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If Tumblety was released on bail between 7 and 14 November 1888, why isn’t this reflected in the Central Criminal Court After-Trial Calendar of Prisoners (see extract below)? That calendar certainly includes entries for prisoners bailed at Police Court (i.e. before committal) as well as entries for prisoners bailed after committal (such as Tumblety). That being so, does the fact that the entry for Tumblety only shows him being bailed after committal mean that, while he might have been granted bail (for the reasons I have previously explained), he was not, in fact, bailed prior to committal?
Before answering this, we need to consider the Calendar.
The Legal Basis of the Calendar
As at 1888, the production of the Central Criminal Court Calendar was governed by the 1865 Prison Act which said that “The Gaoler of Every Prison shall deliver or cause to be delivered to the Judges of the Assize, and to the Justices in Quarter Sessions, a Calendar of all prisoners in Custody for Trial at such Assizes or Gaol Sessions”. This was known as the Before-Trial Calendar. Two versions of this Calendar were produced, one public version for the press and a confidential version for the Judge which included previous convictions omitted from the public version. The Act also stated that “Within one week after the termination of every Assize or Court of Quarter Sessions the Gaoler shall transmit by Post to one of Her Majesty’s Principal Secretaries of State a Calendar containing the Names, Crimes, and Sentences of every Prisoner tried at such Assize or Court of Quarter Sessions in such form containing whatever Particulars as may be required by the Secretary of State.” This was a reference to the After-Trial Calendar which included information about the conviction or acquittal of the prisoners and which was essentially compiled for the benefit of the Home Office and other interested government departments.
(Before-Trial Calendars had actually been prepared since 1487 and After-Trial Calendars since 1805. From 1855, if not earlier, the Calendars included persons for trial who were not in custody.)
It was thus the statutory responsibility of the prison governor within the relevant jurisdiction to compile the Before-Trial and After-Trial Calendars. In respect of the Central Criminal Court in 1888, this was Lieutenant-Colonel Everard Stanley Milman, the Governor of Holloway Prison, where all remand prisoners in London were sent at the time (Newgate having stopped receiving them in 1882).
Calendar Information
In respect of the Before-Trial Calendars, for all prisoners remanded into custody, Milman had possession of all the information necessary to insert into the columns “Received into custody” and “Date of warrant”. As all remanded persons were sent to his prison, he knew when they were first received into custody (on remand) from his own records. When a person was committed for trial he would receive the Warrant of Commitment, committing that person to prison, and the date of the warrant could thus easily be included in the calendar. So far, so good and all the information was within Milman’s direct knowledge.
It was a little bit more complicated when a prisoner was admitted to bail prior to committal. At the first remand hearing, assuming the prisoner was not committed for trial immediately, there were four possible outcomes. The prisoner could be (a) remanded into custody with bail refused, (b) remanded into custody with bail, (c) bailed there and then at the Police Court or (d) discharged. The first two outcomes would require a warrant remanding a person into safe or friendly custody. If the individual was remanded to prison with bail, then the bail conditions would be noted on the reverse of the warrant. Once the conditions were satisfied, under Section 42 of the Summary Jurisdiction Act of 1879, the bail could be administered, and the prisoner released from prison, by a number of people including the magistrate’s clerk, a senior police officer or the Prison Governor. In all such circumstances, Milman would have had direct knowledge of the release of the prisoner from his prison. However, if the prisoner was either bailed at the police court or discharged, the Governor would have had no direct knowledge of this. If this was done at the first remand hearing, the Governor would not even have known of the existence of the prisoner. If it was done at a hearing after the prisoner had been remanded into custody, the release itself would not have been in the direct knowledge of the Governor. He had done his duty by delivering the prisoner to court on the date stated in the warrant of remand and there his duty ended. If the prisoner was not sent back to prison, but bailed or discharged, that was a decision for the magistrate and there was no further paperwork in the possession of the Governor.
If a prisoner who was bailed at the first remand hearing (and all subsequent remand hearings) was subsequently committed for trial and bailed again from the Police Court, the Governor had absolutely no personal knowledge of the prisoner. Technically (legally) the magistrate, in such circumstances, did not even need to make out a Warrant of Commitment because the prisoner was not being committed to prison. The only legally required documentation was the Recognizances on which would be stated the bail conditions (and sureties if relevant) and the date that the prisoner was required to surrender himself at Court for trial. However, in practice, the Warrant of Commitment was regarded as a warrant of committal, and such a warrant was almost always made out by the magistrate. However, the Warrant of Commitment for a person bailed would not be sent to the Governor but to the Clerk of the Court (i.e. at the Old Bailey if committed to the C.C.C.), along with all the other papers in the case (depositions etc). Someone, however, needed to send the information contained in the Warrant of Commitment to the Prison Governor for him to include in the Before-Trial Calendar. Prior to the 1890s, there was some uncertainty as to who was responsible for providing this information. Was it the Magistrate’s Clerk or the Clerk to the Court? This issue actually required the Home Office to step in during the 1890s and ensure that it was done by the Magistrate’s Clerk.
Regarding prisoners who were committed to prison with bail, again the bail conditions would be written on the reverse site of the Warrant of Commitment which would be provided to the Prison Governor. Again, the prisoner could be bailed from prison by the Governor. The Governor was supposed to send the Warrant of Commitment and Recognizances to the Clerk of the Central Criminal Court (for prisoners committed to that court) but Milman’s practice was to retain the Recognizances and provide the Clerk of the Court with a form containing a summary of the information on the Recognizances.
The Calendars that we are all familiar with, because they are available at the National Archives, are the After-Trial Calendars and, to prepare these, the Governor relied on the assistance of the Clerk of the Central Criminal Court to check the accuracy of the Before-Trial Calendars and provide the additional information about what happened at the Trial.
