Jack the Ripper-The Secret Police Files

[Monty]

Hi David,

As Adam Wood and I, in conjuction with the Met and City of London Police Orphans Fund, have spent the last nine months heavily working on a new book all about the Code ( due later this month plug plug), I dont think they'd appreciate me revealing any content.

However, there are two incidents, one occurring in the 1880s, the other in the 1920s, where a magistrate turned to the Code for guidance when drawing conclusion on a matter. One, granted, in connection to police action, and one connected to legal definition, and these are included in the book. So yeah, the Code was referred to regarding matters beyond police action.

Yes its guidence, however that guidence is based upon General Orders, and points of law. It was referred to by Clerks (who, in my experience, tend to be the legal font most Magistrates turn to during hearing proceedings), which kinda gives an indication it was more that a mere reference piece to be discarded if not agreed with, but actually held some consideration. Its 50 year longevity also shows its status with regards police procedure.

However, you are correct. The magistrate makes decisions based on law, not the Code, and whilst it may be referred to, if the law permits, magistrates can dictate bail action as he sees fit. So they are not bound by the Code, but rather the law. That said, the Code was commonly reffered to, simply because it was easy to use.

And that is my final post on the matter. My intention was not to provide ammunition for yourself, or Trevor, but rather give the reader as much information as possible in the hope it helps in the understanding. It holds no sway in a matter which is fluid.

I apologise for the grief.

Monty
☺


PS Are you seriously telling me that magistrates are familiar with law? Judges, yes, Stipes, yes....but magistrates? ;-)

[GUT]

Monty

Do you still have unqualified Magistrates in UK?

I assumed that they were now all qualified lawyers.

[John G]

It seems to me that there was some confusion at the time as to whether magistrates were entitled to refuse bail, for the type of misdemeanour Tumblety was charged with, at the remand hearing. I would ask if anyone can cite a single case were bail was denied at the remand hearing in respect of a misdemeanour offence.

Oscar Wilde's case is certainly an anomaly. However, it should be remembered that he was also denied bail at the committal hearing, which was in clear contravention of the Indictable Offences Act. Why then did the magistrate fail to apply the law in this case? Especially as by taking such an approach he would he placing himself in some peril, I.e he would be committing a misdemeanour himself!

David suggests, in his article, it was because the magistrate believed, in error, that Tumblety had been charged either with conspiracy to commit a felony (possibly amounting to a felony), or an attempt to commit a felony (buggery) which, whilst still a misdemeanour, would have fallen under one of the limited number of misdemeanours for which bail could be legitimately denied at the committal hearing.

Of course, the police could have indicated to the magistrate at Tumblety's remand hearing that more serious charges might be added to the indictment, I.e buggery (a felony), which could have resulted in a denial of bail. However, as I understand it that would have been a rare occurrence.

[Trevor Marriott]

It seems to me that there was some confusion at the time as to whether magistrates were entitled to refuse bail, for the type of misdemeanour Tumblety was charged with, at the remand hearing. I would ask if anyone can cite a single case were bail was denied at the remand hearing in respect of a misdemeanour offence.

Oscar Wilde's case is certainly an anomaly. However, it should be remembered that he was also denied bail at the committal hearing, which was in clear contravention of the Indictable Offences Act. Why then did the magistrate fail to apply the law in this case? Especially as by taking such an approach he would he placing himself in some peril, I.e he would be committing a misdemeanour himself!

David suggests, in his article, it was because the magistrate believed, in error, that Tumblety had been charged either with conspiracy to commit a felony (possibly amounting to a felony), or an attempt to commit a felony (buggery) which, whilst still a misdemeanour, would have fallen under one of the limited number of misdemeanours for which bail could be legitimately denied at the committal hearing.

Of course, the police could have indicated to the magistrate at Tumblety's remand hearing that more serious charges might be added to the indictment, I.e buggery (a felony), which could have resulted in a denial of bail. However, as I understand it that would have been a rare occurrence.

John
I think you are missing the point there were certain misdemeanors to which bail was automatic at the magistrates court. Gross Indecency was not one of those, it was an Indictable misdemeanor giving the magistrate a discretionary power with regards to the granting of bail, based on what objections if any the police would have made with regards to the granting of bail at that early stage.

https://www.trevormarriott.co.uk

[John G]

John
I think you are missing the point there were certain misdemeanors to which bail was automatic at the magistrates court. Gross Indecency was not one of those, it was an Indictable misdemeanor giving the magistrate a discretionary power with regards to the granting of bail, based on what objections if any the police would have made with regards to the granting of bail at that early stage.

www.trevormarriott.co.uk

Hello Trevor,

There were a limited number of indictable misdemeanours for which bail could be denied at the committal hearing, I.e an attempt to commit a felony, but indecent assault didn't fall under that category: this was somewhat nonsensical anyway, because even for those offences an accused, if denied bail at the committal hearing, could immediately apply to a judge in chambers for a writ of habeas corpus, under the Habeas Corpus Act, which the judge would be bound to grant: see R v Bennett (1870).

