In 1848, Parliament created the Court for Crown Cases Reserved, in which all of the common law judges heard and decided questions reserved by trial judges in criminal cases. As Sir John Baker explains, this was “a court of record, which would now sit in public and give reasons for its decisions,” even though “the reservation of cases was still at the discretion of the trial judge and the court did not have the powers of the court en banc in civil cases.” The Court for Crown Cases Reserved formalized an off-the-record procedure that had been followed for centuries. When a question of law or procedure arose during the conduct of a jury trial, the question could be reserved for collective deliberation by the twelve common law judges. As will be explained, the reasons for reserving a question were varied; the deliberations by the judges were both informal and private, although at times, arguments of counsel were permitted or invited; and until the late 18th century, the results of the deliberations were not regularly made public.
27 Law & Hist. Rev. (forthcoming, 2011)
Scholarly Commons Citation
Oldham, James, "Informal Law-Making in England by the Twelve Judges in the Late 18th and Early 19th Centuries" (2011). Georgetown Law Faculty Publications and Other Works. 361.