THE POLICE COURT
Edward Abbott Parry
Squeezum. The laws are turnpikes, only made to stop people who walk on foot and not to interrupt those who drive through them in their coaches.
Fielding: “The Coffee-house Politician.”
Act II., Scene II.
When Fielding was made a magistrate for the county of Middlesex in 1748 the popular notion of the office was expressed in the nickname, “The trading justice.” He was paid by fees and had a direct interest in the prosperity of crime. The fees, moreover, were very small, and it was a recognised thing that he should make his office a lucrative one by methods exemplified by Mr. Justice Squeezum in Fielding’s farce. Although the great writer fulfilled the duties of his office with honour, fidelity, and zeal, he has left us in no doubt about the immorality and ignorance of many of his fellow justices. It is a relief to turn from the justice room in Bow Street in the eighteenth century with its rogues and vagabonds on their way to the whipping posts of the Bridewell, and its highwaymen and thieves starting for Tyburn by way of Newgate, and to look on the comparatively civilised picture of a metropolitan police court of to-day.
A century and a half has worked wonderful reforms for us in the world of police and police courts, but one cannot honestly say that nothing remains to be done. Direct bribery is no doubt abolished, justice is fearlessly administered, but there are still traditional methods of imposing fines and imprisonment which cause the poor to think that carriage folk go more easily along the turnpikes of the law than those humble ones who travel perforce on foot.
I am not writing of the police court as the antechamber of the Old Bailey. In relation to the grave crimes against society we may fairly boast that rich and poor are treated much alike. But the police court in matters within its own jurisdiction is a machine for teaching better manners to the poor. It is a somewhat harsh machine, perhaps, but in the main just and necessary at the present state of our evolution.
When folk are naughty and violent and ill-mannered and ultra-selfish, and become a nuisance to their neighbours, the police, if they are poor, take them in hand, but if they are rich they are dealt with differently. Unless they are so extravagantly and absurdly naughty as to become a public as opposed to a private nuisance, there is no necessity for the police to tackle the rich. When two “lydies” go for each other in the gutters of Whitechapel the police step in, but when the same thing happens in Mayfair, society—with a big S—maintains its own discipline.
The reason why rich folk are not so outwardly naughty as poor folk is very much a matter of education and environment. As Lord Haldane in his valuable speech in America explained to us, there is a “system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is ‘bad form’ or ‘not the thing’ to disregard.”
Thus in the days of Sir Anthony Absolute it was “bad form” not to get drunk after dinner, and it was “not the thing” to refuse to fight a duel. These laws of conduct were not enforceable before magistrates, but they were laws all the same, and rich people dared not disobey them for fear of being “cut” by society.
And as the years roll on better education, better housing, better wages, and less of that repressive Sabbatarianism that drives the poorer youngsters into natural mischief will make the police court less and less necessary as a school of manners. The conscience and good manners of all classes attain a higher ideal every day, and the only reason the rich arrive at a better standard of outward manners than the generality of the poor is that they have been caught young and made to practise at it for generations. It is not a matter entitling them to praise, but we are out to set down and discuss facts, and undoubtedly it is so.
For instance, you would expect an Eton boy to play better cricket than a St. Andrews caddie, but the caddie would probably beat the other’s head off at golf. It is environment that does it, and the lesson to be learned is to improve in every way the material surroundings of the poor to the utmost of our ability. Meanwhile the police court seems to me as necessary a part of our equipment as a sewage works or an ashpit.
Crime is not only a matter of heredity and education, it is also a question of geography. This geographical distribution of crime is an intensely interesting subject. You will find that Cardigan, for instance, is the whitest county in England and Wales for crimes of all kind, whether against property, morals, or of a violent character. Glamorgan, on the other hand, is only beaten by Monmouth in records of crimes against property; in crimes of violence Glamorgan is easily first; in crimes against morality Glamorgan again is only beaten by Dorset, Berks, Lincoln and Huntingdon, the latter taking the 1905-09 record very comfortably. Monmouth, happily, in this latter class of crime is in a far better case than her neighbour.
If you can trace the history and causes of different crimes in different districts I believe you may hope to sterilise a county of certain crimes by moral sanitation and stamp them out just as we have rid counties of typhus and the plague. In dealing with uncivilised crimes of mischief and destruction we should always bear in mind that the poor who do these acts are very often only human beings who have not been cultivated up to modern standards. Some crimes are traditional in certain districts, and the imitative faculty being strong in criminals, heredity and mimicry work together to cause a certain historicity in crime.
