The Strand Magazine/Volume 2/Issue 7/The State of the Law Courts
The State of the Law Courts.
IV.—THE CRIMINAL COURTS.
N many respects the Criminal Courts form the most interesting branch of the Judicature. Not only in their legal aspect, but also from their social bearing do they afford matter for reflection. Certain it is that so long as a large section of the community is permitted to exist under conditions of filth and depravity repugnant to civilisation, there will be plenty of work for the Criminal Courts to do. Many of the children of the slums are bred to a life of crime from their earliest days; they are taught to regard the law as their enemy, and law-abiding citizens as their legitimate prey. They have no conception of right and wrong, and in their eyes it is as praiseworthy an act to relieve an old gentleman of a watch as Elizabeth's mariners thought it to plunder a Spanish galleon. Members of every profession, whether it be the law, the drama, art, music, or medicine, are often distinguishable by their characteristic appearance, and there is a peculiar look about the London pickpocket which can hardly be mistaken. Mr. Montagu Williams gives the following description of a typical young criminal:—"He is small in stature—his growth being stunted by drink and other causes; his hair is closely cropped (that being a matter of necessity), and there is a sharp, terrier-like look about his face." The truth of this picture will be recognised by all whose business has taken them frequently into the police and other Criminal Courts.
Mr. Montagu Williams.
Mr. Montagu Williams was once retained to defend a young ruffian of this class, who was charged with stealing a watch. The case was so clearly against the prisoner that the learned counsel advised him to plead "Guilty." At this he was most indignant, and exclaimed, "Go on, I want you to do my case. You'll win, I know you will. You've done so twice for me before." In the end he was acquitted. On hearing the verdict he began to dance in the dock, and after shouting "I told you so," to his counsel, and bowing to the judge, he retired, highly pleased with the result.
So far as its procedure is concerned, our criminal law has hardly changed since the time of the Conquest, and in the opinion of many lawyers as well as laymen who have studied the matter, it is high time that some improvements were introduced. It is not our intention here to review the whole field of criminal administration. The work is too vast for the limits of this article. We may, however, briefly direct attention to those matters wherein we think that improvement might be effected.
The Criminal Courts in this country consist of the petty sessions, or, as they are generally termed in boroughs, the police courts, the Courts of Quarter Sessions, and the Assize Courts.
In the large cities, such as Manchester, Newcastle, &c., there are stipendiary magistrates who are appointed by the Home Secretary at the instance of the local town council, which provides their salaries.
The metropolis is divided for the purpose of police administration into various districts, every police-court having two magistrates, each of whom sits three days a week, the busiest days being Mondays and Tuesdays.
The work of the London police magistrates is of an exceedingly diversified character, consisting principally of charges 
Stealing a ham.
First offence.
An incorrigible rogue.
of drunkenness, petty larceny, assaults on the police or on private individuals, and indictable offences in which they take the preliminary hearing, and, if satisfied that there is a primâ facie case, commit the accused for trial. In addition to this, they have a vast number of duties recently imposed upon them by the Legislature, such as School Board prosecutions and cases under the Sanitary, Tramway and Public Carriage, Building, and Employers and Workmen's Acts, as well as various other matters which it is unnecessary to detail. Altogether the work is of a singularly repulsive character, and it is for this reason, perhaps, that many of the magistrates pride themselves on getting through the greatest possible number of cases in the shortest time. But this system of administering justice at high pressure is not entirely satisfactory. Most of the magistrates are remiss in the matter of taking depositions and notes of evidence. Indeed, this is very seldom done at all except in cases of indictable offence. The rapidity with which some of the cases are disposed of is almost absurd. For instance, in some courts when a prisoner is charged with being drunk and disorderly, the magistrate does not even give him time for defence, the trial occupying about two minutes and consisting of something like the following:—Officer (kissing the book): I found the prisoner outside the "Green Lion" publichouse last night at twelve o'clock. He was drunk and disorderly, and I took him into custody. Magistrate (interrupting): Five shillings, or seven days.
Chief Usher.
"For robbing the till to buy a bicycle."
There is no appeal, and no note is taken by means of which a possible injustice might be investigated.
Undoubtedly the magistrates ought to take notes in every case, so that, in the event of a miscarriage of justice, they might be submitted to the Home Secretary.
