on 22 October 2015
I became a convinced opponent of capital punishment in my youth after reading "Hanged by the Neck" by Arthur Koestler (and C? Rolph): & thus take a jaundiced view of all "hanging judges" (of whom there have been not a few). That was what decided me to delve into Julia Joyce's book: for the trial of Walter Horsford was presided over by Lord (Henry) Hawkins whose reputation was earned over a judicial career of some 22 years. The St Neots case was his last of any note & at the relevant time he was in his 81st year. I have previously read his Reminiscences: which show him to have been a man who was, in retrospect, vastly satisfied with his career, not (I hasten to say) without some reason. The Reminiscences include the Judge's robust defence against the criticisms which had been levelled against him for his handling of the Horsford case, on the grounds (or so he chose to say) that the evidence had been "circumstantial only". As far as defending that particular charge goes, I have nothing but admiration for every word he says. Circumstantial evidence is all that is likely to be available when the poisoner has been at work. Properly proved, circumstantial evidence is good, & can be compelling, evidence. Moreover, I have not the slightest doubt that Horsford did provide Annie Holmes with the strychnine that brought about her death. (Some of the interest in the book lies in the suggestion that Horsford carried out an earlier, undetected, murder. That was novel to me. Taking the research that has gone into this particular aspect of the book at face value, this earlier incident would tend to confirm Horsford as a thoroughly unpleasant man who fully earned the penalty that the law of the day prescribed. Unfortunately that was the barbaric, & worse irreversible, one of being hanged by the neck).
What has always troubled me about the St Neots case (& about many of Hawkins' other cases, particularly the Staunton case) is the way he virtually took the decision out of the hands of the jury &, as it were, dared them to return any other verdict than the one he favoured. What he (somewhat sneeringly) describes in his Reminiscences as "some kind-heartened people" had said in commenting on the case was, in fact, that he "had gone quite to the limit of a Judge's rights in summing up the case". He then immediately asks the reader's indulgence "to say a word about circumstantial evidence". This is sophistry. For he is choosing to conflate all the criticisms he underwent, both valid & invalid, under the one rubric of "circumstantial evidence". And there Hawkins' position is, as I have indicated, unimpeachable. But consider the way he put the evidence to the jury.
It is impossible to state in short compass the many ways in which Hawkins did, in fact, exceed the limit of his proper sphere in his summing up to the jury. As is well known, the judge is master of the law: but it is the jury in a criminal case who are masters of the facts. Thus the jury had to accept from Hawkins that while they may have thought Horsford was only seeking to bring about an abortion he must be held responsible for any unforeseen consequences of that illegal act & would, in law, be guilty of murder when death resulted. However it was incumbent upon Hawkins to emphasise to the jury that in assessing the evidence for each of the several facts alleged against the accused it was up to them alone (& despite any private opinion of his own that he might have let slip) to decide what the true facts of the case were. In modern times it would be usual to put matters to the jury this way: "You must ask yourselves whether it has been established to your certain satisfaction that X has been proved. That is entirely for you to decide". It would be pushing the bounds of propriety for the judge to say instead: "You may well think it clear that X has been proved". But here are just a few of the terms used by Hawkins in his charge to the jury. "It is very significant that ...". "It is also important to notice that ... ". "I believe beyond the possibility of a doubt ...". "Nothing has been elicited to show ..." (effectively turning on its head the rule that it is for the Crown to prove its case to the hilt & not for the defence to prove any alternative case). "I have looked carefully at the evidence [to ascertain if something suggested on behalf of the accused might be true] and I have found none". "I was astonished when learned counsel for the defence suggested ...". These are expressions that would sit well in the mouth of prosecuting Counsel. In the mouth of a judge they are unforgivable Fortunately the existence of a Court of Appeal today makes such outbursts on the part of any judge unlikely. For Hawkins to have behaved as he did knowing that there was only the one sentence available to him in the event of a finding of guilt makes his behaviour not merely inexcusable but tragic.