It follows from all the above that the information in the Central Criminal Court Calendars for 1888 was only as good as the information provided to the Governor of Holloway Prison (and, for the After-Trial Calendars, as good as any additional information known to the Clerk of the Court).
The Calendar Code
The standard procedure in the Calendars for a bailed prisoner was as follows:
If the prisoner was bailed at the Police Court, the Calendar would say “Bailed at Police Court”.
If the prisoner was bailed (from prison) after being committed for trial, the Calendar would say, “Bailed, [day, month, year]”.
The difference between the two types of entries can be explained by the fact that the Prison Governor did not have documentary information about the date a prisoner was bailed from a Police Court (especially if that prisoner had never been remanded into custody) whereas he did know the date that a prisoner was bailed from prison after committal. Where a prisoner had always been bailed up to and including the committal hearing, the Before-Trial Calendar would not include a date for when the prisoner was received into custody. However, such a date would be added by the Clerk to the Central Criminal Court when the prisoner surrendered to custody for his or her trial. If the prisoner was then bailed due to his hearing being adjourned, the After-Trial Calendar would say, “Bailed in Court, [day, month, year]”.
The question that we need to address is: what would the Before-Trial Calendar say where a prisoner was initially remanded into custody but was then released on bail, either from prison or by a magistrate at a police court, before being remanded back into custody at a committal hearing due to the bail being increased or amended, and then released on bail post-committal but before Trial?
In this respect, despite examining the Calendars throughout the 1880s, I have not found a single example of a double bail entry in the Calendar for a prisoner prior to committal. In other words, I have not found an example of an entry in the following form:
John Smith
Bailed at Police Court
Bailed, 1st December 1888
where the trial was due to take place, say, on 10 December and the prisoner had been committed for trial at the end of November.
Nor, for the avoidance of doubt, have I found any entries in the form:
John Smith
Bailed, 20 November 1888
Bailed, 1 December 1888
which would indicate a prisoner being bailed on remand by a magistrate on or before 19 November and released from prison and then committed for trial at the end of the month (and then bailed again on increased bail).
Conclusion (part 1)
From my examination of the Calendars, my conclusion is a very simple one. In the Before Trial Calendars, the Governor of Holloway Prison only inserted ONE entry for bail to reflect the bail position at the time of the preparation of the Calendar (i.e. at the start of the forthcoming Sessions). In other words, in a situation where a prisoner was bailed but then returned to custody, I deduce that there would be NO entry relating to bail in the Calendar and the reader of the Calendar would never know that prisoner had been bailed. Likewise, for any situation where a prisoner was bailed on remand, then returned to custody prior to committal (due to increased bail) but then released on bail after committal, only the latter release on bail was included in the Calendar.
In other words, Milman only provided information to the Judge (and other readers of the Calendar) to enable him to know whether a prisoner was on bail (or not) at the time of the start of their trial. Further, this information remained in the After-Trial Calendar so that we see the same entries on bail in the After-Trial Calendar as in the Before Trial Calendar save that the Clerk of the Court would then add additional information regarding bail following a prisoner’s surrender to custody for their trial. Thus, if the trial was adjourned, and the prisoner bailed at the Central Criminal Court, the date of bail would be added (and this could include multiple dates depending on the number of adjournments).
It should be noted that there was no particular reason for the Calendars to include information about any bail between remand and committal. Credit was not given for time spent on remand in respect of the computation of length of prison sentences until the Criminal Justice Act of 1967. As at 1888, the calculation of length of the sentence was from the date of conviction. It was helpful for judges and clerks of the court to know who was on bail and who was on remand in custody at the time of the trial but there was no particular need for any historical information about what happened before committal. The Calendars do not, for example, contain information about the prisoner’s arrest nor of any remand hearings (other than those that can be inferred from a prisoner being remanded into custody on a certain date).
Henry George Ginger
We can see an example of this in the entry for Henry George Ginger which has already been discussed in this forum. He was reported in the Times as surrendering to bail at his committal hearing at Mansion House Police Court on 15 November 1888 yet the Central Criminal Court Calendar (extract below) contains no mention of any bail before committal: Ginger having been received into custody on 14 September. I have examined the Mansion House Police Court Registers at the London Metropolitan Archives (CLA 4/4/49 & CLA 4/4/50) and read reports of every remand hearing of Ginger in the City Press newspaper which fills in the gaps in the Registers (which make no mention of bail) and find the following:
1.Henry George Ginger first appeared at Mansion House Police Court on Friday 14 September 1888. He was then remanded until Wednesday 19 September 1888. The report in the City Press of 15 September 1888 states that “Henry George Ginger, 21, was charged on a warrant with obtaining by means of false pretences…The information on which the warrant was issued having been read, the prisoner was remanded to Wednesday.”
2. At the hearing on Wednesday 19 September 1888, Ginger was remanded until Friday 21 September 1888. The report in the City Press of 22 September 1888 states: “The case was again adjourned, accused being admitted to bail.”
3. At the hearing on Friday 21 September 1888, the case was adjourned until Friday 2 November 1888. The City Press of 22 September 1888 states: “An adjournment was asked for, and the Lord Mayor acceding, adjourned the case till Friday, November 2nd, bail being allowed.”
4. At the hearing on 2 November 1888, Ginger’s case was adjourned to 15 November 1888. The City Press of 3 November 1888 states: “A further remand was asked for, as Mr Wontner was unable to attend. The Alderman acceded to the application.”
5. On 15 November 1888 Ginger was committed for trial. The City Press of 17 November 1888 states: “The Alderman committed accused for trial, admitting him to bail in one surety of £10.”
Clearly, Ginger was remanded into custody on 14 September as the Old Bailey Calendar says that on this date he was “Received into Custody”. As per the City Press newspaper report, he was bailed on 19 September and appears to have remained on bail until his committal hearing on 15 November. To the extent that the newspaper reports do not make clear that Ginger actually put in bail, we know that he must have been free between 21 September and 2 November because a Magistrate was only allowed to remand a person into custody for a maximum of 8 days, but there were 42 days between 21 September and 2 November. Consequently, Ginger must have been at liberty during this period.
