This essay was written by Peter Jansen for the 2023 Cambridge Fitzwilliam History essay competition on the topic of criminal law in 1869, which was the year that the college was founded. Peter received a Certificate of Commendation for his essay.
1869 to 1871 was a period of significant change for the judicial system in Britain and the Habitual Criminals Act (1869) “(The Act)” had a wide ranging and long-lasting impact, revolutionising how repeat offenders were supervised in Britain and its legacy is evident in modern criminal legislation. The 1850s and 60s saw the cessation of transportation of criminals to Australia, the main method of addressing repeat offenders creating a key issue for parliament: “what shall we do with our convicts?”.[1] This question was fuelled by widespread worry in the press about the growing numbers of criminals living in Britain and the creation in 1857 of a pressure group called the National Association for the Promotion of Social Science (“the SSA”) who demanded the government deal with serious and repeat offenders. Although the press were important in driving a public panic about controlling criminals in Britain, it was the SSA that was more influential in enforcing real change in parliament. The Actwas a response to the perceived “emergence” of a “criminal class” and included a registry of every known criminal in Britain. Although the Act held valid ideas over how to deal with criminals, its introduction into Britain was not completely effective as there were flaws in the register and so gave rise to the Prevention of Crime Act (1871). Together the Acts paved the way for our modern criminal justice system as they introduced a primitive concept of parole and built-in consideration of the impact of previous convictions at sentencing, including through the establishment of mandatory sentences.
Why was the act passed?
A changing landscape in the penal transportation of convicts to Australia necessitated the intervention into how criminals were dealt with. Transportation of convicts had first been introduced through the Elizabethan Act of 1597, with Australia the main destination after 1787. However attitudes to transportation had changed; it was no longer seen as an effective deterrent for crime due to the establishment of an Australian society, who began to refuse convicts due to the negative impact on societal harmony, and discovery of gold in 1851 contributing to its allure. The Act was implemented to replace this transportation which had formally ended on the 9th of January 1868 with the final conflict transport arriving in Australia. This left a gap in the criminal justice system as convicts now had to be dealt with in Britain. The press were integral in raising concerns and fuelling the social pressure on the government to address the growing number of criminals living in Britain. Many newspaper articles exaggerated the problem, including the Morning Advertiser stating in 1850 that “the criminal class roamed through the country in summer, causing crime everywhere they went.”[2] The negative attitudes held by the press towards the criminal justice system, is exemplified by the Evening Mail writing in 1856 that those who were released from prison had “sunk deeper into crime themselves.”[3] The narrative was that the system was failing to protect society from those who had been previously convicted of crimes. In 1865 judicial statistics estimated the scale of the criminal class with 116,749 people living in Britain who had previously been convicted of a crime. The statistics were printed in most newspapers including the Globe, the Evening Mail and the Weekly Advertiser encouraging apprehension in Victorian society over the number of crimes being committed[4]. The impact of the press was exacerbated by the growth in literacy from 50% at the start of the 19th Century to 95% by the end with the information reaching a wider audience than ever, especially when the topic was crime. Therefore, the press were influential in pushing a “media created crime wave” which increased pressure on government and resulted in the introduction of the Act, as argued by King[5].
However, the SSA was more influential than the press in the passage of the Act. Its members (mostly from the Liberal Party) used debate to draw attention to the problems with the management of criminals and put it on the political agenda helping to formulate policies behind the Act. The SSA laid out their aim to “stimulate the legislature” in their inaugural address in July 1857.[6] Lawrence Goldman correctly identified penal policy as a “central theme” of their desire for change at the first meeting in 1857, as the SSA had been founded following the flawed Penal Servitude Acts of 1853 and 1857 which introduced penal servitude as a replacement for transportation but without any monitoring of criminals upon release.[7] The SSA were not content with this legislation as it was only prospective, and the issue of registering past criminals in Britain remained. A turning point in the introduction of the Act was the November 1868 election of Gladstone’s Liberal government which gave the SSA a greater element of control in Parliament as 64 of the 266 Members of the SSA in 1857 were Liberal MPs and by 1868 that number had grown.[8] The extent to the SSA’s impact on the Act cannot be understated with Goldman going as far as saying that “The SSA dictated the terms of the 1869Habitual Criminals Act”, an argument which is consistent with the Bill being introduced into the House of Lords within four months of the change of government.[9] The issues that had been highlighted by the press through the previous decades were once again brought up in the House of Lords with Earl Kimberly stating that the criminal class were “a great army making war on society, and it is necessary that society should for its own defence make war upon them.”[10] The common attitude in the House of Lords was that strict measures should be used to resolve the issue, stated by The Earl of Shaftesbury as “I believe you will effect a great deal in putting down crime by stringent measures.”[11]
How effective was the Act in shifting sentencing and policing practices?