Magistrates and others do not sufficiently study this. Patriotic county officials loudly deny what everyone who reads the Judicial Statistics knows to be true. In discussing the Edalji case I pointed out that to anyone who studied the history of crime it was far more likely that such crime would be committed by a native of the county than by a gentleman of Parsee descent. This seemed to annoy some ardent Staffordshire folk, but there is no reason why it should. Killing and maiming the cattle of others is a very ancient pursuit and has only recently been regarded as criminal. The wicked man in the Bible was often threatened with the destruction of his cattle. No doubt the righteous man was encouraged thereby to take upon himself the duty of avenging his wrongs by destroying his wicked neighbour’s cattle, and the wicked neighbour, believing himself to be the righteous one, retaliated in kind. Certain it is that in border countries we always read of cattle raiding and killing and maiming, and perhaps one reason why Staffordshire is old fashioned in the cattle-maiming business is that it was a border country, and in the good old days the lords and squires raided cattle and destroyed their neighbour’s farms and boundaries, and these antiquated habits remain with some as natural instincts of revenge.
In early days such acts were not considered criminal. The only malicious injury to property known to the English common law as a crime was arson. It was not until the time of Henry VIII. (37 Hen. VIII., c. 6) that it was discovered that there were “divers sundry malicious and curious persons, being men of evil and perverse disposition and seduced by the instigation of the devil, who, to damnify the king’s true subjects went about burning frames of timber ready to be set up and edified for houses,” and broke down dams and moats or cut away lead pipes, or barked apple trees, or cut out beasts’ tongues, which seems a very ancient and horrible form of maiming cattle. The penalty for these latter offences was the inadequate fine of ten pounds.
In 1722 came the Black Act which made it felony without benefit of clergy to “unlawfully or maliciously kill, maim, or wound any cattle.” In 1861 a Malicious Damage Act (24 & 25 Vict. c. 97) was passed, codifying all the law relating to such offences, and that is the Act under which Mr. Edalji was indicted.
I have worked out the geographical statistics of cattle maiming in England for forty years, from 1861 to 1900, and they are extremely interesting. In the first place it is well to know that the total number of such crimes is rapidly decreasing. In five years, from 1865 there were over a hundred cases; in five years prior to 1900 there were less than fifty. The counties, which total more than twenty cases each, are York, Sussex, Middlesex, Lincoln, Lancashire and Staffordshire. Somerset and Gloucester have nineteen cases, but Gloucester has only one case since 1882 and Somerset only six cases since 1870. Surrey has only eleven cases, and only five occur since 1870. Anglesey[Pg 219] and Westmoreland have only one such charge each during the whole forty years. In the case of Staffordshire, in the twenty-two cases taking place from 1861 to 1900 fifteen cases had taken place since 1877, and there is never a clear five years in the period without a case.
In 1903, when the Wyrley outrages took place, it seems to me that a county with this history would have been sensible to look at home for the criminal. In counties such as Somerset and Surrey, where the offence seemed then to be dying out, the same considerations would not apply. Whereas in Westmoreland or Anglesey the expectation would be that the crime was committed by a stranger. I do not think it would be wise to press these speculations too far, but at the same time I think magistrates and police might make greater use of the wonderful statistics that are collected and published by the State at such great expense and learn useful lessons from them in their daily business.
Whilst we condemn the horrible savagery of such crimes it is only fair to remember that the law does not punish them for their cruelty, but only for their injury to property. Prevention of cruelty to animals is a far more modern branch of law, the beginning of which dates from 1822. When Lord Erskine moved his Bill against Cruelty to Animals in 1811, so absurdly sentimental did it seem to the assembled peers that they drowned his speech in a chorus of cat-calls and cock-crowing. It is well to remember when measuring punishment in the police courts that there are individuals and classes existing to-day that are scarcely more civilised than the lords and barons of a hundred years ago.
The feudal lords and their henchmen did many things in the good old days in their quarrels with their neighbours which to-day would bring them before the justices. They wounded with intent, they did grievous bodily harm to anyone who annoyed them, and they did as much malicious damage to property as seemed in their own eyes a fair set off for insults had and received. Among a certain small degraded class in our own country these traditional pleasantries of the country-side are not fully recognised to be crimes. There are a set of men among whom it is not “bad form” to commit these acts. This form of atavism requires not only pity but further and better repression at the hands of capable police.
As long, therefore, as we have these hereditary tendencies to crimes of violence and selfishness, the police court seems to me to meet a felt want. I can imagine a better world without any police court, just as I can imagine this world with a better police court.