For all other misdemeanours, I.e indecent assault, there was uncertainty as to whether the Indictable Offences Act, 1848, provided an implied right to bail at the remand hearing. In fact, this very point was raised by defence counsel in R v Manning, a December 1888 case. And Douglas, in the 1907 edition of Summary Jurisdiction Procedure, was only prepared to state, somewhat guardedly, that it was only the "generally received impression" that the right of bail in a misdemeanour doesn't arise until the committal hearing.

In fact, certain textbooks at the time, such as Harris' Principles of the Criminal Law, argued that, for the type of misdemeanour Tumblety was charged with, the right to bail arose at the remand hearing.

[Trevor Marriott]

Hello Trevor,

There were a limited number of indictable misdemeanours for which bail could be denied at the committal hearing, I.e an attempt to commit a felony, but indecent assault didn't fall under that category: this was somewhat nonsensical anyway, because even for those offences an accused, if denied bail at the committal hearing, could immediately apply to a judge in chambers for a writ of habeas corpus, under the Habeas Corpus Act, which the judge would be bound to grant: see R v Bennett (1870).

For all other misdemeanours, I.e indecent assault, there was uncertainty as to whether the Indictable Offences Act, 1848, provided an implied right to bail at the remand hearing. In fact, this very point was raised by defence counsel in R v Manning, a December 1888 case. And Douglas, in the 1907 edition of Summary Jurisdiction Procedure, was only prepared to state, somewhat guardedly, that it was only the "generally received impression" that the right of bail in a misdemeanour doesn't arise until the committal hearing.

In fact, certain textbooks at the time, such as Harris' Principles of the Criminal Law, argued that, for the type of misdemeanour Tumblety was charged with, the right to bail arose at the remand hearing.

John
You have to realize that when bail is refused it is not a case of walking out of one court and into another to make a new application. These processes to which you refer take time to put in place.

If Tumblety did not appear until Nov 8th and bail was refused I would suggest that to instigate any of those processes you refer to would have taken at least 48 hours or even longer.

A writ of habeas corpus would have to be served on the governor of the prison and orders that the prisoner be produced to a court to show that the prisoners detention is lawful, well if a magistrate had remanded him would that not have been lawful. If he was remanded on the 8th. He could not have been produced as a result of that writ on the 8th in any event. What other court would he go to, no point in taking him back to the magistrates. He would have to go to a higher court. In effect it would be an open Judge in chambers application

But of course there is nothing anywhere to suggest bail was granted before committal is there?

And you seem to want to ignore the magistrates discretionary powers. As I said before they were in place and again I say whats the point in a magistrate having that option if he is never going to use it. It is there specifically for cases such as Tumbletys.

Forget the "general right" each case had to be assessed on it merits and Tumblety at his initial remand hearing had absolutely nothing in his favor to convince a magistrate that he should be bailed there and then.

In any event appearing at court on Nov 8th would have meant that any bail with or without sureties must have happened on that day, and that day only, for him to be free that same night when Kelly was murdered.

It didnt happen !

https://www.trevormarriott.co.uk

[David Orsam]

Hi Monty,

Thank you for your very helpful answer. I hope you understand why I felt the need to ask you for clarification on this point. It wasn't for "ammunition" against Trevor at all but your original post, while clear enough to a normal reader of this forum, would have led Mr Marriott into believing that the bail decisions of a magistrate might somehow have been influenced by the Police Code.

The critical point here is that the entry on Bail in the Police Code is advice to police about when to admit a prisoner to police bail and comes under the very clear heading "Admission to Bail by a Police Officer". It relates to police bail for misdemeanour offences for which a person was liable to be summarily convicted by a magistrate but not any form of indictable offence, which is what Tumblety was charged with.

The only thing about your post that I didn't really understand was your question "Are you seriously telling me that magistrates are familiar with law?". The answer is yes I would seriously expect a magistrate to be "familiar" with the law, certainly in terms of bail procedure because they dealt with it on a day to day basis. They might not have been experts, which I think is what you are really asking, and so the Police Code might on occasion have been a helpful little summary for them of obscure bits of law, but they certainly would not have needed it for decisions on bail which is really the only point I want to make about the Police Code. James Hannay was a former barrister and I would have expected him to have had a working knowledge of the law and specifically a working knowledge on bail procedure.

