The Old Bailey Criminal Trial

John Ellis, View of the New Old Bailey Sessions House (1790). © Corporation of London Libraries and Guildhall Art Library.

The core group of convicts studied by the Digital Panopticon project were convicted in criminal trials held at the Old Bailey (which was renamed the Central Criminal Court in November 1834), but these convicts may have been tried for other crimes in other courts before or after their Old Bailey trials.

While the Old Bailey dealt with serious crimes (felonies), most lesser crimes (non-capital felonies and misdemeanours) were tried summarily (without a jury) at magistrates' and police courts, or in trials at the quarter sessions for Middlesex, Westminster, the City of London or Surrey (see the Criminal Justice, 1780-1925 page for more on this). Since few records from the police courts and City or county sessions can be found on this website, the discussion of the criminal trial on this page focuses on the Old Bailey. Procedures at quarter sessions were, however, similar.

For the procedures by which accused criminals were brought before these courts, see Before Trial.

Trials at the Old Bailey

Criminal trials in the eighteenth and nineteenth centuries were very different from today: they were quick, lawyers were rarely present until the early nineteenth century and, since there was not a fully developed law of evidence, prosecutors, judges and jurors exercised considerable discretion in how they interpreted the law. Several nineteenth-century reforms improved conditions for the defence, but defendants still operated under severe disadvantages.

Thomas Rowlandson, More Miseries: Being Nervous and Cross Examined by Mr Garrow (1808). British Museum Prints and Drawings, Satires 10841. © Trustees of the British Museum.

The Charge

Meetings of the court at the Old Bailey were always preceded by the City and county sessions. Before these sessions commenced, the clerks of each court drew up indictments, according to set formulas, based on the identity of the accused (provided by prison keepers) and information about the nature of the alleged crime from pre-trial depositions. Decisions taken at this stage of the legal process were important, since the way the offence was defined would determine the punishments the defendant might receive if convicted, and particularly until the early nineteenth century, whether or not the offence was punishable by death.

The Role of the Grand Jury

At both the sessions (for county cases) and at the Old Bailey (for City of London cases), grand juries, composed of propertied men, met to assess the indictments and decide whether there was sufficient evidence to try the case before a trial jury. At this point prosecutors and their witnesses, but not defendants, could testify. Those cases for which a grand jury believed the evidence was sufficient to warrant a trial were approved as "true bills"; those rejected were labelled "not found" and the case was dropped (these cases do not appear in the Old Bailey Proceedings).

The problem with this system was that the grand juries often had very little information to go on and no legal training. Consequently, for most of the period a significant number of cases were rejected and in the early nineteenth century the grand juries in London acquired the nickname "the hope of London thieves". From 1838, a clerk attended meetings of the grand jury at the Old Bailey to offer advice and thereafter far fewer cases were dropped at this stage. There were repeated calls for the abolition of the grand jury throughout the nineteenth century, all of which came to nothing. Nevertheless, its role was gradually reduced as pre-trial investigations by justices and the police weeded out weak cases before indictments were drawn up. Charges of murder and manslaughter formulated by coroner's juries did not need to be approved by the grand jury and these cases automatically went to trial.

At this point, with the prisoners who would face trial identified, the Newgate Calendars of Prisoners were drawn up, listing the prisoners and the charges they faced.

[Anonymous], The Old Bailey Advocate bringing off a thief (1789). British Museum Prints and Drawings, Satires 7593. © Trustees of the British Museum.

The Trial

The charge was read to the prisoner, who was asked to enter a plea. The vast majority pleaded not guilty. Until the number of capital offences was significantly reduced in the early nineteenth century, the court encouraged this plea because if a defendant confessed to a crime there was no flexibility in the punishment they could receive, whereas if a trial took place evidence could be introduced which might determine whether the defendant merited a lesser sentence or subsequent pardon. With the decline in the death penalty, guilty pleas (often the result of plea bargaining) became more common, but still accounted for only 20 per cent of verdicts from the 1830s.

