Behaving Badly

Social Panic and Moral Outrage - Victorian and Modern Parallels

Judith Rowbotham, Kim Stevenson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351955874
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire du monde

Both the Victorian age and the late twentieth century are often characterised by contemporaries as times of apparent economic affluence and stability. They are often depicted as periods that shared a conviction that the stability of society, including its affluence, was threatened by the activities of social deviants. These essays aim to examine crime of a socially visible nature, in the context of social panic and moral outrage in both the Victorian period and the late twentieth century. Through a series of interconnected case studies, exploring the social and legal responses to such offences and their public presentation through popular reporting and the court system, a series of apparent continuities as well as discontinuities are highlighted in the making of legislation. The innovative approach taken by the editors and contributors to concepts of crime and bad behaviour, make this essential reading for academics and practitioners. The interdisciplinary focus of the book allows it to locate the legal processes and system firmly within the socio-cultural context, instead of examining it as a discrete area of individual study, making this text central to work in law, criminology and social policy, and history.

Chapter 1
Acquitting the Innocent. Convicting the Guilty. Delivering Justice?

David Bentley

In Victorian England public confidence in the criminal trial system was high. That wrong convictions occurred but rarely, and wrongful executions never, was an article of faith amongst judges and politicians alike and would remain so until at least the 1960s. In April 1948, during a debate on the death penalty, Sir David Maxwell-Fyfe (soon to achieve notoriety as the Home Secretary who refused to reprieve Derek Bentley) told the Commons:

There is no practical possibility [of an innocent man being put to death]. Of course a jury might go wrong, the Court of Criminal Appeal might go wrong as might the House of Lords and the Home Secretary: they might all be stricken mad and go wrong. But that is not a possibility which anyone can consider likely ... it is impossible for anyone who views and examines fairly the facts of any murder cases of which he has knowledge to say that such a miscarriage has taken place.¹

Such affirmations of faith in the system were routine in nineteenth century debates in the Commons as confirmed by Thomas Denman MP — 'it [is] the practice to indulge very much in commonplace eulogies on the tenderness and humanity of the law of England towards prisoners'.² Nor did the general public (or at least that section of it which had had no dealings with the courts) need any persuading as to the superiority of English criminal justice: to most Victorians it was a self-evident truth.

Today public perceptions are very different.³ When the Solicitors' Journal carried out a survey in the wake of the Report of the Royal Commission on Criminal Justice 1993, it found that only 21 per cent of those questioned considered British justice was the best in the world.⁴ It is not hard to understand why. The rot started with the grant of a posthumous pardon to Timothy Evans in 1968; what had so long been claimed could never happen, had happened: Britain had hanged an innocent man.⁵ But the real damage was done by the seemingly endless series of high-profile miscarriages of justice which came to light in the 1980s and 1990s. The best-known are listed in the introduction to the report of the Royal Commission set up to investigate them and include the cases of the Birmingham Six, The Guildford Four, the Maguires, Judith Ward, the Broadwater Farm Three, Stefan Kiszko, the Cardiff Three, a number of 'cases based on evidence gathered by members of the West Midlands Police Serious Crime Squad ... [and] cases where the convictions ... [arose] out of ... malpractice by officers based at Stoke Newington police station'.⁶

The Victorian and Present Day Trial Systems Compared

Although the nineteenth century criminal trial system scored well in terms of public approval, and certainly better than does the present day system, there is no escaping the fact that it had serious deficiencies, particularly in regard to the legal representation of defendants, and appeals. Anyone reading a report of a nineteenth century criminal trial will have little difficulty in following what is happening, and this may lead him to suppose that trial procedure has changed relatively little since Victoria's day. Nothing could be further from the truth. Palmerston's claim in 1853 that English law afforded to the innocent 'every possible security which human institutions can [do] for freedom from unjust punishment' is one which present day politicians would doubtless echo, but the means by which the law today seeks to safeguard accused persons are very different to the securities to which he was referring.⁷

In Victorian England the principal safeguards, so far as those accused of indictable offences were concerned, were pre-trial scrutiny by examining magistrate and grand jury, the accused's right of peremptory challenge, the requirement that the verdict of a trial jury be unanimous and the rules of criminal evidence, not least those protecting the accused against self-incrimination.⁸ On the other hand the accused had no right to free legal representation nor had he any right of appeal against either conviction or sentence. Today the most significant safeguards, besides evidential protections, are the right to legal aid and the right of appeal. Further, although evidential protections are still considerable, they are fewer than a century ago. The law still requires the Crown to prove guilt and prove it beyond reasonable doubt, excludes unreliable and improperly obtained confessions and excludes hearsay and evidence of the accused's bad character and criminal convictions. But the old protections against self-incrimination have been reduced to vanishing point and rules as to corroboration swept away. Of the triple safeguard of preliminary examination, grand jury scrutiny and trial jury unanimity nothing now remains.⁹ Likewise with the peremptory challenge. The key changes in the last 160 years have undoubtedly been those relating to the accused's police interrogation, legal aid, the accused's competency as a witness and criminal appeal. The impact upon the trial system has been enormous.

