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The Court for Crown Cases Reserved, 1848–1908

Published online by Cambridge University Press:  14 February 2011


Convicted felons at the Old Bailey and on assize in nineteenth-century England had no right of appeal. They had either to submit to their fate or, if they had the means, petition the Crown for a pardon. The legal avenues for redress were limited. A writ of error would lie to a superior court for legal errors that appeared on the face of the record but by the nineteenth century this was seldom used. More significantly, it was open for the trial judge to reserve questions of law for the informal and private consideration of all the common law judges. In their illuminating studies of this practice in the eighteenth and early nineteenth centuries, James Oldham and Randall McGowen elucidate the ways in which the judiciary used reserved cases to develop legal doctrine and to shape the operation of criminal justice. The trend toward increased formalization of procedure that they identify, culminated in 1848, when Parliament created the Court for Crown Cases Reserved (CCCR). The new court adopted the existing method of reserving cases, but was a court of record that sat and gave judgment in public. It became the highest judicial forum for the determination of questions of criminal law until 1908, when it was superseded by the Court of Criminal Appeal.

Forum: From the Twelve Judges to the Court for Crown Cases Reserved
Copyright © the American Society for Legal History, Inc. 2011

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1. On the petitioning process in the first half of the nineteenth century, see Gatrell, V. , The Hanging Tree Execution and the English People, 1770–1868 (Oxford: Oxford University Press 1994), 417–44, 543–85Google Scholar. By the Victorian period, the Home Office was dealing with all petitions for pardons. See Chadwick, R. , Bureaucratic Mercy: The Home Office and the Treatment of Capital Cases in Victorian England (New York: Garland Publishing, 1992)Google Scholar.

2. See Stephen, J. , A History of the Criminal Law of England (London: Macmillan, 1883)Google Scholar, 3 vols, I: 308–10; Bentley, D. , English Criminal Justice in the Nineteenth Century (London: Hambledon Press, 1998)Google Scholar, 282–83. For a valuable summary of the legal methods of review, see Berger, B. , “Criminal Appeals as Jury Control: An Anglo-Canadian Historical Perspective on the Rise of Criminal Appeals,” Canadian Criminal Law Review 10 (2005): 512Google Scholar.

3. Oldham, J. , “Informal Lawmaking in England by the Twelve Judges in the Late Eighteenth and Early Nineteenth Centuries,” Law and History Review 29(1) (February 2011): 181220CrossRefGoogle Scholar; and McGowen, R. , “Forgery and the Twelve Judges in Eighteenth-Century England,” Law and History Review 29(1) (February 2011): 221257CrossRefGoogle Scholar.

4. See McGowen, R. , “The Image of Justice and Reform in early Nineteenth-Century England,” Buffalo Law Review 32 (1983): 89125Google Scholar; and Wiener, M. , Reconstructing the Criminal, Culture, Law and Policy in England, 1830-1914 (Cambridge: Cambridge University Press, 1990)Google Scholar.

5. Pattenden, R. , English Criminal Appeals 1844-1994 (Oxford: Oxford University Press, 1996)Google Scholar, 5.

6. The CCCR heard 993 cases in total. There are certificates recording judgements and orders of the CCCR in cases referred to it by the Central Criminal Court (Old Bailey), see NA, CRIM 12/4 -12/118.

7. There were 31 bills brought before Parliament during the period from 1844 to 1906 (Pattenden, English Criminal Appeals, 6). For the history of these bills and the broader effort to create a court of criminal appeal during the period from 1844 to 1907, see Pattenden, English Criminal Appeals, 5–33; Bentley, English Criminal Justice, 281–96; Berger, “Criminal Appeals,” 12–31; and Cornish, W., Anderson, S., Cocks, R., Lobban, M., Polden, P., Smith, K.. The Oxford History of the Laws of England, Volumes XI-XIII, 1820-1914 (Oxford: Oxford University Press, 2010), XIII: 127–37CrossRefGoogle Scholar.

8. For the development of appeals generally see Cornish et al. Oxford History, XI: 601–2, 799–808; and Baker, J. , An Introduction to English Legal History (Oxford: Oxford University Press, 2002), 138–43Google Scholar.

9. Select Committee of the House of Lords on Administration of Criminal Law Amendment Bill, Parliamentary Papers (hereafter PP), 1847–1848 (523) XVI. 423 (hereafter 1848 SC), Minutes of Evidence, 22. Giving evidence before the same committee, the law reformer Fitzroy Kelly saw “no reason for the slightest distinction as to appeals between civil and criminal cases.” (Ibid. 28).

