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According to Trevor Marriott, it is “the procedures open to the police and the courts in 1888 which put him [Tumblety] in custody the night Mary Kelly was murdered” (Casebook post, 9 Feb 2015).
I have spent the last few weeks investigating the point and the purpose of this post is to demonstrate that Trevor Marriott is quite wrong and that, not only do the legal procedures of 1888 not put Tumblety in prison in 1888, but that Tumblety would probably have been admitted to bail when he appeared in Marlborough Street Police Court on 7 November 1888. Whether he was able to find the required bail to have him released from custody before 9 November is another matter.
The Douglas Evidence
The key piece of evidence put forward by Trevor Marriott about the legal procedure from 1888 is, curiously, from a 1907 textbook entitled “Summary Jurisdiction Procedure” – ninth edition - by Cecil George Douglas. It is strange that the ninth edition of 1907 is used as opposed to the sixth edition of 1887. In any event, the 1907 edition has a note as follows (although Marriott does not quote it in its entirety):
“BAIL BEFORE OR AFTER COMMITTAL – A distinction appears to be drawn between 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. The law upon this subject requires some elucidation, see note to s.23.”
It should be stated that, although this note also appears in the earlier, seventh and eighth editions of the textbook, i.e. of 1894 and 1899 (then known as “The Summary Jurisdiction Acts”) it is not found in the 1887 edition which would have been the current edition when Tumblety was up before a magistrate.
To the extent that Marriott quoted Douglas simply to demonstrate a narrow technical legal point that bail was not an automatic right for a prisoner prior to committal that would be fine. This was how he first interpreted the passage when he first reproduced it on the board in 2012 (#104 of the thread “Was Tumblety in Jail during the Kelly Murder?” dated 15 August 2102).
Replying to me, however, more recently, he made a very different point, namely that the passage in Douglas shows that, “Tumblety was not eligible for bail until after his Wednesday 14th November committal for trial” (see #7 in “Is This New Tumblety Info?” dated 7 February 2015). This is quite wrong and not what Douglas says. Clearly, in posting this, Marriott has revealed that he has misunderstood Douglas and been misled by him.
But even in his earlier 2012 post on the subject, where he made the simple point that bail prior to committal was not automatic, he then went to make a much broader point that there was no way, with bail being at the magistrate’s discretion, that Tumblety, a foreigner, and thus high flight risk, would have been granted bail prior to committal. As far as I am aware, Marriott has never explained why Tumblety was granted bail after committal (bearing in mind that he was precisely the same flight risk after committal as before) but, leaving that aside, I am going to show that Marriott’s conclusion was incorrect and that Tumblety would very likely have been granted bail on his first appearance before the magistrate.
Indictable Offences Act, 1848
The starting point is the Indictable Offences Act of 1848 and a key passage that Trevor Marriott never refers to. It is Section 23 and states:
“…where any Person shall be charged before any Justice of the Peace with any indictable Misdemeanor other than those herein-before mentioned, such Justice, after taking the Examinations in Writing as aforesaid, instead of committing him to Prison for such Offence, shall admit him to Bail.”
That is a clear statement that, at the conclusion of the committal hearing (or at least after written examinations had been taken, which effectively amounts to the same thing), certain types of misdemeanor required an automatic admission to bail by the magistrate.
Two Types of Misdemeanors
What were those types of misdemeanors? Well the Act refers to any misdemeanor “other than those herein-before mentioned”. Those misdemeanors, mentioned earlier in the Act, are stated to be:
“...receiving Property stolen or obtained by false Pretences, or with Perjury or Subornation of Perjury, or with concealing the Birth of a Child by secret burying or otherwise, or with wilful or indecent Exposure of the Person, or with Riot, or with Assault in pursuance of a Conspiracy to raise Wages, or Assault upon a Peace Officer in the Execution of his Duty, or upon any Person acting in his Aid, or with Neglect or Breach of Duty as a Peace Officer, or with any Misdemeanor for the Prosecution of which the Costs may be allowed out of the County Rate.”
What about those misdemeanors for the prosecution of which the costs may be allowed out of the county rate? That initially seemed hard to establish but fortunately “A Digest of the Law of Criminal Procedure in Indictable Offences” by Sir James Fitzjames Stephen and Herbert Stephen, 1883 edition, includes a note when citing the above section of the Indictable Offences Act which says: “For the misdemeanors for which costs may be allowed out of the county rate, see Article 319”. When consulting Article 319 of the book, one finds the following list:
Assault with intent to commit felony.
Attempt to commit felony.
Riot.
Any misdemeanor for receiving stolen property, knowing the same to have been stolen.
Assault upon a peace officer in the execution of his duty, or upon any person acting in aid of such officer.
Neglect or breach of duty of a peace officer.
Assault committed in pursuance of any conspiracy to raise the rate of wages.
Obtaining property by false pretences.
Wilful and indecent exposure of the person.
Perjury.
Subordination of perjury.
Carnally knowing and abusing any girl above ten and under twelve.
Unlawfully taking or causing to be taken any unmarried girl under sixteen out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her.
Conspiring to charge any person with or indict any person of any felony.
Any indictable misdemeanor against the Larceny Act, 1861, the Malicious Injuries to Properties Act 1861, the Forgery Act, 1861, or the offences against the Person Act, 1861.
In prosecutions for any offence against the Coinage Offences Act, 1861, [with certain conditions which need not trouble us here]
For the sake of simplicity, for the purposes of this post, I am going to call the above list “Grave Misdemeanors”, with all other misdemeanors being referred to by me as “Petty Misdemeanors”. [For reasons of consistency, I am also going to change all spellings (even those from quoted passages) of the word “misdemeanour” in this post to “misdemeanor”, as it is spelt in the 1848 Act.]
It will be noted that offences of both gross indecency and indecent assault are not included in the above list of Grave Misdemeanors. This means that, for any prisoner committed to trial for either offence, a magistrate had no discretion and was legally bound to admit him to bail.
Consequently, had Tumblety – charged with Petty Misdemeanors of gross indecency and indecent assault – turned up at his committal hearing with his bags packed and his one way ticket to New York in his hand, Mr Hannay would, nevertheless, have had no option but to admit him to bail. His only weapon to keep him from flight was to set very high sureties. But, other than that, he HAD to bail him. His hands were tied; he could do nothing else.
Textbook Analysis
This is not just my interpretation of the Act. It appears in textbooks from the period. Thus, largely repeating the wording of the 1848 Act, “A Digest of the Law of Criminal Procedure in Indictable Offences” (1883) says:
“Where any person is charged before any justice with any indictable misdemeanor other than those hereinbefore mentioned [that being a reference to Grave Misdemeanors], such justice, after taking the examinations in writing…instead of committing him to prison for such offence must admit him to bail…”
Seymour F. Harris in “Principles of the Criminal Law” (1886) says that for what I have described as Petty Misdemeanors: “it is imperative on the magistrate to admit to bail”.
And what about Trevor’s friend Douglas? After referring to felonies and the above list of Grave Misdemeanors says (1907 edition): “For all other offences, except treason, being indictable misdemeanors, the justices must accept bail, if sufficient sureties be tendered” (and this is also in the 1887 edition).
In “The Practice on the Crown Side of the Queen’s Bench Division” (1890) by Frederick Short and Francis Hamilton Mellor, it is stated: “…justices of the peace…are compelled to take bail for persons charged with misdemeanor, the costs whereof are not payable out of the county funds.”
