Tumblety's Bail - A Fresh Perspective

[David Orsam]

Let’s look first at eligibility for bail. As has been pointed out there were persons charged with misdemeanours both petty and grave given bail before committal, so what Douglas says is not written in stone. Bail was at the discretion of the magistrate as is still the case today. That discretion is at times affected by the circumstances surrounding the offence in question, and other factors such as the antecedents of the prisoner and whether or not he is likely to abscond. Bail was not automatic! Even before committal.

Trevor - please read my original post carefully. Bail WAS automatic for a "petty" misdemeanor at the committal hearing but NOT automatic prior to committal. However, as I have said, given that it was automatic at the committal there was very little point in a magistrate refusing bail prior to committal because it was INEVITABLE that a person charged with a petty misdemeanor, such as indecent assault or gross indecency, would be admitted to bail. And when I say "admitted to", I mean offered it.

Otherwise you wind up with a situation whereby the magistrate wants to bail a prisoner because bail is automatic, but wants sureties. The prisoner cannot come up with sureties either then or later, what happens then? He gets remanded (no bail) I say again there was no automatic bail ! For either petty or grave misdemeanors.

You are getting confused here. I have said (and I thought clearly) that it was compulsory for the magistrate to offer bail at the committal hearing for a prisoner charged with a petty misdemeanor but that this did not mean that the prisoner could satisfy the bail conditions and find the required sureties. So to be clear, what I am saying is that Tumblety would almost certainly have been allowed bail at the hearing on 7 November but that (obviously) this does not mean that he would have been able to prove he had the funds or security to meet the bail or find the sureties who were prepared to stand bail for him. So, for that reason, it is perfectly possible that when Tumblety requested bail on 7 November, the magistrate said something like "okay, I will allow bail of £100 in yourself and two sureties of £50 each" but Tumbelty could only find one surety or could not satisfy the £100 condition. He would then have remained in prison until committal. Equally, he might have been able to find the bail after 24 hours (or on 24 hours notice) and been released from prison on 8 November. Either is possible.

As I have previously stated there are two ways to look at this the first being that the magistrate may have wanted to, or decided to bail Tumblety on his first appearance and in doing so would have wanted sureties. If Tumblety could not present those sureties there and then he would be have to be remanded until such time as he could that time came on Nov 16th That is within the remit of the magistrate.

Now Trevor, we are in perfect agreement! But please answer this. What if Tumbelty COULD present those sureties? Then he was out of prison and on the streets in time to murder Mary Jane Kelly on 9 November, right? If your answer is no please explain why.

The second possibility is that magistrate decided against bailing him until after the committal due to him being a risk to abscond,

But under the 1848 Indictable Offences Act the magistrate knew he was going to HAVE to admit Tumblety to bail at his committal hearing. So fretting about whether he was going to abscond in the 7 days before that was a bit pointless. If he thought there was a risk of flight he would simply have set the bail very high.

and the after committal agreed to bail him subject to sureties, which may have taken him 2 days to come up with, and for them to be checked out as being suitable. That’s why we have committal date Nov 14th Bailed Nov 16th!

I don't disagree with you here but he could equally have bailed him on 7 November and then increased the bail at the committal hearing and it took Tumblety two days to find sureties prepared to stand bail for him at the larger amount (or, as you say, the police needed time to do the checks).

I hope this now clarifies the matter and you can now see that Tumblety was on remand in prison the night MJK was murdered

Frankly Trevor, that's not even what you have demonstrated above (if you think about what you have actually posted). I have said that it is possible that Tumblety was in prison that night but it was also perfectly possible that he was on the streets. I'm waiting for you to offer even the slightest bit of evidence which shows otherwise.

[Chris]

Let’s look first at eligibility for bail. As has been pointed out there were persons charged with misdemeanours both petty and grave given bail before committal, so what Douglas says is not written in stone.

I must admit that previously I didn't understand what Douglas meant (except it clearly didn't mean people charged with misdemeanours couldn't be bailed before committal, because there were many cases in which that happened).

But now David has explained it, it's clear. For certain classes of misdemeanours (including Tumblety's), there was a statutory right to bail on committal, but before then it was at the discretion of the magistrate. And the magistrates normally used their discretion to offer bail.

[David Orsam]

That's it exactly Chris.