But I should like to see imprisonment kept entirely for evil-doers, and that side of the police court work which consists in rate collecting and semi-civil proceedings transferred elsewhere. At present many are sent to gaol in the police court for the crime of poverty. In the cases of non-payment of rates or of orders on parents to pay subscriptions to industrial homes it seems a very bad policy to send a poor man to prison. It takes a man from work, it does not produce money, and it throws a family into the workhouse.
In these cases there is no pretence of proving a man’s means and sending him to gaol because he can pay and won’t. No such evidence is necessary. The man goes to prison because he is poor and has not the money to pay. If the State thinks fit to put a man’s child in a reformatory, one would think it might stand the expense of it, without ruining the home by imprisoning the father because he cannot subscribe towards his keep.
With regard to orders for maintaining a separated wife, or affiliation orders, everyone would have less sympathy with the man who is sent to prison for not paying these. But if a man has not the money he does not make any in prison, and what these poor women want is regular weekly money.
These are special cases in which I think power to attach a man’s wages up to a certain percentage would be a just and reasonable proposition. Such a law might be unpopular with mankind, but it seems fair to the women. Whether it would tend to increase or decrease maintenance and bastardy orders I have not the least idea.
“Five shillings and costs or seven days.” This familiar phrase, as Count Smorltork says, “surprises by himself” the whole philosophy of police courts. Nothing is more marked in the treatment of rich and poor in the police court than the unfair incidence of fines. Take, for instance, the common case of a motor-car driver being fined forty shillings and costs for exceeding the speed limit and driving to the danger of mankind. If his master is a Cabinet Minister, say, he writes a civil letter to the clerk to the magistrates expressing his regret and enclosing the needful, which is just two five-thousandths of his official income.
But supposing he is a taxi-cab driver who owns his cab, or is buying it on the hire system, as many do. He, too, is fined forty shillings and costs, and as he earns, let us say, forty shillings a week, he has to pay one fifty-second of his income.
If he cannot raise the money his home is distrained on, or there is the option of imprisonment. That kind of option never worries the Cabinet Minister or the chauffeur thereof. In the old tithe days the parson took his tenth from rich and poor alike, and was no respecter of persons; all he wanted was one-tenth of your income in cash. As between Cabinet Minister and cabman the relation of fine should be as two pounds to ninepence—that is to say, if the law in the police courts desires to treat rich and poor alike.
There is no difficulty about doing this. All that is wanted is to enact in your statute that the fine should “not exceed one-fiftieth or one one-thousandth of a man’s income.” Then all would be fined off the same mark. At present the poor man is the scratch man, and the greater the wealth the longer the handicap.
As to costs, they should be wholly abolished. They are not only an odious tax on the poor, but they give the officials of the court an unholy incentive to make the court a paying concern, and, what is worse, give every clerk and officer in the police court a direct pecuniary interest in convictions. As things stand to-day a council of city men are not likely to advance salaries where their police court is losing money. A godly and righteous police court should glory in losing money year by year.
And whilst I recognise that at the head of each police court there should be a stipendiary to deal with the more important cases, and always to be within call when there are cases to try in which the local magistrates have a class interest, yet I have no desire to abolish Dogberry, nor do I take any pleasure in reading that he has written himself down an ass. In our chief cities there are now excellent stipendiaries and magistrates of all classes, including representatives of working men, and all can testify how—taking the police court system as it stands—it is worked fairly and carefully and to the advantage of all.
But these places are far ahead of the county towns and districts where the squire and parson reign supreme, and the clerk to the justices is their own faithful attorney. I believe thoroughly that these men do their best, but it is quite impossible that they can take a normal view of such horrible crimes as the rape of a pheasant’s egg or the snaring of a hare. It is from the beautiful little corners of the lovely English country that the bitter cry of injustice in the police courts makes itself heard from time to time in the public Press. Why should not every hamlet have its Village Plowden to brighten life on the country side?
There we see, let us hope, the last of a decaying and rotten system—justice administered by a class unlearned in law, and unlearned in a far more important branch of their business—the knowledge of the works and days and temptations of the fellow sinners whose judges they have elected themselves to be. In the remote country places more than anywhere is the stipendiary a necessity. Meanwhile, why should not direct representatives of the agricultural labourer be placed upon the bench if we are not to abolish Dogberry altogether?
While these words are being written, an effort is being made with a Criminal Administration Bill to do away with some of the abuses of the police court. The imprisonment of people for non-payment of fines is really imprisonment for poverty, and the scandal of it is at last officially recognised and the necessity of reform admitted. That, at all events, is to the good, though it is to be hoped that if the Bill at present put forward is to pass it will be widely extended and simplified.
