The police, as they gradually took over prosecution, would hire a
barrister to conduct the prosecution while the accused would pay for a
defence counsel. Again, the process whereby a direct confrontation
between victim and accused was replaced by an indirect confrontation
between lawyers was a gradual one. Associations for the Prosecutions of
Felons usually employed counsel and by the 1840s it was widespread in
Assizes and Quarter Sessions.
Counsel for the defence meanwhile did not have a clearly defined
right of cross examination until the Prisoners Counsel Act 1836. Before
that the role of defence counsel was mainly summing up the case for the
jury as is the case in some continental jurisdictions. As with private
criminal prosecution, the practice of conducting one's own defence in
court was never formally abolished: rather it passed into disuse. From
time to time individuals do decide to conduct their own defence.
The rights of the accused
Nineteenth century reforms also did much to increase the rights of
the accused. A concern of legal reformers was to reduce the time period
between arrest and trial: to secure a quick turnaround rather than
leaving the accused languishing in gaol to await trial.
In this respect a further important development was the growing use
of bail - which would allow accused to properly prepare their defence
etc. The increasingly formal nature of trials and the use of counsel
meant the defendant had to spend time with solicitors preparing the
defence rather than just turning up at court to plead innocence or
mitigation. The increased willingness of courts to award bail reduced
the role of the prison as a holding place for remand prisoners at the
same time as a prison sentence was increasingly becoming the main form
of punishment.
Attitudes favourable to bail were the result of a number of
developments. Firstly they can be seen as a product of the declining
fear, on the part of the ruling classes - and their representatives on
the Bench - of the lower orders as a 'dangerous class' addicted to criminality
and sedition. As the criminal offender came to be thought of as weak and
pathological rather than as a threat to social stability objections to
bail for 'ordinary' crime weakened. As the historian Martin Wiener
writes, criminal justice policy increasingly
"…emphasised the weakness of most criminal offenders… By
the First World War, the idea of a separate criminal class or
subculture, which had flourished in the second half of the nineteenth
century as a way of setting crime apart from society, had given way to
a new readiness to see criminality as related to the normal life of
society." (Wiener 1990: 365)
Secondly, the growth of the new police and their increasing
intervention into the rookeries, together with the elimination of many
of these areas, meant that the ability of individuals to 'disappear'
while on bail was continually reduced. The growing efficiency of the
apparatus of surveillance meant that should an individual violate bail
and not show up at court then they could be found again.
The final reason for the increased importance of bail was the growing
amount of what might be called regulatory crime. In a complex urban
commercial society, indictable offences like theft and violence (which
remember were falling during the second half of the century) were joined
by non-indictable offences concerning the licensing of shops and
markets, consumer protection etc. The growth of a body of criminal
offences which carried less of the older notions of moral guilt and
culpability were seen as less appropriate for imprisonment on remand
Mitigation
The final change, also from the standpoint of the accused, was the
growing sensitivity of the courts to the mitigation of offences. During
the eighteenth and early nineteenth centuries the notions of moral
responsibility and guilt were largely unquestioned. By the end of the
century, courts were far more likely to take into account the personal
circumstances of the offender - poverty for example or age. As we have
noticed, offences committed by juveniles were the first to be treated
differently. Social stability, the decline of the idea of a hardened
recalcitrant criminal class, made for an understanding of the offender
as victim of circumstances and needing treatment rather than punishment
Likewise the growth of criminology and psychology led a move to move
to take circumstances into account and made way for an increasing
important of treatment and welfare as an ingredient of punishment rather
than the need simply to punish the guilty.
references
Beattie, John (1986) Crime and the Courts in England 1600-1800. Princeton University Press.
Christie N. 1977., 'Conflicts as Property', British Journal of
Criminology 17 pp. 1-15.
Emsley, C. (1996) Crime and Society in England 1750-1900 (second edition).
London: Longman.
Evans, K., Fraser. P. Walklate, S. (1996), 'Whom Can You Trust? The
politics of 'grassing' on an inner city housing estate', Sociological
Review 44(3):361-380
Gatrell, V. (1980) 'The decline of theft and violence in Victorian and Edwardian England' in Gatrell, V. et al eds.
Crime and the Law. pp 238-337. London: Europa Publications.
Hay, D. (1975) 'Property Authority and the Criminal Law' in Hay, D. ed. Albion's
Fatal Tree: Crime and Society in Eighteenth Century England, Allen
Lane.
Hay, D. Snyder, F. 1989, 'Using the Criminal Law 1750-1850: Policing,
Private Prosecution and the State'
in Hay, D. Snyder, F. eds. Policing and Prosecution in England
1750-1850. Oxford: Oxford University Press.
Jackson, L. (2000) Child Sexual Abuse in Victorian England. London: Routledge.
Langbein, John (2003) The Origins of the Adversary Criminal Trial. Oxford: Oxford University Press.
Wiener, M. 1990, Reconstructing the Criminal: Culture, Law and Policy
in England 1830-1914, Cambridge University Press.
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