One of the gravest defects in the administration of justice by police magistrates results from the almost implicit reliance that they place upon the uncorroborated testimony of a single police-constable. We shall probably not be accused of exaggeration when we assert that the police are, as a rule, hard swearers. The very esprit de corps, which is in itself a commendable feature of the force, leads the constables often recklessly to support each other's evidence. Besides this, whenever the police make a charge against any individual they at once jump to the conclusion that he is guilty, and there is nothing that they desire so much as a conviction.
To such an outrageous degree has the acceptance of police evidence extended that the public have come to look upon it as next to useless to defend themselves against a police charge. No better illustration of this is to be found than in the complaints against omnibus and tramway drivers for loitering. One well-known magistrate was in the habit of doubling the fine where a defence was offered, and, conviction being inevitable, the public drivers now invariably plead "Guilty" by the instruction of their employers. They pay the fine without demur, rather than incur the expense and delay of what would certainly be a futile defence, be the real merits of the case what they may.
Not very long ago a well-known Metropolitan magistrate entertained the strongest possible aversion to bicycles and tricycles; and whenever he had before him a dispute between a cyclist and a constable, or, indeed, any other person, it was almost a certainty that he would decide in favour of the latter.
The fact that charges against police-constables are rare is largely due to the hopelessness of success. The Treasury, in our judgment very unfairly, places at the disposal of the
"For stealing toys."
policeman the best legal advice, and he is represented by a clever criminal lawyer, while a poor man bringing a charge has to rely upon his own unaided resources, or, perhaps, on one of those fifth-rate solicitors who haunt the purlieus of the police-courts, and whose advocacy is too often detrimental to the interests of their client. It is a serious fault in the system that the magistrates should always have the same division of police before them. Frequently seeing the same officers, they become predisposed in their favour, the more so as they find that a great acceleration of business is thereby attained. Many of the magistrates, indeed, through being too mindful of their own convenience in this respect, have gradually become mere slaves of the police. The magistrate is practically the only protector of the public against the indiscretions of the police, and if he invariably sides with that body against the public, whose servant he is, he undoubtedly fails in his duty.
The magistrate, Marylebone police court.
In order that the magistrates should be as far as possible independent of the police, they should themselves be moved constantly from Court to Court—a course that would be more convenient than changing the police from one division to another.
The personnel of the Metropolitan magistrates, apart from recent appointments, is not all that could be desired. Most of them are old, and many are of feeble temper; and, as a rule, they pose as great autocrats. Unfortunately, after frequent contact with misery and crime, they are apt to become callous and indifferent; but, notwithstanding this, be it said their credit, one does sometimes hear of acts of kindness and humanity on the part of the magistrates.
Mr. Lushington, Bow-street
There is not sufficient facility for appeal to protect the poor man against the arbitrary conduct or incapacity of the magistrate. It is true that in cases of imprisonment without the option of a fine an appeal may be made to the Quarter Sessions. But this is an expensive operation, and it is only open to those who have means; and it is a further deterrent that if the appellant cannot find bail he must remain in prison until the hearing, thus adding considerably to his punishment.
But although there is practically no appeal against the decisions of the magistrates, they are liable to be discharged in case of misconduct. Sir James Grahame, when he was Home Secretary, removed one of the magistrates, and Mr. Newton ran serious risk of being dismissed in consequence of giving too much weight to the charges that had been fabricated by the police against Miss Cass. As it was, he was severely reprimanded by the Lord Chancellor.
It is only just to say that many of the Metropolitan magistrates are able and painstaking men, among whom, without drawing invidious comparisons, we may mention Mr. Mead, late junior counsel to the Treasury. They are, however, too often selected, not on account of any personal capacity, but through possessing family influence in high quarters. It is most essential that only men who have had experience in criminal work should be appointed; but as it is, in order to qualify, they have only to be barristers of seven years' standing. The choice lies with the Home Secretary, and the salaries are £1,500 a year, except in the case of the chief magistrate, at Bow-street, who receives £1,800.
Mr. Newton.
The Bow-street Court is the chief police-court in London, and has exclusive jurisdiction in extradition and in all political offences against the Crown. One of the ablest and most respected magistrates who ever sat at Bow-street was Sir James Ingham, who died a few years ago at a very advanced age.