What almost certainly happened was that, until his committal hearing, Ginger was bailed on his own recognizances. The Times report of 15 November previously reproduced on this forum, states that Ginger surrendered to his recognizances at this hearing. During the committal hearing, however, the Alderman evidently increased (or amended) the bail to require a surety of £10, thus ensuring Ginger’s return to custody for a day, either for his surety to be checked out on the usual 24 hours’ notice or for him to contact a friend to provide the surety.
The bail terms must certainly have been increased/amended from the earlier bail because the Calendar says that Ginger was not bailed until 16 November. Had the bail remained the same, Ginger would have been freed on bail on 15 November and, based on other examples, the Calendar would simply have said “Bailed at Police Court” (referring to the earlier bail) without providing a date.
While this is the only confirmed example I am aware of involving such a specific sequence of events, culminating with bail after committal, it does suggest to me that in cases where a prisoner is at liberty between remand and committal, having initially been remanded into custody but liberated a day or more after committal, the Calendar does not reflect or incorporate this and indeed does not have a format, or any reason, to incorporate it.
Charles Henry Ward
I can provide another (only slightly different) example to support this contention from the Central Court Calendar. According to the January 1889 Calendar, Charles Henry Ward, charged with fraud (felony offence), was “Received into Custody” on 21 November 1888 with the Date of Warrant being 20 December 1888 (as seen in the Calendar extract below). His trial at the Old Bailey – when he was tried along with Thomas Everson Terry – took place over four days between 12 and 15 January 1889. No mention is made of bail in the Calendar. On the face of it, therefore, one might think that Ward, having been arrested on or shortly before 21 November, remained in custody until his trial in mid-January (when he was convicted). One could not be more wrong.
The facts are fully set out in the Times and other newspapers and reveal the following:
21 November 1888 – Ward was charged at Westminster Police Court. He was remanded until 22 November (i.e. the next day) with the magistrate, Mr D’Eyncourt, stating “that he should require one good bail for his appearance, with notice to the police” (Times, 21 November 1888).
22 November 1888 – “On Thursday [i.e. 22 Nov] Ward was admitted to bail” (Reynold’s Newspaper, 25 November 1888)
26 November 1888 – The Times of 27 November 1888 reports that Ward “surrendered to his bail” at Westminster Police Court. At the end of the hearing, it was reported that Mr D’Eyncourt enlarged the bail but that “Mr Ward found bail as before”.
4 December 1888 – Ward was again reported as having “surrendered to his bail” (Times 5 December 1888). The magistrate said that “as the prosecution had developed into a very serious one, he must double Ward’s bail”. He said that two sureties in £50 each were required for Ward.
11 December 1888 – Ward’s bail was extended.
21 December 1888 – Ward was committed for trial and his bail was increased to two sureties of £100.
Evidently, Ward failed to find the increased bail on 21 December so he was returned to Holloway prison from where he had been bailed (at the Police Court) on 22 November. But he was at liberty from that point continually until his committal hearing a month later. By comparison, his co-defendant, Thomas Everson Terry, who was “Received into Custody” on 19 November 1888 (having been charged two days earlier than Ward) and also committed on 20 December, remained in prison for the entire time.
Yet, from the Calendar there does not appear to be any difference between the two defendants and it is impossible to know which one was in prison and which one was at large prior to committal. This is not a mistake in the calendar, it is just not information that was relevant because both defendants were in prison when the Calendar was compiled and when their trial commenced.
It would be nice to have some more examples (and perhaps members of this forum can find some) but, even the two examples we have, show that we cannot say with any degree of certainty from the evidence of the Calendar that Tumblety was in custody for the entire period between 7 and 14 November.
I might add that I have found plenty of examples from newspapers of prisoners being granted bail at remand hearings, which information is not included in the Calendar, but the problem is that it is not clear from the newspaper reports if those prisoners found bail or remained in custody, so that, in the case of the latter, the Calendar would be perfectly accurate in not recording them as having been bailed.
For the avoidance of doubt, I have also found plenty of examples of prisoners having their bail increased prior to or at the committal hearing so there is nothing unusual about that. It could happen upon the application of the prosecuting counsel or at the initiative of the judge, having heard the full evidence against the prisoner. In fact, at Bow Street Police Court on 23 February 1893, Archibald Bodkin (defending George Newman) said to Mr Vaughan, the magistrate, at a committal hearing, “It is understood practice that there should be an increase of bail on committal” and, as a result, he volunteered an increased bail on behalf of his client.
Hamilton de Tatham
I am aware that the example of Hamilton de Tatham (which involved increased bail at committal) has been put forward as another example like Ginger but, in fact, this is very different and does not assist us in respect of the question as to whether Tumblety was out on bail on 9 November. The reason for this is that the entry for Hamilton de Tatham in the Calendar (see below) states that he was “Received into Custody” on 6 May 1891 which was the date of his trial, so that he simply must have been on bail prior to this. There is no date of warrant in the Calendar – even though we know from press reports that de Tatham was committed for trial by Mr Hannay on Wednesday 29 April at Marlborough Street Police Court - and, if we consider what the Before Trial Calendar must have looked like, there would have been no date provided for either the date received into custody or the date of warrant. The most likely reason for this is that Everard Milman was not provided with the information from the Warrant of Commitment (assuming there was one) or the Recognizances by the Magistrate’s Clerk or Clerk of the Central Criminal Court in the period between 29 April and 6 May. After the trial, when de Tatham was acquitted, there was either no purpose seen by the Clerk of the Court in updating the information or he failed to notice the omission. I suspect this relates to the issue that I have mentioned above and will now explain further below.
