'Knowledge rests not upon truth alone, but upon error also.' Carl Jung, 1933
It isn't pleasurable to demolish one's own work but it has to be done. My article in Ripperologist 144 entitled 'Tumblety Jail Break!' requires some amendment. After publication I discovered that it contains a serious error.
In that article, I set out a list of misdemeanours (referred to by me as 'Major' misdemeanours) for which bail was not compulsory after committal under the 1848 Indictable Offences Act, which list included 'misdemeanours for the prosecution of which the costs may be allowed out of the country rate', and I stated that a full list of the misdemeanours for the prosecution of which the costs may be allowed out of the county rate is to be found in the 1883 edition of A Digest of the Law of Criminal Procedure in Indictable Offences by Sir James Fitzjames Stephen and Herbert Stephen. As I pointed out, that list does not include the offences of gross indecency and indecent assault.
On that basis, I concluded that a prisoner charged with gross indecency, or indecent assault, in 1888 would have to have been offered bail by a magistrate following committal for trial because those offences must have fallen into the category of what I termed 'Minor' misdemeanour, whereby bail was compulsory following committal under the 1848 Act.
It subsequently occurred to me that the 1883 edition of the Digest of the Law of Criminal Procedure would (obviously) not include the 1885 Criminal Law Amendment Act. As I noted in my article, other excluded misdemeanours included offences which only existed subsequent to the 1848 Indictable Offences Act, such as offences under the Larceny Act of 1861, the Coinages Act of 1861, the Offences Against the Person Act of 1861 and other statutes from that year.
With hindsight, and indeed with foresight, what I should have done was check the Criminal Law Amendment Act of 1885 to see if it said anything about costs. I have now done so and find that it states, at Clause 18:
'The court before which any misdemeanour indictable under this Act, or any case of indecent assault, shall be prosecuted or tried may allow the costs of the prosecution, in the same manner as in costs of felony, and may in like manner, on conviction, order payment of such costs by the person convicted; and every order for the allowance of payment of such costs shall be made out, and the sum of money mentioned therein paid and repaid upon the same terms and in the same manner in all respects as in cases of felony.'
While this does not refer to 'the county rate' we find similar wording in the 1861 Larceny Act, the 1861 Coinages Act and the 1861 Offences Against the Person Act so that this must be what is meant by 'costs being allowed out of the county rate'.
I managed to confirm this from an 1895 book entitled Magistrate's Annual Practice which states that 'Offences under the Criminal Law Amendment Act, 1885' are, indeed, in the list of excluded misdemeanours for which bail is discretionary upon committal.
The significance of this is that, when the magistrate at Marlborough Street Police Court was considering whether to grant bail for Francis Tumblety in November 1888, it was, at all times, discretionary.
Now, funnily enough, from a strict legal perspective, nothing changes as a result of this discovery in respect of the discussion as to whether Tumblety was out on bail at the time of the Mary Jane Kelly murder. As stated in my Ripperologist article, at Tumblety's remand hearing on 7 November, bail was discretionary regardless of whether it was a 'Major' or a 'Minor' misdemeanour. However, the argument that I went on to make - namely that because (as I thought) bail was compulsory at committal for the offences for which Tumblety was charged, it was, in practice, almost always granted upon request at remand hearings - is no longer sustainable.
There is, however, an irony resulting from this discovery because anyone who claims that Tumblety would not have been allowed bail at his remand hearing, as a result of him being a foreigner, now has to explain why he was bailed on or after his committal hearing of 14 November 1888 at a time when bail by the magistrate following committal was discretionary. In other words, if it was discretionary at the committal hearing and discretionary at the remand hearing, yet bail was granted at the committal hearing, why could it not also have been granted at the remand hearing?
There are, it should be said, some possible answers to this question, the first of which is that it is possible that bail was refused by the magistrate at Marlborough Street Police Court but Tumblety's lawyers made an application to a judge in Chambers under the Habeas Corpus Act. Had they done so, the judge would have had no option but to allow bail, which ruling would then have been followed by the magistrate. I made this point in my Ripperologist article and in my Casebook post on the subject entitled 'Tumblety's Bail: A Fresh Perspective'.
By way of memory refresher, we find the following reported in Law Times of 1 October 1870 in the case of R. v Bennett (Judges' Chambers, 17 September 1870)
'LUSH J. observed that except in cases of treason or felony, a man was entitled to his liberty on giving proper bail.'
'LUSH J. was clearly of the opinion that the discretion [to refuse bail] was only in cases of felony, and that in cases of misdemeanour, a defendant was entitled as of a right to be liberated on finding bail.'
We find confirmation of this in Stone's Justices' Manual (of which I have consulted the 1887 and 1889 editions). In the 1887 edition, it is stated, in a footnote, in respect of the excluded misdemeanours under the 1848 Act (i.e. what I termed as 'Major' misdemeanours) after committal:
'Although it is discretionary with the justice [i.e. the magistrate] whether he will accept bail or not, it has been held by Lush, J., and Brett, J., that a judge has no discretion in the case of a misdemeanour, as for instance obtaining goods by false pretences, but is bound to admit to bail.' (underlining added)
The same thing is stated in the 1889 edition with the addition of the following summary of the 1888 case of R v Annie Frost:
'Bail had been refused by the committing magistrate on a charge of conspiracy to obtain money by false pretences, and had also been refused by Manisty, J. at chambers. It was again refused by the Recorder when the trial was put off till the next sessions, and again Manisty, J. declined to interfere. Application was then made to the Q.B.D. for a habeas corpus under section 3 of the Habeas Corpus Act of Chas. 2, under which it was contended it was obligatory on the court in cases of misdemeanour to admit a prisoner to bail, though the magistrate or the judge of the court of trial had a discretion, and the statute had been so constructed in the cases above cited [i.e. the Lush J. and Brett J. cases]. A rule nisi was granted. [In re Annie Frost, Times, 1 August 1888]'
By the time of Tumblety's appearance at Marlborough Street Magistrate's Court, the Frost case had been determined, with Annie Frost having been allowed bail, so that - despite the initial refusal by Justice Manisty - it was a clear and established element of English law (having been decided by a superior court) that a judge had no discretion in cases of misdemeanour and would allow bail in all such cases upon application by a prisoner who had been refused bail by a magistrate.