10. Royal Commission on the Criminal Laws, 1st Report, PP, 1833 (537) XXVI, 117, 3; 4th Report, PP, 1839 (168), XIX, 235, 14.

11. See Smith, K. , Lawyers, Legislators and Theorists, Developments in English Criminal Jurisprudence, 1800-1957 (Oxford: Oxford University Press, 1998), 127–38CrossRefGoogle Scholar.

12. Royal Commission on the Criminal Laws, 8th Report, PP 1845 (656), XIV, 161, 19–24.

13. The Times (29 July 1845), 5d.

14. R. v. Serva (1845) 1 Cox. 292. Thirteen of the possible fifteen judges heard the case which, unusually, took two days.

15. See Legal Observer 31 (1845–46)Google Scholar, 134. Denman wrote to express his concern to the Home Secretary, James Graham, who apparently consulted other judges on the best course of action. He made the promise of a government bill in response to a question by William Ewart, see Hansard's Parliamentary Debates (hereafter PD), 83 (1846) col. 642, House of Commons, 10 Feb. 1846. For Denman's reaction, see Arnould, J. , Memoir of Thomas, First Lord Denman (London: Longmans, Green, 1873)Google Scholar, 2 vols, II: 199–206 and following, n. 32.

16. Law Times 10 (1847) 40Google Scholar, cited in Spiller, P. , Cox and Crime (Cambridge: Institute of Criminology, 1985)Google Scholar, 53.

17. See, for example, William Ewart's speeches in the Commons: PD, 95 (1847) cols. 527–29, House of Commons, 2 Dec. 1847; PD, 96 (1848) cols. 1297–301, House of Commons, 24 Feb. 1848.

18. 1848 SC, Minutes of Evidence, 33.

19. PD, 97 (1848), cols. 964–66, House of Lords, 24 March 1848. Ewart had sought leave to introduce a bill in the Commons but postponed his bill at the request of the Home Secretary, George Grey, so that Campbell's measure could be pursued. See PD, 97 (1848), cols. 1101–3, House of Commons, 29 March 1848.

20. 11 & 12 Vict. c. 78.

21. On the frequency with which lawyers appeared, see Cornish et al. Oxford History, XI: 804, n.70. The first sitting of the Court was scheduled for the Vice Chancellor's Court but as this was deemed too cold, the session was adjourned to the Exchequer Chamber. This became the usual meeting place until 1883 when it met at the newly opened Royal Courts of Justice. See The Times (13 Nov. 1848), 7b; and Bentley, D. , Select Cases from the Twelve Judges' Notebooks (London: John Rees, 1997)Google Scholar, 50.

22. This followed the merger of the three divisions of the High Court in 1881.

23. The Times (13 Nov. 1848), 7b.

24. See Law Times 31 (1858) 190Google Scholar; Law Times 35 (1860) 50Google Scholar; Law Times 39 (1864) 182Google Scholar; and Spiller, Cox and Crime, 52–53.

25. See Wilmott, J. , “Is it desirable to establish a Court of Appeal on the Facts?Transactions of the National Association for the Promotion of Social Science (1868): 195Google Scholar; and Johnson, R. , “Criminal Law Reform,” Transactions of the National Association for the Promotion of Social Science (1882): 288Google Scholar.

26. See The Times (10 Sep. 1847), 4c; ibid. (13 Nov. 1847), 4d; ibid. (3 Dec. 1847), 5e; and ibid. (2 Feb. 1860), 8e.

27. For the failed bills, see Pattenden, English Criminal Appeals, 10–16; and Bentley, English Criminal Justice, 288–96.

28. The total number of judges was still only 15 in the mid nineteenth century and they struggled to meet the existing volume of business in London and on circuit. See Report on the Royal Commission on Circuits of Judges, PP, 1845 (638) XIV: 535. Few were willing to sanction the idea of increasing the number of judges to address the problem. Fitzjames Stephen was willing to countenance an increase in the number of judges, albeit before he himself was appointed to the bench. See Stephen, J. , “Suggestions as to the Reform of the Criminal Law,” Nineteenth Century 2 (1877): 758Google Scholar.

