Cracking The Calendar Code

[Trevor Marriott]

I don't understand how refusing bail before committal could "stop these type of prisoners avoiding punishment" if they had an absolute right to bail after committal.

The answer to that is quite simple if they were remanded in custody up to the committal. The court could then impose a high recognizance from the prisoner or insist on a high amount via sureties or both. This was to try to ensure the attendance of the prisoner at his trial and for the court to be in a position to recover monies should he fail to attend. So there was an onus on the sureties to try to ensure the prisoner did attend.

But of course the another question which perhaps our legal eagle could answer is that, what would happen if a court was prepared to bail a prisoner with sureties, and that prisoner could not come up with the sureties? remand in custody or release. Technically the court is not refusing to grant bail

I would suggest that in that case the prisoner would say in jail with the bail option still open. There has to be some discretion otherwise the courts might just as well bail everyone, sureties or not.

https://www.trevormarriott.co.uk

[Chris]

I don't understand how refusing bail before committal could "stop these type of prisoners avoiding punishment" if they had an absolute right to bail after committal.

[David Orsam]

As I keep saying no two cases are the same , the case you cited is a clear example of what might happen if the court bailed someone like Tumblety

We all know perfectly well what could happen if the court "bailed someone like Tumblety" but there was nothing the magistrates could do about it. They would have to bail him at the committal hearing. As I have said repeatedly, in practice, they would bail "someone like Tumblety" at the remand hearing too because it made no sense to remand such people into custody without bail when their liberation was inevitable in a short time. And that is what happened in reality in 1888 Trevor, hard though it is for you to believe.

The bail criteria I quoted was based on a common sense approach by the court to stop these type of prisoners avoiding punishment

Oh right, it was a "common sense approach". Translation - You invented it. You didn't "quote" it. Perhaps in future when you set out such "common sense" information you could make clear at the time that you are the source of it.

[David Orsam]

By 1888 Newgate was no longer a full-time prison. Adjacent to the Central Criminal Court, it was being used as a temporary house of detention for prisoners awaiting trial during the periods the Old Bailey was sitting.

Until its demolition in late 1890, Clerkenwell House of Detention housed remand prisoners from Middlesex police courts.

Tumblety was transferred from Clerkenwell to Newgate on the issuance of his trial warrant [Wednesday 14th November 1888], and it was from Newgate that he was bailed on Friday 16th November 1888.

Just to add that this doesn't even make sense internally. You say, Simon, that Newgate was no longer a full-time prison in 1888 but that it was used as a temporary house of detention for prisoners during the periods the Old Bailey was sitting (and I agree entirely with this, prisoners on bail presenting themselves for trial would, as I understand it, surrender to the keeper of Newgate Gaol and thus the C.C.C. Calendar for 1888 as other years records many prisoners being "Received into Custody" on the first day of their trial - and, if their trial was adjourned, they would need to seek bail to be released). However, you then say that Tumblety was transferred to Newgate on 14 November 1888. But the Old Bailey was not sitting on 14 November 1888. The next session did not commence until Monday 19 November 1888. So how are those two statements internally consistent?

I don't have any specific evidence about where Tumblety was imprisoned in 1888 but I note that a book which can be found on Google Books, entitled "English Local Prisons 1860-1900: Next Only to Death" by Sean McConville states that "Clerkenwell (erected in 1615 as a bridewell) was closed in June 1886". Now that might not be accurate because the same book says "In 1891 Holloway became a remand prison", which I assume, Simon, was the source of your little nugget of info, but which I know for a fact is not true (it was definitely a remand prison in 1888) but the closure of Clerkenwell in June 1886 is consistent with the fact that the Central Court Calendar was prepared by the Governor of Holloway Prison from May 1886 onwards (whereas previously it was the Governor of Clerkenwell). If McConville is correct, then how was it possible for Tumblety to end up in Clerkenwell in November 1888?