To that extent, I would argue that there must have been some pressure upon magistrates to allow bail upon committal for all misdemeanours and therefore, to some extent, upon remand too.
In the case of Tumblety, it is impossible for us to say whether his bail was granted by a judge or by a magistrate. Obviously, if the bail was effectively only granted by a judge in Chambers because it had been refused by the magistrate at Tumblety's committal hearing on 14 November 1888 then it is highly probable that bail had been refused at the earlier remand hearing on 7 November 1888.
All we know about Tumblety's bail is from the Central Criminal Court After-Trial Calendar which tells us that Tumblety's warrant of commitment for trial was dated 14 November 1888 and that he was 'Bailed 16th November 1888'. From this, it is not possible to establish whether the bail was granted by a magistrate at the committal hearing on 14 November, with it taking 48 hours for Tumblety to find the required sureties and/or have those sureties checked by the police, or whether bail was refused on 14 November and Tumblety's lawyers applied for his release to a judge of the Queen's Bench Division (which application was bound to succeed).
In the absence of any evidence either way, for the purposes of this article, I will work on the assumption that Tumblety's bail was granted by Mr Hannay, the magistrate at Marlborough Street Police Court, on 14 November (but that Tumblety either took two days to find the sureties or the police required 48 notice of them). If that was the case, can we find any reasons why bail would have refused at the remand hearing on 7 November but granted on 14 November?
Before answering this question, we need to understand what considerations were taken into account by a magistrate when deciding whether to exercise his discretion and grant bail.
According to Stone's Justice Manual (both 1887 and 1889 editions):
'When a justice has decided on taking bail in any case in which he is authorized to do so, he should fix such a sum as, having regard to the circumstances of the case and the means of the party, may be likely to secure his appearance at the trial. It should not be so excessive as to be practically a denial of bail.'
But what factors influenced his decision?
According to Seymour Harris, Principles of the Common Law (1886):
'In cases where, in the exercise of their discretion, the magistrates have the power of admitting to bail or refusing it, the principle which is to guide them is the probability of the accused appearing to take his trial, and not his supposed guilt or innocence. Though the latter point may be one element to be considered in applying the test. Thus it has been laid down that the points which the court will consider in exercising their discretion include the seriousness of the charge, the evidence in support of it, and the punishment which the law awards for the offence. Practically, in charges of murder, bail is never allowed. And when a bill has been found against the accused, naturally more caution will be exercised.'
This is also reflected, more succinctly, in the Magistrate's Annual Practice of 1895 which states:
'In cases where the admission to bail is discretionary, the court should consider the gravity of the charge, the weight of the evidence adduced in support of that charge, and the severity of the punishment, in connection with the probability of the accused appearing to take his trial.'
For this reason, one could argue that a decision to allow bail at a remand hearing, before all the evidence had been taken, was more difficult because the magistrate could not fully understand the weight of evidence adduced in support of the charge. As I have previously mentioned in Casebook postings, it is possible that a magistrate could refuse an application for bail in the case of a misdemeanour at a remand hearing because the prosecution had intimated that more serious charges might follow. In any case of gross indecency, it might always be possible that a charge of attempted buggery (a misdemeanour but a more serious one) or actual buggery (a felony) could be introduced, so that Tumblety could have been refused bail for this reason. Equally, at the remand hearing, the charges against Tumblety could have been for gross indecency only, with a suggestion of charges to follow for indecent assault.
Much would also depend on how seriously a magistrate viewed a charge of gross indecency and this might be affected by his own personal views about homosexuality.
It might also be possible that the police would want more time to confirm identification of a prisoner and that would be a good reason for the magistrate to refuse bail for a misdemeanour at a remand hearing.
None of the textbooks or manuals from the period that I have found include any mention of a fear that a prisoner might interfere with witnesses prior to the committal hearing as a reason to refuse bail but there is some basis to believe that this might have been a factor. In Law Times of 28 October 1882 it was said (underlining added):
'On the one hand it is of the greatest possible importance that an accused person should have the fullest opportunity of preparing his defence, which it is obvious he cannot do if detained in custody; but on the other hand, the bail required must vary with the nature and gravity of the offence, and when there is any reason to suppose the witnesses for the prosecution are likely to be tampered with it may properly be refused until the whole of the evidence has been given and the accused persons committed for trial.'
The full context in which this is stated will be set out below but, for the moment, we should note that, for bail to be refused on this basis, there would need to be some reason offered by the prosecution to suppose that there would be witness tampering and in the case of Francis Tumblety there is no reason that we know of that he might have done any such thing although, of course, we cannot possibly know if any such reason existed or not.
We may note that, as late as 1931, in Archbold's Pleading, Evidence & Practice in Criminal Cases (28th edition) it is stated that:
'The proper test of whether bail should be granted or refused is whether it is probable that the accused will appear to take his trial.
The test should be applied by reference to the following considerations:
1. The nature of the accusation.
2. The nature of the evidence in support of the accusation.
3. The severity of the punishment which conviction will entail. The character or behaviour is said to be irrelevant.
4. Whether the sureties are independent, or indemnified by the accused.'
Those would appear to be the main factors for a magistrate at the time (and in the nineteenth century) to take into account when deciding whether or not to grant bail when such bail is discretionary.
