In the nineteenth century many crimes were punishable by death, but from 1823, the term "death recorded" was used in cases where the judge wished to record a sentence of death as legally required, while at the same time indicating his intention to pardon the convict or commute the sentence.
History
Royal pardons for capital punishment had become routine at the time for most common crimes. Under the Judgment of Death Act 1823, a "death recorded" sentence allowed the judge to meet common lawsentencing precedent while avoiding mocking by the sentenced or the public who realised an actual death penalty sentence was likely to be overridden. As a death sentence had to be delivered orally in court by the judge for the criminal to be actually executed, a written death recorded sentence was not an actual death penalty. The sentence became much less common after the Criminal Law Consolidation Acts 1861 greatly reduced the number of capital offences. A definition of the term appears in early editions of Ebenezer Cobham Brewer's Dictionary of Phrase and Fable. The number of offences for which death was nominally the sentence and the sentence of death recorded were criticized at the time of usage both for being capriciously cruel and for uncertainty of actual punishment:
Contemporary confusion
The term has caused some confusion. A misunderstanding of the term led to Naomi Wolf, in her 2019 book Outrages: Sex, Censorship, and the Criminalization of Love, to incorrectly claim that there had been a large number of executions for homosexuality in mid-19th-century England. This claim was based on her misreading proceedings of the Old Bailey, and the use of "death recorded" in these records. During a BBC radio interview with Matthew Sweet, Wolf's claim was challenged and her misreading identified; Sweet claimed to have found the correct definition for "death recorded" on the Old Bailey website. Historian Richard Ward later commented that "if all the people who were mentioned in the Old Bailey records as "death recorded" were subsequently executed, there would have been a bloodbath on the gallows". One possible explanation for Wolf's confusion was given by Tim Hitchcock, a co-director of the Old Bailey website. He tweeted that "death recorded" was listed as a variety of capital punishment for statistical purposes, and that its full significance as a variety of sentence was not explained on the Old Bailey site. Wolf's misreading was also defended by Labour peer Helena Kennedy QC. Baroness Kennedy, while admitting that "in 2018 I was asked by Wolf to read the manuscript of her book, and to apply a legal practitioner’s eye to the narrative and argument," and that she failed to spot the error, argued that: In fact "death recorded" means precisely that the death sentence was entered silently into the record and never pronounced in court, mainly to avoid ridicule from defendants and the public gallery when the sentence was certain to be commuted. No executions for sodomy, or for any crime other than murder or treason, occurred after 1835.
