The Little Book of Crime and Punishment

CONTENTS

Title

Introduction

Timeline of Criminal History

1. Why Waste Money on Prisons?

2. As Black as Newgate’s Knocker

3. Judges and Men of Straw

4. Who’d Like to be a Gaoler?

5. Go to Gaol. And Stay There!

6. Get Out of Gaol Free Card

7. The Bloody Code

8. Public Executions at Bargain Rates

9. The Ones They Couldn’t Hold

10. The Villains

11. The Fraudsters

12. The Victims of Injustice

13. The Ones Who Got Away With It

14. The Invasion of the Body Snatchers

15. Replacing Proper Charleys with Old Bill

16. Panopticons and Misguided Reforms

17. ‘On going to see a man hanged’

18. Things Can Only Get Better

About the Author

Copyright

INTRODUCTION

This short volume is the product of the author’s long involvement with the criminal justice system, both as a student and participant. An earlier account of the long and often gruesome history of Newgate Prison and its neighbour the Old Bailey familiarised me with the eccentricities, injustices and brutality of the system as it existed well into the twentieth century. And sixteen years as a magistrate has taught me of the futility of the lives of many repeat offenders and the heroic patience of those who try to give them hope. In writing this book I am indebted to my friend James Wareing who, when I was falling behind with my schedule, made his tranquil home available to me in which to write without interruption. Thank you, James.

Stephen Halliday, 2014

TIMELINE OF CRIMINAL HISTORY

1

WHY WASTE MONEY ON PRISONS?

PUT ‘EM IN THE CLINK

Before the nineteenth century, criminals were rarely sentenced to prison. Prisons were expensive to build, no one was keen on having one in their backyard and it seemed a pity to waste money on criminals. The purpose of a prison (often known as the bridewell, clink or lockup to give a few local expressions) was to hold prisoners until their trials before magistrates or a judge and jury. When the trial had been held (and the usual verdict was ‘guilty’), the convicted prisoner would be sent back to prison for a brief period before the sentence was carried out.

THE KING’S JUDGES

The system started with King Henry II (1154–89) who, when not quarrelling with Thomas Becket, was reforming the English legal system. And as we will see later, Henry had a strong case in his argument with the troublesome priest, even if he did overplay his hand by turning his archbishop into a martyr. Henry instituted the system whereby the king’s judges, sometimes referred to as justices in eyre, travelled from Westminster to each county in his kingdom to administer justice. They normally travelled in pairs and before they arrived in a town, the local ne’er-do-wells would be rounded up by the parish constable and incarcerated in the local gaol to await trial by the king’s judges. The ‘judges’ were unlikely to have had much in the way of legal training; the Inns of Court, where barristers and judges were later trained, did not appear for another two centuries. Henry’s judges were more likely to be courtiers and nobles who enjoyed the king’s confidence and were prepared to do the work at little cost.

The trials became known as assizes, derived from an old French word meaning a legal process carried out while seated. The assizes would begin with the arrival of judges, who would often process through the town with the mayor and other dignitaries before beginning the trials. This continued until 1972, when the assizes were replaced by permanently staffed Crown Courts, of which the Old Bailey is the most famous. When they had finished their work in a county, the judges would return to London and to Westminster Hall where the high court was based, until the reign of Queen Victoria who opened the present Royal Courts of Justice in the Strand in 1882. The judges would compare notes with their colleagues who had been administering justice in other parts of the kingdom, discussing such matters as how evidence was gathered and presented, what credence was attached to testimony from people at different levels in society and what penalties they had imposed for various offences.

In this way a set of common principles or precedents developed to ensure a degree of consistency in the administration of justice. In time this became known as the common law, the application of which is based upon precedents in order to combine consistency with justice. Henry II is thus regarded as the ‘Father of the Common Law’ and it is not by chance that the year of his death, 1189, is regarded as time immemorial in English law. If an individual can prove, for example, that he has owned a piece of land or other possession since 1189 then no claim prior to that date will be held valid in English law. The Crown Courts continue to hear serious cases which are likely, in the event of guilt being established, to result in long prison sentences.