It will be noted that nothing is said in Archobld about whether the prisoner was a foreigner or had a permanent fixed address although one could certainly imagine that this would be a factor to be taken into account when the magistrate considered whether the prisoner would take his trial (or turn up to the committal hearing when deciding bail on remand). Nevertheless, there are examples of foreigners being granted bail in the nineteenth century.
On the Casebook forum I have already set out the examples of Dario Sanchez (a Chilean national) and Charles Rosenberg (a German national) both of whom were remanded on bail in March 1880 and December 1888 respectively.
I can now add five more examples from London Police Courts into the equation: Peter Lusadi, an Italian, who was remanded on bail at Guildhall in April 1886, Luigi Fortuni, another Italian remanded on bail at Southwark Police Court in August 1886, Eugene Courjon, from France, who was allowed bail at his second remand hearing at Hammersmith Police Court in June 1888 (although it had been refused at a prior remand hearing), Amelia Pourquoi (a.k.a. Demay) and Charles Grandy (a.k.a. Charles Le Grand), both said to have been French nationals, who were granted bail at their remand hearing at Marlborough Street Police Court in May 1889 and Joseph Gordil, a French national, who was remanded on bail at Marlborough Street Police Court in May 1891. See Bail for Foreigners
From these examples, the fact that Tumblety might have been regarded as an American national was by no means fatal to a bail application at a remand hearing. Tumblety was certainly bailed at or after his committal hearing and he was as much a foreigner then as he was at the remand hearing. In any event, in correspondence with representatives of the British Government during the 1860s, Tumblety stressed that he was a 'British subject' and pointed out and had never taken steps to become an American citizen; he might have made this point to the magistrate in 1888.
As to whether magistrates, as a matter of fact, allowed or refused bail at remand hearings for misdemeanours in the nineteenth century - especially for gross indecency male upon male, offences under the Criminal Law Amendment Act 1885 - we need to look at the known examples that can be found in newspaper reports. Although a complete set of cases that came to trial can be located in the After-Trial Calendars, these will never show instances where bail was applied for and granted but the prisoner was unable to find the bail to ensure his release nor will they show instances where bail was applied for but refused, nor will they show instances where no application for bail was made. They will only show cases where bail was granted and the prisoner made bail (but not those where a prisoner was bailed but then readmitted to prison prior to his trial).
For that reason, our best source is newspaper reports and I have made an attempt to compile a list of all reported cases of gross indecency under the Criminal Law Amendment Act, which came into force on 14 August 1885 up to April 1895, which is when Oscar Wilde was tried, a case which will be discussed further below. Unfortunately, many gross indecency cases were not reported but I attempted to locate as many as possible in order to see if there is a pattern to the way magistrates dealt with bail applications at remand hearings for gross indecency offences.
There is of course a limit to what we can learn from this because, as stated above, bail decisions could vary according to the individual prejudices of magistrates as to how serious offences under the Criminal Law Amendment Act were viewed.
My complete list of reported male gross indecency cases in the London area from the period August 1885 to November 1888 can be found here. Further reported cases in the period November 1888 to April 1895 can be found here. I have also compiled a list of reported cases involving females under the Criminal Law Amendment Act of 1885 (excluding offences of sex with girls under the age of 13 which was a felony under the Act) in the ten years following the passing of the Act. This can be found here. Reported cases of indecent assault (where the Criminal Law Amendment Act is not mentioned) in the period August 1885 to November 1888 can be found here. All of these are from the London area only in order to make the task manageable (although I have included one interesting case from Maidenhead). Additionally, a list of unreported male on male indecency misdemeanour offences, taken from the Central Criminal Court After-Trial Calendar, can be found here.
In compiling the reported cases my starting point was the Times newspaper then the London newspapers in the British Newspaper Archive focusing on searches for 'gross indecency' and the 'Criminal Law Amendment Act'. I did this in conjunction with the Old Bailey After-Trial Calendars, carrying out searches on individual defendants and also attempting where possible to find reports in local newspapers. Thus, when I say 'unreported' it simply means cases that I have not been able to find newspaper reports for.
As a result of this exercise, we find that of the 10 reported cases of male on male indecency offences between August 1885 and November 1888, 6 involved bail being granted, with 5 of those being bail on remand. Of the 4 cases where bail was not granted, one did not seem to involve an application for bail, one involved a prisoner refusing to provide an address who was, in any event, actually tried for sodomy and one involved a prisoner who was also being charged with a felony.
Of the 17 cases between November 1888 and April 1895, 11 involved bail being granted of which 6 were bail on remand (which does not necessarily mean that the other 5 were refused on remand because, for four of these cases, there was no remand hearing, only a committal hearing). Of the 6 where no bail is indicated, only one involved a known refusal, which was in the Cleveland Street prosecutions (and the refusal was by Mr Hannay).
Of 55 additional cases under the Criminal Law Amendment Act (involving offences against girls), 31 involved bail being granted of which 16 were granted on remand. There were 6 refusals although, for some of these, bail was eventually granted and at least one of those refusals involved a felony offence. For the other 18 cases it is not known whether bail was or was not granted (although it is reasonable to assume that in the majority there was no bail).
For the 16 further cases of indecent assault against females, 12 involved bail being granted (7 on remand), 2 refusals and 2 unknown.
While this cannot be regarded in any way as scientific, the above suggests that in cases of gross indecency under the Criminal Law Amendment Act there was about a forty to fifty per cent chance - or at least some form of reasonable chance - of being granted bail on remand, upon application. This percentage might well be increased for a wealthy defendant who was legally represented (especially if his advocate was able to suggest he was innocent) but reduced in a high profile case where the magistrate regarded it as a serious offence.