It may be that Tumblety was sent to another prison (perhaps there was an overflow system) and I don't want to give the impression I know any specific details about his situation (as Simon seems to be claiming to do) but all remand prisoners were definitely sent to Holloway in 1888 and I believe those after committal awaiting trial too, up to trial when they would transfer to Newgate.

[Trevor Marriott]

[QUOTE=David Orsam;336910]Trevor, I note that you have set out a purported list of factors that would "preclude the granting of bail" without providing any source to show that it applied to magistrates in the 1880s, nor that it specifically related to issues to be considered before committal as opposed to after, nor that it related to issues to be considered in respect of misdemeanors, especially "petty" misdemeanors as set out in s.21 of the 1848 Act.

The magistrates in the 1880s were governed by the 1848 Indictable Offences Act which said no more than the magistrate "may" discharge a prisoner on remand upon a recognizance with or without sureties. It was entirely at their discretion and there was no list of matters that would preclude bail, let alone in respect of "petty" misdemeanours for which bail was compulsory after committal.

As it happens, I can easily demonstrate that your list is false.

From the Times of 16 March 1880:

"AT MARYLEBONE, DARIO SANCHEZ, 31, described as a native of Chili (sic), of no occupation, living at St James's Hotel, Picaccadilly, was brought up on a warrant by Police Sergeant, John Arnell, 1 D, before Mr De Rutzen, charged with taking one Mary Langley, an unmarried girl, under the age of 16 years, out of the possession and against the will of her father, contrary to statute....At this stage Mr De Rutzen said that, as he understood remand was to be asked for, he thought ample evidence had been given, and this would be a good point at which to adjourn the case. The case was accordingly adjourned, the magistrate agreeing to take bail for the prisoner's appearance - two sureties in £250 each and himself in £500, with 24 hours' notice to the police."

So there we have a foreign gentleman, who gave his address as a hotel - not what anyone would describe as a permanent fixed address (point 2 of your list) - charged with a misdemeanour (and a grave misdemeanour at that) being bailed on remand.

Perhaps you will come back and say he wasn't likely to abscond to avoid justice. Well he certainly was because - having found the bail - he took advantage of being at liberty and legged it.

From the Times of 25 March 1880:

"AT MARYLEBONE, DAVID SANCHEZ, 31, a native of Chili, described as of no occupation, living at St James's Hotel, Piccadilly, should yesterday have appeared in answer to his recognizances....Mr Crump [for the prisoner] said that as far as he was aware the prisoner would not appear....The imprisonment he had undergone had injured his health, and in view of the possibility of further imprisonment being inflicted on him he had left the country....Mr Sims asked for a warrant for his apprehension. Mr Cooke said that the prisoner's bail would be forfeited and a warrant for his arrest issued."[/QUOTE

As I keep saying no two cases are the same , the case you cited is a clear example of what might happen if the court bailed someone like Tumblety

The bail criteria I quoted was based on a common sense approach by the court to stop these type of prisoners avoiding punishment

[Mayerling]

Hi Jeff,

By 1888 Newgate was no longer a full-time prison. Adjacent to the Central Criminal Court, it was being used as a temporary house of detention for prisoners awaiting trial during the periods the Old Bailey was sitting.

Until its demolition in late 1890, Clerkenwell House of Detention housed remand prisoners from Middlesex police courts.

Tumblety was transferred from Clerkenwell to Newgate on the issuance of his trial warrant [Wednesday 14th November 1888], and it was from Newgate that he was bailed on Friday 16th November 1888.

Holloway became a remand prison in 1891.

Regards,

Simon

Hello Simon,

Thank you too for the information about the three prisons.

Jeff

[Mayerling]

Hi Jeff - while I haven't specifically researched that point, my understanding is that by the 1880s Newgate was too small to cope with the increasing numbers of prisoners in London – probably too old and decrepit as well (and thus "not fit for purpose") – while Clerkenwell Prison closed down for good in the summer of 1886.