A story is told of Sir James having once had before him a case of a man charging another with stealing his watch. It, however, transpired that the prosecutor had not worn his watch on the day in question, but had, in fact, left it at home, where it was safely found. He was overwhelmed with regret at having made a false charge, and Sir James, in order to smooth matters, said: "We are all liable to make mistakes. I was under the impression that I had put my watch in my pocket this morning; but on arriving at this Court I found that I had left it at home by mistake." When the magistrate arrived home in the evening, his daughter said: "I hope you got your watch all right, papa. I gave it to the man from Bow-street who called for it."
Mr. Albert, the interpreter, translating evidence.
Too late, Sir James recognised his indiscretion in having stated in open court that he had left his watch at home. The "gentleman from Bow-street" who had taken advantage of the information was never discovered.
In the country, and also in many of the boroughs, justice is administered by unpaid magistrates. There are borough justices, composed of the Mayor of the town ex officio, and such merchants and well-to-do tradesmen as the Lord Chancellor, in the exercise of his political discretion, may think fit to appoint. The country justices in agricultural districts are almost exclusively drawn from the ranks of the landed gentry. In industrial districts, such as Durham and Lancashire, from which country gentlemen have been driven away by the increase of factories, the country justice usually belongs to a lower social class, big brewers and manufacturers being the only available. The country justice has by this time obtained a well-established reputation as a laughing-stock. Shakespeare, Fielding, and Dickens have successively held him up to ridicule, and the modern Press has frequent opportunities of making merry over his absurdities. But all to no purpose, for the simple reason that though many reformers would gladly see the great unpaid abolished, no one has yet been able to suggest a means of replacing them. It is obvious that a paid magistracy could not be established throughout the country without a complete reorganisation of our judicial system, involving great additional expense.
A deserter.
"Justices' justice" has long been a byword, and it is curious to note that it is usually administered in its most drastic and eccentric form by reverend gentlemen, whose religion one would think should guide them to more merciful decisions, even if they ignore the legal handbooks.
Prisoner: "Your wuship, I am subject to epileptic fits."
Magistrate: To epileptic drinks, you mean."
The practice of allowing clergymen to sit upon the bench is very objectionable for many reasons. They are often very narrow-minded, being for the most part unable to differentiate between sin and crime, and, knowing everyone in their parish, they are apt, when opportunity offers, to severely punish those who do not belong to their own denomination; and, further than this, they are too often the pliant tool of local aristocrats. There is undoubtedly a strong and apparently uncontrollable tendency on the part of country justices generally to accept the word of the constable rather than that of a poor man charged with an offence. The constable who assists in protecting game and in guarding the landlords and their farmers against trespassers, undoubtedly acquires a great deal of influence over the bench in many districts. The country justices, as a rule, know nothing of the law, and are obliged to rely on the advice of the clerk of the court, who is often a solicitor of some position, and probably acts as private solicitor to one or more of the magistrates. His knowledge of the law is usually not very extensive, and is generally derived for the purposes of each case as it arises from "Stone's Justices' Manual."
In many country districts, where the justices are old and incompetent, they are absolutely in the hands of their clerk, who for all practical purposes becomes not only a magistrate, but the sole magistrate present.
A vicious system prevails in most provincial districts, by which the police have the choice of the solicitor who prosecutes. The result of this is that, in order to ingratiate himself with the police, he is always more anxious to obtain convictions than to do justice, and is therefore obliged to abet the police in all the well-known tricks of suppressing facts, and even hard swearing in which they sometimes indulge. It would be more satisfactory to appoint a public official wholly independent of the police, resembling the Procurator-Fiscal in Scotland.
An inspector.
But although there is a good deal to be said against the great unpaid, they are perhaps not quite so bad as their numerous enemies delight to paint them. A strong bench, with a good clerk to keep them right in law, has many advantages, owing to the variety of mind and judgment brought to bear.