Interestingly, in the very first prosecution under the Criminal Law Amendment Act, whereby John William Coulbertt was charged on 18 August 1885 with taking a girl under the age of 16 out of the possession and against the will of her mother, and, also, with intent to ravish and carnally know her, the magistrate at the Guildhall Justice Room not only refused bail on remand but refused it following committal too. The report of the committal hearing in the Morning Post of 24 August 1885 stated that Counsel for the accused:
'suggested that the charges made against the prisoner were only misdemeanours, and there was no discretion left with his worship but to admit to bail. Alderman Cowan said the Act did give him a discretion, and he should exercise it and refused to take bail.'
Clearly, from what we now know, the magistrate was correct. As a prosecution under the Criminal Law Amendment Act 1885 was a prosecution for which costs were allowed out of the county rate, it did not fall into the category of misdemeanours under the 1848 Indictable Offences Act which required the magistrate to grant bail after the examinations were taken in writing. But it is interesting that the counsel for the defence did not appear to know this, suggesting that the procedure was not widely understood. Such ignorance might explain why, ten years later, Oscar Wilde's lawyers described the action of the Chief Magistrate in refusing bail for Wilde in 1895 as 'illegal' when, in fact, it was not illegal.
What might have influenced Wilde's lawyers, in part, is that one of the offences Wilde was charged with was conspiracy (i.e. conspiring and agreeing with Alfred Taylor to commit and procure certain acts of gross indecency). In this respect we may note the comment of Mr Bompas QC, when arguing the case of Manning in December 1888, when he said: 'Conspiracy is one of those misdemeanours with regard to which there was a right to bail' and he contrasted this with offences of obtaining money by false pretences where he said the magistrate had a discretion (Morning Post, 14 December 1888). However, Wilde was also charged with actually committing acts of gross indecency so the conspiracy element of the charge cannot explain why a refusal of bail would have been illegal.
I have also found 22 reported cases unrelated to indecency offences where bail was positively refused by a magistrate in misdemeanour offences during the 1880s. The majority of them involve obtaining money or goods by false pretences or some other form of financial fraud or embezzlement.
So there is no doubt that bail could be refused at a remand hearing for a misdemeanour offence. For the reasons given above, it is not possible to establish with any certainty what exact proportion of prisoners charged with misdemeanours were granted bail at a remand hearing (or refused it) and of that number how many prisoners had been charged with male gross indecency offences like Tumblety. However, the impression one gets from a review of the newspaper reports is that there was a much higher chance of a bail refusal for fraud and monetary offences than for other offences.
The conclusion from the available data is that we cannot at this distance say whether Tumblety would or would not have been granted bail by the magistrate at his 7 November 1888 remand hearing. According to the textbooks it should have depended on how the magistrate viewed the seriousness of the offences with which Tumblety was charged and the strength of the evidence against him. Certainly, as can be seen from actual cases, his being a foreigner would not necessarily have led to a refusal of bail nor would the fact that he was charged with a male indecency offence. In the case of Hamilton de Tatham we have an actual example of the same magistrate, Mr Hannay, granting bail to a man charged with gross indecency at his remand hearing.
Hamilton de Tatham's bail was also increased at his committal hearing. Assuming that Tumblety was bailed by the magistrate as opposed to a judge in Chambers, it is almost certain that, if Tumblety had been released from prison on bail following his committal hearing on 7 November, his bail was increased at his committal hearing on 14 November, causing him to be sent back to prison, otherwise he would have been recorded in the After-Trial calendar as having been bailed at the police court prior to 16 November. But the example of de Tatham shows that such an increase was possible.
It should be stated, however, that another possibility is that his bail was not increased but one of his sureties dropped out at the committal hearing and time was needed to find another one. This type of this thing was perfectly possible and we cannot entirely rule it out.
Yet, Tumblety being granted bail on 7 November is only half of the problem. Even if we were to find a newspaper report saying that he applied for bail and such bail was, in fact, granted by the magistrate, this would be no guarantee that he was able to find the bail and be released from prison. There are numerous examples in newspaper reports of a prisoner being granted bail where the After-Trial Calendar shows that the prisoner remained in prison.
So despite the mistake about the categorisation of gross indecency as a 'Minor' Misdemeanour when it was in fact a 'Major' Misdemeanour, the fact remains that we cannot prove that Tumblety was in prison as much as we cannot prove he was out of prison. We can only speculate that Tumblety was likely to have made an application for bail and that, being a misdemeanour (for which a Judge in Chambers would automatically order bail), it is perfectly possible that such bail would have been granted. Equally, of course, it could have been refused. The individual circumstances of the case are vital to the decision yet we know next to nothing about those circumstances.
No doubt the question will be raised as to why, if he was out of prison, Tumblety did not flee the country prior to his committal hearing. One could equally ask why he did not (it seems) leave England until 23 November, having been released from prison on 16 November, bearing in mind that it would have taken no more than a day to reach Le Havre. We just don't know the circumstances pertaining to his departure.
More importantly, although he was not guaranteed to be released on bail by the magistrate after committal, it would have been very unusual, if not unprecedented, in a misdemeanour case, for bail to have been granted at a remand hearing yet refused at the committal hearing. I have not found any examples of such a thing. (There is the case of Alfred Andrews, charged with indecency offences in 1886, where the magistrate apparently accepted his counsel's submissions that he had a strong defence at the remand hearing, and bailed him, but then changed his mind after he heard the evidence a week later at the committal hearing. This can be found at no. 14 here. But I believe there is a strong chance that this was a felony due to the young age of the girls involved. There is also one misdemeanour case - of William Blaquiere - where a magistrate appears to have granted bail at one remand hearing and then refused it at a further remand hearing upon being told that the prisoner had a criminal record. See no. 15 here.)