And Archobold’s “Pleading and Evidence in Criminal Cases” (1893) says: “Where any person shall be charged before any justice of the peace with any indictable misdemeanor other than those hereinbefore mentioned [i.e. Grave Misdemeanors], such justice, after taking the examinations in writing as aforesaid, instead of committing him to prison for such offence, shall admit him to bail…”
This was not simply a textbook point but was cited by counsel at police court hearings. Note the following reported address to the magistrate at the Guildhall, Alderman Cowan, by A.J. David, counsel for John William Coulbert, in August 1885, charged with abducting a girl aged 14, and committed for trial:
“I propose to ask that the prisoner should be admitted to bail. It will be within the experience of the Court, I think, that people released on bail very rarely abscond; but, further than that, I wish to point out that the offence is a misdemeanor and not a felony, and a misdemeanor in respect of which your Worship cannot decline to accept bail. I hope you will not put the prisoner to unnecessary trouble as regards bail and that you will not treat the matter otherwise than an ordinary case because some excitement has been created in consequence of the passing of the Criminal Law Amendment Act."
As it happens, Mr David had got it wrong. Abduction of a 14 year old was a Grave Misdemeanor (falling under the category of “Unlawfully taking or causing to be taken any unmarried girl under sixteen out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her”, which was the charge against Coulbert at the Old Bailey. The magistrate was thus able to correctly refuse bail following committal.
It is also worth noting, as the textbooks also point out, for a magistrate to refuse or delay to bail any person bailable was a misdemeanor in the magistrate, by both common law and statute.
Pre and Post Committal Bail
Now, while some of the textbooks I have cited don’t make the distinction between pre and post committal bail, it is, of course, true that the Indictable Offences Act does not say that a prisoner has an automatic right to bail before committal (i.e. before the examinations were taken in writing). But let’s just think about this for a moment. At the first hearing, both magistrate and prisoner (assuming he was legally represented) would have known that, as the prisoner was only being charged with a Petty Misdemeanor, he was going to have to be admitted to bail at the committal hearing, which would normally only be a short time, perhaps just a week, away. So what possible purpose would have been served by remanding such a prisoner into custody without bail at the first hearing? The answer is: very little. It’s possible that a magistrate would have wanted to wait to hear all the evidence before admitting to bail, especially if there was a possibility of more serious charges being brought, but holding a prisoner in custody who was bound to be released on bail after committal (or at least offered bail) was otherwise pointless.
In practical terms, having scoured the newspaper reports of such pre-committal hearings during the period in question, I find that in almost every case of a prisoner charged with a Petty Misdemeanor, bail was offered if requested. And, furthermore, even for most Grave Misdemeanors, bail was offered if requested at such hearings. This was probably because someone charged with any misdemeanor could apply to a judge in Chambers for a writ of habeas corpus which would automatically have been granted, as discussed below.
It is important to state that there is no doubt (as Douglas confirms) that under Section 21 of the Indictable Offences Act, 1848, the magistrate had discretion to bail a prisoner at any hearing prior to committal. Thus, says Douglas from 1907 (which is the same as in the 1887 edition):
“the justices may, in their discretion, remand the accused for any period not exceeding eight days, and at the expiration of that time may again remand him and so on from time to time as long as a remand may be considered necessary. Or instead of detaining the accused in custody, the justice may discharge him upon a recognizance, with or without sureties, conditioned to appear at an appointed time and place for the continuation of the examination.”
So that is what magistrates could do and invariably, considering they would have to admit to bail someone charged of a Petty Misdemeanor anyway after committal, they did it in respect of Petty Misdemeanors. When Tumblety appeared at Marlborough Street Police Court on 7 November, it is almost certain that Hannay would have admitted him to bail had Tumblety or his legal representative requested it.
Hold on, I hear you ask, what about Douglas and his statement that “The generally received impression appears to be that the right of bail in misdemeanor does not arise until committal for trial”. Surely he is saying that prisoners usually don’t get bail until committal? Well no, he is not saying that at all. The Douglas quote is a bit misleading but as Trevor Marriott loves it, I now need to give that quote some context. You will have noted that Douglas refers his reader to some “elucidation in s.23” and I will now explain how the Douglas comment came about.
R. v Bennett
On 8 September 1870, a coal merchant called John Bennett was committed for trial by the Lord Mayor at Mansion House Police Court on charges said by the Morning Post report of the hearing, to be “embezzlement and fraud”. It is unclear if this was the correct charge because, when Bennett was eventually tried at the Old Bailey, it was on a charge of “unlawfully obtaining by false pretences” (which fell into the category I have labelled Grave Misdemeanor). In any event, the Morning Post report of the hearing concluded that the Lord Mayor “committed him for trial on the whole of the charges, and declined to accede to an application to admit him for bail”.
A few weeks later, on 17 September, Bennett’s lawyers applied to a judge of the Queen’s Bench Division in Chambers, Mr Justice Lush, to have their client bailed until the next session of the Old Bailey (which was on 24 October). They did not do so on the basis of anything in the Indictable Offences Act and, as the charge was, at best, a Grave Misdemeanor, there was no basis to challenge the discretion of the magistrate under the Act. Instead, they made use of a clause in the Habeas Corpus Act of 1679 which said that in ALL cases of a committal to trial for misdemeanor, a man was entitled to liberty on giving proper bail. But only a judge could grant a writ of habeas corpus. The terms of the Act are as follows:
“That, if any person or persons shall be committed for any crime (unless treason or felony) in the vacation term and out of term, it shall be lawful for the person or persons so committed (other than persons convict, or in execution by legal process) to complain to any one of the Judges…and the said Judge upon view of the copy of the warrant etc. or oath made that such copy was denied to be given by such person or persons in whose custody the prisoner was detained, are hereby authorized and required upon request made in writing by such person or persons to grant a habeas corpus etc.”
As the Times of 28 September 1870 reported: “His Lordship was clearly of the opinion that in cases of misdemeanor a defendant was entitled as a right to be liberated on finding bail.” The judge ordered Bennett to be liberated on finding two sureties of £250 each.
R. v Atkins
Shortly after this decision of Mr Justice Lush, a clerk to a city wine merchant called Thomas Sidney Adkins (also referred to as Atkins) was charged before Mr Newton at Worship Street Police Court with, according to LWN of 25 September 1870, “having unlawfully assaulted Police Constables Daniel Shine, 184 N, and Henry Moody, 8 N R, with intent to commit an unnatural offence”. The story told at the hearing – of how Adkins made sexual advances to the police officers – is quite extraordinary but need not detain us here. For our purposes we may note that the newspaper reported that the prisoner was committed for trial, with Mr Newton saying that “next to murder, this was the most serious crime affecting the community”, and the newspaper report concluded: “At first the prisoner was admitted to bail, himself in £1,000 and two sureties of £500 each, but the magistrate afterwards refused to liberate the prisoner on any terms”. This is very odd and it is unclear what was meant. An explanation may be found in the report of the same hearing in Reynold’s Newspaper which said that the magistrate remanded the prisoner “for enquiries to be made, which are expected to have the most painful results”. My reading of this is that the magistrate was told at the end of the hearing that more serious charges were likely to be brought against Adkins, possibly sodomy or something like that, which would have been a felony offence.