Because the Old Bailey court covered separate legal jurisdictions, there were separate juries for the City of London and County of Middlesex, and, from 1834, Surrey, Kent and Essex. The Old Bailey Proceedings often indicate which jury tried each case.

The trial started with the prosecutor, victim or counsel presenting the case against the defendant, followed by prosecution witnesses, who testified under oath. This witness testimony was the most common source of evidence. Cross-examinations were conducted by the judge, the defendant or, increasingly, by defence lawyers. The defendant, who until 1898 was not put on oath (it was thought this would encourage perjury), was then asked to state his or her case. Defendant testimony was often abridged in the published Old Bailey Proceedings. Defendants could call their own witnesses but, unlike prosecutors, they could not compel witnesses to attend. And since trials were not scheduled, it was impossible to predict precisely when a witness would need to appear in court. Witnesses who could testify to the defendant's good character were especially helpful, since even if the defendant was found guilty, a good reputation might lead to a lesser punishment.

Trials often lasted less than half an hour. It is likely that the rapidity with which trials were held severely disadvantaged defendants, who had no time to accustom themselves to the courtroom environment. A further difference from modern practice is that the same jury heard numerous cases at a single meeting of the court. New juries were not summoned for each case.

The Role of Lawyers

Lawyers began to appear in criminal trials from the 1730s, gradually appearing more frequently. The presence of prosecution counsel was encouraged by a 1778 statute which allowed the payment of expenses to all prosecutors of successful cases, and by 1834 the use of prosecution counsel was widespread.

Despite the lack of financial assistance, defence counsel outnumbered prosecution counsel throughout the eighteenth and early nineteenth centuries, as defendants, who often faced death if they were convicted, recognised the benefits of legal assistance. In the 1820s, judges began to assign lawyers to speak on behalf of prisoners accused of serious offences. It was also possible for poor prisoners to secure legal representation through a benefactor. The sheriffs of London provided a fund for such assistance from the early nineteenth century, but relatively few defendants benefitted from these provisions. It was not until the Poor Prisoner’s Defence Act of 1903 that an effective form of legal aid was introduced.

The biggest impact of defence lawyers in trials was through the cross-examination of prosecution witnesses. Defence counsel was often able to question the motives of the prosecutor in bringing the case, and of witnesses for testifying for the prosecutor. When the principals were eligible to receive a reward for a successful conviction, as was the case with thief-takers, or, could earn immunity from prosecution by testifying against accomplices, their word in court was open to doubt. The participation of defence lawyers meant that in some cases defendants no longer spoke at all. This eventually led to defendants acquiring the privilege of remaining silent; and in the process contributed to shifting the burden of proof onto the prosecutor.

William Hogarth, The Bench (1758). From Wikimedia Commons.

The Judges

Judges at the Old Bailey were made up from the Common Law Judges from the High Courts at Westminster, and the Lord Mayor, Recorder (principal legal officer), Common Sergeant (legal adviser to the Court of Common Council) and Aldermen of the City of London. In practice, only two common law judges actually attended, and they only heard the most serious cases, with the remainder of the cases heard by the City officials.

When lawyers were not present, judges played a major role in questioning witnesses and defendants, though these interventions are often omitted or abridged in the Old Bailey Proceedings. Where reported, interventions by judges are referred to in the Proceedings as "The Court". The increasing participation of lawyers altered the role of the judges. While they continued to exercise supreme authority in the courtroom, their role gradually shifted to one of arbitrating the adversarial contest between barristers, settling any arguments over the law and summing up for the jury. Throughout the whole period, however, as today, the judges were charged with the weighty task of sentencing those found guilty.

Verdict and Sentence

The trial jury retired, or huddled, and reached its verdict. Until 1858, they would be kept without fire, food or drink until a verdict was agreed. In fact, their decisions normally took very little time, which suggests that the views of the foreman and the most experienced jurors tended to predominate. The jury could choose between innocent, guilty or a partial verdict. In the last case, defendants were found guilty of part of the charges against them, or of a lesser offence. Juries could also recommend the judges to show mercy when sentencing the convict.

