It is a pleasure to welcome this study of the life of William Garrow, the first great cross-examiner at the English Bar. He can truly be said to have revolutionised the practice of criminal law, not by any seminal writing or legislation, but through the extraordinary force of his character and conduct in the first ten years of his practice, during which he defended over 1,000 clients (trials were very short in those days). In 1783, when he burst upon the Old Bailey stage, defendants had no rights other than to a counsel who could merely ask polite questions of prosecution witnesses. No speeches were allowed, there were few rules of evidence and absolutely no prosecution disclosure even of the depositions taken in Magistrate’s Court. It was Garrow’s genius to change all that and to inject for the first time an element “equality of arms” in what eventually became a true adversary process. That he appeared at a time when the English Penal Code was at its most barbaric, with several hundred minor felonies carrying the death penalty, made his achievement all the more necessary and all the more dramatic – as the BBC has recently discovered with its re-enactments of some of his cases.
But talk to criminal counsel of my generation and it is Darrow, not Garrow, to whom they have turned for inspiration. Why has this great advocate been ignored for so long? Partly because of the lamentable bias of legal history education, which has disdained State trials and triallists in favour of teaching the tedious history of contract and land law, partly because of the inability of historians to comprehend the dynamics of forensic practice and how this impacts on the rules of the trial process. There has also been the prejudice exemplified by the sniffy comment of one celebrated Law Lord: “The Old Bailey is hardly the SW3 of the profession”. (This prejudice is still evident in the reluctance to appoint criminal lawyers to the higher courts.)
There is also, importantly I think, the fact that Garrow, after his incandescent first decade at the defence Bar, “went over to the dark side”, became a reactionary Tory and conducted some of Pitt’s paranoid prosecutions against radicals. They were defended by his friend and rival Lord Erskine, who became in consequence the man more celebrated. But our recent conversion to human rights brings Garrow – who did so much to kindle them at the coal face of legal history – back into focus.
Garrow’s early career needs to be set in the context of a late eighteenth century society where, as Oliver Goldsmith reminds us,
Each wanton judge new penal statutes draw,
Laws grind the poor and rich men rule the law.
It was a London that comes down to us now in the painting of Hogarth, and in the poetry of William Blake who had the moral vision to see the tears of the chimney sweeps and to hear the curses of the city harlots, and to feel the cruelty done to children in the Poor House. Electorates were all gerrymandered, power was in the hand of corrupt politicians and court favourites, and there were 50,000 prostitutes living among the million people in London, not to mention such colourful characters as mudlarks, scuffle hunters, bludgeon men, Morocco men, flash coachmen, grubbers, bear baiters and strolling minstrels. Wealth, of course, was all inherited: you were born into a certain rank and station in life and you were expected to stay in it. Hence the old nursery rhyme ‘Tinker, tailor, soldier, sailor, rich man, poor man, beggar man, thief’. Their lives were costume dramas in which the costumes were handed out at birth. So when born in poverty you stayed in poverty, making ends meet by snapping up the gentry’s unconsidered trifles.
Why was Garrow such a different class of counsel? Unlike his better connected rivals, this young barrister of humble birth was prepared to mix with and to understand the demi-monde of coiners and counterfeiters, thieves and thief-takers. He was prepared to take the unheard-of step of meeting his clients in plague-infested prisons to take their instructions. Criminal trials still resembled the ill-conducted public meeting from which they had originally developed and he immediately saw the potential of humour, even robust humour, – to get the jury on side and to laugh a case (or at least a witness) out of court. He became renowned for his sarcasm during cross examination, but the transcripts reveal that this “lowest form of wit” could readily turn into deadly irony at the expense of the prosecuting societies and the well-rewarded thief-takers, whose zeal and greed produced many miscarriages of justice. Denied a peroration, he turned his questions into mini-speeches, to the enlightenment of the jury and the enragement of prosecutors. He was certainly no “trickster”, as Langbein mistakenly labelled him, but rather an advocate who came into court equipped with savage wit, a fearless capacity to object to unfair evidence, and clever tactics. He crashed through the barriers of class, overcame judicial hostility and popular jury prejudice, and his courage soon inspired other barristers to adopt similar strategies. In due course, it was this pressure from the Bar that won increased latitude for the defence and made trials more fair, as counsel insisted upon evidential rules (such as the rule against hearsay) , equal rights for defence barristers and the transformation of the role of the judge from that of active inquisitor and jury-director to that of a more neutral umpire.
Not that all or even most of his cases ended with acquittals. He was not defending honest radicals but dishonest rascals, whose necks were at stake. He played for sympathy verdicts in cases where the law required that all who stole more than 40 shillings worth of goods must go to the gallows. It was the jury, however, which valued the stolen property, and Garrow’s skill was to deflate the estimates of indignant owners and to engage the jury’s sense of mercy. Success meant transportation instead of hanging, and slowly the prisons filled with the human debris of Georgian England whose sentences had been commuted by the mercy of their juries. Transportation to Botany Bay began in 1787 and it is remarkable how many of these convicts were recorded as having stolen goods that were worth precisely 39 shillings. The founders of Australia were the beneficiaries of the jury’s bargain with the barbarity of the law, negotiated by Garrow and his barrister contemporaries.