A multitude of London newspapers supported the bill including The Pall Mall Gazette stating on the 21st of December 1869 that the Act was a “pretty good bill of fare” and that if a register of those who “indulge in these evil practices is kept by the police” then the position of criminals will be weakened[12]. This article was released a few months after the implementation of the Act and so overlooked its actual effects and instead focused on the mission statement of the Act; that the police should have more power to deal with criminals in Britain. This same sentiment was shared by The Daily Telegraph, The Shipping and Mercantile Gazette, The Globe, The Times, and The Courier who thought“the bill was good, enabling police to lay hands on that criminal class.”[13]Their later publication dates make them informative of the press’s reaction to the Act’s implementation. Moreover, the Act was defended by Mr Bruce, the Home Secretary, who stated, “the registration of criminals, which is now being carefully pursued and would have in a short time have excellent effects,” and provided the House with selected evidence of the Act’s supposed success saying that “12,277 have been registered as having committed and offence” between 9th August 1869 and 28th March 1870[14]. At first glance, the Act therefore appears to be a success as it was praised in the press and the House.
However, in practice the Act did notachieve its aims of maintaining an effective register and using that register to increase the severity of sentencing of habitual criminals. Although 12,277 had been registered by March 1870 the estimate for the number of released criminals in 1865 was 116,000 meaning that there were at least 100,000 ex-offenders in Britain who were unsupervised. Furthermore, the inadequate supervision provided by the police meant that those who were registered were not necessarily pursuing an honest living. Edmund Henderson, the head of the London police, wrote a letter to Adolphus Liddell, the Permanent Under- Secretary of State at the Home Office, in late December of 1869 with his complaints about the flaws within the Act. Henderson complained about the lack of clarity over who should be closely supervised because it required communication between the court and the wardens of the prisons to put the criminals on the registry. Henderson specifically focused on a case on the 30th of December where two defendants were known criminals and were not put in the registry even when Henderson gave evidence that they had committed previous crimes, as he was allowed to do under thefinal part of the Act, as evidence thatthe “magistrates nullify the power of the police.” [15]The magistrates and judges undermined police supervision by failing in each case to make it clear they that supervision was a part of sentencing. This oversight by some magistrates and judges reflected the fact that they did not give the Act their full support. Their belief was that supervising all past offenders infringed on their personal liberty. Therefore, it was often the case was that they only assigned supervision to those who had committed crimes more serious than theft.
Moreover, from August 1869 up to August 1871 when the Prevention of Crime Act 1871 was implemented, there is only record of two cases in the Old Bailey Proceedings where the other clauses of the Act, which go beyond assigning supervision, are directly applied and stated. The first was the case of James Hardy on the 20th of September 1869. Hardy was charged with theft, and due to Part Four of the Act his previous convictions reversed the burden of proof, so that he was “deemed to have known such goods to have been stolen, until he has proved the contrary.”[16] The second direct application of the Act was the trial of William Palmer on the 10th of January 1870 where his previous convictions of theft increased his sentence to seven years of penal servitude. Evidently the other parts of the Act were not as impactful as the registration provisions due to the infrequency of their use[17].
Overall, although the principles of the Act aimed at supervising habitual criminals, in practice the Act was too vague on how to determine who to supervise, and the required level of supervision to effectively reduce the impact of the criminal class on Britain. The shortcomings of the Act led to the introduction of the Prevention of Crime Act (1871), which attempted to improve registration by introducing monthly reporting for licence holders and repeat offenders and requiring both to report any change of address to the police. The Prevention of Crime Act (1871) also added photographic identification onto the registry to improve searches of the registry for the police. This system was kept in place up until 1895 when there was the addition of finger printing to the registry. Whilst it can be argued that the Prevention of Crime Act (1871) was of greater success than the Habitual Criminals Act (1869) due to the longevity of its scheme, this fails to consider that it only built upon the principles outlined in the former Act.