Problem with info in the Calender re. prisoners on bail
There is a file in the National Archives within PCOM 7/494 dated 1896 and entitled “Prisoners on Bail – Information to Governors who prepare Calendars” (and see also HO 144/935/A58293 which contains much of the same information). It was opened following a complaint from the Clerk of Assize on the Oxford Circuit dated 23 October 1896 as follows:
“Complaints are from time to time received by me from Governors of Her Majesty’s Prisons that Clerks to Justices do not transmit to prisons the commitments of persons committed for trial and bailed. The Governors thus receive no document which can be used for the preparation of the “before trial” calendar and the Assize judge has depositions against persons whose names do not appear in the Calendar. This has been erroneously thought to be the fault of the prison authorities. I am informed that sometimes the Governors finding from the public newspapers of a committal on bail and receiving no commitment write to the Justices Clerks and by that means obtain, what they should have without writing. When the omission comes to my knowledge I point out to the Justices Clerk his duty.“
A memo on the same file says that by letter three years earlier, dated 1 May 1893:
“…it was settled that Clerks to the Magistrates [in London] should send to Governors of Prisons notices of prisoners bailed at court, which notices should contain all particulars for Calendar. There is a very general practice of sending this information in the form of a Commitment but in some cases the notice is sent on a special form.”
An explanatory note behind the sending of this letter says:
“The chief magistrate [of Metropolitan Police Courts] drew up a special form to give the Governors the desired information. The view generally taken by H.O. [Home Office]…was that as the only formal document relating to committal for trial (when a person is not committed to prison to await trial) –i.e. the recognizances are sent up to Clerks of the Peace & Assize, it is those clerks who should prima facie furnish information for the Calendar. But it afterwards appeared that in 1893 it was usually the clerks to Justices – though sometimes the police – who furnished the information. Hence the decision [to send the letter on 1 May 1893].”
This letter was only sent to the Metropolitan Police Courts, hence there were still problems nationwide in 1896, thus prompting the complaint from the Clerk of Assize in Oxford. The suggestion made was that “a circular might be sent to Justices’ Clerks reminding them of their duty to transmit to Governors of Prisons full particulars of all prisoners committed for trial at Assizes and Quarter Sessions who are bailed in court.”
By way of historical explanation, one writer in the file said:
“Sect. 23 of the Indictable Offences Act 1848 makes it clear that to admit a man to Bail is a substitute for committing him to prison, and I can find no statutory ground for supposing it is a justices’ clerks’ duty to send a Governor of a prison notice of having done so. On the contrary Sect. 20 of the same act appears – though this is rather ambiguous – to require him to send the Recognizances of the Bailsmen to the court of trial. As when the [1848] Act was passed the Calendar was merely the list of prisoners held in custody for trial and there was clearly no reason for Governor to be informed of persons out on Bail, but as no doubt it is convenient for the Calendar to give the former as well as the latter, Justices Clerks ought to send some notice.”
Another note said:
“It is certainly most desirable….that the Governor should be made aware in some form or other of the committal for trial of accused persons admitted to bail.”
As we have seen, this issue was only resolved in London in 1893 and thus might well have affected the entry in the Calendar for Hamilton de Tatham in 1891.
But this issue would not have affected the entry for Tumblety in the Calendar because the Governor of Holloway Prison would have received the Warrant of Commitment when Tumblety was committed to prison on 14 November 1888. Thus, the Hamilton de Tatham example is, I would suggest, not relevant to the Tumblety issue.
Francis Tumblety
Now, to go back to answering the question posed at the start of this post, it seems obvious that – barring a mistake in the Calendar or a very unusual event - for Tumblety to have been at liberty on 9 November 1888, the following sequence must have occurred:
1. Tumblety was remanded into prison custody on bail on 7 November, for a week, with 24 hours’ notice to the police [alternatively, but far less likely, he was remanded to return to the Police Court on the following day].
2. Tumblety made bail on 8 November and was released from prison [or from the Police Court].
3. At the committal hearing on 14 November, Tumblety’s bail was increased by the magistrate and, not having sureties lined up for the full amount, he was committed to prison.
4. Tumblety made bail, and was released from prison, on 16 November.
The reason why this must have been the sequence of events is that the Calendar tells us that Tumblety was in custody on 7 November and, after committal, was not bailed until 16 November so that he must have been in custody between 14-16 November. Had Tumblety been bailed in the police court on 7 November he would not have ended up in custody on that day. That being so, and assuming his bail had not been increased on 14 November, then he would not have gone to prison on 14 November because he had already found that bail and, from other examples, the Calender would only have had one entry under his name which said “Bailed at Police Court”.
However, we know that the Calendar states only:
“Francis Tumblety
Bailed, 16th November 1888”
In order to find an entry comparable to what one would have expected to find in the Calendar for a prisoner (1) admitted to bail with 24 hours’ notice to police (or taking 24 hours to find bail), then (2) bailed, before (3) his bail being increased at committal, thus causing him to return to prison before (4) being freed again after putting in the increased bail, we need to identify a double bail entry in the Calendar (i.e. showing a prisoner being bailed twice) where the date the prisoner was received into custody was before the date of his committal for trial. As mentioned above, I have not been able to find a single such entry, despite examining Calendars over a number of years, which leads me to conclude that such short-term liberty on bail between remand and committal hearings was not recorded at all in the Calendar.
Thus one would NOT expect to find either of the following entries:
“Francis Tumblety
Bailed at Police Court
Bailed, 16th November 1888”
“Francis Tumblety
Bailed, 8th November 1888
Bailed, 16th November 1888”
These are simply not in the format of the Calendar. The only way we would see such a thing would be if the date of 16th November 1888 was the original set date of Tumblety’s trial (assuming that the trial was then adjourned, so that Tumblety would have surrendered into custody and then been bailed - but in that scenario the wording would usually be "Bailed in Court, 16th November 1888").
