Presumed Innocent The Strange Case of the Law

In 1825, Newgate jailers escorted John Smith along this ever-narrowing corridor.

He had been convicted at the Old Bailey of housebreaking.

'He had no barrister to represent him, no witnesses to call on oath.

'All he could do was to protest his innocence - in vain.'

John Smith finished his walk about here.

And this was probably his last view of daylight.

He was hanged for this crime.

John Smith was a boy of just fifteen.

The case of John Smith sounds like an awful aberration,

a shockingly disproportionate punishment for a property offence and inflicted on one so young.

Yet this was no miscarriage of justice. The trial followed the due process of the day,

a due process that was far from equal, but was stacked against the defendant.

Life or death could be decided in minutes.

Most defendants had no one to put their case, other than the judge himself.

If this now seems rather surprising to us,

it's because of the remarkable transformation that's taken place in our legal system

over the last three centuries.

It's one that went well beyond due process to enshrine in English court procedure

the principle of the equality of arms, of simple fairness.

'That transformation was shaped by seismic shifts in English society

'from the Industrial Revolution

'to the rise of the popular press.

'It's a story that takes place in the shadow of the noose,

'one that features spies, visionary politicians blazing their way through the statute books,

'forgery, fraud and murder.

'And the most dazzling advocates ever to step foot in an English courtroom.'

At the centre of this revolution was my profession.

Barristers like William Garrow pioneered new rules of evidence

and their aggressive, passionate performances made them the star turns of the courtroom drama.

If he were guilty, and I say plainly he is not, must he hang alongside murderers and cutpurses?!

Mr Garrow! You will be in contempt!

'In this programme, I'll trace how a rather crude and biased legal process'

was remoulded to give us what we have today -

the fair trial.

At the start of the 18th century, our liberties and freedoms had been established.

The courts, by comparison, were still in the Dark Ages.

Land yourself in the dock and you found yourself in a medieval nightmare.

With no police force and no forensic science service,

the only means of deterring crime was through exemplary punishment -

whipping, transportation and hanging.

And an already severe system was about to get even bloodier.

This is Waltham in Hampshire.

'In 1723, it was a place of terror.

'A gang rampaged through these forests, poaching, robbing and murdering,

'their faces blacked up in disguise.

'It was feared these Waltham Blacks, as they were known, would spread their violence across England.'

As a kneejerk reaction, the Waltham Black Act was rushed into law.

Suddenly all manner of offences were punishable by death.

Just being caught in a park with a blacked-up face could get you hanged, along with damaging trees

and wrecking fish ponds.

It was the harshest piece of legislation that the country had ever seen.

Thus began a terrible trend that meant that by the end of the century

more than 200 offences were punishable by death.

Deterrence was all.

As Judge Buller told a felon he was sentencing, "You are to be hanged not for stealing horses

"but that horses may not be stolen."

'This system was aptly named the Bloody Code.

'At its heart was London's Hall of Justice, the Old Bailey.

'In Georgian times, trials were held in a courtroom exposed to the elements to prevent typhus

'infecting others. The Old Bailey today may look like

'a palace of justice, but in the 18th century it truly was a death trap.

'In 1750, long after the building had been enclosed,

'an outbreak of jail fever promiscuously killed 60 people,

'including two judges and the Lord Mayor.'

If the physical conditions were vile, the way in which justice was meted out seems much worse.

You are facing the noose.

Are you entitled to a defence barrister? No.

Can you or your defence witnesses give sworn testimony? No.

Do juries retire to give careful consideration to your case?

No.

And you were lucky if the entire proceedings from start to verdict and sentence

took more than 15 minutes.

The idea that the accused was entitled to an adequate defence

had yet to penetrate these walls.

In this era, people felt the innocent should be able to argue their own cases.

Many an accused, when compelled to defend themselves in this alien environment,

with its unfamiliar procedures and terminology,

would have been terrified into incoherence

when their lives were hanging in the balance.

