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Trial Procedures

How Trials were Conducted at the Old Bailey

English criminal trials from the late seventeenth to the early twentieth centuries were very different from those of today. Trials were quick, lawyers were rarely present, and prosecutors, judges, and jurors exercised considerable discretion in how they interpreted the law. There were some changes to trial procedures during the eighteenth century, and change quickened significantly during the 1820s. Several nineteenth-century reforms improved conditions for the defence, but defendants still operated under severe disadvantages.

Contents of this Article

Introduction

The jury trial, which can be traced back to the middle ages, is often celebrated as the cornerstone of British liberties, but trials in this period contained few of the protections against wrongful convictions which exist today. Trials were quick, with lawyers rarely present (until the early nineteenth century), and, since there was not a fully developed law of evidence, prosecutors, judges, and jurors had more power and flexibility than they do today. Basically the trial involved a confrontation between the prosecutor, normally the victim of the crime, and the defendant, in which the defendant was expected to explain away the evidence presented against them (witnesses also testified on both sides). Although contemporaries thought these procedures provided reasonable means of determining guilt and innocence, from a modern point of view they appear to substantially disadvantage the defence.

A well-dressed defendant is standing in the dock, his legs in irons.  Papers are in his left hand, and his right is over his heart - suggesting he is swearing an oath.  The judges are sitting to the left, and a group of clerks or lawyers occupy the space between.  A woman in the background has fainted.

Trial procedures were continually transformed, both by statute and by judicial discretion and rulings. From the early nineteenth century there was a quickening in the pace of change. Robert Peel initiated a flurry of activity when he became Home Secretary in 1822. He set about consolidating and simplifying statute law and consolidating the procedures for selecting jurymen. He also extended the provision of expenses for prosecutors and witnesses, and gave magistrates the power to bail the accused. His reforms were continued by the Whig government that came in to pass the Great Reform Act. Most notable among the Whigs’ legal reforms was the Prisoners’ Counsel Act (1836).

See also:

 

Initial Accusations

View of the public office, Bow Street, with Sir John Fielding presiding and a prisoner under examination (1779).  The accused is in the foreground facing a court clerk and Fielding is at the other end of the room.  Fielding, who was blind, has a blindfold on.  Spectators line both sides of the room.

Before 1829, London did not have a police force in the modern sense of the term. (See Policing in London.) The responsibility for reporting crime, and in large part for identifying the culprits, fell on the victim. Once the accused was arrested, they were examined by a magistrate, either in the magistrate's own house or more publicly in "rotation offices" such as the one established by Thomas De Veil at Bow Street.

If he was satisfied that there was a case to answer, the magistrate was required to commit the accused to prison to await trial, and bind over the victim (and occasionally witnesses) to appear in court to prosecute the case. Increasingly, over the course of the eighteenth century, magistrates used the preliminary hearing to dismiss weak cases; only committing the accused to prison if they felt the evidence was sufficient to merit a trial. There was debate, however, about how far a magistrate might go in examining the accused during these initial hearings. By 1800 there was a general feeling that magistrates should not seek confessions or do anything other than hear, and make an assessment of, the evidence. From 1848 magistrates were forbidden from interrogating the accused, though they could still cross-examine prosecution witnesses.

Although before 1826 defendants accused of felonies were rarely bailed, those accused of misdemeanours were normally bound over to appear at the next meeting of the court to answer the charges against them. From 1826 magistrates were also able to bail some of those accused of felonies, although they were still required to commit to custody any individual accused of murder and other serious crimes, and those against whom there was strong evidence of guilt.

Drawing Up the Charges

Meetings of the court at the Old Bailey were always preceded by the Sessions for the City of London and the County of Middlesex. Before these two Sessions commenced, the clerks of each court drew up indictments, according to set formulas, based on information about the nature of the crime and the identity of the accused provided in the lists of prisoners supplied by the keepers of Newgate Prison (in the City), New Prison (for Middlesex), or the Gatehouse Prison (for Westminster), as well as the recognizances of those who had been bound over to appear. They could also make use of written informations taken from the parties concerned by justices of the peace, and they may have consulted the victims in person. Decisions taken at this stage of the legal process were important, since the way the offence was defined would determine the punishment the defendant might receive if convicted, and particularly until the early nineteenth century, whether or not the offence was punishable by death. See, for example, the several different offences under the general category of theft.