Conclusion (part 2)
In other words, my submission is that it is not possible from the information in the Central Criminal Court Calendar to state with any certainty whether Tumblety was in prison or out on bail at any date from 8 November to 14 November. There is no procedural reason why Tumblety could not have been bailed on 8 November and, if he had been, we would not expect to find any mention of it in the Calendar.
Before answering this, we need to consider the Calendar.
The Legal Basis of the Calendar
As at 1888, the production of the Central Criminal Court Calendar was governed by the 1865 Prison Act which said that “The Gaoler of Every Prison shall deliver or cause to be delivered to the Judges of the Assize, and to the Justices in Quarter Sessions, a Calendar of all prisoners in Custody for Trial at such Assizes or Gaol Sessions”. This was known as the Before-Trial Calendar. Two versions of this Calendar were produced, one public version for the press and a confidential version for the Judge which included previous convictions omitted from the public version. The Act also stated that “Within one week after the termination of every Assize or Court of Quarter Sessions the Gaoler shall transmit by Post to one of Her Majesty’s Principal Secretaries of State a Calendar containing the Names, Crimes, and Sentences of every Prisoner tried at such Assize or Court of Quarter Sessions in such form containing whatever Particulars as may be required by the Secretary of State.” This was a reference to the After-Trial Calendar which included information about the conviction or acquittal of the prisoners and which was essentially compiled for the benefit of the Home Office and other interested government departments.
(Before-Trial Calendars had actually been prepared since 1487 and After-Trial Calendars since 1805. From 1855, if not earlier, the Calendars included persons for trial who were not in custody.)
It was thus the statutory responsibility of the prison governor within the relevant jurisdiction to compile the Before-Trial and After-Trial Calendars. In respect of the Central Criminal Court in 1888, this was Lieutenant-Colonel Everard Stanley Milman, the Governor of Holloway Prison, where all remand prisoners in London were sent at the time (Newgate having stopped receiving them in 1882).
Calendar Information
In respect of the Before-Trial Calendars, for all prisoners remanded into custody, Milman had possession of all the information necessary to insert into the columns “Received into custody” and “Date of warrant”. As all remanded persons were sent to his prison, he knew when they were first received into custody (on remand) from his own records. When a person was committed for trial he would receive the Warrant of Commitment, committing that person to prison, and the date of the warrant could thus easily be included in the calendar. So far, so good and all the information was within Milman’s direct knowledge.
It was a little bit more complicated when a prisoner was admitted to bail prior to committal. At the first remand hearing, assuming the prisoner was not committed for trial immediately, there were four possible outcomes. The prisoner could be (a) remanded into custody with bail refused, (b) remanded into custody with bail, (c) bailed there and then at the Police Court or (d) discharged. The first two outcomes would require a warrant remanding a person into safe or friendly custody. If the individual was remanded to prison with bail, then the bail conditions would be noted on the reverse of the warrant. Once the conditions were satisfied, under Section 42 of the Summary Jurisdiction Act of 1879, the bail could be administered, and the prisoner released from prison, by a number of people including the magistrate’s clerk, a senior police officer or the Prison Governor. In all such circumstances, Milman would have had direct knowledge of the release of the prisoner from his prison. However, if the prisoner was either bailed at the police court or discharged, the Governor would have had no direct knowledge of this. If this was done at the first remand hearing, the Governor would not even have known of the existence of the prisoner. If it was done at a hearing after the prisoner had been remanded into custody, the release itself would not have been in the direct knowledge of the Governor. He had done his duty by delivering the prisoner to court on the date stated in the warrant of remand and there his duty ended. If the prisoner was not sent back to prison, but bailed or discharged, that was a decision for the magistrate and there was no further paperwork in the possession of the Governor.
If a prisoner who was bailed at the first remand hearing (and all subsequent remand hearings) was subsequently committed for trial and bailed again from the Police Court, the Governor had absolutely no personal knowledge of the prisoner. Technically (legally) the magistrate, in such circumstances, did not even need to make out a Warrant of Commitment because the prisoner was not being committed to prison. The only legally required documentation was the Recognizances on which would be stated the bail conditions (and sureties if relevant) and the date that the prisoner was required to surrender himself at Court for trial. However, in practice, the Warrant of Commitment was regarded as a warrant of committal, and such a warrant was almost always made out by the magistrate. However, the Warrant of Commitment for a person bailed would not be sent to the Governor but to the Clerk of the Court (i.e. at the Old Bailey if committed to the C.C.C.), along with all the other papers in the case (depositions etc). Someone, however, needed to send the information contained in the Warrant of Commitment to the Prison Governor for him to include in the Before-Trial Calendar. Prior to the 1890s, there was some uncertainty as to who was responsible for providing this information. Was it the Magistrate’s Clerk or the Clerk to the Court? This issue actually required the Home Office to step in during the 1890s and ensure that it was done by the Magistrate’s Clerk.
Regarding prisoners who were committed to prison with bail, again the bail conditions would be written on the reverse site of the Warrant of Commitment which would be provided to the Prison Governor. Again, the prisoner could be bailed from prison by the Governor. The Governor was supposed to send the Warrant of Commitment and Recognizances to the Clerk of the Central Criminal Court (for prisoners committed to that court) but Milman’s practice was to retain the Recognizances and provide the Clerk of the Court with a form containing a summary of the information on the Recognizances.
The Calendars that we are all familiar with, because they are available at the National Archives, are the After-Trial Calendars and, to prepare these, the Governor relied on the assistance of the Clerk of the Central Criminal Court to check the accuracy of the Before-Trial Calendars and provide the additional information about what happened at the Trial.
It follows from all the above that the information in the Central Criminal Court Calendars for 1888 was only as good as the information provided to the Governor of Holloway Prison (and, for the After-Trial Calendars, as good as any additional information known to the Clerk of the Court).
The Calendar Code
The standard procedure in the Calendars for a bailed prisoner was as follows:
If the prisoner was bailed at the Police Court, the Calendar would say “Bailed at Police Court”.
