Was Tumblety in Jail during the Kelly Murder?

[David Orsam]

A number of reports of cases have been shown on here which clearly show that Magistrates did bail persons charged with these type of offences and these have been used by some posters to prop up the court bail theory.

However each case before a magistrate is different and therefore any decision made by a magistrate is made after careful considering all the facts of the case and the antecendents of the prisoner, and of course any represenatations made by the police. So bail was not an automatic option.

Summary Jurisdiction Procedure, by Cecil George Douglas [1907], which discusses the 1848 to 1899 summary jurisdiction acts regulating the duties of justices of the peace, the author appends a note regarding 11 & 12 Vict. c. 42, s.21 and the eligibility of bail in cases of misdemeanour.

“Bail Before or After Committal — A distinction appears to be drawn as to the rights of an accused person to bail in cases of misdemeanor before and after committal for trial. The generally received impression appears to be that the right of bail in misdemeanor does not arise until committal for trial.”

Tumblety`s antecedents were different to some of the accused mentioned in those reports. He was a foreign national with no ties to this country. The offences for which he was charged with carried a lengthy prison sentence and therefore a court would have considered him a high risk to abscond, which of course he did as soon as he was eventually bailed.

I've been looking at this issue of bail and, in contradiction of what is stated above, I want to quote from "Principles of the Common Law" by Seymour Harris, 1892 edition:

"In what cases may, and in what cases may not, a magistrate take bail? Not if the prisoner is accused of treason. In that case it is allowed only by order of a Secretary of State, or by the Queen's Bench Division, or a judge charged thereof in vacation. If the prisoner is charged with some other felony, or one of the misdemeanors enumerated below, the magistrate may, in his discretion, but is not obliged to, admit to bail. The misdemeanors above mentioned are: - Obtaining, or attempting to obtain, property by false pretences; receiving property stolen or obtained by false pretences; perjury or subordination of perjury; concealing the birth of a child by secret burying or otherwise; wilful or indecent exposure of the person; riot; assault in pursuance of a conspiracy to raise wages; assault upon a peace officer in the execution of his duty or upon any person acting in his aid; neglect or breach of duty as a peace officer, or any misdemeanour of which the costs may be allowed out of the country rate. In other misdemeanours it is imperative on the magistrate to admit to bail."

Now, I don't see in that list of offences for which bail was at the magistrate's discretion any offences for which Tumblety was charged in 1888. I don't know if gross indecency or indecent assault was an offence for which costs were allowed out of the country rate (and maybe that's the clincher) but, if not, does that not mean that Hannay had no choice but to bail Tumblety in November 1888?

That being so, we are left with the question of how Tumblety was remanded into custody on 7 November, as stated in the Central Criminal Court Calendar. It is possible that Hannay set the bail quite high so that it took Tumblety 24 hours to come up with sureties?

My uncertainty here is that I don't know if a grant of bail but a delay of 24 hours before sureties were obtained would mean that a prisoner would be remanded into custody for the purposes of the Central Criminal Court Calendar. If not, then, notwithstanding the above, bail must have been refused on the 7th.

But if bail was refused on the 7th, could Tumblety have been back in court on the 8th with a bail application, and then been released?

[Trevor Marriott]

I've been looking at this issue of bail and, in contradiction of what is stated above, I want to quote from "Principles of the Common Law" by Seymour Harris, 1892 edition:

"In what cases may, and in what cases may not, a magistrate take bail? Not if the prisoner is accused of treason. In that case it is allowed only by order of a Secretary of State, or by the Queen's Bench Division, or a judge charged thereof in vacation. If the prisoner is charged with some other felony, or one of the misdemeanors enumerated below, the magistrate may, in his discretion, but is not obliged to, admit to bail. The misdemeanors above mentioned are: - Obtaining, or attempting to obtain, property by false pretences; receiving property stolen or obtained by false pretences; perjury or subordination of perjury; concealing the birth of a child by secret burying or otherwise; wilful or indecent exposure of the person; riot; assault in pursuance of a conspiracy to raise wages; assault upon a peace officer in the execution of his duty or upon any person acting in his aid; neglect or breach of duty as a peace officer, or any misdemeanour of which the costs may be allowed out of the country rate. In other misdemeanours it is imperative on the magistrate to admit to bail."