[David Orsam]

Oscar Wilde's case is certainly an anomaly. However, it should be remembered that he was also denied bail at the committal hearing, which was in clear contravention of the Indictable Offences Act. Why then did the magistrate fail to apply the law in this case? Especially as by taking such an approach he would he placing himself in some peril, I.e he would be committing a misdemeanour himself!

David suggests, in his article, it was because the magistrate believed, in error, that Tumblety had been charged either with conspiracy to commit a felony (possibly amounting to a felony), or an attempt to commit a felony (buggery) which, whilst still a misdemeanour, would have fallen under one of the limited number of misdemeanours for which bail could be legitimately denied at the committal hearing.

Hi John,

I didn't go into it in the article but Bow Street was an extradition court which regularly dealt with serious offences and, while I did not research the matter, I have a feeling that it was rare for Sir John Bridge to be dealing with misdemeanour offences, especially an offence such as gross indecency. So, despite being the Chief Magistrate, his working knowledge of the law on bail for misdemeanours might not have been great (but I would need to do more research on the types of cases that came before him to be able to say this with any degree of real confidence).

Having said that, a felony was no more than "a serious offence" so if he regarded any form of homosexual behaviour as a serious offence then he might automatically have categorised a gross indecency offence as a felony.

Prior to the 1848 Act magistrates were prosecuted for refusing bail for misdemeanours. The 1848 Act clarified the law so that wrongful refusals were very rare and by the 1880s a prosecution of a magistrate was more of a theoretical possibility only. I don't think there was any chance of a prosecution of Sir John Bridge, especially in a such a case as Wilde was charged with and Wilde's lawyers knew it.

[John G]

John
You have to realize that when bail is refused it is not a case of walking out of one court and into another to make a new application. These processes to which you refer take time to put in place.

If Tumblety did not appear until Nov 8th and bail was refused I would suggest that to instigate any of those processes you refer to would have taken at least 48 hours or even longer.

A writ of habeas corpus would have to be served on the governor of the prison and orders that the prisoner be produced to a court to show that the prisoners detention is lawful, well if a magistrate had remanded him would that not have been lawful. If he was remanded on the 8th. He could not have been produced as a result of that writ on the 8th in any event. What other court would he go to, no point in taking him back to the magistrates. He would have to go to a higher court. In effect it would be an open Judge in chambers application

But of course there is nothing anywhere to suggest bail was granted before committal is there?

And you seem to want to ignore the magistrates discretionary powers. As I said before they were in place and again I say whats the point in a magistrate having that option if he is never going to use it. It is there specifically for cases such as Tumbletys.

Forget the "general right" each case had to be assessed on it merits and Tumblety at his initial remand hearing had absolutely nothing in his favor to convince a magistrate that he should be bailed there and then.

In any event appearing at court on Nov 8th would have meant that any bail with or without sureties must have happened on that day, and that day only, for him to be free that same night when Kelly was murdered.

It didnt happen !

www.trevormarriott.co.uk

Hello Trevor,

For the misdemeanour that Tumblety was charged with, indecent assault, there was, of course, an automatic right to bail at the committal hearing. However, as noted in my earlier post, there does appear to have been some confusion as to whether the Indictable Offences Act, 1848, created an implied right to bail at the remand hearing. In any event, to refuse bail at that stage would be somewhat pointless as bail as there was no doubt that bail had to be granted at committal. Of course, if bail was granted that doesn't mean that Tumblety would have been able to meet all the bail conditions, I.e provision of sureties.

[David Orsam]

And John, I really admire you entering into debate with Trevor and good luck with it. I found it impossible but perhaps you will do better.

Don't be misled by his extraordinary references to 8 November. Tumblety's bail hearing was on 7 November and this is absolutely clear from the Central Court Calendar, prepared by the governor of Holloway prison, which said he was received into custody, i.e. admitted to Holloway Prison, on 7 November 1888. Admission to prison on remand was only possible after Tumblety's remand hearing and must have been on the same day as his remand hearing because prisoners were not kept in the cells of the magistrates' courts overnight.

There is no possible debate on this.

And if you are as confused about his reference to habeas corpus as I am, don't worry, he is talking nonsense. I'm not sure he is ever going to understand the simple point that bail being compulsory on committal meant that in practice it was almost invariably granted at the remand stage.

