Howzat?

Stephen Sedley

  • The Origins of Adversary Criminal Trial by John Langbein
    Oxford, 376 pp, £30.00, February 2003, ISBN 0 19 925888 0
  • Archbold: International Criminal Courts edited by Rodney Dixon, Richard May and Karim Khan
    Sweet and Maxwell, 1000 pp, £125.00, December 2002, ISBN 0 421 77270 0

Three hundred years ago an Englishman charged with, say, robbery could expect to be interrogated by a local magistrate, held in jail until the King’s justices next rode in on circuit, arraigned before a jury of local property-owners on an indictment he had never seen, and tried in less than an hour. He would not be allowed legal representation even if he could afford it. He had no right to give sworn evidence in answer to the witnesses who – as the saying was – were swearing away his life. He was allowed to question them as best he could and then tell the jury from the dock why he was innocent. Nobody would tell the jury that he was presumed innocent until proven guilty beyond reasonable doubt, because that was not the law. There was effectively no appeal. If convicted, he would probably be hanged before the judge rode on to the next assize town.

Most of the changes which gave us the modern criminal trial, and which are the subject of John Langbein’s book, came about in the last part of the 18th century and the first part of the 19th. Their legal and practical effect from 1822 to the present has been tracked in the 54 editions of the Criminal Pleading, Evidence and Practice of John Frederick Archbold, an otherwise obscure barrister who supplemented his earnings by knocking out legal textbooks, one of which has turned out to be his passport to immortality and has made his name a kitemark. Hence the delphic title of the second volume included here, which carries forward Archbold’s work from the Georgian courts at the centre of Langbein’s study into the post-Nuremberg world.

The growing use of barristers during the 18th century to conduct prosecutions – a high proportion of them brought by local prosecuting societies – highlighted the unfairness of denying the same right to defendants on felony charges. (Oddly, there was always a right to counsel for those charged with misdemeanours, some of which were quite serious: the acquittal of the Seven Bishops in 1688 was in large part due to their having been charged with seditious libel, which was classed as a misdemeanour, and thus having been very competently defended.) The widespread use of professional thief-takers and informers made perjury by prosecution witnesses a daily event, although there was little chance of exposing it in the absence of competent cross-examination. An entrepreneurial legal profession, well represented in Parliament and close to the judges, was becoming aware of a large new market for its services.

But to break into it required fundamental changes in both law and legal culture, starting with a recognition of every accused person’s right to speak through an advocate. Samuel Johnson gave this wings:

‘As it rarely happens,’ he said to Boswell, ‘that a man is fit to plead his own cause, lawyers are a class of the community, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that the client might fairly do for himself.’

And once the lawyers were involved, other things became axiomatic: that the prosecution must prove its case without the help of the accused, and that it must prove it beyond reasonable doubt. The gallows and the transports, the Black Act’s ministers, gave urgency to the sense that these were inalienable rights. The first inroad into the no-counsel rule for felony trials had been made by the post-Bill of Rights Parliament, which in 1696 passed an act giving a right to defence counsel to persons – unlikely to be common criminals – accused of treason. But there it stalled until the lawyers started pushing for change in the succeeding century.

There are many histories – economic, cultural, moral – to be written of the vast lurch into modernity of the criminal justice process. The American scholar John Langbein traces its narrative and procedural dimensions, basing himself extensively on the Old Bailey sessions papers, a rich and only recently mined resource, but also on less obvious sources such as the Post Office solicitors’ archives at Mount Pleasant in Clerkenwell, which record early prosecutions for interfering with the mails, and the Royal Mint’s archives, which record prosecutions for coining. The picture it confirms – a number of legal historians have already done detailed work in the field – is of a Hogarthian havoc of authoritarianism and anarchy, for which the state provided the forum but in which the prosecution of offences was commonly a private enterprise and often a pretty unscrupulous one.

It was into this unsavoury system of felony trials that the judges began during George III’s reign to admit defence lawyers. By the third quarter of the 18th century the Old Bailey hack had become a byword in the legal profession for disreputable advocacy. But in the world outside, the lawyers who stood between the accused and the gallows commanded admiration, and none more than William Garrow, the most successful and most celebrated defence counsel of the later Georgian years. To Langbein, however, Garrow is an object of contempt. He rates over ten times as many index entries as Thomas Erskine, a more important figure, because he is the exemplar for a thesis which rings through the book like the 13th chime of the clock – that where the old form of English trial was a truth-seeking process, albeit an inefficient one, the modern Anglo-American adversarial trial is dedicated to the suppression or evasion of the truth. ‘Adversary procedure,’ he says, ‘represented a material worsening of the truth deficit.’

There is a great deal to be said about, and in many respects against, the modern criminal judicial process both in the US and here. It is still caught up, for example, in the absurdities of the rule against hearsay evidence, which originated in the period Langbein discusses and which even lawyers have difficulty in understanding and applying. (Is it permissible to testify that when the accused ran off, someone shouted ‘Stop, thief!’ and so on.) But there is practically nothing to be said, even comparatively, in favour of the form of trial it replaced; and it is not obvious why Langbein should want to suggest otherwise. There is no intelligible sense in which the old form of trial was more apt than the modern criminal trial to elicit the truth. It was directed to establishing, by largely unjust means, the guilt of the accused as a prelude to brutal punishment or, occasionally, ostentatious clemency. It was the jury, albeit composed entirely of male property-owners, which stood between the accused and his accusers, and not infrequently it acquitted. The fact that the record of the defendant’s interrogation by a local magistrate was sent on to the trial court, and the fact that at trial he had to speak for himself or perish, hardly amounted to a collaborative search for the truth.

Langbein does not argue for a return to the old English system; he accepts that ‘two-sided partisanship may indeed have been better than one-sided partisanship’; but he advocates a resumption of the search for the truth – whatever that signifies – by means of a modern inquisitorial system.

The suggestion that modern inquisitorial procedures are superior to adversarial ones (Langbein is also a comparative lawyer) deserves serious attention. But discussion of it is not assisted by denouncing as ‘the trickster Garrow’ a forceful participant in the burgeoning adversarial system who, if his efforts inevitably shielded a good many guilty people from conviction, also saved many whose guilt was far from certain from hanging or transportation. Not a single verbatim instance of Garrow’s advocacy cited in Langbein’s book shows him to have been less than professional in his standards. A similar animus prompts Langbein to denounce Henry Brougham’s celebrated exposition of the duty of the defence counsel, delivered at the trial of Queen Caroline, as ‘self-serving prattle’ which became ‘window-dressing for a truth-be-damned standard of defensive representation’, and to describe as ‘antics’ John Lilburne’s courageous refusal in 1649 to incriminate himself on a treason charge. Seen through such spectacles, history starts to blur.

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