In conclusion, the Act was unsuccessful in reducing the size of the criminal class in Britain. Indeed, some historians have questioned whether the Act only served to grow the criminal class, including Stefan Petrow who argued that the registration and different treatment of habitual criminals only resulted in the hounding of these individuals by the police. Yet, the concepts the Act introduced in sentencing and police surveillance were transformative of the criminal justice system and underpin our current approach. The police today still use a registration scheme and notification requirements to monitor sex offenders; all offenders who receive a custodial sentence shorter than two years are subject to post-sentence supervision upon release to help with their rehabilitation; and mandatory sentences remain for offenders who commit a third domestic burglary (3 years’ imprisonment), a second offence of possession of a knife or offensive weapon (6 months’ imprisonment), or a third-class A drug trafficking offence (7 years’ imprisonment).
Bibliography
Primary Sources:
The Earl of Carlisle, ‘Address on the Punishment and Reformation of Criminals’, in Transactions of the National Association for the Promotion of Social Sciences 1858, London: John W. Parker and Son (1859), p.70
Morning Advertiser (1850), 18 February, p.3 available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001427/18500218/055/0003 [Accessed: 18 February 2023]
Evening Mail (1856), 22 October, p. 2 available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001316/18561022/011/0002 [Accessed: 18 February 2023]
Globe (1866), 9 August, p.3 available athttps://www.britishnewspaperarchive.co.uk/viewer/bl/0001652/18660809/053/0003 [Accessed: 14 February 2023]
Evening Mail (1866), 19 October, p1 Available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001316/18661019/002/0001 [Accessed: 14 February 2023]
Weekly Advertiser (1865), 6 August, p2 available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0004221/18650806/011/0002 [Accessed: 14 February 2023]
Huch, Ronald K. “The National Association for the Promotion of Social Science: Its Contribution to Victorian Health Reform, 1857-1886.” Albion: A Quarterly Journal Concerned with British Studies, vol. 17, no. 3, 1985, pp. 279–99. Available at:https://doi.org/10.2307/4048958 [Accessed: 9 February 2023].
Earl of Kimberly (1869), Habitual Criminals Bill, 26 February. Available at: https://hansard.parliament.uk/Lords/1869-02-26/debates/a400d2ac-8262-4756-8e21-662707dc2234/PresentedFirstReading?highlight=habitual%20criminal#contribution-5f844a72-f883-47d2-84d2-95554b3b5b16 [Accessed: 18 February 2023].
The Earl of Shaftesbury (1869), Habitual Criminals Bill, 5 March. Available at: https://hansard.parliament.uk/Lords/1869-03-05/debates/f6d2eb80-fe97-45e4-92a1-cdd66916cd3a/SecondReading?highlight=habitual%20criminal#contribution-247698df-790f-40e1-8707-69b1a43535ff [Accessed: 18 February 2023].
Pall Mall Gazette, 21 Dec. 1869, p. 4 available at https://www.britishnewspaperarchive.co.uk/viewer/BL/0000098/18691221/006/0004# [Accessed: 14 February 2023]
Daily Telegraph and Courier, Thursday 07 July 1870 page 5 available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001112/18700707/029/0005# [Accessed: 14 February 2023]
Shipping and Mercantile Gazette – Tuesday 24 August 1869 Page 8 Available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001702/18690824/121/0008# [Accessed: 14 February 2023]
Globe – Friday 06 August 1869 page https://www.britishnewspaperarchive.co.uk/viewer/bl/0001652/18690806/005/0002 [Accessed: 14 February 2023]
Edmund ;Henderson to Adolphus Liddell, 30 December 1869, TNA, MEPO 3/88
; Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 16 February 2023), November 1869, trial of THOMAS RILEY (18) (t18691122-50).
Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 10 February 2023), September 1869, trial of JAMES HARDY (34) (t18690920-820).
Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 10 February 2023), February 1871, trial of WILLIAM PALMER (23) (t18710227-253).
Secondary Sources
Matthew Bach, Combating London’s Criminal class, Bloomsbury, 2020
http://www.open.ac.uk/Arts/history-from-police-archives/Met6Kt/Crime/crmCrCrim.html#:~:text=Under%20the%20Prevention%20of%20Crimes,a%20crime%20in%20Great%20Britain [Accessed: 14 February 2023]
Matthew Bach, Combating Recidivist Crime in London, Doctoral Dissertation, The University of Melbourne 2020
Lawrence Goldman, Science, Reform and Politics in Victorian Britain: The Social Science Association 1857-1886, London: Cambridge University Press, 2002 pg 86.