29. These objections were rehearsed repeatedly in response to reform proposals. See, for example, the evidence of Alderson and Denman before the 1848 Select Committee (1848 SC, Minutes of Evidence, 4, 44) and the judges' responses to Home Secretary, George Grey's request for comments on Fitzroy Kelly's 1864 bill (National Archive (NA) HO45 7534).

30. Condemnation of the judges in reformist circles was commonplace. See, for example, Brougham's address to the Law Amendment Society in 1849. (The Times 14 June 1849, 8e.)

31. Duman, D. , The Judicial Bench in England, 1727-1875 (London: Royal Historical Society, 1982)Google Scholar, 72–99; and Cornish et al, Oxford History, XI: 971–74.

32. The paper is reproduced in Arnould, Memoir of Thomas Denman, 442–49.

33. Although it is noteworthy that he expressed strong opposition to allowing quarter sessions cases to be reserved, mainly on the grounds that it would create too much work for the common law judges. He successfully moved an amendment to Campbell's bill in the Lords but the Commons rejected the amendment, much to Denman's disgust. (PD, 100 [1848], cols. 466–67, House of Lords, 13 July 1848, PD, 101 [1848], cols. 375–76, House of Lords, 22 Aug. 1848.)

34. A. Cockburn to H. Waddington, 4 April 1864, NA HO 45 7534/13.

35. The court would have had power to order new trials and to hear questions of law by leave of the trial judge or attorney general. See Report of the Royal Commission appointed to consider the Law relating to Indictable Offences, PP, 1878–9 (2345), XX: 169, 37–41, Appendix, 194–96.

36. Bill to establish Court of Appeal in Criminal Cases, PP, 1883, (9), II. 211; Law Times 75 (1883) 107Google Scholar; Pattenden, English Criminal Appeals, 25. When Esher wrote to The Times in support of an appeal court in 1889, Bramwell expressed the “strongest possible view to the contrary.” (The Times [Aug. 17 1889], 10d; Law Journal 18 [1889], 498, quoted in Pattenden, English Criminal Appeals, 25.)

37. Stephen, J. , A General View of the Criminal Law (London: Macmillan, 1863), 230–31Google Scholar.

38. Stephen, “Suggestions,” 757–59. Royal Commission on Indictable Offences 37–41, Appendix, 194–96.

39. Stephen, J. , A General View of the Criminal Law, 2nd ed. (London: Macmillan, 1890), 172–78Google Scholar.

40. Return of report of the judges in 1892 to the Lord Chancellor recommending the constitution of a Court of Appeal and revision of sentences in criminal cases PP, 1894 (127) LXXI: 173, 7–8. The right to review convictions was contingent upon a referral by the Home Secretary.

41. 1848 SC, Minutes of Evidence, 45–46.

42. Stephen, “Suggestions,” 758.

43. PD, 157 (1906), cols. 1076–98, 1086, House of Lords. The higher judiciary also sometimes defended the civil jury from attempts to reduce its scope in the nineteenth century. See Lobban, M. , “The Strange Life of the English Civil Jury 1837-1914” in The Dearest Birthright of the People of England The Jury in the History of the Common Law, ed. Cairns, J. and McLeod, G. (Oxford: Hart, 2002)Google Scholar, 173, 184–85.

44. See the evidence of Lord Denman before the 1848 Select Committee: 1848 SC, Minutes of Evidence, 45.

45. J. Willes to the Home Secretary, Sir George Grey, 22 Feb. 1864, NA HO 45/7534/3; Royal Commission on Capital Punishment: PP, 1866 (3590), XXI: 1 (hereafter 1866 RC) Minutes of Evidence, 46. For similar expressions of faith from Baron Parke and James Fitzjames Stephen, see 1848 SC, Minutes of Evidence, 9; Stephen, J. , “Capital PunishmentsFraser's Magazine 69 (1864): 755Google Scholar.

46. See PD, 100 (1848), cols. 465–69, House of Lords, 13 July 1848, per Lord Campbell; 1848 SC, Minutes of Evidence, 4 (Baron Parke); and 1866 RC, Minutes of Evidence, 47 (Baron Martin). Lord Denman in 1848 thought that whereas wrongful convictions were rare, wrongful acquittals were much more common (1848 SC, Minutes of Evidence, 45).

47. PD, 339 (1889), cols. 1297–311, 1307, House of Lords, 15 Aug. 1889. Viscount Alverstone, Lord Chief Justice 1900–1913, shared the favorable opinion of the jury: Alverstone, R. , Recollections of Bar and Bench (London: Longmans, 1915)Google Scholar, 276.