If the defendant needed assistance, the judge was expected to offer it.

Judges were not always seen to be the apogee of impartiality

and some could find the court day a little enervating.

In 1699, Spencer Cowper, grandfather of the poet William,

was on trial for murder.

Towards the end of a lengthy day, an exhausted judge admitted

he was struggling to sum up the case.

"I am sensible I have omitted many things," he said,

"but I am a little faint and cannot repeat any more of the evidence."

Despite this display of judicial lassitude,

or perhaps because of it, the jury found Cowper not guilty.

With judges your only defender

and the Bloody Code sanctioning hanging for over 200 crimes,

you might have expected the hangman to be the busiest tradesman in town.

Thankfully, something came between you and the noose.

'The jury.'

I'll let you into a wee secret gained from many years' experience at the criminal bar.

Despite all their tough talking in the pub,

most people, when they find themselves on a jury having to decide the fate of a fellow human,

in many cases have a tendency

to go all...soft or tender.

Tabloid journalists may merely reflect the inclination or even aspiration of many of their readers

to string them up themselves,

but when they do hold someone's life in their hand,

most people wobble.

And this was nothing new.

Juries were considerably less punitive 200 years ago than perhaps you might think.

When faced with a Bloody Code which imposed the death penalty for innumerable petty offences,

juries were inclined to go against their oath of bringing in a true verdict

and either to find people not guilty or, more often, to reduce the amount of property stolen

so that it was no longer a capital offence.

This was known as pious perjury.

And let me give you an example.

Here's just one case from the Old Bailey records and it relates to a Mary Bain

of the Parish of St Andrew Holborn.

Now she was indicted for the theft of clothing worth over 50 shillings.

That was a capital offence.

"She made a frivolous defence upon which the jury found her guilty

"to the value of four shillings and ten pence,"

thus rendering her no longer liable to execution

and so she was merely branded.

Counting on the mercy of either the jury or the judge

could seem a little bit like Russian Roulette,

but soon a means arose which would help even the odds for the defendants

and this is still a cornerstone of English justice today.

But its beginning is shrouded, still, in some little mystery.

'The mystery starts in the Inns of Court, home to London's barristers.

'These lawyers had been pleading in English courts since the 13th century,

'but their role had been mainly limited to civil cases and litigation.'

Here at Lincoln's Inn, as at the other Inns of Court,

more and more barristers came to ply their trade.

They were bright, energetic young men and their influence would be profound.

'By the 18th century, barristers were prosecuting criminal cases on behalf of the Crown.

'And from the 1730s, some judges were allowing defence barristers

'to appear on behalf of prisoners facing the death penalty.'

Had the judges realised the influence barristers would come to have on the court

and how they would largely displace the judiciary from their dominating role in trials,

they might well have tried to slam the door shut.

Once barristers had their foot in that door, however,

there was no one who could get them out.

Barristers appearing in criminal cases couldn't fall back on mere rhetoric.

They had to master a forensic questioning technique.

Since the 13th century, it was not considered proper for a barrister, in effect,

to appear against the King in felony cases that were brought by the crown.

Thus defence barristers could not address the jury directly,

but had to rely on vigorous cross-examination and the odd comment dropped in.

One barrister stands out.

He did more than any other to change existing practice

and to transform the very nature of the criminal trial.

William Garrow.

The son of a Scottish schoolmaster, Garrow was called to the bar in 1783.

In later life he would become an MP, the Attorney General and a Privy Councillor,

but his lasting impact came from the time he spent at the Old Bailey

as one of the most prolific defence advocates of his era.

Behind these rather unprepossessing walls,

a legal revolution was taking place.

'Such was Garrow's legacy, along with the theatricality of his courtroom style,

'it's not surprising that his story has been turned into a TV drama.

'This is the set of Garrow's Law.

'The series largely draws on Garrow's actual cases, which often were truly dramatic.'

If he were guilty, which I state plainly he is not, must he hang alongside murderers and cutpurses...