Some of the magistrates, no doubt, merely occupy their positions on the bench for the gratification of their own vanity; but there are others who perform their duties ably and conscientiously for the public good, and these are certainly deserving of the thanks of the community. It is the incompetent men, swayed by class prejudices, who, by their absurdly vindictive sentences in labour disputes, trespass and poaching cases, and the like, bring the whole body into disrepute. Perhaps, if it were necessary for those young gentlemen who aspire to the dignity of a magistrate to first obtain a call to the Bar, many of the present evils might be mitigated.
Drunk, and furious driving.
The Quarter Sessions are established in all the counties, including the county of London and other county boroughs, as well as in certain Quarter Session boroughs. In the small boroughs where there are no Quarter Sessions, the appeal from petty sessions goes to the Quarter Sessions of the county in which the borough is situate. Besides its appellate jurisdiction, the Quarter Sessions constitutes a court for the trial of those criminal cases that are not within the exclusive jurisdiction of the High Court. In London the Court is presided over by a salaried officer known as the Assistant-Judge; in some boroughs the Recorder presides, and in the counties there is usually an unpaid justice called the Chairman. All the cases are heard before a jury. The Quarter Sessions in the provinces are usually attended by a numerous Bar, chiefly composed of the younger men on each circuit, together with a few more experienced barristers who have never emerged from criminal work. A prisoner unable to employ a solicitor to instruct counsel is entitled to secure the services of a barrister by handing a guinea over the dock, and many young advocates do a brisk trade in what are termed "dockers." It would be a great gain if the State were to provide for the proper defence of prisoners, who are undoubtedly at a great disadvantage when opposed by astute criminal lawyers. In Scotland a system prevails by which every prisoner can secure the services of counsel; whereas in this country they are left entirely to their own resources, and there can be little doubt that a miscarriage of justice is too often the result. It has often been advocated that the jurisdiction of Quarter Sessions should be extended so as to include some of those more serious cases that can now only be tried before a judge of assize; and this would undoubtedly relieve the pressure on the High Court judges. But, until the presiding officer is of a higher type than the ordinary Chairman of Quarter Sessions (some of whom, however, are very capable men), it would be unwise to enlarge the jurisdiction. Probably the County Court judges—who, at present, have ample leisure—might, if better men were obtained, be entrusted to preside at Quarter Sessions with extended jurisdiction; and certainly, if a Court of Criminal Appeal were established, such a scheme as this would be open to no objection.
Fashionable pickpocket.
The judges of the High Court go on assize four times a year to try those more serious cases which are outside the jurisdiction of the Quarter Sessions, and also to deliver the gaols of such prisoners as, whatever their offence, have been committed for trial since the previous Quarter Sessions.
And while the judges are away on assize, the Common Law work of the Metropolis is, as we have previously pointed out, absolutely at a standstill. Even at the Assize Court it is doubtful whether adequate justice is always done; it certainly depends in a great degree on the individual temperament of the judges. The extraordinary disparity between the sentences passed by different judges for offences of the same gravity gives rise to continual comment. It seems strange, indeed, that the judges and chairmen of Quarter Sessions have not conferred together to lay down some approximate rule as a guidance in the measure of their punishments. Some judges are in the habit of inflicting almost uniformly light sentences, while there are others who are remarkable for their extreme severity. Lord Coleridge has, in a praiseworthy manner, always discountenanced those barbarous sentences of penal servitude for trumpery larceny which have sometimes shocked the public conscience.
It is certainly most objectionable that judges who have had no previous criminal experience should be sent to try cases of serious crime. Before being entrusted with such work it is desirable that they should go through some form of apprenticeship by sitting with an experienced criminal judge.
The present haphazard method was illustrated in a remarkable manner some years ago when Mr. Justice North, who had passed his professional career in the placid atmosphere of a Court of Equity, quietly arguing some nice points of realty and trusts, became a Judge of Assize. He had probably never heard a criminal case tried, and perhaps had hardly ever examined a witness, so that it was natural enough that he should feel himself incompetent for the new duties that had been thrust upon him. Fortunately, such a gross scandal cannot occur again, for Chancery judges have since been released from Assize work.
The Old Bailey. Opening of the Sessions by the Lord Mayor and Sheriffs.