Now, I don't see in that list of offences for which bail was at the magistrate's discretion any offences for which Tumblety was charged in 1888. I don't know if gross indecency or indecent assault was an offence for which costs were allowed out of the country rate (and maybe that's the clincher) but, if not, does that not mean that Hannay had no choice but to bail Tumblety in November 1888?

That being so, we are left with the question of how Tumblety was remanded into custody on 7 November, as stated in the Central Criminal Court Calendar. It is possible that Hannay set the bail quite high so that it took Tumblety 24 hours to come up with sureties?

My uncertainty here is that I don't know if a grant of bail but a delay of 24 hours before sureties were obtained would mean that a prisoner would be remanded into custody for the purposes of the Central Criminal Court Calendar. If not, then, notwithstanding the above, bail must have been refused on the 7th.

But if bail was refused on the 7th, could Tumblety have been back in court on the 8th with a bail application, and then been released?

I have explained that when a person is arrested they are deemed to be in custody. Custody is not the date they appear at court and are remanded from there.

The calender is right he was arrested on Nov 7th

You still don't understand this concept of bail and it it not helped with all the different writers on the topic giving different interpretation with regards to procedures

When Tumblety appeared on the first occasion following his arrest whether that be Nov 7 or Nov 8th the court would have a number of options open to them.

1. To set a date for committal proceedings, with that in mind it has been written that it was normal practice to not grant bail in these case to anyone before this had taken place. However as has been pointed out there were exceptions, and those would depend on the nature of the case and whether or not if given bail the offender would attend at a later date and was of good standing in society.

2.In the case of Tumblety he would have been considered a high risk for absconding for the reasons previously disclosed. The police would have no doubt opposed bail on that basis.

3.Now even with the high risk factor the court as we know did bail him with sureties on Nov 16th

4. The issue here is could they have bailed him or would they have considered bail on his first appearance.

5. Lets say the court did consider granting bail on that first occasion but on condition of sureties.

6. The question then is how did Tumblety obtain sureties and how long did it take for him to do so. This is something we cannot answer.

7. Having lets say been arrested on Nov 7th he would have not known what the court were going to do with him as far as bail was concerned until actually he appeared before them. Perhaps he was expecting to even get bail in his own recognizance?

8. So on the first appearance his bail application is heard after hearing the court is prepared to consider bail with sureties, he is then left then trying to find those sureties and having done so, those sureties would have had to have been investigated which could have taken up to 48 hours.

So based on the above which ever way you look at it he was not at liberty the night Kelly was murdered.

https://www.trevormarriott.co.uk

[David Orsam]

I'm sorry Trevor but you have entirely missed the point of the extract I quoted from Seymour Harris' "Principles of the Criminal Law". If you read that extract carefully you will see that (subject to the point about costs allowed at a county rate) the magistrate in November 1888 did not have the legal power to do anything other than grant Tumblety bail. The reason is that the offence for which Tumblety was charged did not fall into the categories of misdemeanour for which the magistrate had discretion whether to grant bail or not. His hands were tied, he had to bail him, regardless of any of the arguments about him being a high risk factor. At least, that is what Harris was saying.

Now, it would be a lot easier for me if you were right about the Old Bailey Calendar because then it would then be a doddle for me to argue that Tumblety was never remanded into custody. But he was! And he was remanded into custody on 7 November, whatever you think.

I've previously suggested you read the Commendations thread carefully. In that thread you will see, for example, that George Bartlett was arrested on 12 November 1888 but the Old Bailey Calendar says that he was received into custody on 14 November 1888 (the date of his committal).

Look also at the case of Henry Hicks. He was arrested on 14 January 1888 but the Old Bailey Calendar says he was received into custody on 16 January 1888.

Then we have Henry Been arrested on 9 November 1888 but the Old Bailey Calendar says he was received into custody on 10 November 1888.

How about Edwin Roberts. Arrested 11 June 1888, bailed on 12 June 1888, received into custody on 13 June 1888.