If the prisoner was bailed (from prison) after being committed for trial, the Calendar would say, “Bailed, [day, month, year]”.
The difference between the two types of entries can be explained by the fact that the Prison Governor did not have documentary information about the date a prisoner was bailed from a Police Court (especially if that prisoner had never been remanded into custody) whereas he did know the date that a prisoner was bailed from prison after committal. Where a prisoner had always been bailed up to and including the committal hearing, the Before-Trial Calendar would not include a date for when the prisoner was received into custody. However, such a date would be added by the Clerk to the Central Criminal Court when the prisoner surrendered to custody for his or her trial. If the prisoner was then bailed due to his hearing being adjourned, the After-Trial Calendar would say, “Bailed in Court, [day, month, year]”.
The question that we need to address is: what would the Before-Trial Calendar say where a prisoner was initially remanded into custody but was then released on bail, either from prison or by a magistrate at a police court, before being remanded back into custody at a committal hearing due to the bail being increased or amended, and then released on bail post-committal but before Trial?
In this respect, despite examining the Calendars throughout the 1880s, I have not found a single example of a double bail entry in the Calendar for a prisoner prior to committal. In other words, I have not found an example of an entry in the following form:
John Smith
Bailed at Police Court
Bailed, 1st December 1888
where the trial was due to take place, say, on 10 December and the prisoner had been committed for trial at the end of November.
Nor, for the avoidance of doubt, have I found any entries in the form:
John Smith
Bailed, 20 November 1888
Bailed, 1 December 1888
which would indicate a prisoner being bailed on remand by a magistrate on or before 19 November and released from prison and then committed for trial at the end of the month (and then bailed again on increased bail).
Conclusion (part 1)
From my examination of the Calendars, my conclusion is a very simple one. In the Before Trial Calendars, the Governor of Holloway Prison only inserted ONE entry for bail to reflect the bail position at the time of the preparation of the Calendar (i.e. at the start of the forthcoming Sessions). In other words, in a situation where a prisoner was bailed but then returned to custody, I deduce that there would be NO entry relating to bail in the Calendar and the reader of the Calendar would never know that prisoner had been bailed. Likewise, for any situation where a prisoner was bailed on remand, then returned to custody prior to committal (due to increased bail) but then released on bail after committal, only the latter release on bail was included in the Calendar.
In other words, Milman only provided information to the Judge (and other readers of the Calendar) to enable him to know whether a prisoner was on bail (or not) at the time of the start of their trial. Further, this information remained in the After-Trial Calendar so that we see the same entries on bail in the After-Trial Calendar as in the Before Trial Calendar save that the Clerk of the Court would then add additional information regarding bail following a prisoner’s surrender to custody for their trial. Thus, if the trial was adjourned, and the prisoner bailed at the Central Criminal Court, the date of bail would be added (and this could include multiple dates depending on the number of adjournments).
It should be noted that there was no particular reason for the Calendars to include information about any bail between remand and committal. Credit was not given for time spent on remand in respect of the computation of length of prison sentences until the Criminal Justice Act of 1967. As at 1888, the calculation of length of the sentence was from the date of conviction. It was helpful for judges and clerks of the court to know who was on bail and who was on remand in custody at the time of the trial but there was no particular need for any historical information about what happened before committal. The Calendars do not, for example, contain information about the prisoner’s arrest nor of any remand hearings (other than those that can be inferred from a prisoner being remanded into custody on a certain date).
Henry George Ginger
We can see an example of this in the entry for Henry George Ginger which has already been discussed in this forum. He was reported in the Times as surrendering to bail at his committal hearing at Mansion House Police Court on 15 November 1888 yet the Central Criminal Court Calendar (extract below) contains no mention of any bail before committal: Ginger having been received into custody on 14 September. I have examined the Mansion House Police Court Registers at the London Metropolitan Archives (CLA 4/4/49 & CLA 4/4/50) and read reports of every remand hearing of Ginger in the City Press newspaper which fills in the gaps in the Registers (which make no mention of bail) and find the following:
1.Henry George Ginger first appeared at Mansion House Police Court on Friday 14 September 1888. He was then remanded until Wednesday 19 September 1888. The report in the City Press of 15 September 1888 states that “Henry George Ginger, 21, was charged on a warrant with obtaining by means of false pretences…The information on which the warrant was issued having been read, the prisoner was remanded to Wednesday.”
2. At the hearing on Wednesday 19 September 1888, Ginger was remanded until Friday 21 September 1888. The report in the City Press of 22 September 1888 states: “The case was again adjourned, accused being admitted to bail.”
3. At the hearing on Friday 21 September 1888, the case was adjourned until Friday 2 November 1888. The City Press of 22 September 1888 states: “An adjournment was asked for, and the Lord Mayor acceding, adjourned the case till Friday, November 2nd, bail being allowed.”
4. At the hearing on 2 November 1888, Ginger’s case was adjourned to 15 November 1888. The City Press of 3 November 1888 states: “A further remand was asked for, as Mr Wontner was unable to attend. The Alderman acceded to the application.”
5. On 15 November 1888 Ginger was committed for trial. The City Press of 17 November 1888 states: “The Alderman committed accused for trial, admitting him to bail in one surety of £10.”
Clearly, Ginger was remanded into custody on 14 September as the Old Bailey Calendar says that on this date he was “Received into Custody”. As per the City Press newspaper report, he was bailed on 19 September and appears to have remained on bail until his committal hearing on 15 November. To the extent that the newspaper reports do not make clear that Ginger actually put in bail, we know that he must have been free between 21 September and 2 November because a Magistrate was only allowed to remand a person into custody for a maximum of 8 days, but there were 42 days between 21 September and 2 November. Consequently, Ginger must have been at liberty during this period.
