0:00:03 > 0:00:10In 1825, Newgate jailers escorted John Smith along this ever-narrowing corridor.
0:00:10 > 0:00:14He had been convicted at the Old Bailey of housebreaking.
0:00:15 > 0:00:21'He had no barrister to represent him, no witnesses to call on oath.
0:00:21 > 0:00:25'All he could do was to protest his innocence - in vain.'
0:00:25 > 0:00:30John Smith finished his walk about here.
0:00:30 > 0:00:34And this was probably his last view of daylight.
0:00:35 > 0:00:38He was hanged for this crime.
0:00:39 > 0:00:44John Smith was a boy of just fifteen.
0:00:50 > 0:00:54The case of John Smith sounds like an awful aberration,
0:00:54 > 0:01:00a shockingly disproportionate punishment for a property offence and inflicted on one so young.
0:01:00 > 0:01:06Yet this was no miscarriage of justice. The trial followed the due process of the day,
0:01:06 > 0:01:12a due process that was far from equal, but was stacked against the defendant.
0:01:12 > 0:01:16Life or death could be decided in minutes.
0:01:16 > 0:01:22Most defendants had no one to put their case, other than the judge himself.
0:01:23 > 0:01:27If this now seems rather surprising to us,
0:01:27 > 0:01:32it's because of the remarkable transformation that's taken place in our legal system
0:01:32 > 0:01:35over the last three centuries.
0:01:35 > 0:01:42It's one that went well beyond due process to enshrine in English court procedure
0:01:42 > 0:01:48the principle of the equality of arms, of simple fairness.
0:01:48 > 0:01:55'That transformation was shaped by seismic shifts in English society
0:01:55 > 0:01:57'from the Industrial Revolution
0:01:57 > 0:02:00'to the rise of the popular press.
0:02:01 > 0:02:06'It's a story that takes place in the shadow of the noose,
0:02:06 > 0:02:12'one that features spies, visionary politicians blazing their way through the statute books,
0:02:12 > 0:02:15'forgery, fraud and murder.
0:02:15 > 0:02:21'And the most dazzling advocates ever to step foot in an English courtroom.'
0:02:21 > 0:02:26At the centre of this revolution was my profession.
0:02:26 > 0:02:30Barristers like William Garrow pioneered new rules of evidence
0:02:30 > 0:02:35and their aggressive, passionate performances made them the star turns of the courtroom drama.
0:02:35 > 0:02:42If he were guilty, and I say plainly he is not, must he hang alongside murderers and cutpurses?!
0:02:42 > 0:02:46Mr Garrow! You will be in contempt!
0:02:46 > 0:02:53'In this programme, I'll trace how a rather crude and biased legal process'
0:02:53 > 0:02:57was remoulded to give us what we have today -
0:02:57 > 0:03:00the fair trial.
0:03:22 > 0:03:27At the start of the 18th century, our liberties and freedoms had been established.
0:03:27 > 0:03:31The courts, by comparison, were still in the Dark Ages.
0:03:31 > 0:03:36Land yourself in the dock and you found yourself in a medieval nightmare.
0:03:36 > 0:03:40With no police force and no forensic science service,
0:03:40 > 0:03:44the only means of deterring crime was through exemplary punishment -
0:03:44 > 0:03:48whipping, transportation and hanging.
0:03:48 > 0:03:53And an already severe system was about to get even bloodier.
0:03:54 > 0:03:56This is Waltham in Hampshire.
0:03:58 > 0:04:02'In 1723, it was a place of terror.
0:04:04 > 0:04:08'A gang rampaged through these forests, poaching, robbing and murdering,
0:04:08 > 0:04:12'their faces blacked up in disguise.
0:04:14 > 0:04:21'It was feared these Waltham Blacks, as they were known, would spread their violence across England.'
0:04:23 > 0:04:28As a kneejerk reaction, the Waltham Black Act was rushed into law.
0:04:28 > 0:04:33Suddenly all manner of offences were punishable by death.
0:04:34 > 0:04:40Just being caught in a park with a blacked-up face could get you hanged, along with damaging trees
0:04:40 > 0:04:42and wrecking fish ponds.
0:04:42 > 0:04:47It was the harshest piece of legislation that the country had ever seen.
0:04:47 > 0:04:52Thus began a terrible trend that meant that by the end of the century
0:04:52 > 0:04:56more than 200 offences were punishable by death.
0:04:58 > 0:05:00Deterrence was all.
0:05:00 > 0:05:07As Judge Buller told a felon he was sentencing, "You are to be hanged not for stealing horses
0:05:07 > 0:05:11"but that horses may not be stolen."
0:05:12 > 0:05:16'This system was aptly named the Bloody Code.
0:05:16 > 0:05:20'At its heart was London's Hall of Justice, the Old Bailey.
0:05:22 > 0:05:29'In Georgian times, trials were held in a courtroom exposed to the elements to prevent typhus
0:05:29 > 0:05:33'infecting others. The Old Bailey today may look like
0:05:33 > 0:05:40'a palace of justice, but in the 18th century it truly was a death trap.
0:05:40 > 0:05:44'In 1750, long after the building had been enclosed,
0:05:44 > 0:05:48'an outbreak of jail fever promiscuously killed 60 people,
0:05:48 > 0:05:52'including two judges and the Lord Mayor.'
0:05:52 > 0:05:58If the physical conditions were vile, the way in which justice was meted out seems much worse.
0:05:58 > 0:06:00You are facing the noose.
0:06:00 > 0:06:04Are you entitled to a defence barrister? No.
0:06:04 > 0:06:09Can you or your defence witnesses give sworn testimony? No.
0:06:09 > 0:06:14Do juries retire to give careful consideration to your case?
0:06:14 > 0:06:15No.
0:06:15 > 0:06:21And you were lucky if the entire proceedings from start to verdict and sentence
0:06:21 > 0:06:25took more than 15 minutes.
0:06:25 > 0:06:31The idea that the accused was entitled to an adequate defence
0:06:31 > 0:06:34had yet to penetrate these walls.
0:06:36 > 0:06:42In this era, people felt the innocent should be able to argue their own cases.
0:06:43 > 0:06:49Many an accused, when compelled to defend themselves in this alien environment,
0:06:49 > 0:06:53with its unfamiliar procedures and terminology,
0:06:53 > 0:06:57would have been terrified into incoherence
0:06:57 > 0:07:02when their lives were hanging in the balance.
0:07:02 > 0:07:07If the defendant needed assistance, the judge was expected to offer it.
0:07:07 > 0:07:11Judges were not always seen to be the apogee of impartiality
0:07:11 > 0:07:15and some could find the court day a little enervating.
0:07:15 > 0:07:20In 1699, Spencer Cowper, grandfather of the poet William,
0:07:20 > 0:07:22was on trial for murder.
0:07:22 > 0:07:26Towards the end of a lengthy day, an exhausted judge admitted
0:07:26 > 0:07:30he was struggling to sum up the case.
0:07:30 > 0:07:33"I am sensible I have omitted many things," he said,
0:07:33 > 0:07:38"but I am a little faint and cannot repeat any more of the evidence."