Or what about Frederick John Dunsford. Arrested on 11 September 1888, bailed on 12 September and the Old Bailey Calendar has him received into custody on 10 January 1889.

Explain those away Trevor. I've checked other examples and they all make it clear that the received into custody date is NOT the date of arrest.

Trevor, let me ask you this: Do you know what "safe custody" is?

[Trevor Marriott]

I'm sorry Trevor but you have entirely missed the point of the extract I quoted from Seymour Harris' "Principles of the Criminal Law". If you read that extract carefully you will see that (subject to the point about costs allowed at a county rate) the magistrate in November 1888 did not have the legal power to do anything other than grant Tumblety bail. The reason is that the offence for which Tumblety was charged did not fall into the categories of misdemeanour for which the magistrate had discretion whether to grant bail or not. His hands were tied, he had to bail him, regardless of any of the arguments about him being a high risk factor. At least, that is what Harris was saying.

Then Mr Harris was wrong. Even taking your argument literally

Tumblety was before the magistrate. You say he had to be granted bail. Well he couldn't be granted bail until he found sureties and had them checked out. As that process would not have been known to Tumblety until his first appearance it would have been impossible for him to find sureties and have them check out in that short time in any event.

Now, it would be a lot easier for me if you were right about the Old Bailey Calendar because then it would then be a doddle for me to argue that Tumblety was never remanded into custody. But he was! And he was remanded into custody on 7 November, whatever you think.

You keep contradicting yourself ARREST=CUSTODY There is no dispute that Tumblety was remanded into custody on Nov 7 following his arres and his first appearance before the court. Are you arguing for the sake of arguing?

What about this which shows the opposite to what Harris cites

"Cecil George Douglas [1907], which discusses the 1848 to 1899 summary jurisdiction acts regulating the duties of justices of the peace, the author appends a note regarding 11 & 12 Vict. c. 42, s.21 and the eligibility of bail in cases of misdemeanor.

"Bail Before or After Committal — A distinction appears to be drawn as to the rights of an accused person to bail in cases of misdemeanor before and after committal for trial. The generally received impression appears to be that the right of bail in misdemeanor does not arise until committal for trial.”

I've previously suggested you read the Commendations thread carefully. In that thread you will see, for example, that George Bartlett was arrested on 12 November 1888 but the Old Bailey Calendar says that he was received into custody on 14 November 1888 (the date of his committal).

Clearly he was bailed and when he came back for his committal he was then back in custody and would have been so until after his committal

Look also at the case of Henry Hicks. He was arrested on 14 January 1888 but the Old Bailey Calendar says he was received into custody on 16 January 1888.

Perhaps it was a weekend and the court was not sitting on 16th remanded

Then we have Henry Been arrested on 9 November 1888 but the Old Bailey Calendar says he was received into custody on 10 November 1888.

Arrested out of court hours detained overnight

How about Edwin Roberts. Arrested 11 June 1888, bailed on 12 June 1888, received into custody on 13 June 1888.

13th June Committal date back in custody for that purpose

Or what about Frederick John Dunsford. Arrested on 11 September 1888, bailed on 12 September and the Old Bailey Calendar has him received into custody on 10 January 1889.

Again surrendering to the court on Jan 10th back in custody

Explain those away Trevor. I've checked other examples and they all make it clear that the received into custody date is NOT the date of arrest.

Did any of those cases involve sureties ?

Trevor, let me ask you this: Do you know what "safe custody" is?

Safe custody has several meanings you need to be more specific

[David Orsam]

Safe custody has several meanings you need to be more specific

Seriously, Trevor? Is that what Google is telling you?

I'm talking about safe custody in the context of the discussion in this thread, as a form of commitment to prison.

[Trevor Marriott]

Seriously, Trevor? Is that what Google is telling you?

I'm talking about safe custody in the context of the discussion in this thread, as a form of commitment to prison.

