Fair and Unfair Trials in the British Isles, 1800-1940

Editors: David Nash and Anne-Marie Kilday
Publisher: Bloomsbury Academic, 2020. 256 pages.
Reviewer: Peter Morrall ǀ March 2022

At first glance, the theme of fair and unfair trials occurring in one small geographical region (the British Isles) during one narrow historical period (1800-1940) might appear an esoteric and eccentric topic with limited, if any, relevance to either past or present significant societal or scientific concerns. Having read the book, this initial estimation of the value of this micro-historical account was misjudged. Moreover, what might have become an admirable if tedious scholarly narrative about the quirks of past legal systems is enlivened through the use of intricately described case studies in which judicial processes and structures are shown to be impregnated with ignoble maliciousness and mistakes. The case studies also lay bare the perniciousness and blundering carried out by both members of the public who become entangled unwittingly with the legal system, and the professionals engaged intentionally to oversee that system supposedly without discriminatory fidelities.

There is a complex morass of minor and major inadvertent and intentional maladministration of fairness at the macro and micro levels of judicial processes whether this is in medieval or modern times. Injustice is both obscure and obvious in both economically developed and underdeveloped parts of the world today. Partiality permeates contrasting cultures and dissimilar political systems. Today, the right to a fair trial is entrenched in national and international legislation as well as the statues of non-government agencies, and the training of lawyers and the police, and the appointing of judges in countries such as Britain — all are designed to expedite justice. Despite these advances in the administration of the criminal justice systems and the professionalism of criminal justice personnel since 1940 specifically intended to affirm fairness, the surreptitious minutiae of individual and institutional partiality is not always excludable, and major malefactions are not always preventable or correctable.

During the 20th century, Amnesty International has identified judicial transgression, at times both substantial and flagrant, in Uzbekistan, the Democratic Republic of the Congo, Saudi Arabia, Mexico, Iraq, Iran, Yemen, Malaysia, Egypt, Senegal, Indonesia, Tunisia, China, Syria, and Russia. The European Court of Human Rights has highlighted thousands of cases of unfair trials in a multitude of countries, including those ostensibly with the most sophisticated systems for delivering coherent and candid jurisprudence. For example, law professor Adam Benforado (in his book ‘Unfair: The New Science of Criminal Injustice’, 2016, New York: Crown) argues that the criminal justice system in the United States of America in the 21st century remains inculcated with inaccuracies and injustices. Apart from institutional inequities, Benforado contends, a significant quantity of the unfairness arises from the engrained personal preferences and prejudices of those with a formal role ostensibly delivering justice. This includes judges, jurors, lawyers, and the police. The consequence of these proclivities can be the acquittal of the guilty and punishment of the innocent, exactly the opposite of what a fair trial should achieve.

Judicial processes when they are unfair, rather than this being an exceptional element of an otherwise rational and objective set of societal systems and institutions, may merely signify humanity’s pervasive and persistent shortcomings. That is, society does not always operate rationally because, as psychologists such as Daniel Kahneman have repeatedly revealed, human performance is replete with irrationalities. Sociologists might want to add that it is the irrationality of society that instigates human senselessness. More likely, there is a complex interplay between human behaviours, thoughts and emotions, and society which leads to frequent and forceful foolishness in decision-making. Identifying the cause-and-effect connections between human performance and societal structures and institutions is essential if judicial fairness is to surpass unfairness. That would seem an improbable achievement for all legal situations, especially as comprehensive and constant fairness does not exist outside the criminal justice system.

The right to a fair trial has a fascinating history which stretches much further back than the period covered in this book. The book’s editors mention that the Magna Carta Libertatum (a medieval Latin phrase meaning ‘Great Charter of Freedoms’) is cited frequently as a pivotal point in time when a fair trial was given the legal status of a fundamental right. This interpretation of the meaning of Magna Carta provided inspiration for the establishment of the United States founding principles (the Declaration of Independence in 1776, the 1787 Constitution and its subsequent amendments, and the 1789 Bill of Rights), as it did for England’s Bill of Rights of 1689. In turn, these Anglo-American principles directly or indirectly influenced the composing of a raft of legislation and conventions featuring the right to a fair trial. These include: the Geneva Convention in 1929 by the International Committee of the Red Cross; the Universal Declaration of Human Rights by the United Nations in 1948; the 1953 European Convention on Human Rights; the 1959 Inter-American Commission on Human Rights; the 1998 Human Rights Act of the United Kingdom; the 1986 African Charter on Human and Peoples’ Rights of the African Union; and the UK’s Human Rights Act of 1998. The right to a fair trial is also at the core of campaigning by human rights organisations such as Amnesty International, Fair Trials, and the UK mental health charity MIND.

The expectation of fairness in the conduct of criminal trials, however, as with all other social conventions, has come about not from one or even a few historical proceedings, but rather a matrix of events as complex as the interaction between personal and public spheres. Indeed, Magna Carta’s contribution to even-handed jurisprudence is more fictional than factual, more aspirational than actual.

The ‘Great Charter’ asserts that “[n]o free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgement of his peers and the law of the land”.  Reference to ‘no free man’ meant that most of England’s population (who were peasants, and therefore without many if any legal rights) and most women (except heiresses and wealthy widows) were excluded. Moreover, while Magna Carta diminished the absolutism of the king, it did not establish absolutely either the right to trial by jury or prevent arbitrary detainment by judicial authorities. Regarding the latter, habeas corpus did not become law in England until 1679. Before Magna Carta, a barbaric system of justice held sway in Britain and across much of Europe. Between the 9th and 13th centuries a person’s guilt or innocence was determined via trial by fire or water and was overseen by the clergy. This barbaric practice was banned by the Pope Innocent III in the same year that King John signed Magna Carta. By banning trial by such ordeals, the Pope contributed as much if not more to the eventual realisation of trial by jury than did King John’s signing of Magna Carta.