48. See J. Willes to the Home Secretary, Sir George Grey, 22 Feb. 1864, NA HO 45/7534/3.

49. 1866 RC, Minutes of Evidence, 30.

50. The Law Times commented: Why is it that an appeal is given to twenty pounds and denied to a sentence of death or transportation? It is impossible to avoid the conclusion that it is because the one always affects the rich, the other usually the poor.Law Times 11 (1848), 339Google Scholar.

51. 1848 SC, Minutes of Evidence, 6.

52. Lord Brougham considered it a “great mistake to suppose that it was possible to apply the same rule in criminal as in civil suits.” PD, 100 (1848), cols. 465–69, House of Lords, 13 July 1848. For other views on the essential differences between civil and criminal proceedings, see the evidence of Parke, Alderson, and Lord Lyndhurst before the 1848 Select Committee (1848 SC, Minutes of Evidence, 3–13, 47) and the judges' letters to the Home Secretary in response to an 1864 bill (NA, HO 7534). Similar arguments were employed by Lord Chief Justice Alverstone to oppose criminal appeals in the early twentieth century, see PD, 157 (1906), cols. 1078–9, House of Lords, 22 May 1906.

53. See n. 13 previously.

54. Arnould, Memoir of Thomas Denman, 444. Lord Chief Justice Cockburn argued in 1864 that it was “obviously of great importance … that punishment should follow on conviction with as much speed as is consistent with safety.” (A. Cockburn to H. Waddington, April 4, 1864, NA HO 45 7534/13.)

55. 1848 SC, Minutes of Evidence, 5 (Baron Parke).

56. See Radzinowicz, L. and Hood, R., “Judicial Discretion and Sentencing Standards: Victorian Attempts to Solve a Perennial Problem,” University of Pennsylvania Law Review 127 (1979): 12881349CrossRefGoogle Scholar.

57. Stephen, J. , A General View of the Criminal Law of England (London: Macmillan, 1863)Google Scholar, 208.

58. W. Erle to G. Grey, 2 April, 1864, NA HO 45 7534/10.

59. See Handler, P. , “The law of felonious assault in England, 1803-1861,” Journal of Legal History 28 (2007): 183206CrossRefGoogle Scholar. In 1866 Baron Bramwell recalled a case in which six prisoners had been “rightly” acquitted on the grounds of insanity even though they did not come within the legal definition of insanity. The juries acted in “accordance with public feeling” and with the sanction of the judges. (1866 RC, Minutes of Evidence, 29).

60. See n. 40 previously.

61. This was a condition for the majority of the judges' support for the 1848 bill, although Lord Denman thought it “against all principle” (1848 SC, Minutes of Evidence, 45). For the limits of judicial support for other proposals, see text at n. 34 previously.

62. For the figures contained in this paragraph on the CCCR's total caseload, see Bentley, Select Cases, 195–96.

63. The average number of cases per annum during the period between 1890 and 1907 was nine, the majority of which came from the quarter sessions.

64. Pattenden, English Criminal Appeals, 35.

65. See n. 6, previously.

66. See the criticism in the Law Times: 2 LT 363 (1844), cited in Spiller, Cox and Crime, 48. The problem remained at the end of the century, see Law Magazine 25 (1899–1900): 375–79Google Scholar.

67. Bentley suggests that even at the end of the nineteenth century, defended prisoners were still in the minority. (Bentley, English Criminal Justice, 108.)

68. See Old Bailey Proceedings [OBP], (, 11 May 2010) Jan. 1860, trial of David Hughes (t18600102-154); OBP, Feb. 1883, Elizabeth Stranger (t18830226-352); and OBP, July 1894, William Butts (t18940723-621).

69. The CCCR quashed 33 of 115 convictions referred to it from the Old Bailey.

70. See, for example, OBP Nov. 1863, John Murphy (t18631130-58); and OBP Nov. 1883, Patrick O'Donnell (t18831119-75).

71. See, for example, OBP Nov. 1879, John Hayward (t18791124-72).

72. See Bentley, Select Cases, 51. Stephen estimated it met three or four times a year for a day or half day (Stephen, History, 312). For an example of the delays in the CCCR, see The Times (8 June 1857), 11d.