0:07:38 > 0:07:42Despite this display of judicial lassitude,
0:07:42 > 0:07:46or perhaps because of it, the jury found Cowper not guilty.
0:07:48 > 0:07:51With judges your only defender
0:07:51 > 0:07:55and the Bloody Code sanctioning hanging for over 200 crimes,
0:07:55 > 0:08:00you might have expected the hangman to be the busiest tradesman in town.
0:08:01 > 0:08:05Thankfully, something came between you and the noose.
0:08:05 > 0:08:06'The jury.'
0:08:09 > 0:08:14I'll let you into a wee secret gained from many years' experience at the criminal bar.
0:08:14 > 0:08:18Despite all their tough talking in the pub,
0:08:18 > 0:08:24most people, when they find themselves on a jury having to decide the fate of a fellow human,
0:08:24 > 0:08:26in many cases have a tendency
0:08:26 > 0:08:29to go all...soft or tender.
0:08:36 > 0:08:43Tabloid journalists may merely reflect the inclination or even aspiration of many of their readers
0:08:43 > 0:08:45to string them up themselves,
0:08:45 > 0:08:49but when they do hold someone's life in their hand,
0:08:49 > 0:08:51most people wobble.
0:08:53 > 0:08:55And this was nothing new.
0:08:55 > 0:09:01Juries were considerably less punitive 200 years ago than perhaps you might think.
0:09:01 > 0:09:08When faced with a Bloody Code which imposed the death penalty for innumerable petty offences,
0:09:08 > 0:09:14juries were inclined to go against their oath of bringing in a true verdict
0:09:14 > 0:09:22and either to find people not guilty or, more often, to reduce the amount of property stolen
0:09:22 > 0:09:25so that it was no longer a capital offence.
0:09:25 > 0:09:28This was known as pious perjury.
0:09:28 > 0:09:31And let me give you an example.
0:09:31 > 0:09:37Here's just one case from the Old Bailey records and it relates to a Mary Bain
0:09:37 > 0:09:40of the Parish of St Andrew Holborn.
0:09:40 > 0:09:45Now she was indicted for the theft of clothing worth over 50 shillings.
0:09:45 > 0:09:48That was a capital offence.
0:09:48 > 0:09:54"She made a frivolous defence upon which the jury found her guilty
0:09:54 > 0:09:58"to the value of four shillings and ten pence,"
0:09:58 > 0:10:02thus rendering her no longer liable to execution
0:10:02 > 0:10:06and so she was merely branded.
0:10:06 > 0:10:11Counting on the mercy of either the jury or the judge
0:10:11 > 0:10:14could seem a little bit like Russian Roulette,
0:10:14 > 0:10:20but soon a means arose which would help even the odds for the defendants
0:10:20 > 0:10:25and this is still a cornerstone of English justice today.
0:10:25 > 0:10:31But its beginning is shrouded, still, in some little mystery.
0:10:34 > 0:10:40'The mystery starts in the Inns of Court, home to London's barristers.
0:10:40 > 0:10:45'These lawyers had been pleading in English courts since the 13th century,
0:10:45 > 0:10:50'but their role had been mainly limited to civil cases and litigation.'
0:10:50 > 0:10:55Here at Lincoln's Inn, as at the other Inns of Court,
0:10:55 > 0:10:58more and more barristers came to ply their trade.
0:10:58 > 0:11:04They were bright, energetic young men and their influence would be profound.
0:11:06 > 0:11:13'By the 18th century, barristers were prosecuting criminal cases on behalf of the Crown.
0:11:13 > 0:11:20'And from the 1730s, some judges were allowing defence barristers
0:11:20 > 0:11:25'to appear on behalf of prisoners facing the death penalty.'
0:11:26 > 0:11:32Had the judges realised the influence barristers would come to have on the court
0:11:32 > 0:11:37and how they would largely displace the judiciary from their dominating role in trials,
0:11:37 > 0:11:41they might well have tried to slam the door shut.
0:11:41 > 0:11:45Once barristers had their foot in that door, however,
0:11:45 > 0:11:49there was no one who could get them out.
0:11:52 > 0:11:57Barristers appearing in criminal cases couldn't fall back on mere rhetoric.
0:11:57 > 0:12:02They had to master a forensic questioning technique.
0:12:02 > 0:12:07Since the 13th century, it was not considered proper for a barrister, in effect,
0:12:07 > 0:12:13to appear against the King in felony cases that were brought by the crown.
0:12:13 > 0:12:17Thus defence barristers could not address the jury directly,
0:12:17 > 0:12:23but had to rely on vigorous cross-examination and the odd comment dropped in.
0:12:23 > 0:12:25One barrister stands out.
0:12:25 > 0:12:30He did more than any other to change existing practice
0:12:30 > 0:12:34and to transform the very nature of the criminal trial.
0:12:34 > 0:12:37William Garrow.
0:12:40 > 0:12:45The son of a Scottish schoolmaster, Garrow was called to the bar in 1783.
0:12:45 > 0:12:50In later life he would become an MP, the Attorney General and a Privy Councillor,
0:12:50 > 0:12:55but his lasting impact came from the time he spent at the Old Bailey
0:12:55 > 0:12:59as one of the most prolific defence advocates of his era.
0:13:01 > 0:13:05Behind these rather unprepossessing walls,
0:13:05 > 0:13:07a legal revolution was taking place.
0:13:08 > 0:13:14'Such was Garrow's legacy, along with the theatricality of his courtroom style,
0:13:14 > 0:13:18'it's not surprising that his story has been turned into a TV drama.
0:13:18 > 0:13:21'This is the set of Garrow's Law.
0:13:21 > 0:13:28'The series largely draws on Garrow's actual cases, which often were truly dramatic.'
0:13:28 > 0:13:34If he were guilty, which I state plainly he is not, must he hang alongside murderers and cutpurses...
0:13:34 > 0:13:38Mr Garrow! You will be in contempt!
0:13:40 > 0:13:42Is that a just end for any man?
0:13:46 > 0:13:53Gentlemen, you must know that Mr Garrow was playing you like a harpist.
0:13:56 > 0:14:02'I asked the historical consultant for the series how much the TV Garrow reflected the man
0:14:02 > 0:14:05'revealed by the court records.'
0:14:05 > 0:14:08All we can base things on are the transcripts,
0:14:08 > 0:14:10so when you go through them
0:14:10 > 0:14:16you can see that Garrow is most definitely breaking the mould in terms of how he approached the task
0:14:16 > 0:14:19of persuading the jury about his case.
0:14:19 > 0:14:23In his style, he seems to be succinct and to the point
0:14:23 > 0:14:27and he can create a word picture followed by a question or a comment
0:14:27 > 0:14:33or a question dressed up as a comment. A model modern barrister.
0:14:33 > 0:14:39In a way, he's the godfather of the whole modern system of advocacy, as I see it anyway,
0:14:39 > 0:14:46with this acidic kind of very American style, you know, approach to advocacy.