Hi David,

Thank you. My confusion was the closeness of the double switch, and that I was aware that Newgate was closed finally after 1902 I believe.

Jeff

[Simon Wood]

Hi Mike,

Remind me.

Who/what was the original source of this information which was so readily corroborated?

Regards

[mklhawley]

...and this is corroborated by the World's London correspondent's (the same correspondent who Simon and Trevor trust about Sir George Arthur on the very same November 17 newscable) report, which was corroborated by the Boston Globe's separate investigation, which was corroborated by the British press and the New York competitors, which was corroborated by Assistant Commissioner Anderson's actions of soliciting information on Ripper suspect Francis Tumblety (sorry Simon), which was corroborated by Chief Inspector Littlechild's letter to Simms, which was corroborated by Tumblety himself in his interview.

Lots of corroboration, but none for Tumblety being incarcerated during the Kelly murder.

Great work David.

Sincerely,

Mike

[David Orsam]

Now that everyone has had their say, let me attempt to analyse this issue on the basis of what we might refer to as the Simon Wood test of what we can "reasonably conclude".

When Tumblety appeared at Marlborough Street Police Court on 7 November 1888, he probably did not want to spend a week in prison until his committal hearing if he could avoid it. It is reasonable to assume he made a bail application. As I have previously posted, there were plenty of criminal law solicitors around willing to assist – Arthur Newton who had an office right next to the police court being just one example (and I might add that it has privately been pointed out to me that Mr Douglas Norman, identified on the reverse of Tumblety's indictment, was probably the solicitor for the prosecution, not the defence, which I accept, but please don't ask me how he became so because I don't know). Such solicitors or their clerks would have been prowling around the police court just waiting for suitable clients to arrive every day. A wealthy foreigner such as Tumblety would have been manna from heaven. The first thing they would have advised him, charged with an indecency offence, was to apply for bail and ensure that he did not have to spend an unpleasant seven days in Holloway prison.

For the reasons I have already explained, such a bail application was almost certain to succeed and bail would have been granted. The only thing that was uncertain was the amount of the bail and whether no, one or two sureties would be required. If we accept that, being a foreigner, this was treated as a "suspicious case" then, per Douglas, the magistrate would have required the usual 24 hours' notice to the police, leaving Tumblety to spend the night in Holloway prison. This is perfectly, 100% consistent with what was see in the Central Criminal Court Calendar with Tumbelty being received into custody on 7 November 1888 following the remand hearing.

I fully accept that we do not know if Tumblety was able to find the required bail and/or sureties and thus ensure his liberation from prison but, equally, we do not know if he remained in prison until 14 November. The information to answer this question is not available.

For the reasons I have demonstrated, the Central Criminal Court Calendar does not assist us at all. It was not designed to answer this question. It was designed to let the judge know who was on bail at the time of the start of the trial, which it does in the case of Tumblety. If Tumblety had been released on bail on 8 November the Calendar would not show it. It's not a question of an error or mistake. It just would not show it because it did not need to.

I would like to refer again to the case of Charles Henry Ward. He was remanded into custody (with bail on 24 hours' notice) on 21 November 1888 and spent the night in prison. The Central Criminal Court Calendar confirms that he was received into custody on 21 November. In this case, he was only remanded for a single day and was then bailed from the police court the following day and liberated. He was at liberty from 22 November to 21 December. You do not see this in the Central Criminal Court Calendar. At the committal hearing, his bail was increased from two sureties of £50 to two sureties of £100. He could not find this bail so was sent back to prison where he remained until his trial. The Calendar makes no mention of him ever having been bailed. If the Calendar had included this information it would have said "Bailed at Police Court" [i.e. on 22 November] but this would have been misleading, making it appear to the judge that Ward was on bail at the time of his trial. So this information was not included. Now, let's assume that, at the committal hearing on 21 December, Ward HAD been able to find two sureties of £100 but that it took two days for the sureties to come forward and/or be checked out by the police so that he was liberated on 23 December and home in time for Christmas. In this case, the Calendar would have included the following information, and ONLY the following information: "Received into Custody - 21 Nov 1888", "Date of Warrant - 21 Dec 1888" "Bailed, 23 December 1888". In other words, the type of information which matches what we find for Tumblety but CONCEALS the fact that he was out of prison on bail for a month between 21 November and 23 December. Again, I repeat, that would not be any kind of error but the way the Calendar worked. It was not supposed to give a running commentary of a prisoner's changing bail situation before trial.