Although the focus in Fair and Unfair Trials in the British Isles, 1800-1940 is on the specifics of a set of trials, the wider societal contexts that influenced and were influenced by fair and unfair judicial processes are fundamental to the book’s thesis. This helps to answer the question of why a collection of lawyers, historians, and a former senior archivist at the prestigious Wellcome Library in London have fixed their attention on a narrow interlude in the history of the application of the law. The first sentence of the book’s introduction, written by the editors, supplies their rationale for investigating 1840-1900. They suggest that during this period the nature of criminal trials changed significantly in Britain and in other European countries including their colonies, and in the USA. Prior to 1820, legal arenas in many of these countries were perforated with predilections formed by cultural norms and vested interests. The courts favoured people in the higher echelons of the social structure at the expense of those struggling with poverty, if not sovereignty and sheer survival, and men over women

For these authors, 1800-1940 is when ‘fairness’ began to be embedded in legal procedures and inculcated the roles of defence and prosecuting lawyers, juries, and judges. It was also when fairness became a key part of the public discourse regarding how the criminal justice system should operate. This was the ‘age of public criticism’, or at least one of many periods whereby the attention of the laity focused on the failings of social institutions. In present times, ‘the age of public criticism’ is perpetual and prevalent particularly in digital forms of communication including social media.

During 1820-1940, popularised views on the criminal justice system were both reflected in and swayed by a burgeoning mass media (newspapers) in which reporting the details of trials had become a staple storyline. However, these reports were not themselves necessarily fair. Whilst fairness and unfairness about trials were often part of the story, the media performed the role of both highlighting prejudice and prejudicing trials.

The eighteenth century had also advanced the delivery of non-legal specialist discernments in courts. But, as with the media, these specialists introduced yet more personal and professional biases into legal processes. ‘Expert’ opinion was also inoculated with factual failings due to the then primitive state of, for example, forensic knowhow and medical knowledge. That is, the expertise of the experts was limited. Conjecture, assertion, and intuition rather than empirically valid and reliable data were the staple component of their self-styled expertise for much of this episode in jurisprudence. The expertise of the police, lawyers, judiciary, and other court-room officials is also claimed by many of the book’s contributors to be questionable.

The editors make the point that a hallmark of the transition from pre-modern to modern society is the establishment of rational and codified customs, behaviour and structures, including those associated with the medical profession and scientific endeavour. The law, however, not only requires such a shift to establish its own legitimacy, but is the underlying component that fosters the authenticity of other societal institutions. Fairness is a core constituent of the legal component. Moreover, when the law is established on these legitimate lines, it operates as mediator between the rulers and the ruled.

In support of the idea that legal rules establishing fairness are the hallmarks of progress of civilisation and good governance, the editors reference sociologists Norbert Elias and Jürgen Habermas. On the other hand, the editors mention ‘Knowledge archaeologist’ Michel Foucault’s view that legal rules (amongst other ‘rational’ and codified regulations) and those who impose them, are a curb on freedom and a manifestation of ideological indoctrination and social control. For Foucault, the law and other apparently legitimate social institutions furnishing fairness, aid the ‘disciplining’ of the populace into accepting the legitimacy of the elites. ‘Fairness’, therefore, becomes an element of indoctrination. The cases presented in this book, however, mainly record arrent unfairness rather than patent fairness.

There is an Introduction and nine subsequent chapters. Many of the chapters commit to a conclusion, but a conclusionary chapter for the whole of the book is absent. There are plenty of cases of murder: the death of a child with the suspected murderer, the victim’s father, escaping justice because of a procedural anomaly; a presumed poisoner of a series of people for profit and whose prospective trial faced much sensationalist media coverage and local public prejudice and therefore was repositioned from the provinces to London’s Central Court, but which nevertheless resulted in conviction and execution; a case of rape and murder again with much pre-trial prejudicial publicity, and the prosecution of the trial taking place alongside a similar one, with both defendants present and having the same jury (both were convicted although the sentence for one was the death penalty and for the other penal servitude for life); a Scottish murder trial in which the competence and honesty of the investigating police officers is questioned.

Two cases concern the justice system in Ireland at a time of that country’s occupation by the British and the related ‘land war’. Two further cases, one concerning an alleged obscene publication and the other suspected blasphemy, reveal illogicality and inconsistency in the law when adjudicating over what is and what isn’t pornography and impiety, and what should and shouldn’t be censored. Such cases seem extremely anachronistic when considered from a contemporary viewpoint. In the last chapter, there is an account of the journalistic distortions and commercial compulsions which magnified if not manufactured melodrama over the escape from prison by a serial criminal and a woman convicted of aiding his escape. True to the sensationalising and stereotyping by parts of the press when reporting on criminal cases, which are identified in the book, in the coverage of this trial the woman is branded ‘the Bob-Haired Bandit’. No mention would appear to have been made in the press of the (male) escapee’s hairstyle.

In what could be considered as an overdue nod to fairness, the editors at the very end of the introduction to the book pay their respects to those involved in amending the law and legal procedures, thereby exposing miscarriages of justice and making amends to try to avoid future unfairness. My own nod to fairness may also seem belated, but this book is a very worthy addition to the historical happenings that have both shaped today’s world, and that continue to happen.

Dr Peter Morrall, Visiting Associate Professor, University of Leeds, UK

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