0:14:47 > 0:14:54You are a man who will testify for a reward, you are a man who will have others hanged for a reward!
0:14:54 > 0:14:58- I witness from Christian probity! - You witness from greed!- My Lord!
0:14:58 > 0:15:02Mr Garrow, you have said your say.
0:15:04 > 0:15:10A consummate performer, Garrow was famed for his aggressive style of cross-examination.
0:15:10 > 0:15:16'Andrew Buchan, who plays Garrow, seems such a natural fit for the role
0:15:16 > 0:15:18'I wondered if there was a lawyer in the family.'
0:15:18 > 0:15:23My father used to be a Customs officer at Manchester Airport.
0:15:23 > 0:15:27And he would be relentless in just trying to get to the bottom
0:15:27 > 0:15:31of where exactly they'd come from, why they didn't have a bag.
0:15:31 > 0:15:37"Just tell the truth. I don't believe a word. Where is your uncle? What's his name?
0:15:37 > 0:15:44"You don't even know his name?" Just this... "I don't believe a word of it." Like a bullet.
0:15:44 > 0:15:49And Garrow's manner of questioning seemed to be very similar to,
0:15:49 > 0:15:56"I cannot seem to recollect." "Well, try. Because this person's about to be hanged."
0:15:56 > 0:16:02- Is it really quite easy to get into the role of Garrow? - It's an actor's dream, I suppose,
0:16:02 > 0:16:04because it is theatre.
0:16:04 > 0:16:08A lot of barristers have a little bit of actor in them,
0:16:08 > 0:16:12so they love that arena and the cauldron of the court.
0:16:14 > 0:16:20Garrow's brilliant use of theatrics meant the opposition felt obliged to follow suit.
0:16:20 > 0:16:25Soon the two sides were battling each other as adversaries.
0:16:25 > 0:16:30English trials had taken on a new form, which remains with us today.
0:16:30 > 0:16:35The adversarial trial system in which I practise
0:16:35 > 0:16:38was born in courts such as this.
0:16:38 > 0:16:42We don't, alas, have the nuts any more, nor the port,
0:16:42 > 0:16:47but the wigs and the briefs tied up in pink ribbon
0:16:47 > 0:16:49are exactly the same.
0:16:52 > 0:16:56Garrow may have been a mould-breaker in the courtroom,
0:16:56 > 0:17:00but he was also very much in tune with the mindset of his age.
0:17:03 > 0:17:09In 18th-century Britain, the prevailing intellectual climate was one of rigour,
0:17:09 > 0:17:11even of scepticism.
0:17:11 > 0:17:17Leading thinkers such as the Scottish philosopher David Hume emphasised the importance
0:17:17 > 0:17:21of direct experience in the acquisition of knowledge.
0:17:21 > 0:17:28Learned institutions such as the Royal Society championed and popularised the scientific method.
0:17:28 > 0:17:36The instinct of any educated person of Garrow's generation would be to take nothing for granted,
0:17:37 > 0:17:42but to question received wisdom and to test the evidence.
0:17:44 > 0:17:49'And this Enlightenment thinking had found its way into the courtroom.
0:17:49 > 0:17:54'Previously, all evidence, even mere hearsay, was equally admissible,
0:17:54 > 0:18:00'but now rules of what could and could not be considered evidence were introduced.
0:18:00 > 0:18:05'Thanks to Garrow, the entire balance of proof in the courtroom was changing.'
0:18:05 > 0:18:10Before Garrow, the focus was on the response of the accused to the charges.
0:18:10 > 0:18:15Garrow shifted that focus onto the case presented by the prosecution.
0:18:15 > 0:18:22The trial was no longer a test of the defendant, but of the evidence against him.
0:18:23 > 0:18:27And linked to this approach is a principle that has become
0:18:27 > 0:18:35the cornerstone of ideals of justice across the world, yet can be summed up in one phrase.
0:18:36 > 0:18:39Innocent until proven guilty.
0:18:39 > 0:18:43Just four words, but today a hallowed concept.
0:18:43 > 0:18:49The articulation of this key principle, the presumption of innocence,
0:18:49 > 0:18:54has been attributed to William Garrow. The fact that it has
0:18:54 > 0:18:58is a tribute to his impact on the criminal trial process
0:18:58 > 0:19:01and on the rights of the accused.
0:19:03 > 0:19:08'Of course, it took more than one man to change England's entire legal machine.
0:19:08 > 0:19:12'The mystery is what the other factors might be.
0:19:12 > 0:19:17'How the adversarial system gained traction, surprisingly, is unclear.
0:19:17 > 0:19:22'There was no Act of Parliament, no judgment by or decree from the higher judiciary,
0:19:22 > 0:19:28'but legal historian Richard Vogler believes the answer may lie with broader forces.
0:19:28 > 0:19:31'Nothing less than the Industrial Revolution.'
0:19:32 > 0:19:37Why did this development take place at this time?
0:19:37 > 0:19:42I think it is no coincidence that this development happened in England
0:19:42 > 0:19:48in the middle of the 18th century at the same time that we were experiencing these profound changes
0:19:48 > 0:19:51from our Industrial Revolution.
0:19:51 > 0:19:56Moving from a feudal economy to a market, industrial economy.
0:19:56 > 0:20:01And I think those changes affected all facets of life, including the criminal trial.
0:20:01 > 0:20:06And adversariality is above all a market-driven system of justice.
0:20:06 > 0:20:10You pay for what you get in terms of representation.
0:20:11 > 0:20:17The Industrial Revolution had brought with it increasing commercial litigation,
0:20:17 > 0:20:23disputes over patent rights, mining rights. Now lawyers in criminal courts took this a stage further
0:20:23 > 0:20:26and introduced a bolder concept -
0:20:26 > 0:20:29that a defendant had rights.
0:20:30 > 0:20:36By talking that language when they got into the criminal courts, they revolutionised the procedure.
0:20:36 > 0:20:42And instead of the criminal defendant being a passive object of the procedure,
0:20:42 > 0:20:46he or she became an active participant
0:20:46 > 0:20:51who was rights-bearing, who could actually have a role and be represented.
0:20:51 > 0:20:58And this was the birth of a rights culture that has subsequently spread all over the world.
0:20:59 > 0:21:03'The revolutionary idea that defendants had rights
0:21:03 > 0:21:07'had an impact far greater than just in our courts.
0:21:07 > 0:21:11'What began in the courtroom grew into an entire culture.
0:21:15 > 0:21:20'William Garrow, as it turns out, was part of a bigger trend.'
0:21:25 > 0:21:30I can claim some modest connection with William Garrow.
0:21:30 > 0:21:36This is 25 Bedford Row, where I and 60 other barristers have our chambers.
0:21:36 > 0:21:40But in the 18th century, this was William Garrow's house.
0:21:41 > 0:21:47But I have to admit that despite his very many considerable achievements,
0:21:47 > 0:21:49he's not my greatest hero.
0:21:49 > 0:21:54That honour has to go to his contemporary, sometime colleague and rival,
0:21:54 > 0:21:58perhaps the greatest barrister of them all, Thomas Erskine.