The Role of the Grand Jury

At both the Middlesex Sessions at Hicks Hall (for Middlesex cases) and at the Old Bailey (for City of London cases), the Grand Juries then met to assess the indictments and decide whether there was sufficient evidence to try the case before a trial jury. At this point prosecutors and their witnesses, but not defendants, could testify. Those cases for which a grand jury believed the evidence was sufficient to warrant a trial were approved as "true bills"; those rejected were labelled "ignoramus" (or "not found") and the case was dropped (these cases do not appear in the Proceedings).

The problem with this system was that the Grand Juries therefore often had very little information to go on and no legal training. Consequently, for most of the period a significant number of cases were rejected and in the early nineteenth century the grand juries in London acquired the nickname "the hope of London thieves". From 1838 a clerk attended meetings of the grand jury at the Old Bailey to offer advice and thereafter far fewer cases were dropped at this stage. There were repeated calls for the abolition of the grand jury throughout the nineteenth century, all of which came to nothing. Nevertheless, its role was gradually reduced as pre-trial investigations by justices and the police weeded out weak cases before indictments were drawn up. Charges of murder and manslaughter formulated by coroner's juries did not need to be approved by the grand jury and these cases automatically went to trial.

The Defendant's Plea

Detail from 1809 trial, showing a defendant testifying at an Old Bailey trial; the mirror in front and above him reflected light from the window onto his face

The prisoners whose indictments had been approved by a grand jury were brought into the court and formally charged. Each prisoner was asked to plead to the charge, which was read to them, and the vast majority pleaded not guilty. Until the reforms of the early nineteenth century, the court encouraged this plea because if a defendant confessed to a crime there was no flexibility in the punishment they could receive, whereas if a trial took place evidence could be introduced which might determine whether the defendant merited a lesser sentence or a pardon. With the decline in death sentences in the early nineteenth century guilty pleas became more common.

Defendants who refused to enter a plea were, unless they were found mute "by visitation of God", subject to the ordeal of peine forte et dure, in which they were forced to lie down and have weights placed on them until they either relented or died. For example see the trial of William Spiggot and Thomas Phillips alias Cross in 1721. This practice, however, was rare, and formally ended in 1772, after which date standing mute was deemed the same as pleading guilty. In 1827 the presumption of guilt was reversed and refusal to plead was redefined as equivalent to pleading innocent.

The Trial

In the late seventeenth century cases at the Old Bailey were tried in batches, with juries hearing perhaps half a dozen trials before retiring to consider their verdicts (sometimes the jurors did not even retire, they just huddled in the courtroom). They were able to do this because trials were very short, averaging perhaps half an hour per case. In a typical day early in the history of the Proceedings the Court might hear between 15 and 20 cases. With the abolition of the death penalty for many crimes in the 1720s, trials became even shorter: in 1833 one commentator calculated that the average trial took only eight and a half minutes. It is likely that the rapidity with which trials were held severely disadvantaged defendants, who had no time to accustom themselves to the courtroom environment. A further difference from modern practice is that the same jury heard numerous cases in a single sessions. New juries were not summoned for each case.

a photograph of the Old Bailey courtroom, 1897, the seats for the judges, counsel, jury and defendant.  A lone man stands in the middle of the courtroom.  The raised judges' platform is at the rear, with the sword of justice above.