73. See Pattenden, English Criminal Appeals, 9.

74. See Bentley, Select Cases, 50

75. The Lord Mayor was the chief commissioner, the recorder of London the principal city judge, but judges from other City courts, notably the Sheriff's court, were also entitled to sit on the bench. See Bentley, English Criminal Justice, 69–70.

76. See, for example, Justice Brett's consultation with Baron Cleasby during a manslaughter trial (the case was eventually reserved): OBP April 1875, William Taylor (et al.) (t18750405-274).

77. For an example, see OBP Jan. 1860, David Hughes (t18600102-154).

78. See, for example, OBP Oct. 1849, Maria Manning (t18491029-1890); and OBP Jan.1858, Christian Sattler (t185801014-211).

79. 56 out of 115.

80. He reserved twelve cases as recorder. During the period from 1850 to 1857, he reserved three other cases during his time as a judge of the Sheriff's Court and as common serjeant.

81. The homicide bill failed, mainly because of the opposition of the judges. He successfully carried bills on criminal justice administration (1867), and larceny and embezzlement (1868). See Curthoys, M. C. , “Gurney, Russell (1804–1878),” Oxford Dictionary of National Biography, Oxford University Press, 2004Google Scholar [, accessed 22 March 2009]

82. See R. v. Tite, 169 Eng. Rep. 1289, 1290.

83. Kerr was a particularly combative judge who regularly clashed with judges of the superior courts in Sheriff's Court cases. He insisted on being referred to as “Commissioner Kerr,” because of his position on the Old Bailey commission. According to Polden, he was “opinionated and stubborn, avaricious and self righteous.” See Polden, P. , A History of the County Court 1846-1971 (Cambridge: Cambridge University Press, 1999), 322–23CrossRefGoogle Scholar; and Lewis, G. Pitt , Commissioner Kerr: An Individuality (London: Fisher Unwin, 1903)Google Scholar. Hall and Fulton reserved one case each.

84. Alderson reserved three cases. During the period from 1757 to 1828, Bentley found considerable variation among judges. See Bentley, Select Cases, 121–22.

85. Cases tried by city judges accounted for just less than half of the total cases reserved from the Old Bailey (see n. 79 previously) but just more than half of the cases in which the conviction was quashed (18 of the 33).

86. OBP April 1906, Laura Patterson (et al.) (t19060402-48). The judge (Serjeant Bosanquet) directed the jury to acquit on conspiracy charges, but warned the defendant that if she were charged again in connection “with matters of this kind” she would probably render herself liable to serious punishment.

87. OBP Jan. 1858, Christian Sattler (t185801014-211); The Times (7 Jan. 1858), 9b; and R. v. Sattler, 169 E.R. 1111.

88. Per Justice Willes (OBP Sattler).

89. The other case was heard at the same time as Sattler; see R. v. Lopez 169 E.R. 1105. The case was heard before a full court but the CCCR's decision was confined to narrow grounds. Almost ten years later, the difference between the two judges had not been resolved; see Martin's evidence before the 1866 Royal Commission on Capital Punishment: 1866 RC, Minutes of Evidence, 40.

90. See The Times (7 July 1870), 5d; ibid. (25 April 1872), 12b; ibid. (9 Sep. 1873), 10f; ibid. (9 June 1875), 7f; and ibid. (13 Jan. 1882), 6c. For the broader context and the history of prosecutions of Peculiar People, see Peters, S. , When Prayer Fails: Faith Healing, Children and the Law (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar, 47–66.

91. OBP Jan. 1868, Thomas Wagstaff and Mary Wagstaff (t18680127-214); and R. v. Wagstaffe, 10 Cox C.C. 530.

92. OBP May 1872, George Hurry and Cecilia Hurry (t18720506); OBP June 1875, John Downes (t18750605-427).

93. OBP Aug. 1874, Thomas Hines (t18740817-560).

94. See R. v. Downes (1875-76), L.R. 1 Q.B.D. 25, 26. Furthermore, Blackburn sought the assurance from Hurry, the man convicted before Byles but discharged having pledged that his Sect would abide by the law in future.

95. Poor Law Amendment Act, 1868, 31, 32 Vict. c. 122, s. 37. OBP June 1875, John Downes (t18750605-427), R. v. Downes. Downes was prosecuted again in 1876 when another of his children died, see OBP Sep. 1876, John Downes (t18760918-449).

96. There were further prosecutions of Peculiar People in subsequent decades, particularly in the 1890s following a change in the statutory framework. See OBP, Nov. 1898, Thomas Senior (t18981121-48); R. v. Senior [1899] 1 Q.B. 283; and Peters, When Prayer Fails, 57–66.