On 11 October, armed with the recent judgment of Lush J., Adkins’ lawyers applied to Mr Justice Brett in Chambers for a writ of habeas corpus for Adkins to be liberated on bail. It was accepted by the prosecution that Adkins was charged with a misdemeanor said to be “assaulting indecently several policemen”. It will be noted that an assault on a peace officer was a Grave Misdemeanor while indecent assault was a Petty Misdemeanor. If Adkins was only being charged with a Petty Misdemeanor then Mr Newton had no right to refuse bail. However, this wasn’t the basis of the application by Adkins’ lawyers who simply wanted him freed on the basis that a person committed for any misdemeanor was, as a matter of right, entitled to bail by a judge under habeas corpus. Mr Justice Brett didn’t seem to spend much time discussing the law but was influenced by the recent decision of his colleague, Justice Lush, and thus agreed to set bail at two sureties in £250 and £500 for Adkins. This case is referred to as R. v Atkins (as opposed to Adkins). In the event, Adkins was found not guilty at the Old Bailey.
The above is the only case I am currently aware of where a person apparently charged with a Petty Misdemeanor was refused bail following committal but there is a very unusual factor here in that, according to the newspaper report, Adkins WAS at first admitted to bail but then the magistrate appears to have changed his mind. As I mention above, I think this must be because the prosecution suggested more serious charges would be brought and the magistrate must have thought he was entitled to refuse bail on this basis.
Exchange between Mr Hannay and Mr Besley, 1882
In any event, here were no further developments in the law until 1884 but the following exchange between Mr Hannay and a defence counsel, Mr Besley, at a first hearing at Worship Street Police Court on behalf of two men charged with fraudulent bankruptcy, as reported in the Times of 4 October 1882, is worth noting:
“Mr Hannay said that he felt nervous about the question of bail, and must now decline to grant it, leaving counsel to go to a Judge at Chambers if they saw fit.
Mr Besley said that application could not be made until the prisoners were committed, and then they were entitled to bail, the charge being a misdemeanor. He was willing to take a committal at once.
Mr Hannay said that, of course, could not be; but if it was a fact that an application could not be made to a judge pending committal then, of course, the prisoner would be entitled to bail. He would consider the question.
After some warm remarks from Mr Besley, who said it looked like an arrangement between the prosecution and Gordon [the second prisoner] to prove something against Evans [Mr Besley’s client], Mr Hannay consented to take bail on each prisoner finding two sureties to the amount of £250 each, themselves in double the amount.
Mr Grain [for the Treasury] – With the usual notice to the police, Sir?
Mr Besley – Then you insist on locking up these men for one night?
Mr Hannay said notice must be given, and on the report of the police bail would be accepted or otherwise.
The prisoners were then removed.”
I will refer to this exchange again later. For the moment it should be noted that Mr Besley was right that applications for bail to a Judge in Chambers were normally made post-committal. However, I have seen reported examples of magistrates telling counsel prior to committal that, if they did not like their decision to refuse bail to a prisoner on remand, they could make an application to a Judge in Chambers and it may be that, in certain cases, a judge would hear such an application.
This issue aside, at the start of 1884, the legal position was reasonably clear. For certain misdemeanors, a magistrate had to grant bail after committal but if, for other misdemeanors, where the magistrate had discretion to refuse bail, the prisoner applied to a Judge in Chambers then bail would automatically be granted because a judge then had no discretion but had to allow it. There is no doubt that this was a curious state of legal affairs (and was noted to be such in the textbooks) but it was how the law worked. So far, the law had never been tested in respect of someone remanded before committal but such a case occurred at the start of 1884.
R. v Mullins
The background to this is that William J. Mullins, a corn merchant, was charged (along with another merchant, John Herd) at a hearing on 18 January 1884 with having obtained £16,000 from the North Western Bank by false pretences. Obtaining or attempting to obtain property by false pretences was a Grave Misdemeanor and I think “property” included money but I am not entirely sure about this, so it is not 100% clear if we are dealing with a Grave or Petty Misdemeanor here (but I assume a Grave Misdemeanor). At the hearing, the prosecuting counsel applied for a further remand of seven days on the ground that the investigation was a lengthy and complicated one. Defence counsel said that he had no objection to a remand but applied for bail, saying that the prisoners were prepared to offer bail to the extent of £5,000. The following exchange between the magistrate, Mr Raffles, and Mr Mullins’ Counsel, Mr Rodway, was reported in the Liverpool Daily Post of 19 January 1884:
Mr Raffles: I cannot hear any question as to bail.
Mr Rodway: Seeing, sir, that there is an authority that bail will be given, and they are entitled to it if they go to London -
Mr Raffles: That is after the case was committed. I know the case you allude to, it was Justice Lush. I remember it.
Mr Rodway: Although, sir, you have the fullest discretion in the matter –
Mr Raffles: I exercise my discretion, knowing what I do of the case, and shall not grant bail.
The application was refused and the prisoners were remanded for seven days (i.e. until 25 January 1884).
What seems to have happened next is that solicitors for Mullins applied to a Judge in Chambers in London (Mr Justice Mathew) but he refused to allow bail. From the known factual circumstances, the likely reason for the refusal is that Mullins was not yet committed to trial – the very point that Mr Raffles, the magistrate, had made to Mr Rodway - but the decision of Mathew was not reported so we don’t know. Then Mullins’ lawyers appealed to the Divisional Court (Pollock J and Lopes J) but, on 24 January 1884, they upheld the decision of Mathew J, and bail for Mullins was refused. Unfortunately, the judgment of the Divisional Court was also unreported so it is difficult to know what their reasons were. Our only knowledge of it is a very short summary that is found in the 1887 edition of “The Summary Jurisdiction Act 1848-1884” – the Sixth Edition – by Archibald Henry Bodkin (Tumblety’s barrister) and Cecil George Douglas. This states that, “in a case where Mathew J had refused to bail a person on remand for a misdemeanor the court (Pollock J and Lopes J) held that such a defendant had not under [the Indictable Offences Act 1848] a right to bail till committal.” From this summary, it seems that Mullins’ lawyers were not applying for a writ of habeas corpus, because, in that case, the Indictable Offences Act of 1848 was irrelevant (as they would have been making an application under the Habeas Corpus Act of 1679) and, in any case, such an application could only be made in respect of persons “committed”. Perhaps, if Mullins was, contrary to my understanding, being charged with a Petty Misdemeanor – and “a right to bail” after committal only existed for such misdemeanors - they were relying on the words from Section 23 of the 1848 Act that the magistrate, “instead of committing him to Prison for such Offence, shall admit him to Bail” and believed that the words “after taking the Examinations in Writing” did not necessarily mean after committal if the examinations had been commenced and then adjourned; but the judges presumably confirmed that it did.
In any event, it seems that Justices Pollock and Lopes were doing no more than confirming that the 1848 Act meant what it said. At this stage, Bodkin and Douglas did not feel the need to include an additional note in their textbook stating that “The generally received impression appears to be that the right of bail in misdemeanor does not arise until committal for trial”. The 1887 edition did not include such a statement.
The reason why I believe that sentence was included by Douglas in later editions is to be found in a decision from December 1888, after Tumblety had fled. Before dealing with that, let me note a few points that arose from the summer of 1888 in a decision involving Annie Frost (a.k.a. Mrs Gordon Baillie) charged with fraud.
R. v Frost
She had been committed to trial at Westminster Police Court on 23 July 1888 but her trial was delayed (and did not occur until October) and bail was refused by both the magistrate and the recorder at the Central Criminal Court. It was also refused by a Judge in Chambers. Her lawyers applied ex parte to the Divisional Court for a writ of habeas corpus to admit her to bail. As reported in the Times of 1 August 1888, Frost’s lawyer:
“…moved, he said, under Section 3 of the Habeas Corpus Act of Charles II, under which in cases of misdemeanor it was obligatory on the Court to admit a prisoner to bail, though the magistrate or the Judge of the Court of trial had a discretion. The statute had been so construed in two cases [The Queen v Bennett + Reg. v Atkins].”
