Would Tumblety Have Assumed That He Was Being Followed?

[Trevor Marriott]

But aren't you just making the same argument in a different way? Surely what you are saying applies to any and every bail application - there is always the option for the police to object to bail (and I assume the magistrate had the power to overrule the police objection if he considered that it wasn't soundly based), but is there in this case any evidence at all that they would have/did object? As said, just because they could object doesn't mean they did object, so is there anything solid - and evidence at all - on which you argue that they did object?

There is no evidence that they did object. But you have to accept that as you say the police had the right to object to bail and clearly would have in cases such as this, and in particular as Tumbleteys antecedents would have met the criteria they would have used for the objections, and yes the court could overrule the police objections for example the suspect and his legal team could have made a bail application perhaps with bail in his own recognizance, which was objected outright by the police. However the magistrate could have overruled the police and given a suspect bail subject to additional sureties being found, or the court could have simply disregarded all of the objections put before them.

I go back to Oscar Wilde arrested for the same offences. He had sureties willing to stand for him at all the stages of his arraignment but the courts refused him bail on one singular objection, they considered him a flight risk. The rest of his antecedents were not questionable by the police.

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[Trevor Marriott]

Interestingly, William Shugg's initials are only in front of one of the young men, Albert Fisher on the November 1888 indictment. I believe this means Fisher was the only boy to come to police court.

Sincerely,

Mike

Just to clarify

William Shugg was the foreman of the grand jury

All of the cases due to be heard at the old bailey would first be put before a grand jury which sat on the opening morning of the sessions. It was their role to examine each case to ensure there was sufficient evidence to put before the jury. If so, this was known as a “true bill”. Cases they felt did not meet the necessary criteria would be thrown out, marked as “Not found”, and the prisoner released.

Tumblety's indictment papers were marked "true bill" and signed by William Sugg, the grand jury foreman, after which they would have been handed to the court, in readiness for Tumblety's trial before the jury.

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[PaulB]

There is no evidence that they did object. But you have to accept that as you say the police had the right to object to bail and clearly would have in cases such as this, and in particular as Tumbleteys antecedents would have met the criteria they would have used for the objections, and yes the court could overrule the police objections for example the suspect and his legal team could have made a bail application perhaps with bail in his own recognizance, which was objected outright by the police. However the magistrate could have overruled the police and given a suspect bail subject to additional sureties being found, or the court could have simply disregarded all of the objections put before them.

I go back to Oscar Wilde arrested for the same offences. He had sureties willing to stand for him at all the stages of his arraignment but the courts refused him bail on one singular objection, they considered him a flight risk. The rest of his antecedents were not questionable by the police.

www.trevormarriott.co.uk

Thanks, that makes it clearer, but I am not sure why Tumblety's antecedents would have warranted a rejection of bail. Do you know of any prior appearance in a British court on similar charges - or any charges, for that matter - that would suggest he was likely to do anything that would justify his bail application being turned down? In the case of Wilde, is it not the true that he was given the opportunity to flee the country, as Somerset had been at the time of Cleveland Street, and that his friends urged and expected him to do so? I am given to understand that friends were shocked when he stayed to slug it out in court; the authorities could have lived with him fleeing before he’d been arrested, but to have allowed him to do it afterwards and whilst on bail would have been too great an embarrassment. Furthermore, when Wilde faced the stark reality of his position and his bubble of protective arrogance burst, was he not then a serious flight risk. Tumblety was never in that category, was he?

[mklhawley]

There is no evidence that they did object. But you have to accept that as you say the police had the right to object to bail and clearly would have in cases such as this, and in particular as Tumbleteys antecedents would have met the criteria

And it is also an assumption that Scotland Yard knew these antecedents, especially when he did indeed have a family member - a sister - living in Liverpool. The only thing they knew about Tumblety's North American past was what William Pinkerton told Shore years earlier, that he was a strange cookie and had a hatred of women; not that he was a flight risk.

