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.

Both Professor Oldham and Professor McGowen's articles focus on the pre-1848 review process. Oldham's article is devoted to legal-procedural issues raised by the informal and private deliberations of the high court judges: the context in which cases were reserved, whether decisions of the twelve judges constituted precedent, the effect of divided decisions, the extent to which the judges' decisions were made public, and the distinction to be made between the review process and a formal appeal. With his extensive knowledge of the legal culture of the day, no one is better suited than he to untangle and analyze these matters. Most reviewers of his Mansfield Manuscripts commented to the effect that the reader learned little from the judge's notebooks themselves but a great deal from Oldham, and the same might be said here. Once again James Fitzjames Stephen's account of the development of the criminal law has been modified; where John Langbein corrected Stephen's dating of the involvement of counsel in the criminal trial,Footnote ¹ Oldham has revised our understanding of the reserve procedure, arguing that the collective deliberations of the high court judges made a considerable contribution to the development of English law in the late eighteenth and early nineteenth centuries. Apart from settling differences of opinion, the judges interpreted statutes and established rules of evidence.

Logically, as Oldham points out, regardless of the informality of the process, by virtue of the number of judges involved, these opinions carried more weighty authority than decisions reached in the courtroom. He concludes in no uncertain terms that they “established ruling precedents” and that “the decisions of the twelve judges … support and strengthen Holdsworth's view that the system of precedent was well-established by the second half of the eighteenth century.” It is this aspect of his argument which is most likely to be contentious. As discussed in his article,Footnote ² not all legal historians agree with Holdsworth, and opinion will no doubt be equally divided over the binding authority of the reserved judgments. Without disputing the contribution the decisions of the twelve judges made to the development of the criminal law, we might be wary of imposing on them too great a shape or coherence.

I hope Professor Oldham will not be offended if I also suggest that, in characterizing the bench as a “select club of gentlemen” he has arguably done its occupants too great a courtesy and fashioned them in his own, highly civilized, image. Oldham does not go so far as Lord Lyndhurst, quoted in McGowen's article as arguing that judges were not swayed by external pressures but “discharge[d] their duty faithfully, looking neither to the right nor to the left, but examining what the law was, with a view to the due execution of it.” But his article does, it seems to me, tend to portray the bench as learned, collegial, gentlemanly, nonpartisan, and professional, and I am not entirely convinced that the late eighteenth- and early nineteenth-century judiciary deserve this generous characterization.Footnote ³ Some at least – Lloyd Kenyon is a prime example – were bad-tempered, peevish, and reactionary.Footnote ⁴ Although analysis of legal procedures is crucial to our understanding of the development of the law, politics and personalities must also be factored in.

To Oldham's examination of the twelve-judge process must be added as well the particular problems of the day with which these men were contending. This subject is addressed in part by Oldham's own initial question for investigation: in what contexts was the twelve judges' review invoked? McGowen's (may I say unsurprising?) focus on forgery cases reserved between 1750 and 1800 highlights one important contemporary preoccupation. And where Oldham revises Stephen, McGowen revises Sir Leon Radzinowicz's history of the criminal law. Radzinowicz argued that the process of reserving cases for the twelve judges was used to promote a humanitarian application of the criminal law; McGowen concludes instead that their primary concern was deterrence. I would like to focus, however, on another issue.

One of the crucial questions raised by this forum is the way in which cases were chosen for review. On both McGowen and Dr. Handler's evidence, the selection clearly owed in part to the crime: forgery and fraud raised more complicated legal issues than most felonies and constituted a substantial portion of the cases reserved in the second halves of the eighteenth and nineteenth centuries, respectively. But did the impetus for review come from the bench, or from the bar? Oldham suggests that the majority of requests for reserve opinions “were at the initiative of the trial judge” and indicated a judicial desire for guidance on legal principles; McGowen emphasizes instead the influence of defense counsel in offering objections in court, arguing that it was the “decisive factor” behind the increase in forgery cases reserved for the twelve judges. The two perspectives are not mutually exclusive, and both may pertain. Practice in forgery cases, that is, may simply have been different. Such cases, by McGowen's count, comprised between a fifth and a quarter of cases reserved in the late eighteenth century. This is admittedly a significant proportion, but it still means that between 75 and 80 percent of the cases reserved involved matters other than forgery. The timing of the increase in cases being reserved overall, however, is also suggestive, and even when the request for review came from the trial judge, he may have felt a new pressure from the bar. David Bentley's statistical analysis of the incidence of cases reserved for the twelve judges shows a marked increase in the second half of the eighteenth century, especially from the 1780s. The bulk of these cases, as Oldham notes, were criminal, and this was precisely the time at which defense counsel were making their presence known at the Old Bailey. Oldham also suggests that defense counsel were active in requesting statutory interpretation from the twelve judges.