The Court granted a rule nisi for a habeas corpus to admit the prisoner to bail which led to a contested application. On 3 August 1888, the Times reported the comments of Lord Chief Justice Coleridge at the hearing as follows:
“This case raised a question of considerable public interest and importance – whether this court is bound to admit to bail persons imprisoned and awaiting their trial upon charges of misdemeanor. The question has never been raised in any Court, until quite lately – when it was decided in the negative; but then it was said the enactment on which it depends was not cited. That enactment is the third section in Habeas Corpus Act (31 Charles II, cap 2) which had never been mooted before in any reported case, perhaps because (as was now said) it is so difficult of construction.”
After a discussion between the judges and Counsel about various difficulties of the construction of the Act, a writ of habeas corpus was granted to allow Annie Frost to apply to be admitted to bail and bail was subsequently granted, in herself to the sum of £500 and two sureties of £250 each, although it does not seem to be the case that she was able to satisfy the conditions and she remained in custody.
That was the law as it stood in November 1888 when Tumblety was charged with gross indecency and indecent assault. In December, however, there was a key case involving an application for bail before committal of a prisoner charged on remand with a misdemeanor.
R. v Manning
William Henry Manning was charged, with three others, before Mr Vaughan at Bow Street Police Court with conspiracy to defraud and obtain a lease of some household property by false pretences. This must have been a Grave Misdemeanor. Mr Vaughan accepted bail for the other prisoners but, having been told that there were other charges likely for Manning, refused bail for him alone. Manning’s lawyers made an application to Lord Chief Justice Coleridge (sitting with Manisty J) to be admitted to bail. The report of the case in the Times of 15 December 1888 states:
“Upon the former charge [conspiracy to defraud] the magistrate, Mr Vaughan, according to the usual practice, admitted the prisoners to bail; but as to Manning against whom there was a more serious charge – on which some evidence was taken - a remand was required, and as counsel stated there were ‘other charges against him’ the learned magistrate in the exercise of his discretion remanded the prisoner Manning without bail.”
The case really hinged on whether the magistrate was entitled to take into account that there might be further charges against Manning in coming to his decision. The Court ruled that he was not and that Manning therefore should be admitted to bail like the other prisoners.
During the course of the legal arguments Mr Wright for the Treasury stated:
“In such cases as the present he conceived that on a remand the magistrate had a discretion to admit or refuse to admit to bail. Under [the Indictable Offences Act, 1848, s.21] the magistrate had power to admit the prisoner to bail on a remand; but it was a discretionary power, and he was not bound to do so; but this applies only in cases of final committal on completion of the evidence, not on cases of remand. No doubt the Court has an absolute power to admit to bail, but though it has been held in two cases that the Court may admit to bail even in cases of remand (“The Queen v Bennett” and “The Queen v Atkins” Law Times Reports) yet it had been lately held by a Divisional Court that the Court will not lightly interfere with the discretion of the magistrate.”
The Divisional Court hearing he was referring to was presumably R. v Frost although that is unclear. There was then the following exchange between Mr Bompas, QC, on behalf of Manning and Mr Justice Manisty:
Mr Bompas QC – Of course it could not be doubted that the magistrate had assigned the “other charges” as a reason for refusing to admit the prisoner to bail; but he contended that the mere statement of counsel for the prosecution was not a ground on which a magistrate should refuse bail to a prisoner, whom he would otherwise have admitted to bail; and further that a statement as to “other charges” was far too vague to afford any ground for refusal of bail, for they might be charges of mere misdemeanor on which the magistrate under section 23 would be bound to admit the prisoner to bail.
Mr Justice Manisty – Does that apply in cases of remand as section 21 does?
Mr Bompas QC – It is submitted that it does, and that, therefore, if the “other charges” were charges within the latter part of the 23rd section as cases in which the magistrate would be bound to admit to bail, the existence of those charges would afford no ground for refusal of bail when the magistrate would otherwise have admitted to bail as in the present case.”
The submission by Mr Bompas was doubtful but the judges nevertheless remitted the matter to the magistrate with their direction to admit Manning to bail, himself in £300 and two sureties for £150 each.
The legal discussion in that case (the first to discuss Section 21 of the Indictable Offences Act) is, in my view, the immediate context within which the next published edition of Douglas contained the now well-known statement within a note relating to Section 21 of the Indictable Offences Act:
“A distinction appears to be drawn between 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”.
It also explains, in my opinion, why Douglas added that the law needed some elucidation and drew his reader’s attention to a brief summary of the above cases which I have described in more detail. What Douglas certainly was not doing was saying that magistrates were, as a matter of fact, more likely to refuse to bail prisoners before committal – he was speaking in the abstract only, as a matter of law, not practice.
Conclusion (part 1)
The short point is that the law as it stood in November 1888 said that someone charged with a misdemeanor such as gross indecency or indecent assault was required to be admitted to bail after committal – with other forms of misdemeanor likely to result in liberation under a writ of habeas corpus - and, that being so, the usual practice – at least since the two cases of 1870 - as confirmed in the report of R. v Manning (and by my own researches of actual reported remand hearings) - was that prisoners charged with such offences would be admitted to bail at the first hearing; any other course of action by the magistrate was illogical and would only make sense if the prisoner was likely to be charged with more serious offences in the near future in addition to the misdemeanor he was being charged with at the time.
Regardless of his nationality or potential flight risk, Tumblety had to be admitted to bail upon committal – the magistrate had no choice in the matter – so it is likely that the same magistrate was prepared to admit him to bail seven days earlier: there was nothing in the British criminal law procedure in 1888 which says that this could not have happened.
Trevor's Timing Point
Trevor Marriott has suggested that there would not have been enough time for Tumblety to have been at liberty on 9 November if he was remanded into custody on 7 November. But it was quite usual for the police to require only 24 hours’ notice to check sureties (as Trevor Marriott has himself conceded by quoting Douglas who says: “In suspicious cases twenty four hours’….notice of bail is usually required”). Note in this respect the exchange from 1882 between Mr Hannay and Mr Besley (quoted above) when, in response to a mention by the prosecution counsel that “the usual notice” to police would be required, Mr Besley said “Then you insist on locking up these men for one night”. In other words, defence counsel appreciated that the usual notice to police involved his client spending one night in prison before being released (on bail).
Conclusion (part 2)
Tumblety certainly ended up in prison on 7 November - and in 1888 this would have been Holloway prison, where all remand prisoners were sent (i.e. not Newgate) - but, he could in theory have then secured the necessary bail (assuming that a bail application on his behalf had been accepted by the magistrate) and been released from prison within 24 hours, on 8 November, and thus have been free when Mary Jane Kelly was murdered on 9 November. That would be perfectly in accordance with English legal procedure in 1888.
What cannot be said with any degree of certainty is if, having been admitted to bail, he was actually able to ensure his liberation by finding two sureties, and whatever security he was asked to put in himself, within the time frame. It may be said that the After-Trial Calendar for the Old Bailey indicates that Tumblety was in custody but this document cannot be relied upon for such a conclusion. I will deal with the information in the After-Trial Calendar as it relates to Tumblety’s custody in a separate thread. It may be that other arguments come into play which allow us to infer that he must have been free, or not free, at the time - but that is beyond the ambition of this post.