There is only one committal to prison which would have applied to Tumblety

"To the constable of and to the keeper of the [house of correction] at , in the said [county] of ."Whereas A.B. was this day charged before me, J.S., one of Her Majesty's justices of the peace in and for the aid [county] of , on oath of C.D. and others, for that [&c stating shortly the offence]: These are therefore to command you the said constable of , to take the said A.B., and him safely to convey to the [house of correction] at aforesaid, and there to deliver him to the keeper thereof, together with this precept; and I do hereby command you the said keeper of the said [house of correction] to receive the said A.B. into your custody in the said [house of correction], and there safely keep him until he shall be thence delivered by due course of law. Given under my hand and seal, this day of , in the year of our Lord at , in the [county] aforesaid. J.S." [11 & 12 Vict. c. 42, Sched. T.1].

https://www.trevormarriott.co.uk

[David Orsam]

Trevor, I hope you realise that what you have quoted is not the warrant to remand a prisoner. It is the warrant of commitment (i.e. committing a prisoner to trial). In other words, you have cited Sched. T.1 when you should have cited Sched. Q.1, which is the correct warrant for the purpose of our discussion. Then you might want to have a look at the wording of the arrest warrant and see if it says anything about custody.

[Trevor Marriott]

Trevor, I hope you realise that what you have quoted is not the warrant to remand a prisoner. It is the warrant of commitment (i.e. committing a prisoner to trial). In other words, you have cited Sched. T.1 when you should have cited Sched. Q.1, which is the correct warrant for the purpose of our discussion. Then you might want to have a look at the wording of the arrest warrant and see if it says anything about custody.

You really are deluded and do not have a clue about warrants and how they work I am not going to keep explaining you seem to want to interpret them in a way which suits your argument

[Trevor Marriott]

Trevor, I hope you realise that what you have quoted is not the warrant to remand a prisoner. It is the warrant of commitment (i.e. committing a prisoner to trial). In other words, you have cited Sched. T.1 when you should have cited Sched. Q.1, which is the correct warrant for the purpose of our discussion. Then you might want to have a look at the wording of the arrest warrant and see if it says anything about custody.

Here is the arrest warrant the previous warrant cited was for the purpose of when a person has been committed for trial and is to be remanded in custody

Section 3 of the Indictable Offences Act 1848.

“To the Constable of___________________ and to all other peace officers in the said(County) of _________________ Whereas A.B. of ____________________Hath this day been charged upon oath before the undersigned (Magistrates name) of Her Majesty's Justices of the Peace in and for the said (County) for that he on ______________at _____________ did (Offence)These are therefore to command you, in Her Majesty's name, forthwith to apprehend the said A.B. and to bring him before (me ) or some other Justice of The Peace in and for the said (County) to answer unto the said charge, and to be further dealt with according to law. Given under my hand and seal this ____________Day of ____________In the year of our Lord___________ at____________ in the (County) aforesaid.”

[David Orsam]

the previous warrant cited was for the purpose of when a person has been committed for trial and is to be remanded in custody

Yes, Trevor, that's exactly right. You cited the warrant for when a prisoner has been committed to trial and is to be remanded in custody. And, as we know, this Warrant of Commitment was issued for Tumblety on 14 November 1888, as per the Central Criminal Court Calendar. But our preceding discussion was all about Tumblety being received into custody on 7 November 1888, a full week before his committal. That being so, the Warrant of Commitment is irrelevant. The warrant you should have reproduced, as I said, is Q.1., the Warrant remanding a Prisoner. But it is a technical point only because both warrants command the Keeper of the House of Correction to receive the prisoner into safe custody. And it is that custody which is being referred to in the "When received into custody" column in the Central Criminal Court Calendar.

[David Orsam]

Section 3 of the Indictable Offences Act 1848.

“To the Constable of___________________ and to all other peace officers in the said(County) of _________________ Whereas A.B. of ____________________Hath this day been charged upon oath before the undersigned (Magistrates name) of Her Majesty's Justices of the Peace in and for the said (County) for that he on ______________at _____________ did (Offence)These are therefore to command you, in Her Majesty's name, forthwith to apprehend the said A.B. and to bring him before (me ) or some other Justice of The Peace in and for the said (County) to answer unto the said charge, and to be further dealt with according to law. Given under my hand and seal this ____________Day of ____________In the year of our Lord___________ at____________ in the (County) aforesaid.”