97. n. 62 previously.

98. For the rules see Denison, S. , Crown Cases Reserved Reports (London, 1850), 1113Google Scholar.

99. This was not a “special verdict,” although the effect was similar. For examples, see OBP Jan. 1854, John Sharman (t18540102-183); and OBP Nov. 1860, Henry Moore (t18601125-55)

100. See OBP Feb. 1876, William Tatlock (t18760228-242); and R. v. Tatlock (1876-77), L.R. 2 Q.B.D. 157. The conviction was quashed. For another example of Commissioner Kerr adopting a strange interpretation of the law, which received short shrift from the judges in the CCCR, see R. v. Tyrell [1894] 1 Q.B. 710.

101. See OBP Aug. 1855, Cosmo Gordon (t18550820-785), R. v. Gordon, 169 Eng. Rep. 856; OBP Sep. 1855, Thomas Lands alias White (t18550917-875), R. v. Lands, 169 Eng. Rep. 848; OBP Oct. 1859, Archibald Skeen, Archibald Freeman (t18581025-999), R. v. Skeen and Freeman, 169 Eng. Rep. 1182.

102. There were 426 trials involving bankruptcy in a total of 64,382 trials at the Old Bailey during the period from 1848 to 1907 (OBP).

103. Lord Campbell's Criminal Procedure Act of 1851 gave the court the power to amend a defective indictment, but problems remained. (14 and 15 Vict. c.100 ss. 24, 25.)

104. OBP Jan. 1851, Edward Amos (t18510106-433), R. v. Amos, 169 Eng. Rep. 420.

105. OBP Shepherd, 1855, per Justice Cresswell. See also the judgement of Chief Baron Pollock in R. v. Westley, 169 Eng Rep. 1225.

106. The Times (11 Dec. 1848), 7b. For other examples of cases involving technical problems with the indictment, see OBP Sep. 1859, Westley (t18590919-857), R. v. Westley, 169 Eng Rep. 1225; OBP May, 1871, Balls (t18710501-393), R. v. Balls (1865-1872) L.R. 1 C.C.R. 328; and OBP July 1885, Burgess (t18850727-777), R. v. Burgess (1885-86) L.R. 16 Q.B.D. 141.

107. Bentley Select Cases, 51.

108. See Skeen and Freeman, n. 101 previously (bankruptcy), OBP Feb. 1884, Richard Cox and Richard Railton (t18840225-370); R. v. Cox and Railton (1884-85), L.R. 14 Q.B.D 153 (conspiracy to defraud); and OBP Dec. 1851, William Ion (t185112-15), R. v. Ion 169 Eng. Rep. 588 (forgery).

109. OBP Dec. 1855 Lister & Biggs (t18551217-139), R. v. Lister and Biggs, Cox's C.C. VII (1858), 342; OBP Feb. 1857, John Bryan (t18570202-350), R. v. Bryan, 169 Eng. Rep. 1002; and OBP Sep. 1872, George Middleton (t18720923-675), R. v. Middleton (1872-5), L.R. 2 C.C.R. 38.

110. In R. v. Keyn, the CCCR quashed the manslaughter conviction of a foreign ship's captain arising out of a fatal collision at sea on the basis of a lack of jurisdiction; see OBP April 1876, Ferdinand Keyn (t18760403-293), R. v. Keyn (1876-77), L.R. 2 Q.B.D. 90. On the wider significance of the case, see Simpson, A. , Leading Cases in the Common Law (Oxford: Clarendon Press, 1995), 227258Google Scholar. In R. v. Clarence the Court quashed the assault conviction of a defendant who had sexual intercourse with his wife knowing that he had gonorrhoea on the basis that it fell outside the scope of the statutory offence; see OBP April 1888, Charles Clarence (t18880423-429a), R. v. Clarence (1889), L.R. 22 Q.B.D. 23. The other case that prompted a hearing before a full court was Sattler, n. 87, previously.

111. Serjeant Ballantine urged this as a reason for a Court of Appeal, see Ballantine, W. , Some Experiences of a Barrister's Life (London: Bentley, 1898), 373–76Google Scholar.

112. Campbell, J. , Life of John, Lord Campbell, Lord High Chancellor of Great Britain (London: J. Murray, 1881)Google Scholar, 2 vols. II: 295, 297, 308.

