Garrow's Law: Legal History

English law has a long and fascinating history.  As a subject, it is largely ignored in modern legal education.  This is a pity since there are many lessons to be learned.

The BBC Television series "Garrow's Law" is proving to be very popular.  It is based on criminal trials which took place at The Old Bailey in the 18th century and highlights both the harshness of the system and the unfairness of the trial processes of the day.  The Old Bailey Online website makes available a fully searchable, digitised collection of all surviving editions of the Old Bailey Proceedings from 1674 to 1913, and of the Ordinary of Newgate's Accounts between 1676 and 1772. It allows access to over 197,000 trials and biographical details of approximately 2,500 men and women executed at Tyburn, free of charge for non-commercial use.

A defendant (formerly referred to as "the prisoner at the bar") was not permitted to give evidence on his own behalf until the Criminal Evidence Act 1898.  Today, the defendant may not be compelled to give evidence but is competent to do so - (here).  However, failure to testify might result in inferences being drawn and these might be adverse to the defendant.  The "right to silence" - whilst technically remaining in place - has been abrogated to a considerable extent: Criminal Justice and Public Order Act 1994 ss. 34-39.

A right of appeal from conviction by a jury came with the creation of the Court of Criminal Appeal by the Criminal Appeals Act 1907.   This court superseded that Court for Crown Cases Reserved which could only consider points of law.   It was through cases such as Adolf Beck and George Edalji that the need for an appellate court was shown to be necessary.   The Court of Criminal Appeal existed until 1966 when the modern Court of Appeal with its Civil and Criminal Divisions was created.

Historically, the speedy and almost cursory nature of trials was remarkable and the harshest of punishments were handed down.  Many crimes were punishable with sentences such as death, transportation etc.  Evidence was not tested to anything like the extent applicable today.  As an example, in 1849, an uneducated farm labourer James Griffiths (aged 19) was tried for murder of Thomas Edwards at the Brecon Assizes before Mr Justice Erle and a jury.  The trial lasted less than a full day, Griffiths was undefended and so the very brief evidence of four prosecution witnesses was not tested in any detail.  Erle J offered Griffiths the opportunity to say something to the jury.  Griffiths replied that he did not know what to say - "I leave the case in your hands, my Lords."  The jury took a mere 10 minutes to find him guilty.  He was publicly hanged outside Brecon jail in April 1849 before a large crowd which gathered for the occasion.  (The last public execution in England was in 1868; the last executions in August 1964. The death penalty for murder was abolished in 1965 and the death penalty was finally removed from the law by the Crime and Disorder Act 1998 s.36 - in force 30th September 1998.  The European Convention on Human Rights - Protocol 13 -  prohibits the death penalty in all States which are parties to the convention).

Even in modern times, miscarriages of justice are possible.  However, great care is taken in the process of deciding whether to prosecute and, if so, on what charges.  Crown Court trials entail extensive examination of the evidence.  The draconian sentences of yesteryear no longer exist.  There is an appeal process and there is also the Criminal Cases Review Commission which was set up after the Royal Commission on Criminal Justice considered the aftermath of the Birmingham Six and certain other cases.  Some progress has been made but the quest for justice must always continue and there is little doubt that the rules of evidence have been rebalanced in favour of the prosecution - e.g. admission of "bad character" evidence and a more permissive regime relating to hearsay evidence - Criminal Justice Act 2003.

Addendum 1st December 2010:  For a view that the Criminal Cases Review Commission is a failure - see The Guardian 1st December 2010. The article is by journalist Bob Woffinden who has written extensively on miscarriages of justice.  He criticises the "success" statistics claimed by the CCRC.  He condemns them as "characterised by puisllanimity and procrastination."