Furthermore, bail after committal would have been certain upon application to a judge in Chambers and that would have been the legal advice he would have received, especially after the ruling in the Frost case earlier that year.
But the key point is that, having been bailed at remand (if that was the case), he would surely have been advised that he would also be bailed following committal. The evidence against him would have to have changed quite substantially for bail to have been refused, having previously been granted.
Leaving the country prior to committal in circumstances where he might not have been committed would have meant the forfeit of his bail (assuming he gave security) and the bail of his sureties which would have been foolish if the magistrate dismissed the charges against him after hearing the evidence. Such dismissals were not unusual. We have no idea whether the evidence against Tumblety was weak or strong as at 7 November but if it was weak this would be consistent both with him being released on bail and his deciding to wait and see what happened at his committal hearing, in the knowledge that an application could always be made to a judge in Chambers should the magistrate refuse to extend the bail (and such application would certainly succeed).
At this point, bearing in mind my mistake in respect of bail procedure for gross indecency offences I will allow myself the indulgence of summarising what I have achieved in advancing our knowledge in respect of the issue of Tumbletys's bail. There are five key points to which I would like to draw attention:
1. Interpretation of the After-Trial Calendar
Prior to my involvement, it was believed that the column in the Central Criminal Court After-Trial Calendar headed 'Received into custody' indicated the date a person was arrested. Along with Robert Linford, in a Casebook thread, I managed to establish that 'custody' here has nothing to do with the date a person was arrested. What it means is the date that an accused person was first received at prison (which, in this time period, was Holloway Prison), either on remand or having been committed for trial or having surrendered to bail (at Newgate Prison) at the start of the sessions during which he was being tried. This was very significant because, until then, everyone believed that the Calendar was only telling us that Francis Tumblety had been arrested on 7 November 1888. Consequently, it was argued that he might have been released on police bail until the hearing before a magistrate on 14 November 1888.
Now that we know that Tumblety was actually in prison on 7 November, we also know that he must have been before a magistrate on that date (because remanded persons were sent to prison on the same day they were remanded at the police court). It's not impossible that he was also arrested on 7 November - although he could also have been arrested late on 6 November (or even, in theory, at any time after 2 November, the date of his last alleged offence, and remanded by a magistrate to 7 November) - but it means that police bail is completely out of the equation on or after 7 November because, once he was before the magistrate, there was no question of police bail.
I might add that, until my involvement, it was wrongly believed that Tumblety was sent to Clerkenwell prison on remand and then Newgate prison after his committal. It is a very important fact that he went to Holloway prison because the After-Trial Calendar of the Central Criminal Court in 1888 was prepared by the governor of Holloway prison.
2. Habeas Corpus
The second fact that I introduced into the discussion was the legal fact that persons charged with misdemeanours had to be set at liberty on application to a judge in chambers in the Queen's Bench Division following their committal and that there was a known inconsistency in the law, bearing in mind that a magistrate or judge in court had discretion whether to grant bail but a judge in chambers had no such discretion. The fact that Tumblety had such an option could well have influenced the decision of a magistrate.
3. Bail being compulsory for some misdemeanours
Although it has not turned out to be as significant as I originally believed, I don't think that anyone involved in the debate was aware of the compulsory nature of bail for common law misdemeanours after committal. This is still an important point because it helps to explain something that first appeared in the 1894 edition of Summary Jurisdiction Procedure by Cecil George Douglas which was repeatedly quoted by Trevor Marriott, against whom I was arguing, in his Casebook posts. To remind readers, that quote - which was in a note to a discussion of section 21 of the 1848 Indictable Offences Act, dealing with what that Act said about compulsory bail for certain misdemeanours - was:
'A distinction appears to be drawn between the rights of an accused person to bail in cases of misdemeanour before and after committal for trial. The generally received impression appears to be that the right of bail in misdemeanour does not arise until committal for trial.'
If one did not know that the right of bail in misdemeanour being referred to was a statutory right to bail for certain common law misdemeanours - so that bail for those misdemeanours was compulsory - one would quite possibly assume that a person had no right at all to be bailed until after committal or, in other words, that a magistrate would not grant bail at a remand hearing. But this is not what Douglas was saying at all.
In fact, what Douglas was directing his attention to was an issue whereby, in section 21 of the 1848 Indictable Offences Act, it was stated that a person accused of any crime may be admitted to bail on the examination of the accused being adjourned, whereas in section 23 of the Act it was stated that a person charged with any indictable misdemeanour (other than those specifically set out in the Act) would be admitted to bail by the magistrate after taking the examinations in writing.
While the wording of the Act suggests that bail for common law misdemeanours was only compulsory after the conclusion of the examinations in writing, the Act does not use the word 'conclusion' so that if a magistrate were to commence taking examinations in writing and adjourned that examination, it was arguable that bail was compulsory at this stage too.
In this respect I found an interesting footnote on Stone's Justices' Manual (1887 and 1889 editions)
At the point in the manual where it is stated: 'Where any person shall be charged before any justice with any indictable misdemeanour other than those before mentioned, such justice, after taking the examinations in writing shall admit him to bail...' a footnote says as follows:
'It was strongly argued by counsel in a case at Bow-street that this provision applies to a prisoner remanded as well as to a person committed for trial; bail was formally tendered, and it was intimated a mandamus would be applied for, but no such step was taken.'
This supports the point I have made previously about there being a school of thought that the compulsory nature of the bail applied at the remand stage as well as after committal.