Moreover, the way in which Hawkins dealt with the expert evidence called by the Crown was craven (indeed prejudiced - it would certainly have scandalised Rumpole of the Bailey). The Home Office over the years have had their favoured experts in various fields. The favoured criterion is that such experts can be relied upon to get results. But not even Spilsbury was always right; & it behoves a judge to charge a jury to treat opinion evidence as just that. Here an expert witness on hand-writing, Gurrin, gave evidence prejudicial to the defence. The surrounding evidence supports the view that in this case his opinion was almost certainly correct. But in charging the jury Hawkins said: "The defence's denial that these documents were written by the prisoner is worthless in the face of the expert witness's evidence ...". Not satisfied even with that, he then proceeded to give the jury his own evidence of the similarities in the handwriting in the note that encouraged the victim to take the fatal powder in a little water, finishing with the flourish that he could give further examples but "I think I have done enough."! (My exclamation mark). Expert hand-writing evidence is notoriously unreliable (& a profoundly unsatisfactory form of evidence on which to base a trial for capital murder). Indeed the book brings out the (retrospective) fact that Gurrin's testimony was at least partly responsible for two convictions (one of them in the notorious Adolph Beck case) where it was later established beyond peradventure that his "expert" opinion had been incorrect.
I should have less to say about the expert evidence of Dr Stevenson on the unlikelihood that Horsford could have provided Annie Holmes with strychnine in the expectation that it would cause her to have an abortion (as she almost certainly wished) but would not otherwise harm her (as Horsford promised her would be the case) if it had not been for Ms Joyce's researches. For she cites cases where medical men were willing to experiment with alarming quantities of that very poison in their efforts to cure themselves of unwelcome diseases. If such cases were known to Dr Stevenson then his expert evidence would have been incomplete (& highly prejudicial) without mentioning them. And if not, then he was not an expert.
An even more alarming & indeed eccentric aspect of the aged Judge's summing up was that he seems to have got it into his head that Horsford provided the poison to the deceased not remotely, by letter (for which there was some evidence), but in person (for which there was no evidence). Consider this passage in his summing up: "The prisoner was not as far as I know actually seen in communion with the woman on the night or afternoon of [the day she took the poison]. But if you look at the letter from the prisoner [it was not, of course, admitted by the defence to have been from the prisoner] which says 'Will come over on [that day] to see if we can come to an arrangement of some sort or other' and there is no reason to suppose that he did not fulfil that promise. Is it not somewhat significant that [the victim's] fatal illness was ... on the very day on which the prisoner said in his letter he would come over?". "Where was he on that [day]? His counsel said he could not prove an alibi. He said in his letter to this poor woman that he would be going to St Neots to see her, but if he did not go and was at Spaldwick [his home], why could he not prove it?". "Why should a stranger have dreamed of poisoning her?".
In all the above circumstances, it is little wonder that the jury within minutes of retiring felt able to come to the decision they did. Extraordinarily, the jury (according to the book, though quite how the author found this out if it is indeed a fact) spent most of the time after retiring & before retuning to Court in composing a vote of thanks for, as Hawkins Reminiscences record, "the pains I had taken in the case". Well might they: for the Judge, as he had no doubt intended, had done their job for them. Hawkins, in return, told the jury he "looked for no thanks, but was grateful, nonetheless". Grateful for their vote of thanks or grateful for endorsing his so clearly expressed opinion, one wonders?
