Outlawries Bill - Background

Background

The term Outlawry referred to the formal procedure of declaring someone an outlaw, i.e. putting him outside of the sphere of legal protection. In the common law of England, a judgment of (criminal) outlawry was one of the harshest penalties in the legal system, since the outlaw could not use the legal system to protect them if needed, e.g. from mob justice. To be declared an outlaw was to suffer a form of civil death. No one was allowed to give him food, shelter, or any other sort of support – to do so was to commit the crime of aiding and abetting, and to be in danger of the ban oneself. In effect, (criminal) outlaws were criminals on the run who were "wanted dead or alive".

By the rules of common law, a criminal outlaw did not need to be guilty of the crime he was outlawed for. If a man was accused of a crime and, instead of appearing in court and defending himself from accusations, fled from justice, he was committing serious contempt of court which was itself a capital crime; so even if he were innocent of the crime he was originally accused of, he was guilty of evading justice.

There was also civil outlawry. Civil outlawry did not carry capital punishment with it, and it was imposed on defendants who fled or evaded justice when sued for civil actions like debts or torts. The punishments for civil outlawry were nevertheless harsh, including confiscation of chattels (movable property) left behind by the outlaw.

In the civil context, outlawry became obsolescent in civil procedure by reforms that no longer required summoned defendants to appear and plead. Still, the possibility of being declared an outlaw for derelictions of civil duty continued to exist in English law until 1879 and in Scots law until the late 1940s. Since then, failure to find the defendant and serve process is usually interpreted in favour of the defendant, and harsh penalties for mere nonappearance (merely presumed flight to escape justice) no longer apply.

However, a similar issue to "clandestine outlawries" is currently known as "sewer service". While the penalties for wilfully not attending court when supposedly summoned to court are no longer termed "outlawry", they can include "default judgment" against defendant in civil cases and penalties for "contempt of court", including imprisonment. Although the laws since 19th century mostly require "personal service" of process, and sworn "proof of process" that the defendant has received notice of trial, in many areas the parties involved in service of process get away with perjured proof of process, claiming to have delivered the legal documents which in fact have not reached defendant (but rather been discarded "in sewer").