The manual gave a reference to a case of R. v Levy and I tracked down the report of this case in Law Times of 28 October 1882. The full report - which is very long - is set out below (with underlining added):
'There is no subject connected with the administration of the criminal law which possesses so important an interest as the rights of an accused person to bail during the interval, frequently a long one, between his first being brought before a magistrate and his actual trial before a jury. On the one hand it is of the greatest possible importance that an accused person should have the fullest opportunity of preparing his defence, which it is obvious he cannot do if detained in custody; but on the other hand, the bail required must vary with the nature and gravity of the offence, and when there is any reason to suppose the witnesses for the prosecution are likely to be tampered with it may properly be refused until the whole of the evidence has been given and the accused persons committed for trial. We think, however, that there is one exception to this general rule, and that is in cases of common law misdemeanour when no costs are allowed out of the country rate - e.g. a conspiracy to defeat the due course of law and justice. There can be no question that in the case of such misdemeanour Jervis's Act is precise as to bail being compulsory after committal, the words of the statue being, "and when any person shall be charged before any justice with any indictable misdemeanour other than those hereinbefore mentioned, such justices, after taking the examination in writing as aforesaid, instead of committing him to prison for such offence, shall admit him to bail in manner aforesaid" (11 & 12 Vict. c.42, s.23). The 23rd section, however, only deals with bail after committal, and the 21st section, which gives the magistrate power to remand an accused person for any period not exceeding eight clear days, provides in general terms that, instead of detaining him in custody "during the period for which he shall be so remanded, any one justice of the peace before whom such accused person shall appear or be brought as aforesaid, may discharge him upon his entering into a recognisance with or without a surety or sureties at the discretion of the justice." Relying upon the general terms of this section, the magistrates arrogate to themselves the right to detain any person in custody until after the committal for trial in every case. We are, however, of the opinion that the powers given by the 21st section are merely co-extensive with those conferred by the 23rd section. An Act of Parliament must be construed reasonably, and it seems a reductio ad absurdum to contend that, whereas a magistrate when he has heard the whole of the evidence and decided that he will commit the accused for trial must admit him to bail, whilst his mind is in doubt, and the accused may, either by the weakness of the evidence for the prosecution, or the strength of evidence called on his own behalf, be ultimately entitled to be discharged, and not committed for trial at all, the magistrate has during such interval the absolute right to detain him in custody if he should think fit.
No doubt it has been the practice for the judges not to review the discretion of a magistrate in the matter of bail during the continuance of remands in cases of felony and the graver misdemeanours set out in sect. 23 of Jervis's Act because, until the evidence is complete, a judge cannot form a definite opinion upon the real merits of the case; but no authority can be shown for the proposition that such a course would be pursued where bail is compulsory on the magistrate after committal and not merely discretionary.
The question recently came before Mr Vaughan, at Bow-street, in the important conspiracy case of Reg v. Levy and others. The accused were arrested upon warrants charging them with "conspiracy to defeat the due course of law and justice" and "subordination of perjury," but as to one of the defendants, Daniel Levy, the evidence connecting him with subordination of perjury was of the slightest possible kind, if indeed it could be said to exist at all. It was strongly argued by counsel appearing for Daniel Levy that that magistrate had no discretion, but must admit him to bail, and bail was formally tendered, and it was intimated that a mandamus would be applied for. No such step, however, was taken, which we think is must to be regretted, as the matter is one of great public interest.
So far we have only dealt with the case of bail in connection with Jervis's Act, the rights and duties of the magistrates, and how far the decisions of magistrates given pursuant to that Act of Parliament are liable to be reviewed by the judges of the High Court of Justice. The subject, however, has another important aspect, viz. that there is high authority for the proposition that, if application be made to one of the judges for a habeas corpus, it is not a good return to the writ that the accused is in custody on a charge of misdemeanour, and that every subject of the Queen has an absolute right to bail in such case if he chooses to apply for a habeas corpus. The matter came before the late Lord Justice Lush (then Mr Justice Lush) at Judges' Chambers, on the 17th Sept 1870 (see full report in vol. 49 of LAW TIMES, p. 387) in Reg. v. Bennett, the accused being in custody upon a charge of obtaining goods by false pretences. In the course of the argument Mr Justice Lush observed that, except in cases of treason or felony, a man was entitled to his liberty on giving proper bail. His Lordship referred to the Habeas Corpus Act (31 Car. 2 c.2) and read a portion of that statute. His Lordship added that no doubt magistrates refused bail in misdemeanour, but they had no power to grant a writ habeas corpus. Lord Justice Brett in Reg. v. Atkins (LAW TIMES, vol. 49, p. 421), took the same view, and we must presume, until otherwise decided, that such is the state of the law.'
I also found a newspaper report of the Levy perjury case in the Evening Standard of 12 October 1882 which said:
'Mr Forrest Fulton [for Levy], in applying for bail, submitted that the magistrate had no discretion in the matter when the defendant was charged with a common law misdemeanour. The learned counsel quoted from Jarvis's Act [1848 Indictable Offences Act] and referred to two decisions by Mr Justice Lush. Mr Besley [for the prosecution] contended that the magistrate had concession in the matter of refusing bail. Mr Vaughan declined to accept bail except in the case of Brown.'