0:21:58 > 0:22:01And I say that not just because he's Scottish.
0:22:03 > 0:22:09Thomas Erskine was the lawyer who truly championed the new culture of rights.
0:22:09 > 0:22:13Charismatic, and with a superb analytical mind,
0:22:13 > 0:22:18he was in tune with the new currents of political thought of the 18th century.
0:22:21 > 0:22:26Whereas Garrow seems to have been driven largely by personal ambition,
0:22:26 > 0:22:32Thomas Erskine, throughout his career, consistently deployed his very considerable talents
0:22:32 > 0:22:36in the defence of Enlightenment values and liberty.
0:22:36 > 0:22:42Erskine accepted the brief to defend Thomas Paine, the most radical English writer of the age,
0:22:42 > 0:22:47whose ideas had helped inspire the American War of Independence
0:22:47 > 0:22:49and the French Revolution.
0:22:49 > 0:22:54In 1792, Paine was accused of seditious libel
0:22:54 > 0:22:57for his essay The Rights of Man.
0:22:57 > 0:23:03Erskine's decision was to cost him his post as Attorney General to the Prince of Wales.
0:23:03 > 0:23:06Two years later, in 1794,
0:23:06 > 0:23:12Erskine would take on his most important case, one that would both showcase his remarkable skills
0:23:12 > 0:23:15and test them to the very limit.
0:23:17 > 0:23:22At the end of the 18th century, in the wake of the French Revolution,
0:23:22 > 0:23:27the rulers of England became more paranoid than at any time since the reign of James I.
0:23:27 > 0:23:31The government of William Pitt severely restricted civil liberties
0:23:31 > 0:23:36and instituted a series of prosecutions for treason which threatened
0:23:36 > 0:23:39to make an "English terror" a reality.
0:23:39 > 0:23:43The French Revolution had horrified England's rulers.
0:23:43 > 0:23:47Would they, as their French counterparts before them,
0:23:47 > 0:23:50be dragged to the guillotine?
0:23:56 > 0:23:59'Places like here, Cecil Court in London,
0:23:59 > 0:24:01'were hotbeds of radicalism.
0:24:01 > 0:24:04'Government spies were watching.
0:24:06 > 0:24:09'Mail was searched.
0:24:09 > 0:24:14'Dissidents were intimidated. Paranoia was rife.'
0:24:20 > 0:24:24One radical group was infiltrated by at least five government spies.
0:24:24 > 0:24:29It went by the innocuous name of the London Corresponding Society.
0:24:30 > 0:24:32Oh, thank you.
0:24:33 > 0:24:36In handbills such as this,
0:24:36 > 0:24:42the group's leader Thomas Hardy called for reform - votes for all men and annual parliaments.
0:24:42 > 0:24:47William Pitt's government, however, saw not reform
0:24:47 > 0:24:49but revolution.
0:24:54 > 0:24:59Printing presses were secretly despatching pamphlets throughout the country
0:24:59 > 0:25:05and corresponding societies were springing up everywhere. The government was shaken.
0:25:08 > 0:25:14"We conceive it necessary to direct the public eye to the cause of our misfortunes
0:25:14 > 0:25:20"and to awaken the sleeping reason of our countrymen to the pursuit of the only remedy
0:25:20 > 0:25:23"which can ever prove effectual.
0:25:23 > 0:25:28"Namely, a thorough reform of Parliament."
0:25:30 > 0:25:37The membership of these political associations included tinkers, tailors, soldiers,
0:25:37 > 0:25:40but also spies.
0:25:40 > 0:25:47Consequently, the wealth of evidence purporting to implicate the corresponding societies in sedition
0:25:47 > 0:25:52continued to grow until, in the spring of 1794,
0:25:52 > 0:25:57William Pitt could unleash the full force of the law against them.
0:25:59 > 0:26:04Thomas Hardy and two other members of the London Corresponding Society
0:26:04 > 0:26:08were to stand trial for high treason.
0:26:08 > 0:26:13If these men were convicted, it would just be the start.
0:26:13 > 0:26:18The government had another 800 arrest warrants waiting to be executed.
0:26:18 > 0:26:26Their chances of acquittal looked bleak. Then Thomas Erskine agreed to fight their case.
0:26:26 > 0:26:31The treason trials which began in October, 1794,
0:26:31 > 0:26:33had the nation transfixed.
0:26:33 > 0:26:38Erskine knew that he wouldn't just be addressing the court.
0:26:38 > 0:26:42His words would echo around the entire country.
0:26:42 > 0:26:48At the heart of his defence, Erskine put forward a clear statement of Enlightenment principles.
0:26:49 > 0:26:56"Men may assert the right of every people to choose their government
0:26:56 > 0:27:00"without seeking to destroy their own."
0:27:00 > 0:27:06In excoriating style, Erskine demolished witness after witness for the prosecution.
0:27:06 > 0:27:14A spy was called into the witness box. He claimed to be giving his evidence from his notes,
0:27:14 > 0:27:18but frequently was looking at the ceiling.
0:27:19 > 0:27:23"Good God Almighty!" thundered Erskine.
0:27:23 > 0:27:30"Recollection mixing itself with notes in a case of high treason?
0:27:30 > 0:27:33"Oh, excellent evidence(!)"
0:27:35 > 0:27:40Opening the defence, Erskine spoke for seven hours.
0:27:41 > 0:27:45Not surprisingly, this was one of the longest trials of its age.
0:27:45 > 0:27:51Finally, on the eighth day, the jury was ready to return its verdict
0:27:51 > 0:27:53amidst nationwide anticipation.
0:27:54 > 0:27:57The jury foreman stood up.
0:27:57 > 0:27:59"Not guilty," he said.
0:27:59 > 0:28:02And promptly fainted.
0:28:04 > 0:28:07It was a very popular verdict.
0:28:07 > 0:28:14People went wild with excitement. The horses were taken off Hardy and Erskine's coaches
0:28:14 > 0:28:20and they were pulled in triumph through the streets of London by jubilant crowds.
0:28:26 > 0:28:32We lawyers are reluctant to recognise excellence in anyone other than ourselves.
0:28:32 > 0:28:37An impressive judge may merit a small portrait in a corridor,
0:28:37 > 0:28:42a distinguished Lord Chief Justice may warrant a full-size painting in a hall,
0:28:42 > 0:28:48but Thomas Erskine has a statue here, centre stage,
0:28:48 > 0:28:50in the library of Lincoln's Inn.
0:28:51 > 0:28:54To be thus set in stone,
0:28:54 > 0:28:57at the very heart of legal London,
0:28:57 > 0:29:00shows that his peers considered and consider him to be
0:29:00 > 0:29:05the finest barrister and foremost defender of freedom
0:29:05 > 0:29:09of his or perhaps of any age.
0:29:22 > 0:29:26'This new fairer trial procedure, used to such effect by Erskine,
0:29:26 > 0:29:29'would flow forth across the world.
0:29:29 > 0:29:36'The adversarial trial was perhaps England's best and most benevolent export.'