[Trevor Marriott]

Thanks, that makes it clearer, but I am not sure why Tumblety's antecedents would have warranted a rejection of bail. Do you know of any prior appearance in a British court on similar charges - or any charges, for that matter - that would suggest he was likely to do anything that would justify his bail application being turned down? In the case of Wilde, is it not the true that he was given the opportunity to flee the country, as Somerset had been at the time of Cleveland Street, and that his friends urged and expected him to do so? I am given to understand that friends were shocked when he stayed to slug it out in court; the authorities could have lived with him fleeing before he’d been arrested, but to have allowed him to do it afterwards and whilst on bail would have been too great an embarrassment. Furthermore, when Wilde faced the stark reality of his position and his bubble of protective arrogance burst, was he not then a serious flight risk. Tumblety was never in that category, was he?

I think the whole issue around flight risk and all the other grounds as i have said before revolves around belief. Based on the facts previously provided that he had no fixed residence, and was not a UK citizen and by the evidence they had to hand they clearly thought he would get convicted and sentenced to a lengthy term of imprisonment. All good an valid reasons for him to abscond. The same reasons that operate in police stations and courts today when considering the granting of bail.

They were entitled to put those altogether and put those before the magistrates at the first remand hearing as objections. Thus forming a total belief that he would abscond. It was then up to the magistrates to accept or reject one, some, or all and bail him.

I dont think I can make it any clearer for people to understand.

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[David Orsam]

As there is little hope of this thread going back on topic, a few factual corrections and clarifications.

Firstly, we don't have the arrest warrants for either individual but we know that Tumblety was committed for trial on four counts of gross indecency and four counts of indecent assault while Oscar While was committed for conspiring and agreeing to commit and procure to be committed certain acts of gross indecency as well as a separate offence of committing acts of gross indecency. So not "the same offences".

Secondly, the magistrate in the Wilde case declined to give his reasons for refusing bail so any reasons anyone offers are speculation. Normally, for a prisoner charged with misdemeanour in the nineteenth century and believed to be a flight risk, the way a magistrate would attempt to ensure his appearance at trial would be to set a very high bail. That was the whole point of having sureties. It was the whole point of the bail system.

Thirdly, it was very rare in the nineteenth century to have contested bail applications for any form of misdemeanour, especially not a misdemeanour for which bail legally had to be granted on committal.

Fourthly, whatever happened in the (unique and unprecedented) Oscar Wilde case in 1892 cannot possibly have affected a magistrate's bail decision four years earlier.

Fifthly, Wilde was eventually granted bail following an application to a judge in chambers and was released on bail.

[PaulB]

I think the whole issue around flight risk and all the other grounds as i have said before revolves around belief. Based on the facts previously provided that he had no fixed residence, and was not a UK citizen and by the evidence they had to hand they clearly thought he would get convicted and sentenced to a lengthy term of imprisonment. All good an valid reasons for him to abscond. The same reasons that operate in police stations and courts today when considering the granting of bail.

They were entitled to put those altogether and put those before the magistrates at the first remand hearing as objections. Thus forming a total belief that he would abscond. It was then up to the magistrates to accept or reject one, some, or all and bail him.

I dont think I can make it any clearer for people to understand.

www.trevormarriott.co.uk

Thanks you, Trevor. You certainly have made your position abundantly clear. I am sure everyone understands you. The trouble is that whilst you think the police had good reason to object to bail, your argument seems to be based on supposition - namely that bail would have been refused because Tumblety had no fixed abode and wasn't a British citizen. But on the other hand, Tumblety was a regular visitor to Britain, he conducted business here, he had relatives here, and he was financially secure. On top of which, notwithstanding the large file Scotland Yard had on him, he does not appear to have a criminal record. I don’t think people share your opinion that Tumblety was a flight risk. As for the police thinking Tumblety would go down for a long stretch, if Tumblety and his legal advisors thought otherwise - and the evidence may have supported their view - then they'd have argued accordingly. I understand why you think Tumblety may have been thought a flight risk, but I'm not sure your reasons are very strong. There certainly seems a credible alternative argument to the one you are making.