It is a curious anomaly that while in a civil cause involving a trifling sum, a suitor may appeal from one Court to another until he reaches the House of Lords, a man fighting for his life, liberty, and reputation has no appeal from the verdict of a perhaps ignorant and prejudiced jury, acting it may be under the guidance of a judge who has had no experience in criminal procedure. Such a verdict is irrevocable, and at the best its effects can only be mitigated by the occasional and reluctant intervention of the Crown through the medium of the Secretary of State, who is in a great measure swayed by the opinion of the judge. The wicked absurdity of such a state of things must be at once apparent, especially when it is remembered that judges themselves are sometimes prejudiced, and are in any case far from infallible. It is true that finality in the process of criminal law prevents the shocking mental torture that must be endured by prisoners lying in gaol for weary months awaiting the uncertain progress of appeals. But while there is life there is hope, and even the painful suspense of appeal is preferable to an unjust conviction.
Although there is no appeal in criminal cases on questions of fact, it is within the discretion of the judge to reserve points of law. Legal technicalities, however, do not often give rise to mistakes in criminal law, and where a miscarriage of justice takes place it is nearly always in consequence of a misapprehension of facts. Too often within recent years have subsequent events shown that punishment has been inflicted upon an innocent man. It is needless to multiply instances, many of which are doubtless in the minds of our readers. We may, however, mention a case that is described at length in his interesting "Leaves of a Life," by Mr. Montagu Williams.
Applications to the Magistrate.
That eminent counsel once defended a prisoner who as charged with sheepstealing. Two constables declared that they had seen the accused driving the flock in the early morning, and swore positively to his identity, one of them having given him a light for his pipe; and he was also identified by another man, who swore that he had seen him drive the sheep into the Meat Market. On the other hand, the members of the prisoner's household declared that he had been at home in bed at the time, and had not risen until long after the offence had been committed. His wife, who had been with him, was not allowed to give evidence. The Assistant-Judge who tried the case ridiculed the alibi. "You have only," he said, "to state a certain number of facts that are actually true, to change the date, and there you have your alibi."
The jury found the prisoner "Guilty," and he was sentenced to five years' penal servitude. Twelve months afterwards a man was convicted of a similar offence at the same court. On being asked if he had anything to say, he replied, "Nothing about myself, my lord, but something about you. A year ago you condemned an innocent man, and he is now undergoing penal servitude. Mr. Williams, my counsel, was counsel for him. It was I who stole the sheep that were driven from Hornsey to the Meat Market. I am he for whom the innocent man was identified."
For assulting his wife.
It was at once obvious that there was a striking resemblance between the two men. The Judge,
however, pooh-poohed the matter, and if it had not been that the chairman of the Drovers' Association took the matter up, the innocent man might never have been liberated. As it was, he
received Her Majesty's "pardon" and a sum of money by way of compensation. But it was too late. The unfortunate man's wife had died during his imprisonment, and he himself had become hopelessly insane.
In this case a failure of justice brought disaster upon a whole family, for they were all dependent upon the unfortunate prisoner, who not only suffered by the fatuity of the Judge and jury in preferring the evidence of two policemen to that of several highly respectable witnesses, but also by the ridiculous law that prevents a wife from giving evidence on her husband's behalf. There is another grave defect in the administration of criminal law, but to this—as it has been of late widely discussed—we need do no more than briefly advert. We refer to the fact that England stands almost alone in not according to persons charged with offences the right to give evidence on their own behalf. Recent legislation has given this privilege in offences of a certain class; but these cases are rare, and they merely accentuate the absurdity of closing the mouth of the prisoner in the majority of criminal charges. Lawyers of experience generally concur in the view that, if a prisoner were always permitted to give evidence on his own behalf, the innocent would be materially assisted. It is a curious fact that the present practice is a survival of an older system under which a defendant in a civil cause was also ineligible as a witness. The disability has been removed in the one case, and there is a strong feeling among those who should best know, in favour of its abolition in the other.
Our review of the Law Courts is now concluded. We have necessarily been unable to go very deeply into detail, and we have not paused to lay stress on the many admirable features that are undoubtedly to be found in our judicial system. Our object has been to call attention to such imperfections as are conveniently open to reform. The Legislature has, since we began our series, given some tentative attention to the matter; but if improvement is to be effected it must be in response to the demand of the electors, who should exact from their Parliamentary representatives a promise of reform.
The jury disagree.