0:29:39 > 0:29:44The adversarial system was exported even beyond the British Empire
0:29:44 > 0:29:51and continues to this day in the United States of America and throughout the Commonwealth.
0:29:51 > 0:29:54And it's still growing.
0:29:54 > 0:29:59In the last two decades, Taiwan and several Latin American countries
0:29:59 > 0:30:03have adopted an adversarial approach.
0:30:05 > 0:30:11'Back in the 18th century, the involvement of barristers may have made criminal trials fairer,
0:30:11 > 0:30:16'but those convicted still faced brutal punishments.
0:30:16 > 0:30:20'The Bloody Code was still firmly on the stature books
0:30:20 > 0:30:26'and there was no sign that Parliament was in the mood to roll back on capital offences.
0:30:31 > 0:30:37'Britain's war with Revolutionary France had triggered a series of runs on the Bank of England,
0:30:37 > 0:30:39'draining its gold reserves.
0:30:39 > 0:30:42'Fearing it would run out of gold,
0:30:42 > 0:30:48'in 1797 it increased the use of banknotes - a counterfeiter's dream.
0:30:50 > 0:30:53'But forging a banknote was a capital crime.
0:30:53 > 0:30:59'The Bank of England now found itself becoming, in effect, a forgery policeman,
0:30:59 > 0:31:07'enforcing the full severity of the law. Hundreds were sentenced to the gallows.
0:31:07 > 0:31:14'At the British Museum, historian Jack Mockford explained to me how the satirist George Cruikshank
0:31:14 > 0:31:20'witnessed one such hanging and responded with a typically trenchant protest -
0:31:20 > 0:31:22'a caricaturist's banknote.'
0:31:22 > 0:31:28- It's clearly not a Bank of England note.- No, but what it very cleverly does is mock a lot of features
0:31:28 > 0:31:33which were commonplace on Bank of England notes of this period and the past.
0:31:33 > 0:31:38So you have the famous image of Britannia, but in this case
0:31:38 > 0:31:44she's seen devouring a baby's head and you have various skeletal-like figures on the note.
0:31:44 > 0:31:47Here we've got a pound sign, but it's a rope.
0:31:47 > 0:31:53Yeah, you have the hangman's noose, which has been cleverly turned into the pound sign.
0:31:53 > 0:31:59- Here I think we've got what looks like a row of people being hanged. - You do. That's right, exactly.
0:31:59 > 0:32:04- And the signature is not the Governor of the Bank of England. - No, it is Jack Ketch,
0:32:04 > 0:32:07a slang term for the hangman at this time.
0:32:07 > 0:32:11And what sort of impact would this have had?
0:32:11 > 0:32:17I think it symbolised the point in the campaign against the use of capital punishment for forgery
0:32:17 > 0:32:24that the Bank's role as the authority on policing the problem and prosecuting individuals
0:32:24 > 0:32:26was coming to an end.
0:32:28 > 0:32:34Cruikshank's note showed that the tide was turning against the use of the death penalty for forgery.
0:32:35 > 0:32:38Juries refused to convict forgers.
0:32:38 > 0:32:43The Bank of England itself now pressed the Government to relax its draconian penalties
0:32:43 > 0:32:48in a bid to secure more successful convictions.
0:32:49 > 0:32:53Forgery was not the only law needing reform.
0:32:53 > 0:33:01The whole system, savage and incoherent, required overhauling and only Government could do this.
0:33:03 > 0:33:08The politician with the courage, the obsessive eye for detail, and the power of personality
0:33:08 > 0:33:12to take on this project was Robert Peel.
0:33:12 > 0:33:15When Robert Peel became Home Secretary,
0:33:15 > 0:33:19there were over 100 statutes dealing with forgery alone.
0:33:19 > 0:33:23He ruthlessly attacked this legislative mess.
0:33:29 > 0:33:31Out of this bonfire of legislation,
0:33:31 > 0:33:35Peel pulled a piece of legislative magic.
0:33:35 > 0:33:40120 statutes were transformed into one,
0:33:40 > 0:33:44just six pages long.
0:33:44 > 0:33:50With consummate skill, Robert Peel did more to reform the criminal justice system
0:33:50 > 0:33:53than almost any other Home Secretary.
0:33:53 > 0:34:01'Over the course of eight years, Peel consolidated three quarters of all offences into a few key Acts.
0:34:01 > 0:34:07'The Waltham Black Act with its dozens of hanging crimes all but disappeared.
0:34:07 > 0:34:10'The death penalty was severely restricted.
0:34:11 > 0:34:14'Had a Tory Home Secretary gone soft?
0:34:14 > 0:34:22'I put this to Peel's biographer, himself a former Tory Home Secretary, Douglas Hurd.'
0:34:22 > 0:34:28Over the previous 100 years, there had been a vast amount of Parliamentary legislation
0:34:28 > 0:34:33dealing with crimes, mainly making them capital offences.
0:34:33 > 0:34:36That was a tendency.
0:34:37 > 0:34:41Of those 120 Acts dealing with forgery,
0:34:41 > 0:34:46I think about half, 60, created capital offences.
0:34:46 > 0:34:51Peel was not a humanitarian. He was not a liberal Home Secretary.
0:34:51 > 0:34:57It was not his main aim to make a more humane, merciful system.
0:34:57 > 0:35:03That was one effect of what he did, but it wasn't actually his main aim. His main aim was a Tory aim.
0:35:03 > 0:35:09It was actually to tidy things up, make them sensible. It wasn't primarily humanitarian.
0:35:09 > 0:35:15I think he was quite clearly looking for the right answer and was not to be pushed off
0:35:15 > 0:35:19with inadequate answers or solutions that weren't really solutions.
0:35:19 > 0:35:23He really was genuinely looking for, working hard for,
0:35:23 > 0:35:27working day and night for the right answer for the system.
0:35:29 > 0:35:35Peel had reformed the law. Now he searched for the means to enforce it.
0:35:36 > 0:35:41The Bloody Code's unjust punishments had failed to stem crime.
0:35:41 > 0:35:43Could there be a better deterrent?
0:35:46 > 0:35:51In August, 2011, rioting swept England
0:35:51 > 0:35:54and, for a time, the mob ruled.
0:35:55 > 0:36:01'Eventually, the police controlled the situation, but imagine the destruction
0:36:01 > 0:36:05'if, as in Robert Peel's day, the police didn't exist.
0:36:05 > 0:36:10'Instead of deploying police and employing water cannon,
0:36:10 > 0:36:14'governments relied on the Riot Act.'
0:36:14 > 0:36:19The Act held that where 12 or more people gathered together in riotous assembly
0:36:19 > 0:36:23and rejected the reading of the Riot Act
0:36:23 > 0:36:28and failed to disperse within an hour, then force could be used against them.
0:36:28 > 0:36:33Those remaining on the scene would be subject to the most severe penalty of all -
0:36:33 > 0:36:37death. A public official, usually a magistrate,
0:36:37 > 0:36:41would first of all read these words.