Mr Garrow! You will be in contempt!

Is that a just end for any man?

Gentlemen, you must know that Mr Garrow was playing you like a harpist.

'I asked the historical consultant for the series how much the TV Garrow reflected the man

'revealed by the court records.'

All we can base things on are the transcripts,

so when you go through them

you can see that Garrow is most definitely breaking the mould in terms of how he approached the task

of persuading the jury about his case.

In his style, he seems to be succinct and to the point

and he can create a word picture followed by a question or a comment

or a question dressed up as a comment. A model modern barrister.

In a way, he's the godfather of the whole modern system of advocacy, as I see it anyway,

with this acidic kind of very American style, you know, approach to advocacy.

You are a man who will testify for a reward, you are a man who will have others hanged for a reward!

-I witness from Christian probity!

-You witness from greed!

-My Lord!

Mr Garrow, you have said your say.

A consummate performer, Garrow was famed for his aggressive style of cross-examination.

'Andrew Buchan, who plays Garrow, seems such a natural fit for the role

'I wondered if there was a lawyer in the family.'

My father used to be a Customs officer at Manchester Airport.

And he would be relentless in just trying to get to the bottom

of where exactly they'd come from, why they didn't have a bag.

"Just tell the truth. I don't believe a word. Where is your uncle? What's his name?

"You don't even know his name?" Just this... "I don't believe a word of it." Like a bullet.

And Garrow's manner of questioning seemed to be very similar to,

"I cannot seem to recollect." "Well, try. Because this person's about to be hanged."

-Is it really quite easy to get into the role of Garrow?

-It's an actor's dream, I suppose,

because it is theatre.

A lot of barristers have a little bit of actor in them,

so they love that arena and the cauldron of the court.

Garrow's brilliant use of theatrics meant the opposition felt obliged to follow suit.

Soon the two sides were battling each other as adversaries.

English trials had taken on a new form, which remains with us today.

The adversarial trial system in which I practise

was born in courts such as this.

We don't, alas, have the nuts any more, nor the port,

but the wigs and the briefs tied up in pink ribbon

are exactly the same.

Garrow may have been a mould-breaker in the courtroom,

but he was also very much in tune with the mindset of his age.

In 18th-century Britain, the prevailing intellectual climate was one of rigour,

even of scepticism.

Leading thinkers such as the Scottish philosopher David Hume emphasised the importance

of direct experience in the acquisition of knowledge.

Learned institutions such as the Royal Society championed and popularised the scientific method.

The instinct of any educated person of Garrow's generation would be to take nothing for granted,

but to question received wisdom and to test the evidence.

'And this Enlightenment thinking had found its way into the courtroom.

'Previously, all evidence, even mere hearsay, was equally admissible,

'but now rules of what could and could not be considered evidence were introduced.

'Thanks to Garrow, the entire balance of proof in the courtroom was changing.'

Before Garrow, the focus was on the response of the accused to the charges.

Garrow shifted that focus onto the case presented by the prosecution.

The trial was no longer a test of the defendant, but of the evidence against him.

And linked to this approach is a principle that has become

the cornerstone of ideals of justice across the world, yet can be summed up in one phrase.

Innocent until proven guilty.

Just four words, but today a hallowed concept.

The articulation of this key principle, the presumption of innocence,

has been attributed to William Garrow. The fact that it has

is a tribute to his impact on the criminal trial process

and on the rights of the accused.

'Of course, it took more than one man to change England's entire legal machine.

'The mystery is what the other factors might be.

'How the adversarial system gained traction, surprisingly, is unclear.

'There was no Act of Parliament, no judgment by or decree from the higher judiciary,

'but legal historian Richard Vogler believes the answer may lie with broader forces.

'Nothing less than the Industrial Revolution.'

Why did this development take place at this time?

I think it is no coincidence that this development happened in England

in the middle of the 18th century at the same time that we were experiencing these profound changes

from our Industrial Revolution.