Because the Old Bailey court covered two legal jurisdictions, there were separate juries for the City of London and County of Middlesex; while one jury considered its verdicts, the other heard a new batch of cases. As explained in searching for jurors, the Proceedings often indicate which jury tried each case. In 1738 the pressure of business, and the growing imbalance between Middlesex and City of London cases, led to a change in practice: juries were now expected to present their verdicts immediately after each case, without leaving the room. This affected the arrangement of the courtroom (remodelled in 1737): whereas previously jurors sat on both sides of the defendant, now they needed to sit together in order to be able to confer quickly at the end of the trial in order to give their verdict; only in difficult cases did they leave the room. In order to hear the increasing number of trials from Middlesex, additional juries were added in the late eighteenth and early nineteenth centuries.

Each trial started with the clerk reading the charge before the prosecutor presented the case against the defendant, followed by the witnesses, who testified under oath. Witness testimony was the most common source of evidence. The defendant, who until 1898 was not put on oath (it was thought this was a form of compulsion), was then asked to state his or her case. This testimony was often abridged in the published Proceedings. Cross-examinations were conducted by the judges, the defendant, or, increasingly, by defence lawyers. There was no presumption of innocence (until the early nineteenth century), and no right to remain silent. Defendants were expected to disprove the evidence presented against them and establish their innocence. The assumption was that if defendants were innocent, they ought to be able to prove it. They could cross-examine prosecution witnesses and, from 1702, call their own witnesses but, unlike prosecutors, they could not compel witnesses to attend. And since trials were not scheduled, it was impossible to predict precisely when a witness would need to appear in court. Witnesses who could testify to the defendant's good character were especially helpful, since even if the defendant was found guilty, a good reputation might lead to a lesser punishment.

The Role of Lawyers

Lawyers were rarely present in ordinary criminal trials prior to the last decades of the eighteenth century, and only began to appear in a significant number of trials at the turn of the nineteenth century. Lawyers who appeared at the Old Bailey in the eighteenth century hardly ever made it to the very top of the legal profession. They were often accused of being ignorant of the law and of a general incivility, something that was also said to characterise their bullying of witnesses. Such accusations were not always unfounded.

An overweight, bewigged man stands in profile facing leftwards, apparently speaking to the court.  A clutch of papers is held in his left hand. His right hand is raised in exclamation.  He has a prominent wart with hair on the tip of his nose.  Another bewigged man stands behind, and there is a further figure on the left, sitting down, the back of his wig and outline of his body showing above his chair.

In general, the Proceedings fail to report the legal arguments of prosecution and defence lawyers, preferring instead to concentrate on the confrontation between the victim and the accused.

For the Prosecution

There were very few lawyers at trials at the Old Bailey until the 1730s, and even for many decades after that the presence of lawyers was the exception rather than the rule. Prosecutors had always been allowed to have lawyers, but very few did so until the 1720s and 1730s. Their use was encouraged by the growing government practice, from the late 1690s, of funding prosecutions for the most serious offences, such as cases of seditious words and libel, treason, coining, and violent offences such as murder, rape, and robbery. Once their presence as government prosecutors had been accepted, their services were gradually exploited by prosecutors in other cases.

Detail from an 1809 courtroom scene, showing court officials and possibly lawyers seated at a table, just below the judges

The growing use of lawyers during the eighteenth century appears to have in part resulted from the growth of commerce. It was merchants and shopkeepers who hired prosecuting counsel in significant numbers. The use of prosecuting lawyers was further encouraged by a 1752 statute which allowed the courts to reimburse the expences of poor prosecutors if a conviction was obtained. A 1778 statute extended the payment of expences to all prosecutors of successful cases. By 1834 the use of prosecution counsel was widespread. Prosecution briefs written for some publicly funded cases have survived in The National Archives among the Treasury Solicitor's papers and are listed among the Associated Records.