Garrow’s other notable achievement was to end bounty hunting as a means of law enforcement: his savage cross examination of men who had a financial incentive to send innocent accused to the gallows hastened the decline of “thief-taking” for substantial reward. Although no intellectual, his innate sense of fairness combined with his querulous nature to produce impromptu objections to evidence that, once upheld, became precedents for developing rules – about how to treat the testimony of accomplices, for example, and for the exclusion of hearsay. For all the reactionary views that Garrow espoused in later life, he never waivered in his hatred of slave owners or of torture. The former he refused to defend, no matter how much they offered him and the latter he memorably condemned when prosecuting the Governor of Trinidad who had resorted to Spanish practices:
“He ought to have remembered that in England torture is unknown, not because the subject has never been discussed but because it is so abhorrent to all our feelings, to our regard for personal liberty and the fair administration of justice, that it never has been and never can be tolerated here.” (see page 86, The Picton trials).
Why, at age 33, did this shooting star of the Bar decide to set himself in the Tory firmament? He accepted a silk gown and briefs in Pitts’ sedition prosecutions of members of the London Corresponding Society and other early democrats accused of being jaccobin revolutionaries. Perhaps his own humble birth led him to crave a respectability that could not come from saving the necks of lowlife at the Old Bailey, or perhaps his bravado in the commoners’ cause was a means to get himself noticed and started, and disguised his true conservative instincts. At any event, he threw over his whig friends (he had become a favourite of Charles James Fox) and ascended the greased pole of right-wing politics. Soon he had a knighthood and became an MP for a rotten borough, and pursued an undistinguished parliamentary career during which he opposed all of Romilly’s necessary legal reforms, including the abolition of hanging, drawing and quartering. As a law officer he conducted oppressive prosecutions for treason and sedition and blasphemous libel and ended his legal life with some years of run of the mill service on the Bench. It can be said that he prosecuted with a modicum of fairness, but it was a Faustian bargain: Pitt offered him status and elevation for no better reason than to remove his talents from the defence of reformers, republicans, and the courageous booksellers who dared to stock Tom Paine’s The Rights of Man. Instead, it was Erskine who was carried in triumph from the Old Bailey after his speeches had secured their acquittals. Henceforth, Garrow was on the wrong side of history.
But that does not make his early achievements any less relevant for the development of the key role of the advocate in the adversary process. It will sometimes be necessary for modern barristers to emulate his bravado and ingenuity. I took up practice in the Old Bailey in the 1970s at just such a time when the ‘Vaudevilles routine’ of police verbals was in its hey-day, and Scotland Yard’s thief taking would invariably begin with a confession (eg “its a fair cop, guv”-) allegedly recorded in police notebooks. Ferocious judges would intimidate counsel who defended aggressively by describing them as “loud speakers for a maladjusted set,” whilst those barristers who accepted briefs for bomb trials had their career cards marked by the Lord Chancellor and were described as “members of the alternative Bar”. Miscarriages of justice were rife and Lord Denning, refused to contemplate “the appalling vista” if the The Birmingham Six had been wrongly convicted. It took another generation of barristers to use Garrow’s tactics by exposing police malpractice and hastening reforms such as the recording of all police interviews and the establishment of the Criminal Cases Review Commission.
So it is because we may need Garrow’s youthful steel again that this account of his life, his times and his fight for justice, by John Hostettler and Richard Braby, is particularly welcome. It deserves to be read alongside John’s important account of Thomas Erskine and Trial by Jury as a tribute to the men who made defence advocacy what it is today: a vital tool for the exposure of dishonesty, arrogance and injustice. Hilliare Beloc famously defined a jury as “twelve persons summoned at random to decide which party has the better lawyer,” but cynicism about the advocates role overlooks the reason why the right to cross-examine witnesses is central to the fair trial guarantee in the European Convention on Human Rights. Against the Goliath of State power, the voice of the advocate serves as David’s slingshot, became the law of forensic battle now allows it to present the possibility of innocence. That great safe guard for all in peril in the courts we owe not only to Thomas Erskine and Henry Brougham who appeared for those politically persecuted, but to the youthful William Garrow who, in a thousand cases, raised his voice with wit and ingenuity on behalf of poor criminals.
Geoffrey Robertson – Doughty Chambers 2009
Geoffrey Robertson QC began his career at the Old Bailey defending in such notable trials as that of “Oz” magazine, Peter Hain, John Stonehouse, the ABC, Official Secrets case, “Gay News” blasphemy trial and the Matrix Churchill “Iraqgate” trial, as well as in IRA and other terrorist cases. He developed a pro bono practice defending at the Privy Council men condemned to death in Commonwealth courts. He is founder and head of Doughty Street Chambers, a Recorder, a bencher of the Middle Temple and served as the First President of the UN Special Court for Sierra Leone and is currently a member of the UN Justice Council. His books include The Justice Game – a memoir of some of his notable trials – and The Tyrranicide Brief – an account of how Cromwell’s lawyers brought the King to justice.