I have spent the last few weeks investigating the point and the purpose of this post is to demonstrate that Trevor Marriott is quite wrong and that, not only do the legal procedures of 1888 not put Tumblety in prison in 1888, but that Tumblety would probably have been admitted to bail when he appeared in Marlborough Street Police Court on 7 November 1888. Whether he was able to find the required bail to have him released from custody before 9 November is another matter.
The Douglas Evidence
The key piece of evidence put forward by Trevor Marriott about the legal procedure from 1888 is, curiously, from a 1907 textbook entitled “Summary Jurisdiction Procedure” – ninth edition - by Cecil George Douglas. It is strange that the ninth edition of 1907 is used as opposed to the sixth edition of 1887. In any event, the 1907 edition has a note as follows (although Marriott does not quote it in its entirety):
“BAIL BEFORE OR AFTER COMMITTAL – A distinction appears to be drawn between 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. The law upon this subject requires some elucidation, see note to s.23.”
It should be stated that, although this note also appears in the earlier, seventh and eighth editions of the textbook, i.e. of 1894 and 1899 (then known as “The Summary Jurisdiction Acts”) it is not found in the 1887 edition which would have been the current edition when Tumblety was up before a magistrate.
To the extent that Marriott quoted Douglas simply to demonstrate a narrow technical legal point that bail was not an automatic right for a prisoner prior to committal that would be fine. This was how he first interpreted the passage when he first reproduced it on the board in 2012 (#104 of the thread “Was Tumblety in Jail during the Kelly Murder?” dated 15 August 2102).
Replying to me, however, more recently, he made a very different point, namely that the passage in Douglas shows that, “Tumblety was not eligible for bail until after his Wednesday 14th November committal for trial” (see #7 in “Is This New Tumblety Info?” dated 7 February 2015). This is quite wrong and not what Douglas says. Clearly, in posting this, Marriott has revealed that he has misunderstood Douglas and been misled by him.
But even in his earlier 2012 post on the subject, where he made the simple point that bail prior to committal was not automatic, he then went to make a much broader point that there was no way, with bail being at the magistrate’s discretion, that Tumblety, a foreigner, and thus high flight risk, would have been granted bail prior to committal. As far as I am aware, Marriott has never explained why Tumblety was granted bail after committal (bearing in mind that he was precisely the same flight risk after committal as before) but, leaving that aside, I am going to show that Marriott’s conclusion was incorrect and that Tumblety would very likely have been granted bail on his first appearance before the magistrate.
Indictable Offences Act, 1848
The starting point is the Indictable Offences Act of 1848 and a key passage that Trevor Marriott never refers to. It is Section 23 and states:
“…where any Person shall be charged before any Justice of the Peace with any indictable Misdemeanor other than those herein-before mentioned, such Justice, after taking the Examinations in Writing as aforesaid, instead of committing him to Prison for such Offence, shall admit him to Bail.”
That is a clear statement that, at the conclusion of the committal hearing (or at least after written examinations had been taken, which effectively amounts to the same thing), certain types of misdemeanor required an automatic admission to bail by the magistrate.
Two Types of Misdemeanors
What were those types of misdemeanors? Well the Act refers to any misdemeanor “other than those herein-before mentioned”. Those misdemeanors, mentioned earlier in the Act, are stated to be:
“...receiving Property stolen or obtained by false Pretences, or with Perjury or Subornation of Perjury, or with concealing the Birth of a Child by secret burying or otherwise, or with wilful or indecent Exposure of the Person, or with Riot, or with Assault in pursuance of a Conspiracy to raise Wages, or Assault upon a Peace Officer in the Execution of his Duty, or upon any Person acting in his Aid, or with Neglect or Breach of Duty as a Peace Officer, or with any Misdemeanor for the Prosecution of which the Costs may be allowed out of the County Rate.”
What about those misdemeanors for the prosecution of which the costs may be allowed out of the county rate? That initially seemed hard to establish but fortunately “A Digest of the Law of Criminal Procedure in Indictable Offences” by Sir James Fitzjames Stephen and Herbert Stephen, 1883 edition, includes a note when citing the above section of the Indictable Offences Act which says: “For the misdemeanors for which costs may be allowed out of the county rate, see Article 319”. When consulting Article 319 of the book, one finds the following list:
Assault with intent to commit felony.
Attempt to commit felony.
Riot.
Any misdemeanor for receiving stolen property, knowing the same to have been stolen.
Assault upon a peace officer in the execution of his duty, or upon any person acting in aid of such officer.
Neglect or breach of duty of a peace officer.
Assault committed in pursuance of any conspiracy to raise the rate of wages.
Obtaining property by false pretences.
Wilful and indecent exposure of the person.
Perjury.
Subordination of perjury.
Carnally knowing and abusing any girl above ten and under twelve.
Unlawfully taking or causing to be taken any unmarried girl under sixteen out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her.
Conspiring to charge any person with or indict any person of any felony.
Any indictable misdemeanor against the Larceny Act, 1861, the Malicious Injuries to Properties Act 1861, the Forgery Act, 1861, or the offences against the Person Act, 1861.
In prosecutions for any offence against the Coinage Offences Act, 1861, [with certain conditions which need not trouble us here]
For the sake of simplicity, for the purposes of this post, I am going to call the above list “Grave Misdemeanors”, with all other misdemeanors being referred to by me as “Petty Misdemeanors”. [For reasons of consistency, I am also going to change all spellings (even those from quoted passages) of the word “misdemeanour” in this post to “misdemeanor”, as it is spelt in the 1848 Act.]
It will be noted that offences of both gross indecency and indecent assault are not included in the above list of Grave Misdemeanors. This means that, for any prisoner committed to trial for either offence, a magistrate had no discretion and was legally bound to admit him to bail.
Consequently, had Tumblety – charged with Petty Misdemeanors of gross indecency and indecent assault – turned up at his committal hearing with his bags packed and his one way ticket to New York in his hand, Mr Hannay would, nevertheless, have had no option but to admit him to bail. His only weapon to keep him from flight was to set very high sureties. But, other than that, he HAD to bail him. His hands were tied; he could do nothing else.
Textbook Analysis
This is not just my interpretation of the Act. It appears in textbooks from the period. Thus, largely repeating the wording of the 1848 Act, “A Digest of the Law of Criminal Procedure in Indictable Offences” (1883) says:
“Where any person is charged before any justice with any indictable misdemeanor other than those hereinbefore mentioned [that being a reference to Grave Misdemeanors], such justice, after taking the examinations in writing…instead of committing him to prison for such offence must admit him to bail…”
Seymour F. Harris in “Principles of the Criminal Law” (1886) says that for what I have described as Petty Misdemeanors: “it is imperative on the magistrate to admit to bail”.
And what about Trevor’s friend Douglas? After referring to felonies and the above list of Grave Misdemeanors says (1907 edition): “For all other offences, except treason, being indictable misdemeanors, the justices must accept bail, if sufficient sureties be tendered” (and this is also in the 1887 edition).
In “The Practice on the Crown Side of the Queen’s Bench Division” (1890) by Frederick Short and Francis Hamilton Mellor, it is stated: “…justices of the peace…are compelled to take bail for persons charged with misdemeanor, the costs whereof are not payable out of the county funds.”
