The Writ of Certiorari and Review of Summary Criminal Convictions, 1660-1790

Abstract

The first sightings of the writ of certiorari being used as a means of attacking summary convictions can be found in the early-seventeenth century. This use of the remedy peaked in the early eighteenth century during the reign of George II. But even then the rate of usage was not high: there were barely more than four applications annually. It is likely no more than a few hundred convictions were ever removed by certiorari throughout the entire period 1660-1790.

Despite the relatively infrequent use of the remedy, from the late seventeenth-century onwards the employment of certiorari against criminal convictions attracted parliamentary attention and judicially-instigated procedural regulation. This account of certiorari and summary criminal convictions is concerned with three issues: (i) the measures adopted by parliament and the King’s Bench - the statutory recognisance, the no-certiorari clause, and, especially, the model form conviction - to limit this particular use of the writ; (ii) the nature of the review - review for formal defects on the face of the conviction - exercised by the King’s Bench when convictions were removed before it; and (iii) the reasons why convicted persons resorted to this expensive remedy to quash penalties for minor offences.

It concludes that the traditional account which identifies the model form conviction introduced by the Summary Jurisdiction Act 1848 as having killed off the remedy, exaggerates the effect of the 1848 Act. Sir John Jervis’s Act of 1848 did not terminate a flourishing jurisdiction. The 1848 Act was more of a tidying up measure; most convictions had already been rendered unreviewable.