Moving from a feudal economy to a market, industrial economy.

And I think those changes affected all facets of life, including the criminal trial.

And adversariality is above all a market-driven system of justice.

You pay for what you get in terms of representation.

The Industrial Revolution had brought with it increasing commercial litigation,

disputes over patent rights, mining rights. Now lawyers in criminal courts took this a stage further

and introduced a bolder concept -

that a defendant had rights.

By talking that language when they got into the criminal courts, they revolutionised the procedure.

And instead of the criminal defendant being a passive object of the procedure,

he or she became an active participant

who was rights-bearing, who could actually have a role and be represented.

And this was the birth of a rights culture that has subsequently spread all over the world.

'The revolutionary idea that defendants had rights

'had an impact far greater than just in our courts.

'What began in the courtroom grew into an entire culture.

'William Garrow, as it turns out, was part of a bigger trend.'

I can claim some modest connection with William Garrow.

This is 25 Bedford Row, where I and 60 other barristers have our chambers.

But in the 18th century, this was William Garrow's house.

But I have to admit that despite his very many considerable achievements,

he's not my greatest hero.

That honour has to go to his contemporary, sometime colleague and rival,

perhaps the greatest barrister of them all, Thomas Erskine.

And I say that not just because he's Scottish.

Thomas Erskine was the lawyer who truly championed the new culture of rights.

Charismatic, and with a superb analytical mind,

he was in tune with the new currents of political thought of the 18th century.

Whereas Garrow seems to have been driven largely by personal ambition,

Thomas Erskine, throughout his career, consistently deployed his very considerable talents

in the defence of Enlightenment values and liberty.

Erskine accepted the brief to defend Thomas Paine, the most radical English writer of the age,

whose ideas had helped inspire the American War of Independence

and the French Revolution.

In 1792, Paine was accused of seditious libel

for his essay The Rights of Man.

Erskine's decision was to cost him his post as Attorney General to the Prince of Wales.

Two years later, in 1794,

Erskine would take on his most important case, one that would both showcase his remarkable skills

and test them to the very limit.

At the end of the 18th century, in the wake of the French Revolution,

the rulers of England became more paranoid than at any time since the reign of James I.

The government of William Pitt severely restricted civil liberties

and instituted a series of prosecutions for treason which threatened

to make an "English terror" a reality.

The French Revolution had horrified England's rulers.

Would they, as their French counterparts before them,

be dragged to the guillotine?

'Places like here, Cecil Court in London,

'were hotbeds of radicalism.

'Government spies were watching.

'Mail was searched.

'Dissidents were intimidated. Paranoia was rife.'

One radical group was infiltrated by at least five government spies.

It went by the innocuous name of the London Corresponding Society.

Oh, thank you.

In handbills such as this,

the group's leader Thomas Hardy called for reform - votes for all men and annual parliaments.

William Pitt's government, however, saw not reform

but revolution.

Printing presses were secretly despatching pamphlets throughout the country

and corresponding societies were springing up everywhere. The government was shaken.

"We conceive it necessary to direct the public eye to the cause of our misfortunes

"and to awaken the sleeping reason of our countrymen to the pursuit of the only remedy

"which can ever prove effectual.

"Namely, a thorough reform of Parliament."

The membership of these political associations included tinkers, tailors, soldiers,

but also spies.

Consequently, the wealth of evidence purporting to implicate the corresponding societies in sedition

continued to grow until, in the spring of 1794,

William Pitt could unleash the full force of the law against them.

Thomas Hardy and two other members of the London Corresponding Society

were to stand trial for high treason.

If these men were convicted, it would just be the start.

The government had another 800 arrest warrants waiting to be executed.

Their chances of acquittal looked bleak. Then Thomas Erskine agreed to fight their case.

The treason trials which began in October, 1794,

had the nation transfixed.

Erskine knew that he wouldn't just be addressing the court.

His words would echo around the entire country.

At the heart of his defence, Erskine put forward a clear statement of Enlightenment principles.