LOCAL JUSTICE

Less serious infringements of the law would be dealt with not at the assizes by the king’s judges, but by quarter sessions or petty sessions. Quarter sessions were held, as their name implies, four times a year at Epiphany (early January), Easter (March/April), Midsummer and Michaelmas (late September). They would be presided over by three Justices of the Peace sitting with a jury. Minor offences such as drunkenness, theft of fairly low-value items and most motoring offences would be dealt with by three Justices of the Peace without a jury, in petty sessions which were often held in a church hall or pub rather than in a purpose-built courthouse. The office of Justices of the Peace (also called magistrates) is an ancient one. It was first mentioned in an Act of Parliament in 1361 but the reference there is clearly to an office that had already existed for some time. In 1195, during the reign of Richard I (1189–99), Keepers of the Peace were appointed and they were probably the forerunners of the Justices of the Peace. They were chosen by the king’s local representative, the sheriff, as citizens of good standing with local knowledge and they did much more than hear cases. Their knowledge of the local populace would be used to round up suspects before the assizes or quarter sessions were held (whereas nowadays a justice who knows anything about the criminal past of a suspect is required to stand down from hearing the case). They were not paid (they still aren’t) and now have some training in court procedure, but they are assisted by a legally qualified court clerk who advises them, when required, on the law. Before the reign of Queen Victoria they did much else besides. In effect they were the local government authority outside the major towns, with the task of raising money from rates to repair bridges and roads, for example.

BETTER THAN DROWNING

The use of judges, magistrates and juries was a great improvement on what went before. In the early medieval period, trial by ordeal was a common method of establishing guilt or innocence, based upon the assumption that God would care for the innocent. The most common variations were trial by fire and trial by water.

Trial by fire involved walking across hot coals or holding a red-hot piece of metal. After an interval of about three days, the resulting wounds would be examined by a priest, who would decide whether the healing process had advanced sufficiently to show that the deity had indeed intervened. If not, the suspect would be declared guilty.

Trial by water took two forms. The first required the suspect to remove a stone from the bottom of a cauldron of boiling water, following which a priest would decide whether the injuries were consistent with guilt or innocence. The other form, known as ordeal by cold water, involved the accused being thrown into a river or pond, sometimes bound hand and foot. If he floated he was innocent and if he sank he would drown – regarded as a satisfactory outcome to those who believed this was a punishment for his guilt.

In 1215 Pope Innocent III (1198–1215) prohibited priests from participating in these ‘ordeals’, which put an end to the practice, though in the seventeenth century in England a witch-hunter called Matthew Hopkins briefly revived a form of ordeal by water associated with catching witches. It was assumed that a witch, having renounced her baptism, would be rejected by water. The unfortunate woman would be thrown into water. If she floated, she was rejected by the water and therefore guilty. If she sank, well, that was hard luck but at least she was innocent. In the absence of these crude, swift and unjust methods of determining guilt, other methods had to be found and in England this was the jury.

‘GOOD MEN AND TRUE’

The first type of jury was the grand jury, which was created in England by Henry II in 1166. The word ‘jury’ is derived from a Norman French word meaning ‘to swear’ and simply meant that a number of local citizens would swear to deliver justice. The grand jury would consider evidence of a crime presented by a prosecutor and decide whether the case was strong enough to proceed to an indictment (in effect an accusation) before the assizes or quarter sessions. This was not a trial. The grand jury only considered the prosecution’s case to decide whether there was sufficient evidence to proceed to a trial.

In England, grand juries ceased to operate in 1933, though they were not officially abolished until 1948. The number of jurymen on a grand jury varied, but it was never fewer than twelve and often more. They continue to be used in some parts of the world which practise the common law, notably the United States of America. Their work in England is now done by magistrates who decide whether there is a prima facie case to go to trial,