It is quite a good thing to enact that it shall be obligatory upon magistrates to grant time for the payment of fines, but seeing that the magistrates have always had this power and never used it to any useful extent it would be well that there should be less discretion about the matter. Law for lay magistrates should be automatic and fool-proof. When you enact that a magistrate is obliged to allow time for payment of fines, “unless the Court for any other special reason expressly directs that no time shall be allowed,” you are surely inviting the average justice to supply himself with special reasons why he should not carry out a law which you know by his past history he dislikes. It must not be forgotten that in Manchester, although the fees legally allowed for a summons are twelve shillings, the practice has been for fees not to exceed the fine. Imprisonment for less than five days—which in the future is not to be permitted—has for a long time not been allowed by the practice of the Manchester justices. Where justices desire to be lenient and enforce the law temperately they can do so to-day, and therefore it is clearly no use in a new statute to leave a discretion to those who will certainly abide by old and evil customs unless they are forced to do otherwise.
The statistics of the police courts show that in one year 92,000 citizens were imprisoned in default of the payment of a fine and 80,000 imprisoned without the option. The number of persons sentenced to pay fines is no less than 460,000. Every year new statutes are passed making new offences which can be committed with practical impunity by those whose purses are long enough. Under the heading Betting and Gaming, 3,346 persons were fined and only 738 went to prison. Under the heading Motor Cars, 10,631 were fined and only 36 went to prison in default; under the heading Sunday Trading, 6,654 were fined and only 12 went to prison by default. These offences are generally committed by persons with some money; but where the parties are poor what a terrible difference in their punishment. The mere giving of time to pay fines will not abolish this injustice unless the fines are made, as has been suggested, in some ratio proportionate to a man’s income. If it were enacted that a fine should not exceed a day’s wage earned by the prisoner, that would be a method of doing away with the burden of useless imprisonment that has to be borne by the poor. It is no use enacting that the Court in fining an offender shall take into consideration the means of the offender. I make no doubt that this is done already to a large extent by stipendiaries and the more enlightened magistrates. What is wanted is an actual printed tariff of fines fairly proportioned to the means of the offender, beyond which the magistrates may not go. Measures that depend on the sympathetic working by the members of the bench will be in many districts a dead letter, and inasmuch as the folk who go to prison in these cases are always poor people, very little will be known of their trouble except by those few persons who study blue books and statistics.
This habit of the magistracy to ignore the good intentions of Parliament and the Home Office is in nothing more marked than in the refusal of many country benches to give bail to poor people charged with offences that have to be tried at Sessions or Assizes. Many judges have called the Grand Juries’ attention to the large number of prisoners who are left in prison awaiting trial, some of whom are ultimately acquitted. But this is one of the matters where magistrates must of necessity have discretion, and although they receive Home Office circulars calling attention to their duties in the matter of bail they prefer to go their own wrong-headed way and unnecessarily keep a large number of poor persons in prison who might quite safely be allowed to remain out on bail.
It is curious how history repeats itself and how a lay magistracy, as a type, always tends to act without sympathy or consideration for the poor. A hundred years ago the Yorkshire magistrates came to the conclusion that it was a most improper thing that poor people committed for trial to the House of Correction should be allowed to idle their time away at the expense of the county, so they actually required them to work for their living, and as the treadmill was the only apparatus of a commercial character in the gaol the poor untried prisoner was put to walking round a wheel in company of his convicted brother. The way in which the matter was put by Mr. John Headlam, M.A., Chairman of the Quarter Sessions for the North Riding of the County of York, is a perfect specimen of the true Dogberry temperament: “With respect to those sentenced to labour as a punishment, I apprehend, there is no difference of opinion. All are agreed that it is a great defect in any prison where such convicts are unemployed. But as to all other prisoners, whether debtors, persons committed for trial, or convicts not sentenced to hard labour, if they have no means of subsisting themselves, and must, if discharged, either labour for their livelihood or apply for parochial relief; it seems unfair to society at large, and especially to those who maintain themselves by honest industry, that those who, by offending the laws, have subjected themselves to imprisonment, should be lodged and clothed and fed, without being called upon for the same exertions which others have to use to obtain such advantages.”