0:36:41 > 0:36:49"Our Sovereign Lord the King chargeth and commandeth all persons being assembled
0:36:49 > 0:36:55"immediately to disperse themselves and peaceably to depart to their habitations
0:36:55 > 0:37:00"or to their lawful business upon the pains contained in the Act
0:37:00 > 0:37:04"for preventing tumults and riotous assemblies.
0:37:04 > 0:37:07"God save the King!"
0:37:07 > 0:37:11If you heard those words you had an hour to disperse
0:37:11 > 0:37:14or face the consequences.
0:37:14 > 0:37:20In Peel's day, riots were frequent, but they often ended with deaths on the streets.
0:37:20 > 0:37:23The Government's options were limited.
0:37:26 > 0:37:30You had a number of ad hoc people like the Bow Street Runners,
0:37:30 > 0:37:37but basically you relied on the army because that was the only force that was available.
0:37:38 > 0:37:42Peel advocated the creation of a police force.
0:37:42 > 0:37:48Uncontroversial to us, but at the time a radical and suspect concept.
0:37:50 > 0:37:54Why were people opposed to the creation of a police force?
0:37:54 > 0:38:00Because one of the themes which runs through English history in the 18th and 19th century
0:38:00 > 0:38:04is the fear of a standing army.
0:38:04 > 0:38:10A standing army was thought of as something the Stuarts rather believed in.
0:38:10 > 0:38:14It was a reinforcement of royal power.
0:38:14 > 0:38:21And people thought - and this was very strong when Peel first produced the plan for a Metropolitan Police -
0:38:21 > 0:38:28that this was just the government trying to grab hold of the lives of the people.
0:38:29 > 0:38:34Peel had long sought to replace the existing and ineffective system
0:38:34 > 0:38:37of nightwatchmen and parish constables,
0:38:37 > 0:38:42but he faced an uphill struggle in the face of the argument
0:38:42 > 0:38:47that a professional police force would be a danger to liberty.
0:38:47 > 0:38:53Could Robert Peel convince the population that having a police force did not mean
0:38:53 > 0:38:57England would become a police state?
0:38:57 > 0:39:01In 1829, he did this by persuading the public
0:39:01 > 0:39:06that the police would not just control people, they would primarily control crime.
0:39:07 > 0:39:10"I want to teach people," wrote Peel,
0:39:10 > 0:39:16"that liberty does not consist in having your house robbed by organised gangs of thieves
0:39:16 > 0:39:22"or leaving the principal streets of London in the nightly possession of drunken women
0:39:22 > 0:39:24"or vagabonds."
0:39:24 > 0:39:27Crucially for English criminal law,
0:39:27 > 0:39:34the creation of a professional police force meant they became the deterrent against crime
0:39:34 > 0:39:37rather than draconian penalties.
0:39:39 > 0:39:45The raw cityscapes described by Charles Dickens saw Peel's reforms in action.
0:39:47 > 0:39:50Society's predators, the Fagins and Bill Sykes,
0:39:50 > 0:39:54faced a more immediate threat than the noose -
0:39:54 > 0:39:58the increasing likelihood of being detected.
0:39:58 > 0:40:02When a Fagin was in the dock, he would now get a brief.
0:40:03 > 0:40:07But there was still one shocking imbalance.
0:40:07 > 0:40:12'The defence barrister was fighting with one hand tied behind his back.'
0:40:13 > 0:40:20Today no courtroom drama is complete without a defence advocate vehemently addressing the jury
0:40:20 > 0:40:22on his client's behalf.
0:40:22 > 0:40:26It's the culminating point of the defence.
0:40:26 > 0:40:29It's the part I enjoy most.
0:40:29 > 0:40:32My cross-examination merely provides the grist
0:40:32 > 0:40:35for that particular mill.
0:40:35 > 0:40:39Yet until the first half of the 19th century, except in treason trials,
0:40:39 > 0:40:45only the prosecution had that privilege, not the defence.
0:40:46 > 0:40:48But now all that changed.
0:40:48 > 0:40:51Sometimes emotional, often theatrical,
0:40:51 > 0:40:58the speech by defence counsel to the jury became a key moment in any trial.
0:40:58 > 0:41:03And no British lawyer mastered that moment better than Sir Edward Marshall Hall,
0:41:03 > 0:41:07whose career spanned the late-Victorian and Edwardian eras.
0:41:07 > 0:41:14It's thought he may have helped more people to escape the noose than any other barrister.
0:41:16 > 0:41:21'Sally Smith QC is writing a new biography of Marshall Hall
0:41:21 > 0:41:26'and has researched his eye-catching tactics.'
0:41:26 > 0:41:31The truth is juries like to be entertained to some degree.
0:41:31 > 0:41:33And Marshall Hall entertained them.
0:41:33 > 0:41:40And he was using techniques which nowadays would be regarded as being inappropriate.
0:41:40 > 0:41:45Many of them were derived from the stage and from melodramas.
0:41:45 > 0:41:49He would put out his arms and emulate the scales of justice.
0:41:49 > 0:41:53You have to remember he was a very tall man and so it was very impressive.
0:41:53 > 0:41:58You have to be a very great advocate to keep that up without looking silly.
0:41:58 > 0:42:04And he would go through the evidence with his arms out like that and then slowly, slowly tip his arms
0:42:04 > 0:42:11and tip his arms as he proved that all the evidence was in favour of...
0:42:11 > 0:42:14the innocence of his client.
0:42:14 > 0:42:19Marshall Hall is believed to have had actual lessons in stagecraft.
0:42:20 > 0:42:24If so, they certainly seem to have paid off.
0:42:25 > 0:42:29He was extraordinarily successful.
0:42:29 > 0:42:31He had this magnetic capacity
0:42:32 > 0:42:35to persuade juries.
0:42:37 > 0:42:43But in 1907 Marshall Hall took on perhaps his toughest assignment.
0:42:43 > 0:42:45The Camden Town murder
0:42:45 > 0:42:49was one of the most notorious crimes of the Edwardian era.
0:42:49 > 0:42:55A tale of a brutal and savage killing and fog-filled London streets that could have been ripped
0:42:55 > 0:42:59from the casebook of Sherlock Holmes.
0:42:59 > 0:43:05An artist called Robert Wood was accused of murdering a part-time prostitute, Emily Dimmock.
0:43:05 > 0:43:09Her body had been found in her Camden Town lodgings
0:43:09 > 0:43:13and her throat had been slit from ear to ear.
0:43:15 > 0:43:18This gruesome case was a sensation.
0:43:18 > 0:43:23It inspired a series of paintings by Walter Sickert.
0:43:24 > 0:43:30'And it was covered in great detail by the press, which had found you couldn't beat a murder trial
0:43:30 > 0:43:33'when it came to pulling in the readers.'
0:43:34 > 0:43:41Marshall Hall's secretary helpfully, if rather laboriously, collated the press cuttings of his cases
0:43:41 > 0:43:43and she did so in several volumes.
0:43:43 > 0:43:50These provide a considerable insight into the technique of his cross-examination
0:43:50 > 0:43:53and the style of his oratory.
