Unsupported Evidence

One of the issues that was being discussed by the Victorian press in the years leading up to the Jack the Ripper murders, was the reliability of witness statements in court, especially with regards to the evidence given by police officers when prosecuting a defendant.

There was a consensus, especially amongst the left-leaning newspapers, that magistrates would, for example, automatically take the word of a testifying police officer over that of a defendant in the dock; and there was also a widely held belief – backed up by evidence from the court reports – that, if a person who claimed to have been the subject of an unprovoked assault by another person, if they appeared in the witness box sporting a black eye, or some other visible wound, then their story was bound to be believed, irrespective of the facts or the rules of evidence, by juries and magistrates alike.

An Illustration showing PC Cooke smiling in court.
Appearing In A Victorian Court. From Lloyd’s Weekly Newspaper, 18th July 1893. Copyright, The British Library Board.

THE CASE OF ISAAC BROOKS

Once such case that had been in the papers throughout December, 1881, was that of the recently deceased Isaac Brooks, who had accused two neighbours of assaulting him, with the result that the two neighbours had been found guilty and sentenced to ten years in prison.

However, on his deathbed, Brooks had felt remorse at what he had done and had confessed his false testimony to a clergyman, with the result the two neighbours had been released.

The St James’s Gazette, on Saturday, 14th January, 1882, used this case as the basis for an article that questioned the adoption of the rules of evidence by the courts:-

UNSUPPORTED EVIDENCE

“The confession made by the late Isaac Brooks seems now to be accepted as sincere; and it suggests some rather disquieting reflections on the laws of evidence as at present understood in the English courts.

Brooks, who had some design against his two neighbours Johnson and Clowes, resorted to a device for punishing them which was amply justified by its success. He gashed himself in the strangest way and then preferred a charge against these men of assaulting him.

The tale he told in court was not unlike the Falstaffian myth of the men in Kendal green; but it did its work with the jury.

On the testimony of the supposed victim, the two supposed criminals were convicted; and the judge, addressing them in the tone usually adopted towards criminals of the baser sort, informed them that they had been convicted of a barbarous and brutal crime, and sentenced them to penal servitude for ten years.

In penal servitude they have accordingly remained ever since; and would have remained for eight years more had it not been for a timely twinge of remorse in the breast of their accuser.

BROOKS’S CONFESSION

Isaac Brooks, who is said to have “gradually wasted away” since the trial, died a few days ago.

But before dying he called in a local preacher and made a detailed confession of his folly and his guilt.

The motive of his plot against his neighbours seems to have been not the comparatively noble passion of revenge, but a cool and deliberate desire to extort blackmail from them or their friends.

The money was not paid; but probably the threatened men may often have wished that they had paid it rather than expose themselves to the risks of a trial.

ARE THESE CASES COMMON?

Now, it is from the juryman’s point of view that this matter is chiefly interesting.

Cases of this sort may be much more common or much more rare than is usually supposed: that is nothing to the purpose.

It may be probable or improbable that similar cases will frequently occur. The law has nothing to do with such probabilities or conjectures.

What it is bound to do is to lay down rules of evidence conformable at least to the elementary ideas of reason and justice.

Is it reasonable or is it just that the evidence of one man should be accepted against the evidence of two others on the ground that the former has been wounded and the latter have not? Is it right that the assertion of one man should be accepted against the denial even of one other, for the same reason – that the accuser has wounds to show in his support?

Those who say “Yes” will have some difficulty in getting over the opposition presented to their theory by this Staffordshire scandal.

THE RULES OF EVIDENCE

The fact is that for some time past the rules of evidence in criminal cases have been drifting into a position which is wholly unfair to the accused.

The strongest proofs of this are to be found in the annals of the metropolitan police-courts; and those who frequent these tribunals alone know how completely a wretch who has been seized by the police is at the mercy of one false witness.

There is a rule, founded in common sense and natural equity, which no amount of reasoning or legislating can disprove – that, caeteris paribus [all things being equal], one man’s word is as good as another’s.

THE MIND OF A MAGISTRATE

But everyone knows that, in the mind of the magistrate, the evidence of any man clad in a policeman’s garb is deemed superior to that of the best-behaved person habited in any other costume.

This bias is, however, a mere trifling blot upon the established doctrine of evidence compared with that which results from the possession of scars or wounds on the part of the prosecutor.

To illustrate this, suppose the case – which indeed is far from uncommon – of a gentleman attacked by one of the disorderly persons who hang about in crowded streets.

If he gets the worst of it, well and good: there is an end of the matter.

But if he knocks his man down and inflicts a mark that can be shown in court, who does not know that he will have to pay either blackmail or a fine?

He was assaulted first; he had a perfect right to defend himself; but that is very little to the purpose.

Conflicting or insufficient evidence is produced as to the origin of the combat, but the wound remains to tell its own tale.

Clearly, an assault was committed, and someone ought to be punished.

Who, therefore, so suitably as the man who gave the other a black eye?

A black eye is for a man who wishes to accuse his neighbours the best argument he can use – far stronger than the direct evidence of an ordinary person, and about equal to that of a police sergeant.

A RECENT CASE IN LONDON

Let those who doubt this read the account of a case heard in a London police-court only two or three weeks ago.

A young man was found lying one night in Tottenham-court-road drunk and with his face cut, as if by a blow. The man who found him, being of a charitable disposition, picked him up and was about to offer him some help, when the other, suddenly seizing him, handed him over to a policeman who appeared at that moment.

This was the story told by the defendant when arraigned in the police-court next day.

The tale told by the other was that his man had gratuitously assaulted him, though apparently without any motive whatever.

There were the two stories, the one facing the other. The accuser admitted that he had been drunk, and that friends had been with him, no one of whom could be produced as a witness; and his case could therefore not be pronounced by any means strong.

But he had his wounds to speak for him.

The magistrate declared that a dastardly assault had been committed, someone clearly ought to suffer, and the person in custody was the only person available.

Accordingly, a sentence of some weeks’ imprisonment without the option of a fine was pronounced on the accused, who appeared, as well he might if he were innocent, “dumbfounded at the sentence.”

MISCARRIAGES OF JUSTICE

In such cases as these, where a single prosecutor, either designedly or through some mistake perjuring himself, confronts a single defendant who simply denies the charge, and where the defendant loses the day, as it may be feared he often does, it is rarely indeed that the miscarriage of justice is ever discovered.

It can hardly happen that it should be discovered unless the accuser takes it into his head one day to confess his perjury.

An extraordinary coincidence has led to this result in the case of Isaac Brooks.

But how many other cases are there, great and small, in which men have been falsely convicted on the unsupported evidence of a lying prosecutor?

It may be hoped that this scandal will draw attention to the unsafeness of the doctrines lately so prevalent, especially in the inferior courts.

It will have been of very great service if it corrects the impression, which many magistrates now cherish, that a wound received converts a man suddenly into an unimpeachable witness.”