McGowen's interpretation of the motivation of counsel in raising legal queries does not flatter the bar: where judges were “scrupulous,” lawyers were “inventive.” McGowen also points to the circularity of the process: lawyers made objections in court, cases were reserved for the twelve judges on the basis of those objections, the decisions were published in Leach and Foster, and counsel then “exploited” them in subsequent cases. Points of law to be debated did not, in his view, proliferate to a new degree after 1750, the bench merely had such points pressed upon them far more frequently. In discussing the role of counsel, McGowen also introduces the social politics of decision making. Those accused of forgery could generally afford to employ counsel, and those counsel used every avenue available to assist their clients. These simple facts alone, and not merely the complexities of forgery cases, ensured that such cases received a greater degree of judicial attention.

The significance of changing courtroom dynamics extends well beyond the process of reserving cases and deserves further exploration. As McGowen indicates, the balance of power between the bench and the bar was complex. It seems clear that in the late eighteenth and early nineteenth century, defense counsel made active use of the reserve process for their own ends, and as a result trial judges perhaps found their authority challenged in a novel way. The decision making of the twelve judges in concert, however, reasserted judicial power. McGowen also usefully highlights the fact that by the late eighteenth century forgery trials involved a “complex dance” that involved prosecution counsel as well as counsel for the defense.

Regardless of the reasons for the increase in cases reserved for the twelve judges' attention, and irrespective of the self-interest of defense counsel in requesting such review, the more frequent collective scrutiny of legal issues raised at trial, and publication of that scrutiny, did, in McGowen's words, produce an “irresistible momentum towards greater formalization of practice and doctrine.” Ultimately, the process of judicial review itself was formalized, and this is the subject of Handler's article.

Handler examines not only the work of the CCCR, but judicial resistance to the creation of a genuine appeal court. The essential differences between the twelve-judge procedure and a formal right of appeal were itemized at the end of Oldham's article: defendants could not demand a review, the twelve judges possessed no remedial power, and any review that took place did not necessarily result in a firm conclusion. For some nineteenth-century reformers, merely formalizing the review process was therefore insufficient. The twelve judges, however, actively resisted the call for a court of appeal. In resisting this reform, Handler argues, they were not acting as “stubborn reactionaries,” but were instead informed by a consistent set of principled beliefs, which centered on a desire to preserve the pivotal role of the trial in the criminal justice system.

Nineteenth-century judicial resistance to reform was certainly consistent. As Handler himself points out, the high court judges also resisted restriction of the application of the death penalty and the right to counsel: what distinguishes their resistance in this particular instance is the fact that they succeeded in preventing the reform for the whole of the century. In arguing against a genuine court of appeal, the judges employed precisely the same “practical” arguments used against allowing counsel for the defense to make speeches on behalf of their clients: it would involve an increase in time and expense. But Handler also emphasizes the continued importance they attached to deterrence and, interestingly, claims that given the vastly restricted scope of the death penalty, the trial, rather than the scaffold, had become the “focal point” of the Victorian criminal justice system. Lessons once taught at the gallows had now to be received in the courtroom, the authority of the justice system expressed by a verdict delivered promptly in court.Footnote ⁵ A lengthy appeal process could arguably damage public faith in the trial, especially if the appellate court were allowed to overturn the original verdict. Where would-be reformers of the criminal justice system had argued from the time of Beccaria for certain, uniform application of the law, the judiciary appear to have retained a faith in the swift execution of sentence and the occasional necessity of example. They remained attached to the older form of discretionary justice, with discretion exercised as it had been traditionally: by prosecutors, jurors, and trial judges. In other words, their “alternative understanding of the law” may have been principled and coherent, but it was also deeply conservative.