0:43:53 > 0:44:00'From the reports of the trial, it's clear that Hall cast serious doubt on prosecution eye-witnesses
0:44:00 > 0:44:03'who had identified Robert Wood.
0:44:03 > 0:44:10'But to destroy the prosecution's case, Hall did something that was almost unheard of.
0:44:10 > 0:44:14'He called his own client to the stand.'
0:44:14 > 0:44:19"The moment had now arrived for the prisoner to go into the witness box.
0:44:19 > 0:44:23"The court was suddenly on the tiptoe of excitement.
0:44:23 > 0:44:28"Mr Marshall Hall simply said, 'I now put the prisoner in the box.'
0:44:28 > 0:44:34"Wood jumped up in court. The warders opened the side door of the dock and with alacrity
0:44:34 > 0:44:39"and a pleasant smile on his face, Wood strode to the witness box."
0:44:39 > 0:44:44Since 1898, defendants could give evidence in their own defence,
0:44:44 > 0:44:49but this was considered unwise and even foolhardy.
0:44:49 > 0:44:56The defence disliked it because they said that nobody should have to defend their position,
0:44:56 > 0:45:01that it was up to the prosecution to prove the case and not up to the defendant to give any explanation.
0:45:01 > 0:45:07The prosecution didn't like it in capital cases because there was a kind of, I think understandable,
0:45:07 > 0:45:13human resistance to having to cross-examine a man when his life was at stake.
0:45:13 > 0:45:17"Mr Marshall Hall started most dramatically.
0:45:17 > 0:45:25"'Did you kill Emily Dimmock?' he asked, speaking slowly and distinctly.
0:45:26 > 0:45:29"Wood drew himself up quickly.
0:45:29 > 0:45:34"'It is ridiculous,' he said, facing the jury."
0:45:34 > 0:45:39The expected answer was a simple no.
0:45:40 > 0:45:47Robert Wood's manner in the dock was effete and it did not suggest a man capable of such a grisly crime,
0:45:47 > 0:45:54a point Marshall Hall was then able to drive home in his passionate closing address to the jury.
0:45:54 > 0:45:57"Then he burst out in dramatic fury.
0:45:57 > 0:46:04"'I say again - I want a verdict of not guilty and nothing else!
0:46:04 > 0:46:08"'A verdict of not guilty to kill this charge
0:46:08 > 0:46:15"'so that none of the lying witnesses can galvanise it hence into any semblance of life.'"
0:46:16 > 0:46:22The press and public eagerly awaited the result. Finally, the jury gave their verdict.
0:46:22 > 0:46:25Not guilty.
0:46:25 > 0:46:32Marshall Hall's gamble had paid off and proved that getting a client to give evidence in their own defence
0:46:32 > 0:46:35could be part of a fair trial.
0:46:35 > 0:46:38Not that this achieved justice for the unfortunate victim.
0:46:39 > 0:46:44The murderer of Emily Dimmock was never found.
0:46:54 > 0:47:00'Cases like the Camden Town murder trial were a circulation boon for the popular press,
0:47:00 > 0:47:04'but the papers were beginning to go beyond mere reporting,
0:47:04 > 0:47:08'to take a more active interest in the legal process.'
0:47:08 > 0:47:13With the rise of a more investigative and less deferential press,
0:47:13 > 0:47:20the law itself fell under the spotlight. Judicial decisions were scrutinised and criticised
0:47:20 > 0:47:26and miscarriages of justice once confined to anecdotes told by barristers over the port
0:47:26 > 0:47:28became front-page news.
0:47:30 > 0:47:36'The new paper on the block, the Daily Mail, had heard of a shocking miscarriage of justice.
0:47:36 > 0:47:40'It was a classic case of mistaken identity.
0:47:40 > 0:47:45'Adolf Beck was identified as a swindler by 12 victims.
0:47:45 > 0:47:50'They all swore he was a con artist calling himself Lord Wilton de Willoughby.
0:47:50 > 0:47:54'They had been tricked into giving their jewels to this fake lord.
0:47:54 > 0:47:59'Despite his protestations, Beck was jailed.'
0:47:59 > 0:48:03Desperate to prove his innocence, Beck tried to get his case reopened,
0:48:03 > 0:48:10but all his solicitor could do was repeatedly to petition the Home Office for redress.
0:48:11 > 0:48:17The judges believed justice was fool-proof and hence there was no proper appeals procedure.
0:48:17 > 0:48:20Beck's appeal fell on deaf ears.
0:48:22 > 0:48:28One of the world's most unlucky men, Beck had a small chink of good fortune.
0:48:28 > 0:48:33Years earlier, the Daily Mail's journalist George Sims had listened to Beck
0:48:33 > 0:48:36recounting his travels in Peru,
0:48:36 > 0:48:41journeys that had happened when he was allegedly in London swindling women.
0:48:43 > 0:48:47The Daily Mail campaigned in earnest for Beck's release.
0:48:49 > 0:48:53You didn't have to be Sherlock Holmes to realise the case stank,
0:48:53 > 0:48:57and his creator, Sir Arthur Conan Doyle, joined the fight.
0:48:59 > 0:49:01Finally, under pressure,
0:49:01 > 0:49:04the authorities paroled Beck.
0:49:04 > 0:49:08He had served five years of hard labour.
0:49:08 > 0:49:12The real fraudster, William Meyer, now struck again
0:49:12 > 0:49:18and was caught red-handed. Beck's innocence was undeniable.
0:49:20 > 0:49:25Rarely has a miscarriage of justice had greater impact.
0:49:25 > 0:49:29Outrage turned to pressure for legal reform.
0:49:29 > 0:49:31Finally, in 1907,
0:49:31 > 0:49:35Parliament created the Court of Criminal Appeal.
0:49:35 > 0:49:39At last, the legal system admitted it was fallible.
0:49:40 > 0:49:45Far from being a sign of weakness, however, this new court showed
0:49:45 > 0:49:48that English law was strong enough
0:49:48 > 0:49:53to acknowledge and deal with its mistakes.
0:49:55 > 0:50:01But no appeal court can rectify a miscarriage if the victim has been hanged.
0:50:02 > 0:50:06Once the law admitted its fallibility,
0:50:06 > 0:50:10capital punishment itself was on Death Row.
0:50:10 > 0:50:14This is the notorious Dead Man's Walk.
0:50:14 > 0:50:16In days of old,
0:50:16 > 0:50:20you were marched from your cell along this corridor
0:50:20 > 0:50:22to meet your maker.
0:50:23 > 0:50:28The walls confined you, the arches became narrower and narrower.
0:50:28 > 0:50:32There was no going back on your walk to the gallows.
0:50:33 > 0:50:35Now even today
0:50:35 > 0:50:39there's a sinister feel to this place.
0:50:39 > 0:50:44It's gloomy, it's oppressive and it's claustrophobic.
0:50:45 > 0:50:51'But how can you execute someone knowing that their conviction may be unsafe?
0:50:52 > 0:50:56'Medieval judges looked to God for the final word.