Until the early nineteenth century, it was usual for those prisoners who had been found guilty to be brought forward in batches at the end of the sessions to hear their punishments. By the 1840s, however, sentences were commonly passed immediately following each trial. Defendants who were convicted of capital crimes were given a chance to address the Court before they were sentenced, but, perhaps because the publisher did not wish to give publicity to the convict, these statements rarely appear in the Proceedings

Although the punishments available in each case depended on the specific offence for which the defendant was convicted, judges had some flexibility in choosing punishments, which ranged from death to a small fine and included transportation, imprisonment, whipping, service in the army or navy and finding sureties to guarantee good behaviour. A "maiden session", when no one was condemned to death, was relatively rare before the reforms of the 1820s. Where the sentence was not death or transportation, it often involved a combination of punishments, such as imprisonment and whipping.

Punishments imposed by the court were frequently not carried out as specified; convicts received instead a different punishment, or no punishment at all. It is important to trace convicts through their Life Archives to determine the punishments they actually received. Women could "plead their belly", claiming that they were pregnant, in which case they were examined by a jury of matrons and if the jury agreed their sentence was respited. Death sentences were routinely reviewed by the monarch and/or his or her ministers, who had the power to award free or conditional pardons. Some 60 per cent of those sentenced to death in the eighteenth century were pardoned, and this figure rose to over 90 per cent in the 1830s. Even those sentenced to transportation and imprisonment did not always receive their prescribed punishment.

[Anonymous], Old Bailey Court, London (1824). Collage, record number 5592. © London Metropolitan Archives.

Appeal and Review

Those convicted at the Old Bailey had, until 1907, very limited grounds for appeal. It was possible to file a writ of error, but primarily only with respect to the wording of the indictment, and this cumbersome and expensive procedure was rarely used. The only other option open to convicts was to apply for a pardon. All this changed with the passage of the Criminal Appeal Act in 1907, which established the Court of Criminal Appeal, with jurisdiction to hear appeals to both the verdict and sentence in criminal cases.

Judges, on the other hand, could refer any case where they were uncertain about points of law for consideration by the twelve common law judges in Westminster, by directing a special verdict. The decision of the Twelve Judges would be announced at the next sessions. The creation of the Court for Crown Cases Reserved in 1848 formalised this procedure, though this was superseded by the creation of Court of Criminal Appeal in 1907.

Records in the Digital Panopticon

Lists of prisoners who were tried before magistrates at the Middlesex or Westminster Sessions of the Peace between 1836 and 1889 can be found in the Middlesex House of Detention Calendars 1836-1889. These records, however, do not include those who had been bailed to appear in these courts for trial.

Documents prepared by justices of the peace (informations, depositions and examinations) and prosecution counsel (briefs) often provide valuable evidence about cases, including the arguments counsel intended to make in trials. While these records are not included on this website, the Old Bailey Associated Records 1740-1834 indicate, for the period up to 1834, whether such records are available elsewhere. Informations, depositions and examinations taken up to 1800 are available on the London Lives website.

Accused criminals committed to Newgate prison for possible trial at the Old Bailey are listed in the England and Wales Criminal Registers 1791-1892. Lists of defendants to be tried at each session of the Old Bailey can be found in the Newgate Calendars of Prisoners 1782-1931.

Accounts of Old Bailey trials, which are often richly detailed, can be found in the Old Bailey Proceedings.

Further Information

Acknowledgements

Much of the information on the Old Bailey trial was taken from Clive Emsley, Tim Hitchcock and Robert Shoemaker, "Crime and Justice - Trial Procedures." Old Bailey Proceedings Online, version 7.0. https://www.oldbaileyonline.org/static/Trial-procedures.jsp, accessed 7 May 2017.

Author Credits

This page was written by Robert Shoemaker, with additional contributions by other members of the Digital Panopticon project team.