The name of the main defendant in this case, Edward Lawrence Levy, rang a bell with me and in a curious twist of fate I discovered that I had already written about him in my first book, 'The Islington Murder Mystery' (2012). For he was the father of Frederick David Lewis, a clerk at a solicitor's firm called Ellis Strange & Co who represented Marie Wheatley, the woman charged with the murder of Annie Wootten in 1915, which was the subject of my book. As I wrote then:
'It was not, however, Ellis Strange who was directly representing Marie because he was happy to leave this task to his managing clerk, Frederick David Lewis - born Frederick David Levy - the son of a notorious fraudster, Edward Lawrence Levy, a former solicitor, debt collector and money lender who had changed the family surname to Lewis following his conviction at the Old Bailey of 'conspiracy to prevent the due course of law by suborning persons to commit perjury' in 1882, having already been struck of the solicitor's roll by the Law Society after an earlier conviction for forgery. Once he could not practice as a solicitor himself, he acted as a managing clerk to existing solicitors' firms, Fisher & Co in Leicester Square and then Micklethwaite & Co in Long Acre under an arrangement by which he would receive twenty percent of the firm's profits. He tended to use the existing partner of such firms as his puppet, in effect controlling all the business. He was behind a number of subsequent scams and swindles and was convicted again, and sentenced to five years hard labour, for dealing in stolen goods in May 1892, dying in Wormwood Scrubs five months later at which point Frederick inherited his assets of £275.'
Leaving such coincidence aside, we might note the wording of the Magistrate's Annual Practice, 1895, which says (underlining added):
'Where a person is brought before a magistrate charged with any indictable misdemeanour other than those as to which bail is discretionary, such magistrate, after taking the examinations (i.e. probably on committal and not when the accused is remanded), is bound, instead of committing him to prison, to admit him to bail provided he can find sufficient surety.'
The word 'probably' here - as late as 1895 - is to be explained by the element of doubt which existed as to whether bail was compulsory on remand as well as committal. That is why, I suggest, Douglas refers to 'the generally received impression' that the right of bail in misdemeanour does not arise until committal for trial rather than saying that it was a confirmed fact. As I have mentioned elsewhere, this comment did not appear in any edition of Douglas prior to 1894 and quite probably was included after the issue was debated before Lord Chief Justice Coleridge in the case of William Henry Manning in December 1888.
One final informational titbit under this heading. In my Ripperologist article, I said that the 1848 Indictable Offences Act, in which bail for common law misdemeanours was compulsory, was repealed in 1952. This is perfectly true but I have discovered that the 1921 edition of Stone's Justices' Manual contains the following note:
'As, under the "Costs in Criminal Cases Act, 1908", costs may be allowed out of local funds in all cases, it would seem that justices have now a discretionary power as to bail in all cases too.'
If that is correct then bail was no longer compulsory after committal for any misdemeanours after the passing of the 1908 Act.
4. Release on bail from prison by governor
When Trevor Marriott published his Ripperologist article in 2012 he believed that for a remanded prisoner to be released on bail was a cumbersome task which involved going back to the magistrate for the recognizances to be taken. This formed part of his argument that Tumblety was unlikely to have been imprisoned on bail on 7 November yet released on 8 November. I have already pointed out that section 42 of the Summary Jurisdiction Act of 1879 allowed the prison governor to take the recognizances. I can now add in support of this the following note which appears in Stone's Justices' Manual (1887 edition):
'The Home Secretary on 31 January 1885, advised governors of prisons that since the Summary Jurisdiction Act 1884, they are competent to take bail under this Act in accordance with S. J. Act, 1879, s. 42'.
The reason, incidentally, for the reference to the 1884 Summary Jurisdiction Act is because it wasn't entirely clear from the 1879 Act if its provisions only applied to magistrates acting as a court of summary jurisdiction under the 1879 Act whereas the 1884 Act confirmed, in section 7, that the 1879 Act applied to all Acts. In other words, that the 1879 Act applied to bail under the 1848 Indictable Offences Act.
5. Cracking the Calendar Code
A final area where I believe I have contributed to our understanding is in the critical issue of what the After-Trial Calendar tells us about bail on remand.
Without repeating everything I have said before on this subject, the short point is that if a prisoner is sent to prison on remand (with bail having been granted by the magistrate but the recognizances not taken in the police court) and is then released from prison on bail (with recognizances taken by the governor of the prison, or anyone else authorized to do so) but that prisoner is sent back to prison at a later remand or committal hearing due to an increase in bail, which the prisoner is unable to satisfy in the police court, the fact of that prisoner having been bailed in the first instance will never feature in the calendar. This is because the calendar is only interested in whether the prisoner was on bail or in prison at the time of the commencement of the sessions at which the prisoner takes his trial.
In other words, if Tumblety had been released from prison on bail on 8 November 1888 but the magistrate increased his bail at the committal hearing on 14 November 1888, this fact would not be discernible from the calendar so that using the calendar in support of an argument that Tumblety was in prison on 9 November 1888 will never succeed. The calendar can never prove or disprove such an argument because it was not designed to provide this information.
The example of Henry George Ginger, who was tried at the same sessions of Francis Tumblety, and whose entry in the After-Trial Calendar shows that he was received into custody (prison) on 14 September 1888, committed for trial on 15 November 1888 and 'Bailed 16th November 1888' (just as Tumblety was 'Bailed 16th November 1888'), was made by others before me because it was known from a press report that Ginger had surrendered to his bail at the committal hearing on 15 November and thus must have been out on bail prior to 15 November, something which cannot be ascertained from the calendar.
My contribution to this point was to establish that Ginger had been remanded to prison at the Mansion House 'Police Court' (technically 'Justice Room') on 14 September 1888, then admitted to bail by the justice at the Mansion House Police Court on 21 September but that his bail was (evidently) increased from an unknown amount to one surety of £10 on 15 November, which increase is what caused his return to prison before being released on bail on 16 November.
I also discovered the example of Henry Ward who, the After-Trial Calendar tells us, was received into custody on 21 November 1888, being committed for trial on 20 December 1888, but who is not indicated in the calendar to have been bailed. However, as can be established from newspaper reports, the fact is that Ward was released on bail on 22 November 1888 (on one surety of £50) and was at liberty up until his committal hearing on 20 December 1888 when his bail was increased to two sureties of £100 - which he could not satisfy - so was returned to prison on that date.