Thank you for reproducing the arrest warrant Trevor.

Now, where in that warrant do you see the word "custody"? Answer: You don't.

The reason you don't see it is because the arrest warrant does not refer to the person to be arrested being taken into custody. And that is why the "When received into Custody" column in the Central Criminal Court Calender does not refer to the date of arrest.

[David Orsam]

Originally Posted by David Orsam View Post
I'm sorry Trevor but you have entirely missed the point of the extract I quoted from Seymour Harris' "Principles of the Criminal Law". If you read that extract carefully you will see that (subject to the point about costs allowed at a county rate) the magistrate in November 1888 did not have the legal power to do anything other than grant Tumblety bail. The reason is that the offence for which Tumblety was charged did not fall into the categories of misdemeanour for which the magistrate had discretion whether to grant bail or not. His hands were tied, he had to bail him, regardless of any of the arguments about him being a high risk factor. At least, that is what Harris was saying.

Then Mr Harris was wrong. Even taking your argument literally

Tumblety was before the magistrate. You say he had to be granted bail. Well he couldn't be granted bail until he found sureties and had them checked out. As that process would not have been known to Tumblety until his first appearance it would have been impossible for him to find sureties and have them check out in that short time in any event.

Now, it would be a lot easier for me if you were right about the Old Bailey Calendar because then it would then be a doddle for me to argue that Tumblety was never remanded into custody. But he was! And he was remanded into custody on 7 November, whatever you think.

You keep contradicting yourself ARREST=CUSTODY There is no dispute that Tumblety was remanded into custody on Nov 7 following his arres and his first appearance before the court. Are you arguing for the sake of arguing?

What about this which shows the opposite to what Harris cites

"Cecil George Douglas [1907], which discusses the 1848 to 1899 summary jurisdiction acts regulating the duties of justices of the peace, the author appends a note regarding 11 & 12 Vict. c. 42, s.21 and the eligibility of bail in cases of misdemeanor.

"Bail Before or After Committal — A distinction appears to be drawn as to the rights of an accused person to bail in cases of misdemeanor before and after committal for trial. The generally received impression appears to be that the right of bail in misdemeanor does not arise until committal for trial.”

I've previously suggested you read the Commendations thread carefully. In that thread you will see, for example, that George Bartlett was arrested on 12 November 1888 but the Old Bailey Calendar says that he was received into custody on 14 November 1888 (the date of his committal).

Clearly he was bailed and when he came back for his committal he was then back in custody and would have been so until after his committal

Look also at the case of Henry Hicks. He was arrested on 14 January 1888 but the Old Bailey Calendar says he was received into custody on 16 January 1888.

Perhaps it was a weekend and the court was not sitting on 16th remanded

Then we have Henry Been arrested on 9 November 1888 but the Old Bailey Calendar says he was received into custody on 10 November 1888.

Arrested out of court hours detained overnight

How about Edwin Roberts. Arrested 11 June 1888, bailed on 12 June 1888, received into custody on 13 June 1888.

13th June Committal date back in custody for that purpose

Or what about Frederick John Dunsford. Arrested on 11 September 1888, bailed on 12 September and the Old Bailey Calendar has him received into custody on 10 January 1889.

Again surrendering to the court on Jan 10th back in custody

Explain those away Trevor. I've checked other examples and they all make it clear that the received into custody date is NOT the date of arrest.

Did any of those cases involve sureties ?

Trevor, let me ask you this: Do you know what "safe custody" is?
Safe custody has several meanings you need to be more specific

Trevor, due to the way you responded to my post #618, with a response outside the quotation and other responses inside, I did actually not see the full responses at the time and only saw it by chance a few days ago.

I do want to pick up on a few points here because it's not just you getting it wrong but everyone says that Tumblety was arrested on 7 November. I do want to stress, however, that the date of his arrest is not an established fact.

Your own confusion is clear in your responses. You say to me "ARREST=CUSTODY". But, in fact, it is not the same thing in the Court Calendar where custody is quite different from arrest and refers to the remand into prison by the magistrate. During the rest of the post you seem to accept that the examples I put forward show dates of arrest which are different from the dates of remand into custody. Yet, in your previous post (#617) you had said, "I have explained that when a person is arrested they are deemed to be in custody. Custody is not the date they appear at court and are remanded from there." and you added "The calender (sic) is right he was arrested on Nov 7".