What almost certainly happened was that, until his committal hearing, Ginger was bailed on his own recognizances. The Times report of 15 November previously reproduced on this forum, states that Ginger surrendered to his recognizances at this hearing. During the committal hearing, however, the Alderman evidently increased (or amended) the bail to require a surety of £10, thus ensuring Ginger’s return to custody for a day, either for his surety to be checked out on the usual 24 hours’ notice or for him to contact a friend to provide the surety.
The bail terms must certainly have been increased/amended from the earlier bail because the Calendar says that Ginger was not bailed until 16 November. Had the bail remained the same, Ginger would have been freed on bail on 15 November and, based on other examples, the Calendar would simply have said “Bailed at Police Court” (referring to the earlier bail) without providing a date.
While this is the only confirmed example I am aware of involving such a specific sequence of events, culminating with bail after committal, it does suggest to me that in cases where a prisoner is at liberty between remand and committal, having initially been remanded into custody but liberated a day or more after committal, the Calendar does not reflect or incorporate this and indeed does not have a format, or any reason, to incorporate it.
Charles Henry Ward
I can provide another (only slightly different) example to support this contention from the Central Court Calendar. According to the January 1889 Calendar, Charles Henry Ward, charged with fraud (felony offence), was “Received into Custody” on 21 November 1888 with the Date of Warrant being 20 December 1888 (as seen in the Calendar extract below). His trial at the Old Bailey – when he was tried along with Thomas Everson Terry – took place over four days between 12 and 15 January 1889. No mention is made of bail in the Calendar. On the face of it, therefore, one might think that Ward, having been arrested on or shortly before 21 November, remained in custody until his trial in mid-January (when he was convicted). One could not be more wrong.
The facts are fully set out in the Times and other newspapers and reveal the following:
21 November 1888 – Ward was charged at Westminster Police Court. He was remanded until 22 November (i.e. the next day) with the magistrate, Mr D’Eyncourt, stating “that he should require one good bail for his appearance, with notice to the police” (Times, 21 November 1888).
22 November 1888 – “On Thursday [i.e. 22 Nov] Ward was admitted to bail” (Reynold’s Newspaper, 25 November 1888)
26 November 1888 – The Times of 27 November 1888 reports that Ward “surrendered to his bail” at Westminster Police Court. At the end of the hearing, it was reported that Mr D’Eyncourt enlarged the bail but that “Mr Ward found bail as before”.
4 December 1888 – Ward was again reported as having “surrendered to his bail” (Times 5 December 1888). The magistrate said that “as the prosecution had developed into a very serious one, he must double Ward’s bail”. He said that two sureties in £50 each were required for Ward.
11 December 1888 – Ward’s bail was extended.
21 December 1888 – Ward was committed for trial and his bail was increased to two sureties of £100.
Evidently, Ward failed to find the increased bail on 21 December so he was returned to Holloway prison from where he had been bailed (at the Police Court) on 22 November. But he was at liberty from that point continually until his committal hearing a month later. By comparison, his co-defendant, Thomas Everson Terry, who was “Received into Custody” on 19 November 1888 (having been charged two days earlier than Ward) and also committed on 20 December, remained in prison for the entire time.
Yet, from the Calendar there does not appear to be any difference between the two defendants and it is impossible to know which one was in prison and which one was at large prior to committal. This is not a mistake in the calendar, it is just not information that was relevant because both defendants were in prison when the Calendar was compiled and when their trial commenced.
It would be nice to have some more examples (and perhaps members of this forum can find some) but, even the two examples we have, show that we cannot say with any degree of certainty from the evidence of the Calendar that Tumblety was in custody for the entire period between 7 and 14 November.
I might add that I have found plenty of examples from newspapers of prisoners being granted bail at remand hearings, which information is not included in the Calendar, but the problem is that it is not clear from the newspaper reports if those prisoners found bail or remained in custody, so that, in the case of the latter, the Calendar would be perfectly accurate in not recording them as having been bailed.
For the avoidance of doubt, I have also found plenty of examples of prisoners having their bail increased prior to or at the committal hearing so there is nothing unusual about that. It could happen upon the application of the prosecuting counsel or at the initiative of the judge, having heard the full evidence against the prisoner. In fact, at Bow Street Police Court on 23 February 1893, Archibald Bodkin (defending George Newman) said to Mr Vaughan, the magistrate, at a committal hearing, “It is understood practice that there should be an increase of bail on committal” and, as a result, he volunteered an increased bail on behalf of his client.
Hamilton de Tatham
I am aware that the example of Hamilton de Tatham (which involved increased bail at committal) has been put forward as another example like Ginger but, in fact, this is very different and does not assist us in respect of the question as to whether Tumblety was out on bail on 9 November. The reason for this is that the entry for Hamilton de Tatham in the Calendar (see below) states that he was “Received into Custody” on 6 May 1891 which was the date of his trial, so that he simply must have been on bail prior to this. There is no date of warrant in the Calendar – even though we know from press reports that de Tatham was committed for trial by Mr Hannay on Wednesday 29 April at Marlborough Street Police Court - and, if we consider what the Before Trial Calendar must have looked like, there would have been no date provided for either the date received into custody or the date of warrant. The most likely reason for this is that Everard Milman was not provided with the information from the Warrant of Commitment (assuming there was one) or the Recognizances by the Magistrate’s Clerk or Clerk of the Central Criminal Court in the period between 29 April and 6 May. After the trial, when de Tatham was acquitted, there was either no purpose seen by the Clerk of the Court in updating the information or he failed to notice the omission. I suspect this relates to the issue that I have mentioned above and will now explain further below.