Readers of my Tumbleteazer post on the Casebook forum will be familiar with the case of James Read, charged with obtaining money by false pretences at Thames Police Court. The After-Trial Calendar (for Middlesex Sessions) tells us that he was both committed for trial and received into custody on 11 October 1886 with no mention of bail up to his trial on 24 October 1886. Taken literally, he should have been in prison from 11 to 24 October and thus unable to commit any crimes in London between those dates.
In fact, as can only be gleaned from a file at the National Archives, he was granted bail at his committal hearing on 11 October - two sureties of £100 each and himself in £200 - and was then bailed from prison on 12 October. He was, therefore, at liberty on 12 October. However, he was back in prison on 13 October due to one of his sureties retracting bail. As the Calendar is only designed to record whether he was on bail or in prison as at the date of his trial (or rather the date of the start of the sessions in which he was tried), the fact that he had been released on bail prior to the start of the sessions is not included and cannot be discerned from the calendar.
I can now add one new case study into the equation, being the case of Charles Henry Wadham. The After-Trial Calendar (for the Middlesex Sessions), see below, shows that Wadham was received into custody on 29 September and then committed for trial on 25 October 1890 (with his trial commencing on 19 November). There is no mention of bail in the calendar so one would assume that Wadham was in prison from 29 September 1890 all the way through to his committal hearing a month later and then through to his trial in November.
However, the truth is that Wadham was at large, out of prison, for a few days between 29 September and 7 October.
The Evening Standard of 30 September 1890 reported that, at a remand hearing the day before, 'Mr Curtis Bennett decided to remand the Accused, and refused to accept any bail at present'. Yet, at the next hearing, the Times of 8 October 1890 reported that, on 7 October, 1890 Wadham 'surrended to his bail' on a charge of stealing at the West London Police Court. How was this possible?
Well the same report explained that :
'At the conclusion of the former examination [i.e. on 29 September] the magistrate refused to allow bail, but during the remand an application was made to a Judge in Chambers, who granted it, and the accused was released from custody.'
This is why Wadham, who was a solicitor, having been refused bail on 29 September, was able to surrender to his bail at the next hearing at the West London Police Court on 7 October. Wadham, however, was not to remain at large for long because the Times report also stated that there was an application for bail at the conclusion of the 7 October hearing which was opposed by Sergeant Drew who said 'he had further evidence to show that the prisoner had been dealing with the property.' Consequently, said the Times, 'Bail was refused and the prisoner was again remanded in custody.'
As Wadham evidently remained in custody up to his trial, this is why the Calendar does not include any mention of bail. Yet it would clearly have misled us if the calendar was the only information we had, and we needed to know if Wadham could have committed a criminal offence during the period when he was supposedly in prison.
As I have mentioned previously, for Tumblety to have been at liberty on 8 November, his bail would almost certainly have had to have been increased at his committal hearing on 14 November, otherwise he would not have needed to have been bailed on 16 November. However, I have previously referred to Archibald Bodkin saying at Bow Street Police Court in February 1893 that, 'It is understood practice that there should be an increase of bail on committal'. Hence there is no reason why Tumblety's bail could not have been increased.
I have referred above to the example of Hamilton de Tatham whose bail, for a gross indecency offence, was increased at committal by the same magistrate who committed Tumblety for trial. Another example is William Offin, charged at West Ham Police Court with an offence (against a young girl) under the Criminal Law Amendment Act on 29 March 1891 who was bailed but whose bail was increased by the magistrate at his Committal Hearing on 13 April 1891 (see here at number 33).
We may also note the case of Charles Burleigh Harte, charged with a gross indecency offence at Thames Police Court, where his bail was increased at a remand hearing because the magistrate said that other charges of a similar nature would be brought against him.
In view of what is now known about bail under the Criminal Law Amendment Act of 1885, it is clear that the magistrate in the case of Oscar Wilde had the legal power under the 1848 Indictable Offences Act to refuse bail at his committal hearing.
In my Ripperologist article I raised the question as to whether the magistrate believed he was committing Wilde for a felony offence due to the absence of a star in the Calendar to indicate a misdemeanour. I have come to the conclusion that this is very unlikely. Although Wilde - unlike Tumblety - was tried with a conspiracy offence, it seems that such offences were misdemeanours and I am unable to sustain an argument that there anything in the charge against him to indicate a felony offence. It therefore remains a mystery as to why there is no star against his name in the After-Trial Calendar.
As far as I can establish, stars were first used to indicate misdemeanours in the 1882 After-Trial Calendars for the Central Criminal Court and, throughout the 1880s are very reliable in determining whether a prisoner was being tried on a misdemeanour or a felony offence. In the 1890s, however, something strange happened whereby some misdemeanour offences were not starred. The subject is a complicated one and there is no need to go into it in any detail but I have failed to get to the bottom of why this should be.
What is clear is that the petition by Wilde's lawyers that the failure of the magistrate to allow bail was an illegal act was incorrect and no doubt explains why the petition was dismissed by the authorities.
One more thing. In my Ripperlogist article I made the point that Tumblety, when in prison, would have been paraded before a group of experienced police detectives and prison warders to ensure he had not given a false name. This is what happened to Lewis Grace in Holloway Prison but it has occurred to me that such a thing might only have happened on Fridays, which is when Lewis Grace spent his second day in Holloway prison, not Thursdays when Tumblety spent his second day in the same prison. If he was released on 8 November he might have avoided such an event entirely. Thankfully, nothing turns on this.
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