0:50:56 > 0:51:00'Later, the law adopted His infallibility.
0:51:00 > 0:51:06'But once the law's imperfections were admitted, its authority to impose the ultimate sanction
0:51:06 > 0:51:08'was thrown into doubt.
0:51:09 > 0:51:14'Eventually, in the 1960s, the death penalty was abolished for murder
0:51:14 > 0:51:20'and in 1998 for treason. Goodness knows, our courts still make mistakes,
0:51:20 > 0:51:24'but they are no longer fatal errors.
0:51:28 > 0:51:35'I've found my voyage through the story of English law extraordinary and often inspiring.
0:51:35 > 0:51:40'Over this series, we've seen how justice went from trial by ordeal
0:51:40 > 0:51:46'to trial by a jury of your peers, the defining feature of English common law,
0:51:46 > 0:51:53'how we enshrined a culture of rights and documents like Magna Carta and the Petition of Right,
0:51:53 > 0:51:56'which went on to shape liberty across the world,
0:51:56 > 0:51:59'and how we evolved the adversarial system,
0:51:59 > 0:52:05'which exemplifies a fair, modern court procedure.
0:52:07 > 0:52:10'But the story is not over yet.
0:52:10 > 0:52:15'I believe that the common law currently faces a serious challenge.'
0:52:15 > 0:52:23I'm here on the roof of the Supreme Court, one of the points of the triangle of power in this country.
0:52:23 > 0:52:30Over there, Westminster Abbey and the national shrine and the Royal Chapel. And over here,
0:52:30 > 0:52:33the Houses of Parliament.
0:52:34 > 0:52:39The political power of the church and the crown has evaporated,
0:52:39 > 0:52:45but the power of the upstarts, Parliament, is in the ascendancy.
0:52:46 > 0:52:53Judges, once the creators of the law, have largely had that role taken from them by Parliament.
0:52:53 > 0:53:01Did judges acquiesce because they realise that the common law can't deal with a rapidly changing world?
0:53:02 > 0:53:08When some unpleasant novelty arises such as child pornography on the internet or credit card cloning
0:53:08 > 0:53:14and society wants it dealt with, there's no use looking to the common law for prohibitions
0:53:14 > 0:53:21or to earlier judgments for legal solutions. As the Victorians knew only too well,
0:53:21 > 0:53:26a fast-changing society requires new laws.
0:53:26 > 0:53:28This is where Parliament comes in.
0:53:28 > 0:53:35It enacts the appropriate legislation, it creates new crimes and it changes the law of evidence,
0:53:35 > 0:53:40which is all good and well provided that that legislation
0:53:40 > 0:53:45is coherent, comprehensible and concise.
0:53:46 > 0:53:53But since the late 1970s, governments seem to have become increasingly addicted
0:53:53 > 0:53:56to enacting new laws.
0:53:56 > 0:54:01Some of these new laws were much needed and long overdue.
0:54:01 > 0:54:08The 1984 Police and Criminal Evidence Act, for instance, helped to ensure that all suspects
0:54:08 > 0:54:15were treated with conspicuous fairness from the moment of arrest, throughout their time in detention.
0:54:15 > 0:54:19But what was once a light dusting of new legislation
0:54:19 > 0:54:23first of all became a snowstorm and then an avalanche
0:54:23 > 0:54:27threatening to overwhelm the entire legal system.
0:54:27 > 0:54:30Some may call this overload.
0:54:30 > 0:54:33I call it legislative diarrhoea.
0:54:35 > 0:54:41'I would argue that some of this legislation is again a result of press influence,
0:54:41 > 0:54:46'but popular pressure doesn't always make for good law.
0:54:47 > 0:54:54'When I met the Lord Chief Justice, he tried to give me a flavour of just one year's legislation.'
0:54:54 > 0:55:01Crime International Co-operation Act has 96 sections and six schedules containing 124 paragraphs...
0:55:01 > 0:55:06..227 sections, four schedules, containing 82 paragraphs.
0:55:06 > 0:55:11The Sexual Offences Act, 143 sections, seven schedules and 338 paragraphs,
0:55:11 > 0:55:16but the big daddy is the Criminal Justice Act itself - 339 sections
0:55:16 > 0:55:18and 38 schedules
0:55:18 > 0:55:22with a total of no less than 1,169 paragraphs.
0:55:22 > 0:55:27That's excluding Schedule 37, which has 20 pages of repealed statutes.
0:55:27 > 0:55:34So not only a far greater number of statutes, but the statutes themselves are far, far larger...
0:55:34 > 0:55:37Infinitely complex. Infinitely complex.
0:55:37 > 0:55:44And there are times when you have to struggle to find out what the answer is to a particular problem.
0:55:44 > 0:55:49This is the criminal justice system. It's supposed to be readily understood.
0:55:49 > 0:55:55It takes judges a great deal of midnight oil to work out what some of the provisions actually mean
0:55:55 > 0:55:57and whether they're in conflict with others.
0:55:57 > 0:56:03Does this mean that there are an increasing number of cases coming to the Court of Appeal
0:56:03 > 0:56:08where it is at least arguable that the lower courts got it wrong
0:56:08 > 0:56:13- because they misapplied the law or got confused about the law?- Yes.
0:56:13 > 0:56:17There are appeals about what I would describe as the technicalities.
0:56:17 > 0:56:23They're not strictly technicalities because they are to do with what power the Court has,
0:56:23 > 0:56:28so in that sense they're not technical, but in truth what they are is an analysis
0:56:28 > 0:56:33of what the legislative provisions may lead us to conclude the law is supposed to be.
0:56:33 > 0:56:39I think it's also the case that having enacted, for instance, the Criminal Justice Act 2003,
0:56:39 > 0:56:44the Government subsequently had to amend that Act in some provisions...
0:56:44 > 0:56:48- Oh, yes.- ..because of the untoward consequences it was leading to.
0:56:48 > 0:56:54Oh, yes. And some of it has never been brought into force and some will be repealed before it ever is.
0:56:55 > 0:56:57Today's criminal justice system
0:56:57 > 0:57:05needs a 21st-century Robert Peel, someone able to reform and rationalise our law,
0:57:05 > 0:57:09and stem the avalanche of parliamentary intervention.
0:57:09 > 0:57:15But, despite its shortcomings, I remain a firm believer in the English legal system.
0:57:19 > 0:57:22Whenever I put on my court robes,
0:57:22 > 0:57:25I'm conscious that I am playing a small part
0:57:27 > 0:57:29in the long drama
0:57:29 > 0:57:31of this country's law.
0:57:35 > 0:57:40It's been around for a millennium and a half and for all its imperfections
0:57:40 > 0:57:44it still ensures justice, rights wrongs,
0:57:44 > 0:57:46protects society
0:57:46 > 0:57:48and defends liberty.
0:57:50 > 0:57:52To my mind,
0:57:52 > 0:57:55the English legal system
0:57:55 > 0:58:00is this nation's greatest gift to the world.
0:58:33 > 0:58:35Subtitles by Red Bee Media Ltd