Problem with info in the Calender re. prisoners on bail
There is a file in the National Archives within PCOM 7/494 dated 1896 and entitled “Prisoners on Bail – Information to Governors who prepare Calendars” (and see also HO 144/935/A58293 which contains much of the same information). It was opened following a complaint from the Clerk of Assize on the Oxford Circuit dated 23 October 1896 as follows:
“Complaints are from time to time received by me from Governors of Her Majesty’s Prisons that Clerks to Justices do not transmit to prisons the commitments of persons committed for trial and bailed. The Governors thus receive no document which can be used for the preparation of the “before trial” calendar and the Assize judge has depositions against persons whose names do not appear in the Calendar. This has been erroneously thought to be the fault of the prison authorities. I am informed that sometimes the Governors finding from the public newspapers of a committal on bail and receiving no commitment write to the Justices Clerks and by that means obtain, what they should have without writing. When the omission comes to my knowledge I point out to the Justices Clerk his duty.“
A memo on the same file says that by letter three years earlier, dated 1 May 1893:
“…it was settled that Clerks to the Magistrates [in London] should send to Governors of Prisons notices of prisoners bailed at court, which notices should contain all particulars for Calendar. There is a very general practice of sending this information in the form of a Commitment but in some cases the notice is sent on a special form.”
An explanatory note behind the sending of this letter says:
“The chief magistrate [of Metropolitan Police Courts] drew up a special form to give the Governors the desired information. The view generally taken by H.O. [Home Office]…was that as the only formal document relating to committal for trial (when a person is not committed to prison to await trial) –i.e. the recognizances are sent up to Clerks of the Peace & Assize, it is those clerks who should prima facie furnish information for the Calendar. But it afterwards appeared that in 1893 it was usually the clerks to Justices – though sometimes the police – who furnished the information. Hence the decision [to send the letter on 1 May 1893].”
This letter was only sent to the Metropolitan Police Courts, hence there were still problems nationwide in 1896, thus prompting the complaint from the Clerk of Assize in Oxford. The suggestion made was that “a circular might be sent to Justices’ Clerks reminding them of their duty to transmit to Governors of Prisons full particulars of all prisoners committed for trial at Assizes and Quarter Sessions who are bailed in court.”
By way of historical explanation, one writer in the file said:
“Sect. 23 of the Indictable Offences Act 1848 makes it clear that to admit a man to Bail is a substitute for committing him to prison, and I can find no statutory ground for supposing it is a justices’ clerks’ duty to send a Governor of a prison notice of having done so. On the contrary Sect. 20 of the same act appears – though this is rather ambiguous – to require him to send the Recognizances of the Bailsmen to the court of trial. As when the [1848] Act was passed the Calendar was merely the list of prisoners held in custody for trial and there was clearly no reason for Governor to be informed of persons out on Bail, but as no doubt it is convenient for the Calendar to give the former as well as the latter, Justices Clerks ought to send some notice.”
Another note said:
“It is certainly most desirable….that the Governor should be made aware in some form or other of the committal for trial of accused persons admitted to bail.”
As we have seen, this issue was only resolved in London in 1893 and thus might well have affected the entry in the Calendar for Hamilton de Tatham in 1891.
But this issue would not have affected the entry for Tumblety in the Calendar because the Governor of Holloway Prison would have received the Warrant of Commitment when Tumblety was committed to prison on 14 November 1888. Thus, the Hamilton de Tatham example is, I would suggest, not relevant to the Tumblety issue.
Francis Tumblety
Now, to go back to answering the question posed at the start of this post, it seems obvious that – barring a mistake in the Calendar or a very unusual event - for Tumblety to have been at liberty on 9 November 1888, the following sequence must have occurred:
1. Tumblety was remanded into prison custody on bail on 7 November, for a week, with 24 hours’ notice to the police [alternatively, but far less likely, he was remanded to return to the Police Court on the following day].
2. Tumblety made bail on 8 November and was released from prison [or from the Police Court].
3. At the committal hearing on 14 November, Tumblety’s bail was increased by the magistrate and, not having sureties lined up for the full amount, he was committed to prison.
4. Tumblety made bail, and was released from prison, on 16 November.
The reason why this must have been the sequence of events is that the Calendar tells us that Tumblety was in custody on 7 November and, after committal, was not bailed until 16 November so that he must have been in custody between 14-16 November. Had Tumblety been bailed in the police court on 7 November he would not have ended up in custody on that day. That being so, and assuming his bail had not been increased on 14 November, then he would not have gone to prison on 14 November because he had already found that bail and, from other examples, the Calender would only have had one entry under his name which said “Bailed at Police Court”.
However, we know that the Calendar states only:
“Francis Tumblety
Bailed, 16th November 1888”
In order to find an entry comparable to what one would have expected to find in the Calendar for a prisoner (1) admitted to bail with 24 hours’ notice to police (or taking 24 hours to find bail), then (2) bailed, before (3) his bail being increased at committal, thus causing him to return to prison before (4) being freed again after putting in the increased bail, we need to identify a double bail entry in the Calendar (i.e. showing a prisoner being bailed twice) where the date the prisoner was received into custody was before the date of his committal for trial. As mentioned above, I have not been able to find a single such entry, despite examining Calendars over a number of years, which leads me to conclude that such short-term liberty on bail between remand and committal hearings was not recorded at all in the Calendar.
Thus one would NOT expect to find either of the following entries:
“Francis Tumblety
Bailed at Police Court
Bailed, 16th November 1888”
“Francis Tumblety
Bailed, 8th November 1888
Bailed, 16th November 1888”
These are simply not in the format of the Calendar. The only way we would see such a thing would be if the date of 16th November 1888 was the original set date of Tumblety’s trial (assuming that the trial was then adjourned, so that Tumblety would have surrendered into custody and then been bailed - but in that scenario the wording would usually be "Bailed in Court, 16th November 1888").
Conclusion (part 2)
In other words, my submission is that it is not possible from the information in the Central Criminal Court Calendar to state with any certainty whether Tumblety was in prison or out on bail at any date from 8 November to 14 November. There is no procedural reason why Tumblety could not have been bailed on 8 November and, if he had been, we would not expect to find any mention of it in the Calendar.
Attached Files
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