[Trevor Marriott]

Hello Trevor,

For the misdemeanour that Tumblety was charged with, indecent assault, there was, of course, an automatic right to bail at the committal hearing. However, as noted in my earlier post, there does appear to have been some confusion as to whether the Indictable Offences Act, 1848, created an implied right to bail at the remand hearing. In any event, to refuse bail at that stage would be somewhat pointless as bail as there was no doubt that bail had to be granted at committal. Of course, if bail was granted that doesn't mean that Tumblety would have been able to meet all the bail conditions, I.e provision of sureties.

But he would not have been released until sureties were in place. This whole argument revolves around the question was Tumbeyy bailed on Nov 8th with or without sureties? Orsam even concedes that he was remanded in custody albeit according to him for one day only. If that be the case he would not have been free until Nov 9 after Kellys murder.

https://www.trevormarriott.co.uk

[Trevor Marriott]

And John, I really admire you entering into debate with Trevor and good luck with it. I found it impossible but perhaps you will do better.

Don't be misled by his extraordinary references to 8 November. Tumblety's bail hearing was on 7 November and this is absolutely clear from the Central Court Calendar, prepared by the governor of Holloway prison, which said he was received into custody, i.e. admitted to Holloway Prison, on 7 November 1888. Admission to prison on remand was only possible after Tumblety's remand hearing and must have been on the same day as his remand hearing because prisoners were not kept in the cells of the magistrates' courts overnight.

There is no possible debate on this.

And if you are as confused about his reference to habeas corpus as I am, don't worry, he is talking nonsense. I'm not sure he is ever going to understand the simple point that bail being compulsory on committal meant that in practice it was almost invariably granted at the remand stage.

Almost invariably now in my book that means not every time !

https://www.trevormarriott.co.uk

[John G]

Hi John,

I didn't go into it in the article but Bow Street was an extradition court which regularly dealt with serious offences and, while I did not research the matter, I have a feeling that it was rare for Sir John Bridge to be dealing with misdemeanour offences, especially an offence such as gross indecency. So, despite being the Chief Magistrate, his working knowledge of the law on bail for misdemeanours might not have been great (but I would need to do more research on the types of cases that came before him to be able to say this with any degree of real confidence).

Having said that, a felony was no more than "a serious offence" so if he regarded any form of homosexual behaviour as a serious offence then he might automatically have categorised a gross indecency offence as a felony.

Prior to the 1848 Act magistrates were prosecuted for refusing bail for misdemeanours. The 1848 Act clarified the law so that wrongful refusals were very rare and by the 1880s a prosecution of a magistrate was more of a theoretical possibility only. I don't think there was any chance of a prosecution of Sir John Bridge, especially in a such a case as Wilde was charged with and Wilde's lawyers knew it.

Hi David,

Thanks for the reply. Yes, and as discussed earlier I think the authorities were determined to make an example of Wilde. I.e following his disastrous decision to prosecute the Marquis of Queensbury for criminal libel.

I also wonder if Sir John Bridge might have been deliberately vague when he referred to 'the gravity of the offences." In other words, he could subsequently argue that he was under a misapprehension that Wilde had been charged with a felony, or one of the limited number of misdemeanours for which he could legitimately deny bail. And, as you say, in a case such as this there would be no realistic prospect that the magistrate would be disciplined or prosecuted for such an error.

[John G]

But he would not have been released until sureties were in place. This whole argument revolves around the question was Tumbeyy bailed on Nov 8th with or without sureties? Orsam even concedes that he was remanded in custody albeit according to him for one day only. If that be the case he would not have been free until Nov 9 after Kellys murder.

www.trevormarriott.co.uk

Hello Trevor,

But, as David points out, Tumblety was received into custody, at Holloway Prison, on 7 November, following his remand hearing: his detention had to be as a consequence of the remand hearing otherwise there would be no lawful reason for him to have been remanded into prison custody on that date.

Therefore, it would surely have been possible that he managed to satisfy his bail conditions the next day, I.e November 8, which would have resulted in his release on that date.

[Trevor Marriott]

Hello Trevor,

But, as David points out, Tumblety was received into custody, at Holloway Prison, on 7 November, following his remand hearing: his detention had to be as a consequence of the remand hearing otherwise there would be no lawful reason for him to have been remanded into prison custody on that date.

Therefore, it would surely have been possible that he managed to satisfy his bail conditions the next day, I.e November 8, which would have resulted in his release on that date.

That is his interpretation of that record
He accepts a 7 day remand

Go back and read one of my recent post which shows that a 7 day remand based on a nov 7th appearance take the date to nov 13th whereas a nov 8th appearance takes the date to nov 14

Perhaps you you start believing me !

https://www.trevormarriott.co.uk