[Trevor Marriott]

Thanks you, Trevor. You certainly have made your position abundantly clear. I am sure everyone understands you. The trouble is that whilst you think the police had good reason to object to bail, your argument seems to be based on supposition - namely that bail would have been refused because Tumblety had no fixed abode and wasn't a British citizen. But on the other hand, Tumblety was a regular visitor to Britain, he conducted business here, he had relatives here, and he was financially secure. On top of which, notwithstanding the large file Scotland Yard had on him, he does not appear to have a criminal record. I don’t think people share your opinion that Tumblety was a flight risk. As for the police thinking Tumblety would go down for a long stretch, if Tumblety and his legal advisors thought otherwise - and the evidence may have supported their view - then they'd have argued accordingly. I understand why you think Tumblety may have been thought a flight risk, but I'm not sure your reasons are very strong. There certainly seems a credible alternative argument to the one you are making.

Whether Tumblety was a regular visitor or not would count for nothing in a courts decision to grant him bail or not. The question the court would have to ask itself would be. Could he abscond if given bail? If they were satisfied that he could then they would refuse bail. However as previously stated that refusal may week have only been a temporary measure up until his committal

They could have said they would then grant bail subject to suitable sureties being in place and accepted by the court. This could lead us back to him being granted bail 48 hours after the committal.

What you and several others seem to not understand is that the first remand court had the power to grant bail. However they had a discretionary power which entitled them to refuse bail. Now ask yourself why was that discretionary power in place for the courts to use. It was for them to use in cases such as Tumbley and his circumstances at the time.

Having a sister in The UK or doing regular business here was not something the court would take into account neither were relevant as to whether he was likely to abscond.

Now the argument has been put forward that if they thought he was a flight risk at the first court appearance how come the court gave him bail later. The answer is quite simple in granting bail the second time after the committal the police had secured their case and the evidence.

If he then went on the run, as and when he was ever re arrested they were in position to go ahead with the trial with the witness testimony already secured.

Secondly they would have the sureties money which might be regarded as a form of punishment if he absconded albeit only a financial one.

Given the same set of circumstances had he been arrested today the CPS in deciding whether to oppose bail would have to consider those same issues, they are common sense issues to protect the ends of justice.

Of course if today they opposed bail he would go before a court and make a bail application. The court would consider the objections along with the application. In this type of case bail would likely be granted with stringent bail conditions unless he had previous convictions for similar offences then part of the objection process would be to prevent him committing further offences, or he had previous for failing to appear at courts.

1. To surrender his passport
2. Not to contact witnesses or victims either directly or indirectly or by any
form of social media
3. To report and sign on at a specified police station on a daily basis
4. To live and sleep at a specified address
5. If the offences were committed at night time a night time curfew between
7pm-7am would be imposed,, and the police would visit during these time
6. If the victims were under 18 then he would not be able to be in the
company of a person under 18 unsupervised.

All of these in an attempt to stop him absconding and to keep tabs on him.
So you can see how modern day concerns and objections would have been the same concerns to the police and courts back in 1888.

https://www.trevormarriott.co.uk

[David Orsam]

I have to say that the debate in this thread is proceeding on a false basis.

The discretion under the law at remand hearings available to magistrates in 1888 for misdemeanours, especially of the type for which Tumblety was charged, was theoretical only. In practice, almost without exception, everyone involved with the criminal law regarded bail as certain for misdemeanour offences. For that reason, you just don't find the types of contested bail applications for misdemeanour offences that are being discussed in this thread and all the arguments being put forward here for and against bail were never made for reasons which should be perfectly clear to everyone due to it being guaranteed that bail would be granted on committal.

[Trevor Marriott]

As there is little hope of this thread going back on topic, a few factual corrections and clarifications.

Firstly, we don't have the arrest warrants for either individual but we know that Tumblety was committed for trial on four counts of gross indecency and four counts of indecent assault while Oscar While was committed for conspiring and agreeing to commit and procure to be committed certain acts of gross indecency as well as a separate offence of committing acts of gross indecency. So not "the same offences".

Isn't Gross indecency the same offence as Tumbey was charged with ?

Secondly, the magistrate in the Wilde case declined to give his reasons for refusing bail so any reasons anyone offers are speculation. Normally, for a prisoner charged with misdemeanour in the nineteenth century and believed to be a flight risk, the way a magistrate would attempt to ensure his appearance at trial would be to set a very high bail. That was the whole point of having sureties. It was the whole point of the bail system.

No two cases are the same. No two prisoners circumstances will be the same each must be judged by the courts on its own merits. This is where the discretionary powers come into play.