For Tumblety to have been out of prison prior to his committal hearing and then back in prison on 14 November it is obvious that his bail must have been increased by the magistrate. But that was not unusual and I have provided a quote from none other than Tumblety's own barrister that: "It is understood practice that there should be an increase of bail on committal" (btw this came from the Times of 24 February 1893). So there is nothing inconsistent in the Calendar with Tumblety having been out of prison between 8 and 14 November.

In my submission, therefore, while I do not deny the possibility that Tumblety might have been stuck in prison for a week (because he could not make the bail required), he seems to have been a wealthy man and to have had wealthy friends so the most reasonable conclusion on the Simon Wood test is that he did get released from prison prior to his committal hearing, probably on 8 November in view of the usual notice period required

[David Orsam]

David it means your dissertation worthy contribution is a highly receptive and more importantly understandable end to the minor debate about the historical evidence for the positive claim Tumblety WAS in jail at the time MJK was killed. There is no reason to accept that claim based on evidence gathered from the individuals who worked it on a day to day basis, not just in theory but in hard practice as you have shown. End of story until someone even begins to attempt the level of research and sound conclusions you have drawn.

Yes, I guess that must be the correct interpretation Batman!

[Batman]

I don't know what this means.

David it means your dissertation worthy contribution is a highly receptive and more importantly understandable end to the minor debate about the historical evidence for the positive claim Tumblety WAS in jail at the time MJK was killed. There is no reason to accept that claim based on evidence gathered from the individuals who worked it on a day to day basis, not just in theory but in hard practice as you have shown. End of story until someone even begins to attempt the level of research and sound conclusions you have drawn.

[David Orsam]

Holloway became a remand prison in 1891.

Simon, I'm afraid you are wrong. Whatever secondary source you have taken that information from - and, hey, I know how to search Google Books too - is mistaken. My information is from multiple primary sources. It is correct.

[David Orsam]

Its the reality of how the judicial system worked in 1888 and the same criteria still applies today in courts.

Trevor, that is just wrong. Firstly there is no longer a distinction between felony and misdemeanour offences. Secondly, and more importantly, section 21 of the 1848 Indictable Offences Act, making bail automatic for a person charged with certain types of misdemeanor (such as indecency offences), no longer applies. This means that bail applications for those "petty" misdemeanors in 1888 were completely and utterly different from anything that happens today We really are talking about a Life on Mars situation here. A knowledge of modern day bail procedure not only does not help to understand you what happened in 1888 but will positively mislead you onto the wrong track, as I believe it has.

It should also be noted that just because a prisoner is able to provide sureties it does not follow that a court will automatically grant bail.

Well I haven't ever said this or anything like it.

As has previously been said no two cases are the same, and a court will consider each application for bail on its merits and the representations put before the court by the prosecution in opposing bail

The thing is that on committal all petty misdemeanors were treated the same in respect of bail applications. There was only result. Bail was granted. It was the law of the land. While it is true that a magistrate had discretion at the remand hearings, the practical reality is that bail was also granted because to refuse it was essentially irrational bearing in mind the inevitability of bail being granted after committal. I have checked this out by reading newspaper reports of now probably hundreds of remand hearings from the period and found, even to my amazement, that every time without exception for a petty misdemeanor offence the application for bail was allowed.

[David Orsam]

Well Orsam best make up his mind exactly what he is saying then. because he is clearly pulling the wool over your eyes and the eyes of others.

I don't know what this means.