Pete King, ‘Moral Panics and Violent Street Crime 1750-2000: a Comparative Perspective’, in Barry Godfrey, Clive Emsley and Graeme Dunstall (eds.), Comparative Histories of Crime, Cullompton: Willan, 2003, p. 57.
[1] The Earl of Carlisle, ‘Address on the Punishment and Reformation of Criminals’, in Transactions of the National Association for the Promotion of Social Sciences 1858, London: John W. Parker and Son (1859), p.70
[2] Morning Advertiser (1850), 18 February, p.3 available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001427/18500218/055/0003
[3] Evening Mail (1856), 22 October, p. 2 available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001316/18561022/011/0002
[4] Globe (1866), 9 August, p.3 available athttps://www.britishnewspaperarchive.co.uk/viewer/bl/0001652/18660809/053/0003
Evening Mail (1866), 19 October, p1 Available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001316/18661019/002/0001
Weekly Advertiser (1865), 6 August, p2 available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0004221/18650806/011/0002
[5] Pete King, ‘Moral Panics and Violent Street Crime 1750-2000: a Comparative Perspective’, in Barry Godfrey, Clive Emsley and Graeme Dunstall (eds.), Comparative Histories of Crime, Cullompton: Willan, 2003, p. 57.
[6] Goldman, Lawrence, Science, Reform and Politics in Victorian Britain: The Social Science Association 1857-1886, pg86, London: Cambridge University Press (2002).
[7] Ibid.
[8] Huch, Ronald K. “The National Association for the Promotion of Social Science: Its Contribution to Victorian Health Reform, 1857-1886.” Albion: A Quarterly Journal Concerned with British Studies, vol. 17, no. 3, 1985, pp. 279–99.
[9] Goldman, Lawrence, Science, Reform and Politics in Victorian Britain: The Social Science Association 1857-1886, pg86, London: Cambridge University Press (2002).
[10] Earl of Kimberly (1869), Habitual Criminals Bill, 26 February. Available at: https://hansard.parliament.uk/Lords/1869-02-26/debates/a400d2ac-8262-4756-8e21-662707dc2234/PresentedFirstReading?highlight=habitual%20criminal#contribution-5f844a72-f883-47d2-84d2-95554b3b5b16
[11] The Earl of Shaftesbury (1869), Habitual Criminals Bill, 5 March. Available at: https://hansard.parliament.uk/Lords/1869-03-05/debates/f6d2eb80-fe97-45e4-92a1-cdd66916cd3a/SecondReading?highlight=habitual%20criminal#contribution-247698df-790f-40e1-8707-69b1a43535ff.
[12] Pall Mall Gazette, 21 Dec. 1869, p. 4 available at https://www.britishnewspaperarchive.co.uk/viewer/BL/0000098/18691221/006/0004#
[13] Daily Telegraph and Courier, Thursday 07 July 1870 page 5 available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001112/18700707/029/0005#
Shipping and Mercantile Gazette – Tuesday 24 August 1869 Page 8 Available at https://www.britishnewspaperarchive.co.uk/viewer/bl/0001702/18690824/121/0008#
Globe – Friday 06 August 1869 page https://www.britishnewspaperarchive.co.uk/viewer/bl/0001652/18690806/005/0002
[14] Mr Bruce (1870), Volume 200, , Hansard: House of commons debates, Available at https://hansard.parliament.uk/Commons/1870-04-29/debates/3807360a-fad8-4a04-a0d6-499244cdd7d2/Question?highlight=habitual%20criminals#contribution-c74c8006-1508-45eb-9ed5-1d320dd9ab55
[15] Edmund ;Henderson to Adolphus Liddell, 30 December 1869, TNA, MEPO 3/88
; Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 16 February 2023), November 1869, trial of THOMAS RILEY (18) (t18691122-50).
[16] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 10 February 2023), September 1869, trial of JAMES HARDY (34) (t18690920-820).
[17] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 10 February 2023), February 1871, trial of WILLIAM PALMER (23) (t18710227-253).
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