There is one other aspect of the case that is noteworthy for the lawyers amongst us. Counsel for Horsford chose not to lead any evidence in his behalf. The state of the law at the relevant time was that if the accused called no evidence then his Counsel was "entitled to the last word" (as the colloquialism has it) - i.e. he, not the prosecutor, would be the last to address the jury (before the judge's summing up, which in this case was as good a presentation of the prosecution's case as the jury would, even more imminently, take with them to the jury room). Hawkins' Reminiscences puts the matter thus: "The jury was solemnly asked [by Counsel for the accused] to remember that if one jot or tittle of evidence had been put forward, or a single document put in by him, the prisoner's counsel, he would lose the last word on behalf of the prisoner! Of course, counsel's last word may be of more value than some evidence; but the smallest 'jot or tittle' of evidence, or any document whatever that even tends to prove the innocence of the accused, is of more value than a thousand words of the most powerful speaker I have ever listened to. And I would go further and say that evidence in favour of a prisoner should never be kept back for the sake of the last word". That was not, it has to be said, the view that that great advocate Marshall Hall took. And he was not entirely unique in that. But Horsford's Counsel was not in the same class as Hall. And even Hall would seek his client's instructions, in writing, before taking any such step. The author's researches do not, unfortunately, seem to have investigated what Horsford's personal view of this tactic was. And taking all aspects of the case into account (including the possibility of seeking the Sovereign's pardon in the event of a finding of guilt), Counsel should certainly have been at pains to call evidence (for it existed) that Horsford, as a farmer suffering an infestation of rats in his steading, had legitimate reasons for having in his possession the large quantities of poison that he did. It might not then have taken the "kind-hearted" to whom Hawkins refers too much more to be persuaded that Horsford, in attempting to procure an abortion for his lover, had accidentally ended up providing her with a lethal dose. However that would not, Hawkins sternly ruled, have permitted the jury (however "kind-hearted") to avoid bringing in a conviction of murder. But if it could have been shown to have been a case of over-dosing that, in the hands of able Counsel might, in my opinion, have founded an argument that there was an absence of the mens rea that is necessary to bring home any crime & might thus have saved Horsford from the fatal "drop". But Horsford was unlucky with or ill-advised by his Counsel who was young & inexperienced & (as Hawkins indeed indicated) had an over-inflated confidence in his own powers of advocacy.
It was a matter of satisfaction to the Judge & to the Home Office, which (as was usual in all capital cases) had the task of advising Her Majesty on the possible exercise of clemency that Horsford "confessed" before he was "turned off". But the terms of his confession were not released. It is therefore perfectly possible (& in my view likely) that he confirmed having furnished the poison: but continued to insist that he did so without realising the possibility that it might result in death. That might then (if accepted) have been adequately & properly met with a prison sentence & not death. It is appropriate here to recall that (in his very first murder trial as a judge) Hawkins sentenced both Staunton brothers to death: but following a public outcry (led by the novelist Charles Reade & based on the view that the Judge had been conspicuously too favourable to every element of the prosecution's case) their sentences were commuted. Hawkins, in other words, "had form". Indeed Patrick Staunton's Counsel, the very distinguished Edward Clarke, never forgave Hawkins, whom he considered wicked; & refused to support any attempt on the part of the Bar to celebrate Hawkins when, only many years later, he finally consented to retire.
There is much to be liked about this book. (I particularly enjoyed the comments made by novelist James Payn on that ridiculous institution, the Grand Jury, which Ms Joyce has unearthed & which I had not previously come across). However, I agree with an earlier reviewer (Martynrb) that the manner it which the book has been written is frequently very irritating. He cites the obvious want of professional editing; & says that "his main gripe is that the author has chosen to embellish a factual account with her own 'literary' touches". Both are criticisms I have made of other books - I am glad to have it confirmed that I am not alone in being distracted by such things. It is noticeable that it is the earlier part of the book that suffers most. I found the author's efforts to set down the details of the main protagonists' family relationships unnecessarily complicated; & rather think that the explanation may be that having made her researches (so easy to do nowadays with the census records available on the internet) she is loathe to omit any detail, however irrelevant. When she gets to the later parts of her book (which largely consist of straight reportage of the actual words of a very much more literate age than hers) it is noticeable how the earlier, clumsy, writing is succeeded by a much more flowing account. As to the second of Martynrb's criticisms, Ms Joyce has to decide whether she wants to write historical fiction (when she can legitimately indulge her imagination as she has frequently done here) or is writing in the tradition of the self-described "criminologists" such as the peerless Wm Roughead or Edgar Wallace. To test whether & to what extent it is permissible for a criminologist to interject a bit of not strictly factual writing, I turned to an Amazon compendium of cases written up by Wallace (not something I have done for a long time). Based on that "refresher", I think I can say that it is permissible to insert the odd adjective or two in the search for colour or to underline some important point of character: but no more.
If Ms Joyce would like to take a crack at some of the other hanging judges (& there is plenty of material available) then I should, notwithstanding the foregoing criticisms, be very content to read the results of her efforts.