And Archobold’s “Pleading and Evidence in Criminal Cases” (1893) says: “Where any person shall be charged before any justice of the peace with any indictable misdemeanor other than those hereinbefore mentioned [i.e. Grave Misdemeanors], such justice, after taking the examinations in writing as aforesaid, instead of committing him to prison for such offence, shall admit him to bail…”
This was not simply a textbook point but was cited by counsel at police court hearings. Note the following reported address to the magistrate at the Guildhall, Alderman Cowan, by A.J. David, counsel for John William Coulbert, in August 1885, charged with abducting a girl aged 14, and committed for trial:
“I propose to ask that the prisoner should be admitted to bail. It will be within the experience of the Court, I think, that people released on bail very rarely abscond; but, further than that, I wish to point out that the offence is a misdemeanor and not a felony, and a misdemeanor in respect of which your Worship cannot decline to accept bail. I hope you will not put the prisoner to unnecessary trouble as regards bail and that you will not treat the matter otherwise than an ordinary case because some excitement has been created in consequence of the passing of the Criminal Law Amendment Act."
As it happens, Mr David had got it wrong. Abduction of a 14 year old was a Grave Misdemeanor (falling under the category of “Unlawfully taking or causing to be taken any unmarried girl under sixteen out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her”, which was the charge against Coulbert at the Old Bailey. The magistrate was thus able to correctly refuse bail following committal.
It is also worth noting, as the textbooks also point out, for a magistrate to refuse or delay to bail any person bailable was a misdemeanor in the magistrate, by both common law and statute.
Pre and Post Committal Bail
Now, while some of the textbooks I have cited don’t make the distinction between pre and post committal bail, it is, of course, true that the Indictable Offences Act does not say that a prisoner has an automatic right to bail before committal (i.e. before the examinations were taken in writing). But let’s just think about this for a moment. At the first hearing, both magistrate and prisoner (assuming he was legally represented) would have known that, as the prisoner was only being charged with a Petty Misdemeanor, he was going to have to be admitted to bail at the committal hearing, which would normally only be a short time, perhaps just a week, away. So what possible purpose would have been served by remanding such a prisoner into custody without bail at the first hearing? The answer is: very little. It’s possible that a magistrate would have wanted to wait to hear all the evidence before admitting to bail, especially if there was a possibility of more serious charges being brought, but holding a prisoner in custody who was bound to be released on bail after committal (or at least offered bail) was otherwise pointless.
In practical terms, having scoured the newspaper reports of such pre-committal hearings during the period in question, I find that in almost every case of a prisoner charged with a Petty Misdemeanor, bail was offered if requested. And, furthermore, even for most Grave Misdemeanors, bail was offered if requested at such hearings. This was probably because someone charged with any misdemeanor could apply to a judge in Chambers for a writ of habeas corpus which would automatically have been granted, as discussed below.
It is important to state that there is no doubt (as Douglas confirms) that under Section 21 of the Indictable Offences Act, 1848, the magistrate had discretion to bail a prisoner at any hearing prior to committal. Thus, says Douglas from 1907 (which is the same as in the 1887 edition):
“the justices may, in their discretion, remand the accused for any period not exceeding eight days, and at the expiration of that time may again remand him and so on from time to time as long as a remand may be considered necessary. Or instead of detaining the accused in custody, the justice may discharge him upon a recognizance, with or without sureties, conditioned to appear at an appointed time and place for the continuation of the examination.”
So that is what magistrates could do and invariably, considering they would have to admit to bail someone charged of a Petty Misdemeanor anyway after committal, they did it in respect of Petty Misdemeanors. When Tumblety appeared at Marlborough Street Police Court on 7 November, it is almost certain that Hannay would have admitted him to bail had Tumblety or his legal representative requested it.
Hold on, I hear you ask, what about Douglas and his statement that “The generally received impression appears to be that the right of bail in misdemeanor does not arise until committal for trial”. Surely he is saying that prisoners usually don’t get bail until committal? Well no, he is not saying that at all. The Douglas quote is a bit misleading but as Trevor Marriott loves it, I now need to give that quote some context. You will have noted that Douglas refers his reader to some “elucidation in s.23” and I will now explain how the Douglas comment came about.
R. v Bennett
On 8 September 1870, a coal merchant called John Bennett was committed for trial by the Lord Mayor at Mansion House Police Court on charges said by the Morning Post report of the hearing, to be “embezzlement and fraud”. It is unclear if this was the correct charge because, when Bennett was eventually tried at the Old Bailey, it was on a charge of “unlawfully obtaining by false pretences” (which fell into the category I have labelled Grave Misdemeanor). In any event, the Morning Post report of the hearing concluded that the Lord Mayor “committed him for trial on the whole of the charges, and declined to accede to an application to admit him for bail”.
A few weeks later, on 17 September, Bennett’s lawyers applied to a judge of the Queen’s Bench Division in Chambers, Mr Justice Lush, to have their client bailed until the next session of the Old Bailey (which was on 24 October). They did not do so on the basis of anything in the Indictable Offences Act and, as the charge was, at best, a Grave Misdemeanor, there was no basis to challenge the discretion of the magistrate under the Act. Instead, they made use of a clause in the Habeas Corpus Act of 1679 which said that in ALL cases of a committal to trial for misdemeanor, a man was entitled to liberty on giving proper bail. But only a judge could grant a writ of habeas corpus. The terms of the Act are as follows:
“That, if any person or persons shall be committed for any crime (unless treason or felony) in the vacation term and out of term, it shall be lawful for the person or persons so committed (other than persons convict, or in execution by legal process) to complain to any one of the Judges…and the said Judge upon view of the copy of the warrant etc. or oath made that such copy was denied to be given by such person or persons in whose custody the prisoner was detained, are hereby authorized and required upon request made in writing by such person or persons to grant a habeas corpus etc.”
As the Times of 28 September 1870 reported: “His Lordship was clearly of the opinion that in cases of misdemeanor a defendant was entitled as a right to be liberated on finding bail.” The judge ordered Bennett to be liberated on finding two sureties of £250 each.
R. v Atkins
Shortly after this decision of Mr Justice Lush, a clerk to a city wine merchant called Thomas Sidney Adkins (also referred to as Atkins) was charged before Mr Newton at Worship Street Police Court with, according to LWN of 25 September 1870, “having unlawfully assaulted Police Constables Daniel Shine, 184 N, and Henry Moody, 8 N R, with intent to commit an unnatural offence”. The story told at the hearing – of how Adkins made sexual advances to the police officers – is quite extraordinary but need not detain us here. For our purposes we may note that the newspaper reported that the prisoner was committed for trial, with Mr Newton saying that “next to murder, this was the most serious crime affecting the community”, and the newspaper report concluded: “At first the prisoner was admitted to bail, himself in £1,000 and two sureties of £500 each, but the magistrate afterwards refused to liberate the prisoner on any terms”. This is very odd and it is unclear what was meant. An explanation may be found in the report of the same hearing in Reynold’s Newspaper which said that the magistrate remanded the prisoner “for enquiries to be made, which are expected to have the most painful results”. My reading of this is that the magistrate was told at the end of the hearing that more serious charges were likely to be brought against Adkins, possibly sodomy or something like that, which would have been a felony offence.