"Men may assert the right of every people to choose their government

"without seeking to destroy their own."

In excoriating style, Erskine demolished witness after witness for the prosecution.

A spy was called into the witness box. He claimed to be giving his evidence from his notes,

but frequently was looking at the ceiling.

"Good God Almighty!" thundered Erskine.

"Recollection mixing itself with notes in a case of high treason?

"Oh, excellent evidence(!)"

Opening the defence, Erskine spoke for seven hours.

Not surprisingly, this was one of the longest trials of its age.

Finally, on the eighth day, the jury was ready to return its verdict

amidst nationwide anticipation.

The jury foreman stood up.

"Not guilty," he said.

And promptly fainted.

It was a very popular verdict.

People went wild with excitement. The horses were taken off Hardy and Erskine's coaches

and they were pulled in triumph through the streets of London by jubilant crowds.

We lawyers are reluctant to recognise excellence in anyone other than ourselves.

An impressive judge may merit a small portrait in a corridor,

a distinguished Lord Chief Justice may warrant a full-size painting in a hall,

but Thomas Erskine has a statue here, centre stage,

in the library of Lincoln's Inn.

To be thus set in stone,

at the very heart of legal London,

shows that his peers considered and consider him to be

the finest barrister and foremost defender of freedom

of his or perhaps of any age.

'This new fairer trial procedure, used to such effect by Erskine,

'would flow forth across the world.

'The adversarial trial was perhaps England's best and most benevolent export.'

The adversarial system was exported even beyond the British Empire

and continues to this day in the United States of America and throughout the Commonwealth.

And it's still growing.

In the last two decades, Taiwan and several Latin American countries

have adopted an adversarial approach.

'Back in the 18th century, the involvement of barristers may have made criminal trials fairer,

'but those convicted still faced brutal punishments.

'The Bloody Code was still firmly on the stature books

'and there was no sign that Parliament was in the mood to roll back on capital offences.

'Britain's war with Revolutionary France had triggered a series of runs on the Bank of England,

'draining its gold reserves.

'Fearing it would run out of gold,

'in 1797 it increased the use of banknotes - a counterfeiter's dream.

'But forging a banknote was a capital crime.

'The Bank of England now found itself becoming, in effect, a forgery policeman,

'enforcing the full severity of the law. Hundreds were sentenced to the gallows.

'At the British Museum, historian Jack Mockford explained to me how the satirist George Cruikshank

'witnessed one such hanging and responded with a typically trenchant protest -

'a caricaturist's banknote.'

-It's clearly not a Bank of England note.

-No, but what it very cleverly does is mock a lot of features

which were commonplace on Bank of England notes of this period and the past.

So you have the famous image of Britannia, but in this case

she's seen devouring a baby's head and you have various skeletal-like figures on the note.

Here we've got a pound sign, but it's a rope.

Yeah, you have the hangman's noose, which has been cleverly turned into the pound sign.

-Here I think we've got what looks like a row of people being hanged.

-You do. That's right, exactly.

-And the signature is not the Governor of the Bank of England.

-No, it is Jack Ketch,

a slang term for the hangman at this time.

And what sort of impact would this have had?

I think it symbolised the point in the campaign against the use of capital punishment for forgery

that the Bank's role as the authority on policing the problem and prosecuting individuals

was coming to an end.

Cruikshank's note showed that the tide was turning against the use of the death penalty for forgery.

Juries refused to convict forgers.

The Bank of England itself now pressed the Government to relax its draconian penalties

in a bid to secure more successful convictions.

Forgery was not the only law needing reform.

The whole system, savage and incoherent, required overhauling and only Government could do this.

The politician with the courage, the obsessive eye for detail, and the power of personality

to take on this project was Robert Peel.

When Robert Peel became Home Secretary,

there were over 100 statutes dealing with forgery alone.

He ruthlessly attacked this legislative mess.

Out of this bonfire of legislation,

Peel pulled a piece of legislative magic.