For the Defence

Defendants in misdemeanour cases and treason cases (from 1696) could also employ legal representation, but they were excluded in felony cases (except for the purpose of raising narrow points of law) until the mid-1730s. The justification for this prohibition was that they were thought unnecessary: it required "no manner of skill to make a plain and honest defence" (Hawkins). Moreover, judges were thought capable of looking out for defendants' interests. However, the increasing number of prosecution lawyers from the early 1730s appears to have led the courts to allow defence lawyers in order to help maintain a balance. In addition, the concerns generated by "blood money cases" and the use of corrupt thief-takers encouraged the judiciary to permit counsel to raise points of law on behalf of the accused. Even so, defence lawyers were not allowed to summarise the case in an address to the jury until 1836. In any case, they were rarely used until the late eighteenth century; and even in 1800 only between a quarter and a third of defendants in property cases had counsel.

a man in a white wig stands in the centre of a crowded courtroom, his right arm raised, addressing a witness in a blue frock court, who is wringing his hands in apparent fear.  Two judges sit on the left, and several lawyers are seated in the foreground.

The biggest influence exercised by defence lawyers on trials was through the cross-examination of prosecution witnesses. Defence counsel was often able to question the motives of the prosecutor in bringing the case, and of witnesses for testifying for the prosecutor. When the principals were eligible to receive a reward for a successful conviction, as was the case with thief-takers, or, could earn immunity from prosecution for testifying against accomplices, their word in court was open to doubt. This led to the expectation that evidence from accomplices should be corroborated by another witness. Defence lawyers also contributed to increased scepticism about hearsay evidence and pre-trial confessions, and their participation meant that in some cases defendants no longer needed to speak at all. This eventually led to defendants acquiring the privilege of remaining silent; and in the process contributed to shifting the burden of proof onto the prosecutor.

Over the course of the eighteenth and early nineteenth centuries the balance of power in the courtroom, which had been heavily weighted against defendants, shifted marginally back in their direction. With the exception of cases of murder, however, this shift occurred only for those who could afford the cost of a lawyer. In the 1820s, judges began to assign lawyers to speak on behalf of prisoners accused of serious offences. It was also possible for poor prisoners to secure legal representation by applying to defend in forma pauperis or to find funding for legal assistance through a benefactor. The sheriffs of London provided a fund for such assistance from the early nineteenth century. However, relatively few defendants benefitted from these provisions. It was not until the Poor Prisoner’s Defence Act of 1903 that an effective form of legal aid was introduced.

The Role of Judges

detail from 1841 courtroom scene, showing the judges on a raised platform against the back of the room, with the bottom of the sword of justice just visible on the wall

During the eighteenth century, since lawyers were rarely present, judges played a major role in conducting trials. Although what they said was often omitted or abridged in the Proceedings, judges examined witnesses and the accused and summed up the case at the end of the trial, often clearly stating their own views on the merits of the prosecution. Although, following Bushell's Case (1670), judges were no longer allowed to fine or otherwise punish juries who failed to come up with the verdict they wanted, they could still put pressure on juries, demanding, for example, why they had reached a particular conclusion, or asking them to reconsider their verdict. Where reported, interventions by judges are referred to in the Proceedings as "The Court".

The increasing participation of lawyers altered the role of the judges. They continued to exercise supreme authority in the courtroom, but during the nineteenth century their role gradually shifted to one of arbitrating the adversarial contest between barristers, settling any arguments over the law and summing up for the jury. Throughout the whole period, however, as today the judges were charged with the weighty task of sentencing those found guilty.

The Verdict and Sentence

Detail of a print of a trial from 1809, showing the twelve members of the jury sitting in a three-tiered jury box; the jury appear to be deliberating

The jury retired, or huddled, and reached its verdict. Until 1858 they would be kept without fire, food or drink until a verdict was agreed. In fact, their decisions normally took very little time, which suggests that the views of the foreman and the most experienced jurors tended to predominate. The jury could choose between innocent, guilty, or a partial verdict. In the last case, defendants were found guilty of part of the charges against them, or of a lesser offence. As outlined under trial verdicts there were several vairants of these general verdicts available.

Until the early nineteenth century it was usual for those prisoners who had been found guilty to be brought forward in batches at the end of the sessions to hear their punishments. By the 1840s, however, sentences were commonly passed immediately following each trial. Defendants who were convicted of capital crimes were given a chance to address the Court before they were sentenced, but, perhaps because the publisher did not wish to give any publicity to the convict, these statements rarely appear in the Proceedings.