Thirdly, it was very rare in the nineteenth century to have contested bail applications for any form of misdemeanour, especially not a misdemeanour for which bail legally had to be granted on committal.

You say rare, but bail before committal was a different issue (discretionary powers)

Fourthly, whatever happened in the (unique and unprecedented) Oscar Wilde case in 1892 cannot possibly have affected a magistrate's bail decision four years earlier.

You don't know what decisions all magistrates made 4 years previous

Fifthly, Wilde was eventually granted bail following an application to a judge in chambers and was released on bail.

But is doesn't detract from the fact that all through the proceedings despite Wilde having sureties of high standing in society ready and willing to stand for him all the courts that he went before refused bail. Had Tumblety been refused bail he had that same option to go before a Judge in chambers. Perhaps you would care to post the legislation which sets out that bail is automatic after committal for indictable misdemeanors? Because clearly it wasnt in Wildes case.

https://www.trevormarriott.co.uk

[Trevor Marriott]

I have to say that the debate in this thread is proceeding on a false basis.

The discretion under the law at remand hearings available to magistrates in 1888 for misdemeanours, especially of the type for which Tumblety was charged, was theoretical only. In practice, almost without exception, everyone involved with the criminal law regarded bail as certain for misdemeanour offences. For that reason, you just don't find the types of contested bail applications for misdemeanour offences that are being discussed in this thread and all the arguments being put forward here for and against bail were never made for reasons which should be perfectly clear to everyone due to it being guaranteed that bail would be granted on committal.

You know there is a big difference between a misdemeanor and an idictable misdemeanor, which is what Tumblety was charged with.

https://www.trevormarriott.co.uk

[David Orsam]

Perhaps you would care to post the legislation which sets out that bail is automatic after committal for indictable misdemeanors? Because clearly it wasnt in Wildes case.

Trevor, you sometimes still even amaze me and I'm a long way past being amazed by you. I'm only responding to you because you have asked me to post information. I'm just going to copy and paste what I have already posted on this board. Before doing so, I just mention that Wilde's solicitors made a serious allegation that the magistrate in Wilde's case committed an illegal act (but you might want to do as I suggested earlier and carefully read my Ripperologist article because there is even more to it than that). Anyway, here is what you asked for:

Indictable Offences Act, 1848

The starting point is the Indictable Offences Act of 1848 and a key passage that Trevor Marriott never refers to. It is Section 23 and states:

“…where any Person shall be charged before any Justice of the Peace with any indictable Misdemeanor other than those herein-before mentioned, such Justice, after taking the Examinations in Writing as aforesaid, instead of committing him to Prison for such Offence, shall admit him to Bail.”

That is a clear statement that, at the conclusion of the committal hearing (or at least after written examinations had been taken, which effectively amounts to the same thing), certain types of misdemeanor required an automatic admission to bail by the magistrate.

Two Types of Misdemeanors

What were those types of misdemeanors? Well the Act refers to any misdemeanor “other than those herein-before mentioned”. Those misdemeanors, mentioned earlier in the Act, are stated to be:

“...receiving Property stolen or obtained by false Pretences, or with Perjury or Subornation of Perjury, or with concealing the Birth of a Child by secret burying or otherwise, or with wilful or indecent Exposure of the Person, or with Riot, or with Assault in pursuance of a Conspiracy to raise Wages, or Assault upon a Peace Officer in the Execution of his Duty, or upon any Person acting in his Aid, or with Neglect or Breach of Duty as a Peace Officer, or with any Misdemeanor for the Prosecution of which the Costs may be allowed out of the County Rate.”