While the explanation offered for judicial resistance to the creation of a court of appeal is convincing, use made of the new CCCR remains puzzling. On Handler's evidence, once the process of reserving points of law for collective discussion was formalized such discussion appears to have declined. The court's caseload was never large and it decreased noticeably over time. Handler attributes this in part to “the limited extent and quality of legal discussion in trials,” pointing to the restricted access to legal texts on assize circuits and to the fact that counsel usually had little time to prepare before trial. He also argues that the plural bench traditionally found at the Old Bailey, and the fact that assize judges travelled in pairs, “provided a ready means of resolving issues of law and reduced the need to reserve cases.” These arguments fail to convince; the same circumstances had prevailed a hundred years earlier, in the period that witnessed the increase in informal review charted by Bentley and explored in Oldham and McGowen's articles. How then can we explain the limited resort to the CCCR?

The answer to this question must lie in the nineteenth-century courtroom, and, unfortunately, we know very little about its day-to-day workings. Trial did, as Handler concludes, remain “a critically important site of legal development” throughout the nineteenth century. Absent from his discussion, however, is reference to or consideration of the substantial changes the criminal trial had undergone, and was continuing to undergo, in the period he investigates. He argues that it was “usually” defense counsel who attempted to reserve a point, and that judges “often refused.” It would be useful to see some actual figures, a statistical analysis of who initiated, or attempted to initiate, a reserved case in the CCCR, as the “complex dance” of bench and bar referred to by McGowen had become yet more complex. By the time the CCCR was established, the Prisoners' Counsel Act (1836) had given defense counsel the right to address the jury on their clients' behalf. Did their new freedom to comment on the evidence, on the facts of the case, affect their inclination to ask for judicial consideration of points of law? Did they become less active in this regard than they had been before 1836? The strategies of counsel for the prosecution also seem to have prevented some issues from being reserved; the risk, Handler argues, of a quashed conviction prompted prosecuting counsel in at least some cases to withdraw evidence that raised judicial doubts. We should bear in mind the fact that the creation of the CCCR coincided roughly with the campaign for a system of public prosecution, and prior to the creation of the director of public prosecutions in 1878, with an increased use of treasury counsel to prosecute serious cases.Footnote ⁶ The effects of this new, albeit limited, resort to a form of state prosecution on courtroom dynamics remains to be explored.

The seemingly new judicial reluctance to reserve cases also requires greater explanation. Handler is incorrect in stating that many of the judges had limited experience of practice in the criminal courts. It is true that, with the exception of Russell Gurney,Footnote ⁷ they had spent little time at the Old Bailey, but men of Campbell's generation cut their professional teeth on criminal cases on the assize circuits. Criminal practice had become a routine part of a recently called barrister's workload by the late eighteenth century and Campbell himself had been employed in Crown cases on the Home Circuit and at the Gloucester sessions between 1806 and 1819; in 1812 he announced his intention to become “a sort of village Garrow” at the Monmouth quarter sessions.Footnote ⁸

Individual initiative clearly continued to be a factor. Gurney, whose tenure as recorder of London (1856–78) restored the reputation of that office, appears to have retained faith in the utility of reserved judgments for clarifying or developing law; his fellow City judge R.M. Kerr, described by contemporaries as “a law unto himself,” demonstrated virtually no interest in the process whatsoever.Footnote ⁹ Variation in individual inclinations aside, however, Handler has suggested a general increase in judicial reluctance to allow judgments to be reserved for the CCCR. Having retained their discretionary power to reserve cases, in the second half of the nineteenth century they apparently preferred not to. If the trial was indeed now seen as the focal point of the justice system, judges may have shared Denman's fears that reserving judgments would undermine both public confidence in the trial and the desired “lesson and example” of a verdict delivered promptly in court. Did formality itself and the new publicity attendant upon the judges' decisions also combine to kill the review process? The exposure to greater public scrutiny enabled by a formal court may go some way toward explaining a restrictive approach to reserving cases during this period. I would suggest that the new court's power to quash convictions, rather than merely recommending a pardon, may also have made judges hesitate. As they were not empowered to order a retrial, it may have inclined them, that is, to think less in terms of the benefits attendant upon clarification of a legal issue, and more about a potential undesired outcome in the particular case at hand. There is after all a considerable difference between recommending mercy and altering the verdict of the trial court.

Collectively, the picture presented by these three articles is of an active, innovative, informal process of judicial review of criminal cases between the mid-eighteenth and mid-nineteenth centuries, and an almost moribund formal process in the second half of the nineteenth century. Handler's article suggests that the CCCR, rather than contributing to the development of legal doctrine, as the earlier, informal review process did, served instead to shut down discussion, with judges “consistently” refusing “to articulate anything approaching a general principle.” The contrast is striking and worthy of further investigation.