Of course the whole question is begged when an untried prisoner is called an offender against the laws. The Headlam view of him always has been, and is to-day, that the mere fact that a policeman has arrested him is proof that he is an offender; this for all time has been justices’ law, but it is doubtful whether the old doctrine that a man is to be deemed innocent until found guilty by a jury of his peers is not still sound law and ought not to be more fully recognised by the lay magistrates.
Of course the particular wrong that Mr. Headlam was contending for has long been abolished, not indeed without much argument and trouble, but we still punish an untried man by imprisoning him before trial, and in very many cases this is wholly unnecessary. The idea of keeping a man in prison is that he should be forthcoming on the day of trial. In some serious cases it is obviously necessary to keep a man in custody, but in many small cases if a cheap bail was fixed there would be no difficulty in finding the sureties and the prisoner could be outside arranging for his defence and earning money for the support of his family until the day of the trial.
Of 598 people acquitted at Assize Courts only 294 were allowed bail, so that there is a clear admission in the official figures of three hundred innocent persons—or persons not provably guilty—remaining in prison because the justices will not carry out the Home Office suggestions as to bail. Remember too that in some remote places there are very few assizes and eighteen of these unhappy persons remained over three months in prison awaiting trial. At Quarter Sessions the figures are even more remarkable. Of 1,586 prisoners acquitted only 688 had been granted bail. Here you have a large number of innocent men and women kept in gaol charged with offences that are not of the most serious character, and this is done not because in this peculiar instance the law itself is harsh—because the law permits bail and the government office calls on the magistrates to make use of the law—but because the law is administered by well-meaning but incompetent men who have a fixed delusion, handed down to them from their forbears of hundreds of years ago, that a man arrested for a crime by the police and awaiting trial is, to use Mr. Headlam’s phrase, “an offender against the laws.” Where there are no stipendiary magistrates it would not be a bad plan to give any prisoner a right to appeal on refusal of bail to a judge of the County Court who lives within the district and is of necessity a magistrate though he seldom has much time to sit at petty sessions.
Before we leave the Police Court I should like to draw attention to a well-founded complaint against police methods that the Home Office might certainly take into their consideration when they are reforming the administration of the criminal law. I refer to the practice of identification which has come so prominently before public notice in recent criminal trials. I never met a prisoner who felt that it was fairly done. For myself, I have the firmest belief that the police endeavour as a rule to do what is right and straight, but after all we must not lose sight of the fact that the police are there to clear up the crime and to run in somebody—the real criminal of course for choice—and it seems hardly right to put them at this very critical moment into the position of a judicial authority deciding the most important point for or against the man they have arrested and believe to be guilty.
I have always wondered what legal right a policeman has to put you in a row with a lot of other men and bring people to look at you. Suppose a prisoner refused to undergo the ordeal and the policeman used force to compel him, could the prisoner recover damages for assault. These are recondite, and in a sense absurd points; but they do, I think, help one to see how wrong the present system is. At the ceremony of identification it is obviously necessary that there should be a presiding magistrate to see fair play and to take a record of what happened. It is really a part of the trial and a most important part of the trial. That a witness should identify a prisoner in a police yard in the absence of a judicial authority is clearly an unjust thing. Once he—or more especially she—has done so, the further swearing to the prisoner when he is in the dock is nothing. What the magistrate ought to see is the demeanour of the identifier when he first recognises the prisoner and especially ought a justice to be present to see that there is no suspicion of unfairness in the methods employed by the police.
We have had so many tragedies brought about by so-called identification, that it is more than time that the business of it was taken out of the hands of the police and made an integral part of the trial before the magistrate to which it in truth belongs. These reforms will not, I think, come about until we have stipendiary magistrates on the county benches, but though I wish to see this I do not want the old office of Justice of the Peace to be abolished. There is, and rightly ought to be, a keen desire among laymen to attain to this position, and it is an office of much dignity and respect and one in which a good man under sound legal advice can do worthy public service. I have been a local justice of the peace for many years and can testify to the number of occasions upon which a magistrate residing in his district is called upon for small services that would cost the applicant time and money if there was no available magistrate.
A great many lay benches with a clerk of sound learning and legal education administer excellent justice throughout the country. But there are classes of cases connected with property that would be better tried by a stipendiary unconnected with county society. I have a passion for old-world things, and grieve over the disappearance of the parish constables, the head boroughs, the tithing-men, the aletasters, the beadles, and the reeves. I do not wish to abolish the Justice of the Peace. I only wish to put him in his proper place. Of course, if he cannot be happy there, then I am afraid he will have to go.
SOURCE: THE LAW AND THE POOR BY HIS HONOUR JUDGE EDWARD ABBOTT PARRY 1914