Police Interrogation

A question which quickly arose in the wake of the establishment of paid professional police forces in London and elsewhere in the mid-nineteenth century was whether it was permissible for a police officer, who had arrested a man upon suspicion of having committed a crime, to question him about the offence.¹⁰ The judicial answer was emphatic. While there could be no objection to an officer listening to and recording any explanation or account which the prisoner might choose to give, it was quite improper to question him. To do so would be a usurpation of the function of an examining magistrate without any of the safeguards which attended magisterial examinations.¹¹ When the Jervis Act 1848 deprived magistrates of the power to examine prisoners, this was seen as providing further justification of the prohibition: if judges and magistrates were forbidden to question prisoners, it was unthinkable that inferior officers of justice, such as policemen, should be permitted to do so.¹² This would remain the stance of the courts until well into the twentieth century.

Today interrogation is one of the main investigative tools used by the police, and the law sanctions it, A police officer is entitled to question any person whom he arrests about the offence for which he has been arrested. In carrying out such questioning he is obliged to follow a code of practice which includes such protections for the suspect as a right to free legal advice and the tape recording of his answers.¹³urther, although suspects still remain free to answer or not questions put to them, since 1995 an accused who fails to mention, when questioned by the police, a matter relied upon by him in his defence at trial, runs the risk of an adverse inference being drawn from such failure.¹⁴

That a right of police interrogation needs to be hedged about by the most stringent safeguards seems obvious. But, astonishingly, when in the course of the last century the judges stood by and sanctioned first the undermining and finally the complete abandonment of the prohibition on police questioning, they took no steps to protect those in custody against the risk of their answers to police questions being misreported or, worse still, fabricated.¹⁵ Nineteenth century judges, in voicing their objections to police interrogation, had spelt out clearly the dangers but their warnings were ignored. This was a mistake which was to have dire consequences for the reputation of English criminal justice.

By the 1970s the lack of safeguards for suspects interviewed by the police was beginning to cause public unease. Claims by accused that they had been 'verballed' by interviewing police officers were now being regularly heard and it was hard to believe that all of them were false. In 1974 the Court of Appeal called for reform: 'Something should be done'. said Lord Justice Lawton 'and as quickly as possible, to make evidence about oral statements [to police officers] difficult either to challenge or concoct'.¹⁶ Ten years later the Police and Criminal Evidence Act (PACE) was enacted, obliging police officers to conduct interviews in accordance with the Codes of Practice issued thereunder, something discussed at greater length by Kiron Reid.¹⁷ This was a major advance so far as defendants were concerned and one which has made the evil of'verballing' largely a thing of the past. But, unfortunately for the reputation of'British' (actually English) justice, its past would catch up with it in the years ahead. When the miscarriage of justice cases began to hit the headlines how urgent had been the need for the PACE reforms immediately became clear.

Legal Representation

To modern eyes the greatest weakness of the trial system at the end of the nineteenth century was the absence of legal aid for poor prisoners. Although all accused had enjoyed, since 1836, the full right to be defended by counsel, lawyers cost money and those who could not pay had to conduct their own defence.¹⁸ Trials of unrepresented prisoners were likely to be hopelessly one-sided. Unable to defend themselves effectively, many did not even make the attempt, for them the trial 'passed before [their] eyes and mind ... like a dream which [they could not] grasp'.¹⁹ In the eighteenth century when, more often than not, there was no prosecuting counsel (in such cases the Crown witnesses would be taken through their evidence by the judge), that the accused was unrepresented did not appear unfair: if the Crown had no counsel how was it to his disadvantage that he had none? When, in the 1830s, the judges had begun to insist that counsel be instructed to prosecute cases tried at the Old Bailey and at the assizes this 'inequality of arms' became patent. Yet what could be done? The cost to the state of providing counsel for poor prisoners would be horrendous. What could not be changed must be borne and, in any event, what legal skill was required to make an honest defence?

Had the will been there, the problem could in fact have been solved. In Scotland the legal profession had since the sixteenth century provided free representation for those who could not afford to pay, and it would have been perfectly simple to have adopted a similar scheme south of the border. By 1850 there had evolved in England a practice of assigning counsel to undefended prisoners in capital cases (counsel were by etiquette obliged to accept such assignment and to give their services free) but that was the limit of the law's assistance.²⁰ Where the charge was not capital and the vast majority were not (by 1864 only four offences remained punishable by death), the prisoner, if he could not afford a lawyer, was obliged to shift for himself. Throughout the century most defendants in magistrates' courts and many of those appearing in the higher courts charged with indictable offences were tried undefended. The numbers were high. Where the trial was in one of the higher courts, the unrepresented accused had to take what comfort he could from the maxim that the judge was his counsel. All the maxim in fact meant was that it was the duty of the judge to ensure that the accused had the benefit of any legal point which told in his favour. The fact that the judge had no communication with the prisoner meant that, except where the latter had made a statement to the police or before the examining magistrate, he would be unable to defend him effectively, even if he were so inclined, since he would have no idea what his answer was to the evidence against him.

Today defendants in criminal cases unable to afford legal representation have the right to be represented by a lawyer of their choice paid for out of public funds.²¹ The impact which this has had on the fairness of criminal trials has been enormous. When in 1902 the Dorset Quarter Sessions Bar set up a pro bono scheme for the defence of poor prisoners the result was an immediate increase in the acquittal rate. The impact of state-funded criminal legal aid has been the same. Accused persons with a good answer to the charge against them no longer stand the risk of being convicted for want of a lawyer to put their case.

Allowing Prisoners to Testify

The common law doctrine of incompetency through interest barred from the witness box, in both civil and criminal cases alike, any ...