113. 1866 RC, Minutes of Evidence, 56.

114. See R. v. Sharman,169 E.R 729.

115. The 1878–79 Royal Commission recommended that the minority be bound by the majority when only five judges sat and that a further appeal to the House of Lords be available. (Report of the Royal Commission appointed to consider the Law relating to Indictable Offences PP 1878–79 [2345], XX. 169, 38.) Simpson suggests that if the most junior judge in the court disagreed with the other members, it was conventional for him to change his opinion to ensure unanimity; see Simpson, , Leading CasesGoogle Scholar, 240.

116. See R. v. Bennett, 169 Eng Rep. 1143; and R. v. Alsop (1869), Cox's Criminal Cases, 11, 264.

117. OBP, Feb. 1860, William Downes (t18600227-277). Judgment was postponed twice before the defendant was discharged. (The Times [7 May 1860], 11e; ibid. [9 May 1860], 11b; and OBP April 1860 t18600402.) In the case of Ward, counsel referred to Downes as a case that the judges had been unable to agree upon and that had never been re-argued in the CCCR (OBP Dec. 1863, Robert Ward, t18631214-136).

118. R. v. Stubbs, 169 E.R. 843.

119. Ibid. 845.


120. For a detailed account of the development of the rule, see Allen, C. , The Law of Evidence in Victorian England (Cambridge: Cambridge University Press, 1997), 4349Google Scholar.

121. Ibid. 3, 29–49.


122. Ibid. 185–86.


123. See Baker, An Introduction, 92–95; J. Getzler, “The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case” in The Dearest Birthright, ed. Cairns and McLeod, 217, 218–24; and M. Lobban, “The Strange Life,” 173–215.

124. For an argument that the judges made a concerted effort to control the jury in homicide cases, see Wiener, M. , “Judges v Jurors: Courtroom Tensions in Murder Trials,” Law and History Review 17 (3) (1999)CrossRefGoogle Scholar: 64 pars. 23 Aug. 2007, <>, pars 24–34. See also, idem., Men of Blood; Violence, Manliness, and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004)Google Scholar.

125. See, for example, Kenny's discussion of the conflicting dicta in CCCR cases on the basic meaning of intention in criminal law (Kenny, C. , Outlines of Criminal Law Cambridge: Cambridge University Press, 1902, 4142Google Scholar).

126. See Smith, Lawyers, Legislators and Theorists, 159–66.

127. R. v. Ward (1872) 1 LR 356.

128. The report in The Times contains more detail of the argument than the law report, see The Times (31 Jan. 1872), 11d.

129. This formulation appears in the law report, but in The Times, Blackburn is reported to have said that malice had always been defined as “doing an act likely to injure,” omitting the reference to the defendant's knowledge.

130. Law Magazine 1 (1872): 269Google Scholar, 379.

131. R. v. Welch (1875-6) L.R. 1 Q.B.D. 23.

132. OBP Sep. 1875, Joseph Welch (t18750920-504).

133. This is based upon a search of malicious damage trial report in OBP. It is of course possible that citations of the case went unreported.

134. R. v. Martin (1881–82) L.R. 8 Q.B.D. 54, 58.

135. Smith, Lawyers, Legislators and Theorists, 172.

136. See Lacey, N. , “In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory,” Modern Law Review 64 (2001): 350–71CrossRefGoogle Scholar.

137. This was clearly the view of Stephen who concluded his discussion of the CCCR's jurisdiction to hear questions of law by stating that “the criminal law is now for the most part so well settled and understood that this is a matter of little practical importance.” (Stephen, History, 312.)

138. See, for example, the conclusion of an 1874 Select Committee on Homicide: “If there is any case in which the law should speak plainly, without sophism or evasion, it is where life is at stake; and it is on this very occasion when the law is most evasive and sophistical.” (Report of Select Committee on Homicide Law Amendment Bill, PP, 1874 (315) IX, 9.)

139. The new Court of Criminal Appeal began sitting in 1908. See Pattenden, English Criminal Appeals, 27–33.

140. In 1966 the Court of Criminal Appeal was replaced by the Court of Appeal, Criminal Division. For the twentieth-century history of the criminal appeal court, see Pattenden, English Criminal Appeals.

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The Court for Crown Cases Reserved, 1848–1908
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The Court for Crown Cases Reserved, 1848–1908
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The Court for Crown Cases Reserved, 1848–1908
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