The judges had considerable flexibility in choosing punishments, which ranged from the death penalty to a small fine (though the punishments available in each case depended on the specific offence for which the defendant was convicted). A "maiden session", when no one was condemned to death, was relatively rare before the reforms of the 1820s. On such occasions the judge was presented with a pair of white gloves.

The punishments imposed by the court, however, were frequently not carried out. Women could "plead their belly", claiming that they were pregnant, in which case they were examined by a jury of matrons and if the jury agreed their sentence was respited. Death sentences were routinely reviewed by the monarch and/or his or her ministers, who had the power to award free or conditional pardons. Some 60% of those sentenced to death in the eighteenth century were pardoned, and this figure rose to over 90% in the 1830s. Judges could also temporarily suspend other types of punishments until the case was heard by the monarch and/or his or her ministers.

Appeal and Review

Those convicted at the Old Bailey had, until 1907, very limited grounds for appeal. It was possible to file a writ of error, but primarily only with respect to the wording of the indictment, and this cumbersome and expensive procedure was rarely used. The only other option open to convicts was to apply for a pardon. All this changed with the passage of the Criminal Appeal Act in 1907, which established the Court of Criminal Appeal, with jurisdiction to hear appeals to both the verdict and sentence in criminal cases.

Judges, on the other hand, could refer any case where they were uncertain about points of law for consideration by the twelve common law judges in Westminster, by directing a special verdict. The decision of the Twelve Judges would be announced at the next sessions. The creation of the Court for Crown Cases Reserved in 1848 formalised this procedure, though this was superseded by the creation of Court of Criminal Appeal in 1907 .

Conclusion

The trial process placed defendants at a disadvantage. Typically without the benefit of legal assistance, they had to organise their cases on their own, normally while in prison awaiting trial. Until the actual trial, they were unaware of the specific evidence that would be presented against them, and therefore had to respond spontaneously to what the witnesses said. This was thought to be the best way of ascertaining the truth. Even after the Prisoners' Counsel Act of 1836 allowed defence lawyers to address the jury, and gave prisoners the right to see copies of the depositions sworn against them, defendants were still unable to see copies of their indictments and were allowed very little time to prepare a defence. In felony cases the accused appeared at the session immediately following his or her committal. This might be only a day before the actual trial and, even at the end of the period defendants in these circumstances had no right to demand extra time to prepare their case.

The empty courtroom No. 1 at the Old Bailey with a row of seats for the judges along the back wall, seats and tables for counsel in the middle, the dock on the extreme right, and the jury box on the extreme left.

Prosecutors could also suffer under this system. They also frequently went without counsel, and judges could be sympathetic to defendants. Witnesses for the prosecution, whose expences had to be paid, did not always appear as promised. But at least prosecutors had the advantage of being able to plan their case in advance, at liberty and at their leisure. Although the increasing use of defence counsel restored some of the balance, many defendants were unable to secure legal assistance. It was thought that the 1836 Prisoner's Counsel Act would actually improve the conviction rate, since it gave prosecutors the right for the first time to challenge defendants' character evidence. For those convicted, however, the full severity of the law was often mitigated through benefit of clergy, partial verdicts, reduced or respited sentences, and pardons.

Introductory Reading

  • Baker, J. H., An Introduction to English Legal History (London, 1971; 2nd edn. London, 1979)
  • Beattie, J. M., Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford, 2001), chapter 6
  • Bentley, D. English Criminal Justice in the Nineteenth Century (London, 1998)
  • Dickens, Charles, A Tale of Two Cities (first published 1859), Book 2, chapters 2 and 3 has a vivid account of a treason trial.
  • King, Peter, Crime, Justice and Discretion in England, 1740-1820 (Oxford, 2000), chapter 7
  • Langbein, John, The Origins of Adversary Criminal Trial (Oxford, 2003)
  • May, A.N. The Bar and the Old Bailey, 1750-1850 (Chapel Hill, N.C. 2003)

For more secondary literature on this subject see the Bibliography.

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