To me, you seem to be saying different things in each post but, for the avoidance of doubt, custody in the Calendar IS effectively the date they appear in court and are remanded (into custody) from there. And it follows that you cannot be certain that Tumblety was arrested on 7 November.

Let me provide you with an example so you can see how it works in practice.

I have pasted in below an extract from the Central Criminal Court Calendar, session commencing on 31 May 1886. Please focus on Charles Alfred Burleigh Harte. He was tried at the Old Bailey on 3 & 4 June on a charge of gross indecency with another man. You will see that the Calendar shows that Harte was "Received into Custody" on 5 May 1886 with a Warrant of Committal dated 26 May 1886.

Now, in Trevor Marriott World this must mean that Harte was arrested on 5 May 1886. But that is not the case. We know this from newspaper reports of his case.

From the Portsmouth Evening News of Wednesday 28 April 1886:

London Wednesday

At the Thames Police Court, to-day, the Rev Charles Alfred Burleigh Harte, of Seaton Carew, Durham, was charged with inciting William Humphreys, of Mile End, to commit an unnatural offence. William Humphreys, a lad of 15, said he was with his father serving milk when the prisoner asked him to show him the way to an infirmary, and then made indecent proposals. He called his father and gave him into custody. Prisoner was remanded.

Some more information about this hearing can be found in the Hartlepool Mail of 29 April 1886 as follows:

"The Stipendiary said he would take two bails, each for £100, for the prisoner’s appearance that day week.
The prisoner was then removed to the cells.
Subsequently, the magistrate consented to accept the mother’s bail and the accused was liberated."

So you see, Harte was arrested long before 5 May 1886. He was before a magistrate on 28 April and then freed on bail. So how the blazes did he end up in custody on 5 May?

The answer is found in the Times of Thursday 6 May, reporting a second remand hearing, on 5 May:

"Thames Police Court – Charles Alfred Burleigh Harte surrendered to his recognizances on a charge of inciting William Humphreys, a lad of 52, Wilson Street, Mile End, to the commission of an unnatural offence at Arnold road, Bow. On the application of Detective Sergeant Fox the case was further remanded for the production of corroborative evidence, and the accused was again admitted to bail in two sureties of £100 each. The bail was increased as it was stated that other charges of a similar character would be brought against the accused. As the necessary sureties were not in attendance the prisoner was removed into custody."

Aha, so, you see, the magistrate increased Mr Harte's bail and he didn't have the required sureties in attendance so he had to go to prison. Hence the Calendar says that he was "Received into Custody" on 5 May 1886.

And then on Wednesday 19 May 1886 a further remand hearing was reported in the Times of Thursday 20 May:

"At the Thames Police-Court, the Rev Charles A. Burleigh Harte, of Seaton Carew, Durham, was brought up on remand, charged with inciting a lad, named William Humphreys, to the commission of an offence in a place at Arnold Road, Bow. Mr Sims now prosecuted on behalf of the Treasury; and Mr George Hay Young defended. This case, which has already been reported, shewed that the prisoner accosted Humphreys and afterwards tried to induce him to commit the offence complained of. A fresh charge was no gone into. In the second case it was stated that the rector of the parish where the prisoner had been curate had, in consequence of the information given to him, turned the prisoner away on the spot. Mr Sanders again remanded the prisoner for a week."

We don't have reports of the committal hearing - possibly this was one of those held in camera - but evidently it was on 26 May and Harte was still unable to find the bail to ensure his release so remained in prison until his trial. He was, incidentally, found guilty and sentenced to 18 months in Pentonville Prison.

In other words, absent information other than from the Calendar, our friend Tumblety could easily have been arrested on say 1 November, been bailed at the police court on the same day, then had his bail increased on 7 November, causing him difficulty, so gone back to prison before finding the increased bail and ensuring his release on 8 November. It's perfectly possible and the example of Harte is just one of many I could provide that should convince you of this.