[Trevor Marriott]

I must admit that previously I didn't understand what Douglas meant (except it clearly didn't mean people charged with misdemeanours couldn't be bailed before committal, because there were many cases in which that happened).

But now David has explained it, it's clear. For certain classes of misdemeanours (including Tumblety's), there was a statutory right to bail on committal, but before then it was at the discretion of the magistrate. And the magistrates normally used their discretion to offer bail.

Exactly and one question will answer all, and that question is "Why wasnt Tumbley bailed on Nov 14 the date of his committal"?

The answer is two fold the first that the magistrate was not prepared to bail before committal, secondly on committal the magistrate was prepared to grant bail but with sureties, and it took 48 hours for those sureties to be checked out as being suitable once that was done Tumblety was bailed.

"In suspicious cases twenty-four hours', and sometimes forty-eight hours' notice of bail is usually required; when the bail appears, whether such notice has been given or not, the justice or prosecutor, or any other professional person on his behalf, may examine them on oath as to their sufficiency.
“It is the duty of justices to ascertain the sufficiency of the bail who tenders themselves on behalf of the accused . . .”

I notice David in his original post has conveniently missed off the "forty eight hours"

https://www.trevormarriott.co.uk

Addittion

" . . . Dr. Tumblety was committed for trial and liberated on bail, two gentlemen coming forward to act as bondsmen in the amount of $1500. On being hunted up by the police to-day, they asserted that they had only known the doctor for a few days previous to his arrest."

Note, bailed after committal nothing about sureties being in place before committal

[David Orsam]

"In suspicious cases twenty-four hours', and sometimes forty-eight hours' notice of bail is usually required; when the bail appears, whether such notice has been given or not, the justice or prosecutor, or any other professional person on his behalf, may examine them on oath as to their sufficiency.
“It is the duty of justices to ascertain the sufficiency of the bail who tenders themselves on behalf of the accused . . .”

I notice David in his original post has conveniently missed off the "forty eight hours"

Oh now that really IS rich coming from you Trevor. I deliberately omitted those words (and indicated I had done so by the use of ellipses) to restore the sentence to its true meaning in the face of your repeated twisting of it.

For example:

Trevor Marriott – 8 Feb 2015 (#517 of the Tumblety/jail thread)

"Looking at this sensibly now Tumblety would have been regarded as a high risk for absconding So would the court have given him bail on his own recognizance before committal the answer is no. They might have considered granting bail with sureties but that process took up to 48 hours."

AND

Trevor Marriott 8 Feb 2015 (#530 of the Tumblety/jail thread)

"Because the police and court needed up to 48 hours to ensure they [sureties] were suitable"

(that was in response to me asking you how you knew no sureties were in place for Tumblety.)

You kept on using the expression "up to 48 hours". The point that I was making from Douglas was that the USUAL notice period was 24 hours (in suspicious cases). Yes, sometimes it could take 48 hours. But we are trying to establish whether Tumblety could have been bailed within 24 hours of his appearance at the Marlborough Street Police Court on 7 November 1888. And from Douglas - the person you have always quoted - the answer is a resounding YES!

[Chris]

Exactly and one question will answer all, and that question is "Why wasnt Tumbley bailed on Nov 14 the date of his committal"?

Of course we've been over that many times (an obvious possibility is that the amount of bail was increased at committal).

But do you accept, in the light of David's explanation, that Douglas's statement, "the right of bail in misdemeanor does not arise until committal for trial," does not imply that Tumblety couldn't have been bailed before committal?

[David Orsam]

Exactly and one question will answer all, and that question is "Why wasnt Tumbley bailed on Nov 14 the date of his committal"?

The answer is two fold the first that the magistrate was not prepared to bail before committal, secondly on committal the magistrate was prepared to grant bail but with sureties, and it took 48 hours for those sureties to be checked out as being suitable once that was done Tumblety was bailed.

That is all wrong Trevor. He WAS bailed on 14 November. Had the hearing on 14 November been reported in a newspaper, at the end of the report it would have said something like: "Mr Hannay allowed bail for Tumblety which he set at £x for himself and two sureties in £x". (I'm not falling into the trap of assuming we know what the bail was from an American newspaper.)