On 11 October, armed with the recent judgment of Lush J., Adkins’ lawyers applied to Mr Justice Brett in Chambers for a writ of habeas corpus for Adkins to be liberated on bail. It was accepted by the prosecution that Adkins was charged with a misdemeanor said to be “assaulting indecently several policemen”. It will be noted that an assault on a peace officer was a Grave Misdemeanor while indecent assault was a Petty Misdemeanor. If Adkins was only being charged with a Petty Misdemeanor then Mr Newton had no right to refuse bail. However, this wasn’t the basis of the application by Adkins’ lawyers who simply wanted him freed on the basis that a person committed for any misdemeanor was, as a matter of right, entitled to bail by a judge under habeas corpus. Mr Justice Brett didn’t seem to spend much time discussing the law but was influenced by the recent decision of his colleague, Justice Lush, and thus agreed to set bail at two sureties in £250 and £500 for Adkins. This case is referred to as R. v Atkins (as opposed to Adkins). In the event, Adkins was found not guilty at the Old Bailey.
The above is the only case I am currently aware of where a person apparently charged with a Petty Misdemeanor was refused bail following committal but there is a very unusual factor here in that, according to the newspaper report, Adkins WAS at first admitted to bail but then the magistrate appears to have changed his mind. As I mention above, I think this must be because the prosecution suggested more serious charges would be brought and the magistrate must have thought he was entitled to refuse bail on this basis.
Exchange between Mr Hannay and Mr Besley, 1882
In any event, here were no further developments in the law until 1884 but the following exchange between Mr Hannay and a defence counsel, Mr Besley, at a first hearing at Worship Street Police Court on behalf of two men charged with fraudulent bankruptcy, as reported in the Times of 4 October 1882, is worth noting:
“Mr Hannay said that he felt nervous about the question of bail, and must now decline to grant it, leaving counsel to go to a Judge at Chambers if they saw fit.
Mr Besley said that application could not be made until the prisoners were committed, and then they were entitled to bail, the charge being a misdemeanor. He was willing to take a committal at once.
Mr Hannay said that, of course, could not be; but if it was a fact that an application could not be made to a judge pending committal then, of course, the prisoner would be entitled to bail. He would consider the question.
After some warm remarks from Mr Besley, who said it looked like an arrangement between the prosecution and Gordon [the second prisoner] to prove something against Evans [Mr Besley’s client], Mr Hannay consented to take bail on each prisoner finding two sureties to the amount of £250 each, themselves in double the amount.
Mr Grain [for the Treasury] – With the usual notice to the police, Sir?
Mr Besley – Then you insist on locking up these men for one night?
Mr Hannay said notice must be given, and on the report of the police bail would be accepted or otherwise.
The prisoners were then removed.”
I will refer to this exchange again later. For the moment it should be noted that Mr Besley was right that applications for bail to a Judge in Chambers were normally made post-committal. However, I have seen reported examples of magistrates telling counsel prior to committal that, if they did not like their decision to refuse bail to a prisoner on remand, they could make an application to a Judge in Chambers and it may be that, in certain cases, a judge would hear such an application.
This issue aside, at the start of 1884, the legal position was reasonably clear. For certain misdemeanors, a magistrate had to grant bail after committal but if, for other misdemeanors, where the magistrate had discretion to refuse bail, the prisoner applied to a Judge in Chambers then bail would automatically be granted because a judge then had no discretion but had to allow it. There is no doubt that this was a curious state of legal affairs (and was noted to be such in the textbooks) but it was how the law worked. So far, the law had never been tested in respect of someone remanded before committal but such a case occurred at the start of 1884.
R. v Mullins
The background to this is that William J. Mullins, a corn merchant, was charged (along with another merchant, John Herd) at a hearing on 18 January 1884 with having obtained £16,000 from the North Western Bank by false pretences. Obtaining or attempting to obtain property by false pretences was a Grave Misdemeanor and I think “property” included money but I am not entirely sure about this, so it is not 100% clear if we are dealing with a Grave or Petty Misdemeanor here (but I assume a Grave Misdemeanor). At the hearing, the prosecuting counsel applied for a further remand of seven days on the ground that the investigation was a lengthy and complicated one. Defence counsel said that he had no objection to a remand but applied for bail, saying that the prisoners were prepared to offer bail to the extent of £5,000. The following exchange between the magistrate, Mr Raffles, and Mr Mullins’ Counsel, Mr Rodway, was reported in the Liverpool Daily Post of 19 January 1884:
Mr Raffles: I cannot hear any question as to bail.
Mr Rodway: Seeing, sir, that there is an authority that bail will be given, and they are entitled to it if they go to London -
Mr Raffles: That is after the case was committed. I know the case you allude to, it was Justice Lush. I remember it.
Mr Rodway: Although, sir, you have the fullest discretion in the matter –
Mr Raffles: I exercise my discretion, knowing what I do of the case, and shall not grant bail.
The application was refused and the prisoners were remanded for seven days (i.e. until 25 January 1884).
What seems to have happened next is that solicitors for Mullins applied to a Judge in Chambers in London (Mr Justice Mathew) but he refused to allow bail. From the known factual circumstances, the likely reason for the refusal is that Mullins was not yet committed to trial – the very point that Mr Raffles, the magistrate, had made to Mr Rodway - but the decision of Mathew was not reported so we don’t know. Then Mullins’ lawyers appealed to the Divisional Court (Pollock J and Lopes J) but, on 24 January 1884, they upheld the decision of Mathew J, and bail for Mullins was refused. Unfortunately, the judgment of the Divisional Court was also unreported so it is difficult to know what their reasons were. Our only knowledge of it is a very short summary that is found in the 1887 edition of “The Summary Jurisdiction Act 1848-1884” – the Sixth Edition – by Archibald Henry Bodkin (Tumblety’s barrister) and Cecil George Douglas. This states that, “in a case where Mathew J had refused to bail a person on remand for a misdemeanor the court (Pollock J and Lopes J) held that such a defendant had not under [the Indictable Offences Act 1848] a right to bail till committal.” From this summary, it seems that Mullins’ lawyers were not applying for a writ of habeas corpus, because, in that case, the Indictable Offences Act of 1848 was irrelevant (as they would have been making an application under the Habeas Corpus Act of 1679) and, in any case, such an application could only be made in respect of persons “committed”. Perhaps, if Mullins was, contrary to my understanding, being charged with a Petty Misdemeanor – and “a right to bail” after committal only existed for such misdemeanors - they were relying on the words from Section 23 of the 1848 Act that the magistrate, “instead of committing him to Prison for such Offence, shall admit him to Bail” and believed that the words “after taking the Examinations in Writing” did not necessarily mean after committal if the examinations had been commenced and then adjourned; but the judges presumably confirmed that it did.
In any event, it seems that Justices Pollock and Lopes were doing no more than confirming that the 1848 Act meant what it said. At this stage, Bodkin and Douglas did not feel the need to include an additional note in their textbook stating that “The generally received impression appears to be that the right of bail in misdemeanor does not arise until committal for trial”. The 1887 edition did not include such a statement.
The reason why I believe that sentence was included by Douglas in later editions is to be found in a decision from December 1888, after Tumblety had fled. Before dealing with that, let me note a few points that arose from the summer of 1888 in a decision involving Annie Frost (a.k.a. Mrs Gordon Baillie) charged with fraud.
R. v Frost
She had been committed to trial at Westminster Police Court on 23 July 1888 but her trial was delayed (and did not occur until October) and bail was refused by both the magistrate and the recorder at the Central Criminal Court. It was also refused by a Judge in Chambers. Her lawyers applied ex parte to the Divisional Court for a writ of habeas corpus to admit her to bail. As reported in the Times of 1 August 1888, Frost’s lawyer:
“…moved, he said, under Section 3 of the Habeas Corpus Act of Charles II, under which in cases of misdemeanor it was obligatory on the Court to admit a prisoner to bail, though the magistrate or the Judge of the Court of trial had a discretion. The statute had been so construed in two cases [The Queen v Bennett + Reg. v Atkins].”