120 statutes were transformed into one,

just six pages long.

With consummate skill, Robert Peel did more to reform the criminal justice system

than almost any other Home Secretary.

'Over the course of eight years, Peel consolidated three quarters of all offences into a few key Acts.

'The Waltham Black Act with its dozens of hanging crimes all but disappeared.

'The death penalty was severely restricted.

'Had a Tory Home Secretary gone soft?

'I put this to Peel's biographer, himself a former Tory Home Secretary, Douglas Hurd.'

Over the previous 100 years, there had been a vast amount of Parliamentary legislation

dealing with crimes, mainly making them capital offences.

That was a tendency.

Of those 120 Acts dealing with forgery,

I think about half, 60, created capital offences.

Peel was not a humanitarian. He was not a liberal Home Secretary.

It was not his main aim to make a more humane, merciful system.

That was one effect of what he did, but it wasn't actually his main aim. His main aim was a Tory aim.

It was actually to tidy things up, make them sensible. It wasn't primarily humanitarian.

I think he was quite clearly looking for the right answer and was not to be pushed off

with inadequate answers or solutions that weren't really solutions.

He really was genuinely looking for, working hard for,

working day and night for the right answer for the system.

Peel had reformed the law. Now he searched for the means to enforce it.

The Bloody Code's unjust punishments had failed to stem crime.

Could there be a better deterrent?

In August, 2011, rioting swept England

and, for a time, the mob ruled.

'Eventually, the police controlled the situation, but imagine the destruction

'if, as in Robert Peel's day, the police didn't exist.

'Instead of deploying police and employing water cannon,

'governments relied on the Riot Act.'

The Act held that where 12 or more people gathered together in riotous assembly

and rejected the reading of the Riot Act

and failed to disperse within an hour, then force could be used against them.

Those remaining on the scene would be subject to the most severe penalty of all -

death. A public official, usually a magistrate,

would first of all read these words.

"Our Sovereign Lord the King chargeth and commandeth all persons being assembled

"immediately to disperse themselves and peaceably to depart to their habitations

"or to their lawful business upon the pains contained in the Act

"for preventing tumults and riotous assemblies.

"God save the King!"

If you heard those words you had an hour to disperse

or face the consequences.

In Peel's day, riots were frequent, but they often ended with deaths on the streets.

The Government's options were limited.

You had a number of ad hoc people like the Bow Street Runners,

but basically you relied on the army because that was the only force that was available.

Peel advocated the creation of a police force.

Uncontroversial to us, but at the time a radical and suspect concept.

Why were people opposed to the creation of a police force?

Because one of the themes which runs through English history in the 18th and 19th century

is the fear of a standing army.

A standing army was thought of as something the Stuarts rather believed in.

It was a reinforcement of royal power.

And people thought - and this was very strong when Peel first produced the plan for a Metropolitan Police -

that this was just the government trying to grab hold of the lives of the people.

Peel had long sought to replace the existing and ineffective system

of nightwatchmen and parish constables,

but he faced an uphill struggle in the face of the argument

that a professional police force would be a danger to liberty.

Could Robert Peel convince the population that having a police force did not mean

England would become a police state?

In 1829, he did this by persuading the public

that the police would not just control people, they would primarily control crime.

"I want to teach people," wrote Peel,

"that liberty does not consist in having your house robbed by organised gangs of thieves

"or leaving the principal streets of London in the nightly possession of drunken women

"or vagabonds."

Crucially for English criminal law,

the creation of a professional police force meant they became the deterrent against crime

rather than draconian penalties.

The raw cityscapes described by Charles Dickens saw Peel's reforms in action.

Society's predators, the Fagins and Bill Sykes,

faced a more immediate threat than the noose -

the increasing likelihood of being detected.

When a Fagin was in the dock, he would now get a brief.

But there was still one shocking imbalance.

'The defence barrister was fighting with one hand tied behind his back.'