There are then two possibilities. Tumblety had the sureties lined up and in attendance at court but the magistrate insisted on 48 hours notice to the police (probably at their request) so he went to prison until the 16th. OR Tumblety was taken by surprise at the size of the bail and needed two days to line up sureties for that amount.

What YOU need to understand is that, at the committal hearing on 14 November, Tumblety would have known with 100% certainty that he was going to be admitted to bail (being charged with a "petty" misdemeanour) so, not being completely stupid, and advised by a competent lawyer in Mr Douglas Norman, he would have lined up sureties beforehand. What he could not have known is what bail the magistrate would set.

At the remand hearing on 7 November, possibly taken by surprise following his arrest, he would have sent telegrams to his friends asking them to show up at the police court (or Holloway prison) to come and bail him out. He would have lined up a lawyer very quickly who would almost certainly have applied for bail at the hearing. For the reasons I have explained, that bail was probably granted by the magistrate but clearly Tumblety either wasn't able to satisfy the conditions that day (perhaps because the police wanted 24 hours notice of sureties) or the bail was more than his sureties were then prepared to stand for and he needed to find others willing to do it, and it took him a day to sort it out.

Or perhaps he didn't find the sureties until 14 or 16 November and stayed in prison between 7 and 14 November. We don't know Trevor. That's the point I've been making. Now that we've taken your Douglas (1907 edition) out of the equation, if you have any actual evidence to cite which shows that Tumblety was in prison on 9 November perhaps you would be so good as to share it with us.

Addition:

Perhaps while you are at it you could also answer Chris' question in #21 above.

And if your question about Tumblety not being bailed on 14 November was meant to be: "why was he bailed but not liberated on 14 Nov?" then Chris has answered it and I know that the possibility of increased bail has been pointed out to you time and time again so maybe it will finally sink in that this is the reason why he could have gone back to prison on the 14th having been bailed on the 7th.

(p.s. and thank you Mayerling for your comment earlier which I omitted to acknowledge)

[GUT]

Two other points occur to me over night

1. t was the RIGHT to bail that arose at committal, not an ability o be granted bail, but a RIGHT to bail, a distinct difference between the two.

2. The 24 hours notice [or 48] only arises in "Suspicious Cases" not in all cases,

So the law is, in my submission, clear that bail can be granted prior to committal and on less than 24 hours notice, I really struggle to see how anyone can argue otherwise.

[Jonathan H]

To David

I am glad you have the Palmer pieces. I am on holidays now and was going in on Monday to do this for you, but obviously I have been pipped at the post. In my opinion his argument is devastating about the politics of the day, to the point of rending the Parnell theory--treated as fact here-- null and void.

As for the argument of this thread, we will have to agree to disagree (even though, outcome-wise, we will probably end up agreeing.) This is because it is, I think, a forest-and-trees moment.

If you had discovered evidence that Tumblety almost certainly must have been in prison on Nov 9th I would still adhere to the line that he wriggled out of the clutches of the state somehow. Because it is a logical absurdity that he would remain a Ripper suspect if he was in police custody at the time of the Kelly murder.

Also, I think the notion that Jack Littlechild, a police chief who was there, did not not this, and did know that, about Dr Tumblety in 1888 is a Very Big Call. It is by no means impossible, but it should be treated with great caution and require Big Evidence that we know more than he did [in 1888].

[David Orsam]

Two other points occur to me over night

1. t was the RIGHT to bail that arose at committal, not an ability o be granted bail, but a RIGHT to bail, a distinct difference between the two.

2. The 24 hours notice [or 48] only arises in "Suspicious Cases" not in all cases,

So the law is, in my submission, clear that bail can be granted prior to committal and on less than 24 hours notice, I really struggle to see how anyone can argue otherwise.

Absolutely. An automatic statutory right to bail at committal that a magistrate would have been committing a criminal offence to deny (for a petty misdemeanor) and which a judge had to allow on request (for any type of misdemeanor). All Douglas was saying was that this automatic statutory right did not apply prior to committal. He was certainly not saying that magistrates were generally refusing bail for misdemeanors prior to committal or anything like that at all.