What about those misdemeanors for the prosecution of which the costs may be allowed out of the county rate? That initially seemed hard to establish but fortunately “A Digest of the Law of Criminal Procedure in Indictable Offences” by Sir James Fitzjames Stephen and Herbert Stephen, 1883 edition, includes a note when citing the above section of the Indictable Offences Act which says: “For the misdemeanors for which costs may be allowed out of the county rate, see Article 319”. When consulting Article 319 of the book, one finds the following list:

Assault with intent to commit felony.
Attempt to commit felony.
Riot.
Any misdemeanor for receiving stolen property, knowing the same to have been stolen.
Assault upon a peace officer in the execution of his duty, or upon any person acting in aid of such officer.
Neglect or breach of duty of a peace officer.
Assault committed in pursuance of any conspiracy to raise the rate of wages.
Obtaining property by false pretences.
Wilful and indecent exposure of the person.
Perjury.
Subordination of perjury.
Carnally knowing and abusing any girl above ten and under twelve.
Unlawfully taking or causing to be taken any unmarried girl under sixteen out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her.
Conspiring to charge any person with or indict any person of any felony.
Any indictable misdemeanor against the Larceny Act, 1861, the Malicious Injuries to Properties Act 1861, the Forgery Act, 1861, or the offences against the Person Act, 1861.
In prosecutions for any offence against the Coinage Offences Act, 1861, [with certain conditions which need not trouble us here]

For the sake of simplicity, for the purposes of this post, I am going to call the above list “Grave Misdemeanors”, with all other misdemeanors being referred to by me as “Petty Misdemeanors”. [For reasons of consistency, I am also going to change all spellings (even those from quoted passages) of the word “misdemeanour” in this post to “misdemeanor”, as it is spelt in the 1848 Act.]

It will be noted that offences of both gross indecency and indecent assault are not included in the above list of Grave Misdemeanors. This means that, for any prisoner committed to trial for either offence, a magistrate had no discretion and was legally bound to admit him to bail.

[David Orsam]

You know there is a big difference between a misdemeanor and an idictable misdemeanor, which is what Tumblety was charged with.

Have you considered that this is why I continually refer you to the Indictable Offences Act of 1848?

[David Orsam]

Trevor doesn't understand the word discretionary.


He quotes it over and over again but then says it means the Magistrate could not possibly have granted bail.

Am I the only one confused by this logic?

GUT just to answer you on this. No, you are not the only one confused and the logic is clearly twisted but, in Trevor's mind, if it was discretionary then bail couldn't possibly have been granted because Tumblety was a foreigner. Never mind that foreigners were in fact granted bail, that's how he thinks.

Of course, my point is that, although, yes, technically the magistrate had discretion at the remand hearing, it wasn't really discretionary in practice because what would be the point of refusing bail at the remand hearing on the basis of a flight risk only to grant it a week later (as he had to) when that risk has increased tenfold due to the prisoner having definitely been committed for trial?

I have given Trevor a lifeline, or rather a straw to grasp at, in telling him that the police could have informed the magistrate that more serious charges were likely to follow which would then make it rational for bail to be refused before those charges were presented at the committal hearing. And, hey, they might well have done that if they were frantically trying to find evidence of his guilt of the Whitechapel murders where an extra week of him in prison might have been very helpful (not that Trevor would ever accept the possibility of this!). But even without that, Trevor won't take the lifeline, no doubt because refusal of bail only becomes a theoretical possibility when Trevor really wants to say that would have been a probability if not an absolute certainty.

[Errata]

I remember when I was a teenager someone found a baby snapping turtle and was trying to kill it. Which outraged me. So I ran in and grabbed it. And I knew how to handle them, but I was fending off the guy with bat as well, and the turtle bit down on the skin between by thumb and forefinger. Which hurt, but not the worst thing since it was a baby. I named it Miles. So I took it to the creek to let it go. It wouldn't let go. I sat with my arm submerged to the elbow in the water for two hours. It wouldn't let go. I drove an hour and a half to a rescue center with that turtle my hand in a bag of water. Damn thing fell asleep. It gave every sign it was going to let go. It wouldn't let go. The biologist tells me that there's nothing he can do, because it either won't make it let go, or it will injure it fatally. The only option is to kill it, and because it's attached to my hand he can't do it the most humane way, so he has to do it the quickest way. He cut its head off and then dissected the jaws to free my hand.

It doesn't matter that it isn't food, and it doesn't matter that it apparently is not in enough danger to even keep from falling asleep. There was no reason for it to hang on. It could have lived a long life if it had let go. It was fighting a battle that did not have to be fought and was entirely the wrong time/ place/ opponent anyway. It couldn't win, it couldn't lose. IT WOULD NOT LET GO.

I can't imagine what made me think of that turtle.