Today no courtroom drama is complete without a defence advocate vehemently addressing the jury

on his client's behalf.

It's the culminating point of the defence.

It's the part I enjoy most.

My cross-examination merely provides the grist

for that particular mill.

Yet until the first half of the 19th century, except in treason trials,

only the prosecution had that privilege, not the defence.

But now all that changed.

Sometimes emotional, often theatrical,

the speech by defence counsel to the jury became a key moment in any trial.

And no British lawyer mastered that moment better than Sir Edward Marshall Hall,

whose career spanned the late-Victorian and Edwardian eras.

It's thought he may have helped more people to escape the noose than any other barrister.

'Sally Smith QC is writing a new biography of Marshall Hall

'and has researched his eye-catching tactics.'

The truth is juries like to be entertained to some degree.

And Marshall Hall entertained them.

And he was using techniques which nowadays would be regarded as being inappropriate.

Many of them were derived from the stage and from melodramas.

He would put out his arms and emulate the scales of justice.

You have to remember he was a very tall man and so it was very impressive.

You have to be a very great advocate to keep that up without looking silly.

And he would go through the evidence with his arms out like that and then slowly, slowly tip his arms

and tip his arms as he proved that all the evidence was in favour of...

the innocence of his client.

Marshall Hall is believed to have had actual lessons in stagecraft.

If so, they certainly seem to have paid off.

He was extraordinarily successful.

He had this magnetic capacity

to persuade juries.

But in 1907 Marshall Hall took on perhaps his toughest assignment.

The Camden Town murder

was one of the most notorious crimes of the Edwardian era.

A tale of a brutal and savage killing and fog-filled London streets that could have been ripped

from the casebook of Sherlock Holmes.

An artist called Robert Wood was accused of murdering a part-time prostitute, Emily Dimmock.

Her body had been found in her Camden Town lodgings

and her throat had been slit from ear to ear.

This gruesome case was a sensation.

It inspired a series of paintings by Walter Sickert.

'And it was covered in great detail by the press, which had found you couldn't beat a murder trial

'when it came to pulling in the readers.'

Marshall Hall's secretary helpfully, if rather laboriously, collated the press cuttings of his cases

and she did so in several volumes.

These provide a considerable insight into the technique of his cross-examination

and the style of his oratory.

'From the reports of the trial, it's clear that Hall cast serious doubt on prosecution eye-witnesses

'who had identified Robert Wood.

'But to destroy the prosecution's case, Hall did something that was almost unheard of.

'He called his own client to the stand.'

"The moment had now arrived for the prisoner to go into the witness box.

"The court was suddenly on the tiptoe of excitement.

"Mr Marshall Hall simply said, 'I now put the prisoner in the box.'

"Wood jumped up in court. The warders opened the side door of the dock and with alacrity

"and a pleasant smile on his face, Wood strode to the witness box."

Since 1898, defendants could give evidence in their own defence,

but this was considered unwise and even foolhardy.

The defence disliked it because they said that nobody should have to defend their position,

that it was up to the prosecution to prove the case and not up to the defendant to give any explanation.

The prosecution didn't like it in capital cases because there was a kind of, I think understandable,

human resistance to having to cross-examine a man when his life was at stake.

"Mr Marshall Hall started most dramatically.

"'Did you kill Emily Dimmock?' he asked, speaking slowly and distinctly.

"Wood drew himself up quickly.

"'It is ridiculous,' he said, facing the jury."

The expected answer was a simple no.

Robert Wood's manner in the dock was effete and it did not suggest a man capable of such a grisly crime,

a point Marshall Hall was then able to drive home in his passionate closing address to the jury.

"Then he burst out in dramatic fury.

"'I say again - I want a verdict of not guilty and nothing else!

"'A verdict of not guilty to kill this charge

"'so that none of the lying witnesses can galvanise it hence into any semblance of life.'"

The press and public eagerly awaited the result. Finally, the jury gave their verdict.

Not guilty.