[Amanda]

Thank you Amanda. I agree entirely with your philosophy about documentary evidence. I rather doubt there are any original papers in existence to evidence Tumblety's bail (or otherwise). The Marlborough Street registers and notebooks for the period no longer exist, I'm not aware of papers from Holloway prison being in existence nor of any further papers from the Central Criminal Court. Our best bet would be a newspaper report of the remand hearing on 7 November 1888 but I've scoured every single newspaper I can think of and nothing has turned up. If you know where any of the papers you refer to are floating around do tell.....

Hi David,
I've started digging for you, will see what turns up.

It would be great to find just one snippet of evidence if just to get those naysayers cringing
Amanda

[David Orsam]

Thank you Amanda, and good luck!

Just to add on the newspaper point. If a newspaper report was ever found of the 7 November hearing, and it did (as I would predict) say that Hannay allowed bail for Tumblety, the controversy would still continue because we wouldn't know from the newspaper report if Tumblety ever found the bail from prison. And we obviously know from the Calendar that the good doctor wasn't liberated from the police court on 7 November but did go to prison that day. I have turned up loads of reports where bail is set at a remand hearing and then, at the time of the next hearing, the prisoner is reported to be still in custody. So we would need then need a report of the committal hearing to see if it says that Tumblety "surrendered to his bail" or was charged "on remand (on bail)" or was "brought up" [i.e. from the cells] which are expressions used, although sometimes it isn't entirely clear and the report might simply say the prisoner was "charged on remand" which could mean either that he was on bail or in custody.

If someone could turn up a register of prisoners and their arrival and release dates at Holloway prison that would be absolutely ideal here!

[Mayerling]

(p.s. and thank you Mayerling for your comment earlier which I omitted to acknowledge)

You are very welcome David. And I am so sorry that this argument just never seems to end!

Jeff

[Trevor Marriott]

Absolutely. An automatic statutory right to bail at committal that a magistrate would have been committing a criminal offence to deny (for a petty misdemeanor) and which a judge had to allow on request (for any type of misdemeanor). All Douglas was saying was that this automatic statutory right did not apply prior to committal. He was certainly not saying that magistrates were generally refusing bail for misdemeanors prior to committal or anything like that at all.

I keep saying your explanations regarding Tumblety and his bail are flawed. For the final time let me just comment of what you suggest :

1. He was bailed by the magistrate on Nov 7.

2. He was bailed with sureties at that time.

3. He then presented himself to the committal on Nov 14th with his sureties

4. He was committed and the sureties recognizances were increased

5. However you give no plausible explanation for the two days delay between
committal and bail

Lets look closely at those

If 1-4 prevail the sureties fixed amounts would have already been set on Nov 7th. On the 14th when he turned up there would be no need to increase the amounts. that would serve no purpose and the court would have simply agreed to those same amounts to continue. Why would they need to increase the amounts? the magistrate was happy in the first instance, and Tumblety had turned up for hi committal.

If you theory is correct then according to you, Tumblety was never in custody save for his arrest on Nov 7th. but of course that cannot be correct because Tumblety by his own admissions stated he did spend time in custody.

Your main stumbling block is the lost 48 hours. If he had surrendered to his bail on Nov 14th and had been granted bail, why was he not bailed until 2 days later. What happened and where was he?

If you say there was a need to increase bail what problem would that cause. It was a requirement that the sureties also had to attend court along with the prisoner. If they had agreed on Nov 7th why a problem on Nov 14th.

In this case I previously posted an extract from a newspaper which stated he was only bailed following his committal. which rules out your suggestion that he was bailed on Nov 7th.

Now you can huff and puff all you like but the facts and the chain of events are not going to change neither is the judicial system procedure. Your explanations are based on pure conjecture on your part.

If you are going to reply please do so with real facts and not uncorroborated theories and wild speculation.

https://www.trevormarriott.co.uk

[Trevor Marriott]

Of course we've been over that many times (an obvious possibility is that the amount of bail was increased at committal).

But do you accept, in the light of David's explanation, that Douglas's statement, "the right of bail in misdemeanor does not arise until committal for trial," does not imply that Tumblety couldn't have been bailed before committal?

I do accept that he and anyone else was liable to be considered for bail before committal but also accept that it was not automatic and was at the discretion of the magistrate.

However I suggest that he was not a suitable case where bail was considered for the many reasons I have previously stated. The weight of evidence is far greater to suggest he was not bailed that to suggest he was.

https://www.trevormarriott.co.uk