The Court granted a rule nisi for a habeas corpus to admit the prisoner to bail which led to a contested application. On 3 August 1888, the Times reported the comments of Lord Chief Justice Coleridge at the hearing as follows:
“This case raised a question of considerable public interest and importance – whether this court is bound to admit to bail persons imprisoned and awaiting their trial upon charges of misdemeanor. The question has never been raised in any Court, until quite lately – when it was decided in the negative; but then it was said the enactment on which it depends was not cited. That enactment is the third section in Habeas Corpus Act (31 Charles II, cap 2) which had never been mooted before in any reported case, perhaps because (as was now said) it is so difficult of construction.”
After a discussion between the judges and Counsel about various difficulties of the construction of the Act, a writ of habeas corpus was granted to allow Annie Frost to apply to be admitted to bail and bail was subsequently granted, in herself to the sum of £500 and two sureties of £250 each, although it does not seem to be the case that she was able to satisfy the conditions and she remained in custody.
That was the law as it stood in November 1888 when Tumblety was charged with gross indecency and indecent assault. In December, however, there was a key case involving an application for bail before committal of a prisoner charged on remand with a misdemeanor.
R. v Manning
William Henry Manning was charged, with three others, before Mr Vaughan at Bow Street Police Court with conspiracy to defraud and obtain a lease of some household property by false pretences. This must have been a Grave Misdemeanor. Mr Vaughan accepted bail for the other prisoners but, having been told that there were other charges likely for Manning, refused bail for him alone. Manning’s lawyers made an application to Lord Chief Justice Coleridge (sitting with Manisty J) to be admitted to bail. The report of the case in the Times of 15 December 1888 states:
“Upon the former charge [conspiracy to defraud] the magistrate, Mr Vaughan, according to the usual practice, admitted the prisoners to bail; but as to Manning against whom there was a more serious charge – on which some evidence was taken - a remand was required, and as counsel stated there were ‘other charges against him’ the learned magistrate in the exercise of his discretion remanded the prisoner Manning without bail.”
The case really hinged on whether the magistrate was entitled to take into account that there might be further charges against Manning in coming to his decision. The Court ruled that he was not and that Manning therefore should be admitted to bail like the other prisoners.
During the course of the legal arguments Mr Wright for the Treasury stated:
“In such cases as the present he conceived that on a remand the magistrate had a discretion to admit or refuse to admit to bail. Under [the Indictable Offences Act, 1848, s.21] the magistrate had power to admit the prisoner to bail on a remand; but it was a discretionary power, and he was not bound to do so; but this applies only in cases of final committal on completion of the evidence, not on cases of remand. No doubt the Court has an absolute power to admit to bail, but though it has been held in two cases that the Court may admit to bail even in cases of remand (“The Queen v Bennett” and “The Queen v Atkins” Law Times Reports) yet it had been lately held by a Divisional Court that the Court will not lightly interfere with the discretion of the magistrate.”
The Divisional Court hearing he was referring to was presumably R. v Frost although that is unclear. There was then the following exchange between Mr Bompas, QC, on behalf of Manning and Mr Justice Manisty:
Mr Bompas QC – Of course it could not be doubted that the magistrate had assigned the “other charges” as a reason for refusing to admit the prisoner to bail; but he contended that the mere statement of counsel for the prosecution was not a ground on which a magistrate should refuse bail to a prisoner, whom he would otherwise have admitted to bail; and further that a statement as to “other charges” was far too vague to afford any ground for refusal of bail, for they might be charges of mere misdemeanor on which the magistrate under section 23 would be bound to admit the prisoner to bail.
Mr Justice Manisty – Does that apply in cases of remand as section 21 does?
Mr Bompas QC – It is submitted that it does, and that, therefore, if the “other charges” were charges within the latter part of the 23rd section as cases in which the magistrate would be bound to admit to bail, the existence of those charges would afford no ground for refusal of bail when the magistrate would otherwise have admitted to bail as in the present case.”
The submission by Mr Bompas was doubtful but the judges nevertheless remitted the matter to the magistrate with their direction to admit Manning to bail, himself in £300 and two sureties for £150 each.
The legal discussion in that case (the first to discuss Section 21 of the Indictable Offences Act) is, in my view, the immediate context within which the next published edition of Douglas contained the now well-known statement within a note relating to Section 21 of the Indictable Offences Act:
“A distinction appears to be drawn between 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”.
It also explains, in my opinion, why Douglas added that the law needed some elucidation and drew his reader’s attention to a brief summary of the above cases which I have described in more detail. What Douglas certainly was not doing was saying that magistrates were, as a matter of fact, more likely to refuse to bail prisoners before committal – he was speaking in the abstract only, as a matter of law, not practice.
Conclusion (part 1)
The short point is that the law as it stood in November 1888 said that someone charged with a misdemeanor such as gross indecency or indecent assault was required to be admitted to bail after committal – with other forms of misdemeanor likely to result in liberation under a writ of habeas corpus - and, that being so, the usual practice – at least since the two cases of 1870 - as confirmed in the report of R. v Manning (and by my own researches of actual reported remand hearings) - was that prisoners charged with such offences would be admitted to bail at the first hearing; any other course of action by the magistrate was illogical and would only make sense if the prisoner was likely to be charged with more serious offences in the near future in addition to the misdemeanor he was being charged with at the time.
Regardless of his nationality or potential flight risk, Tumblety had to be admitted to bail upon committal – the magistrate had no choice in the matter – so it is likely that the same magistrate was prepared to admit him to bail seven days earlier: there was nothing in the British criminal law procedure in 1888 which says that this could not have happened.
Trevor's Timing Point
Trevor Marriott has suggested that there would not have been enough time for Tumblety to have been at liberty on 9 November if he was remanded into custody on 7 November. But it was quite usual for the police to require only 24 hours’ notice to check sureties (as Trevor Marriott has himself conceded by quoting Douglas who says: “In suspicious cases twenty four hours’….notice of bail is usually required”). Note in this respect the exchange from 1882 between Mr Hannay and Mr Besley (quoted above) when, in response to a mention by the prosecution counsel that “the usual notice” to police would be required, Mr Besley said “Then you insist on locking up these men for one night”. In other words, defence counsel appreciated that the usual notice to police involved his client spending one night in prison before being released (on bail).
Conclusion (part 2)
Tumblety certainly ended up in prison on 7 November - and in 1888 this would have been Holloway prison, where all remand prisoners were sent (i.e. not Newgate) - but, he could in theory have then secured the necessary bail (assuming that a bail application on his behalf had been accepted by the magistrate) and been released from prison within 24 hours, on 8 November, and thus have been free when Mary Jane Kelly was murdered on 9 November. That would be perfectly in accordance with English legal procedure in 1888.
What cannot be said with any degree of certainty is if, having been admitted to bail, he was actually able to ensure his liberation by finding two sureties, and whatever security he was asked to put in himself, within the time frame. It may be said that the After-Trial Calendar for the Old Bailey indicates that Tumblety was in custody but this document cannot be relied upon for such a conclusion. I will deal with the information in the After-Trial Calendar as it relates to Tumblety’s custody in a separate thread. It may be that other arguments come into play which allow us to infer that he must have been free, or not free, at the time - but that is beyond the ambition of this post.
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