Marshall Hall's gamble had paid off and proved that getting a client to give evidence in their own defence

could be part of a fair trial.

Not that this achieved justice for the unfortunate victim.

The murderer of Emily Dimmock was never found.

'Cases like the Camden Town murder trial were a circulation boon for the popular press,

'but the papers were beginning to go beyond mere reporting,

'to take a more active interest in the legal process.'

With the rise of a more investigative and less deferential press,

the law itself fell under the spotlight. Judicial decisions were scrutinised and criticised

and miscarriages of justice once confined to anecdotes told by barristers over the port

became front-page news.

'The new paper on the block, the Daily Mail, had heard of a shocking miscarriage of justice.

'It was a classic case of mistaken identity.

'Adolf Beck was identified as a swindler by 12 victims.

'They all swore he was a con artist calling himself Lord Wilton de Willoughby.

'They had been tricked into giving their jewels to this fake lord.

'Despite his protestations, Beck was jailed.'

Desperate to prove his innocence, Beck tried to get his case reopened,

but all his solicitor could do was repeatedly to petition the Home Office for redress.

The judges believed justice was fool-proof and hence there was no proper appeals procedure.

Beck's appeal fell on deaf ears.

One of the world's most unlucky men, Beck had a small chink of good fortune.

Years earlier, the Daily Mail's journalist George Sims had listened to Beck

recounting his travels in Peru,

journeys that had happened when he was allegedly in London swindling women.

The Daily Mail campaigned in earnest for Beck's release.

You didn't have to be Sherlock Holmes to realise the case stank,

and his creator, Sir Arthur Conan Doyle, joined the fight.

Finally, under pressure,

the authorities paroled Beck.

He had served five years of hard labour.

The real fraudster, William Meyer, now struck again

and was caught red-handed. Beck's innocence was undeniable.

Rarely has a miscarriage of justice had greater impact.

Outrage turned to pressure for legal reform.

Finally, in 1907,

Parliament created the Court of Criminal Appeal.

At last, the legal system admitted it was fallible.

Far from being a sign of weakness, however, this new court showed

that English law was strong enough

to acknowledge and deal with its mistakes.

But no appeal court can rectify a miscarriage if the victim has been hanged.

Once the law admitted its fallibility,

capital punishment itself was on Death Row.

This is the notorious Dead Man's Walk.

In days of old,

you were marched from your cell along this corridor

to meet your maker.

The walls confined you, the arches became narrower and narrower.

There was no going back on your walk to the gallows.

Now even today

there's a sinister feel to this place.

It's gloomy, it's oppressive and it's claustrophobic.

'But how can you execute someone knowing that their conviction may be unsafe?

'Medieval judges looked to God for the final word.

'Later, the law adopted His infallibility.

'But once the law's imperfections were admitted, its authority to impose the ultimate sanction

'was thrown into doubt.

'Eventually, in the 1960s, the death penalty was abolished for murder

'and in 1998 for treason. Goodness knows, our courts still make mistakes,

'but they are no longer fatal errors.

'I've found my voyage through the story of English law extraordinary and often inspiring.

'Over this series, we've seen how justice went from trial by ordeal

'to trial by a jury of your peers, the defining feature of English common law,

'how we enshrined a culture of rights and documents like Magna Carta and the Petition of Right,

'which went on to shape liberty across the world,

'and how we evolved the adversarial system,

'which exemplifies a fair, modern court procedure.

'But the story is not over yet.

'I believe that the common law currently faces a serious challenge.'

I'm here on the roof of the Supreme Court, one of the points of the triangle of power in this country.

Over there, Westminster Abbey and the national shrine and the Royal Chapel. And over here,

the Houses of Parliament.

The political power of the church and the crown has evaporated,

but the power of the upstarts, Parliament, is in the ascendancy.

Judges, once the creators of the law, have largely had that role taken from them by Parliament.

Did judges acquiesce because they realise that the common law can't deal with a rapidly changing world?

When some unpleasant novelty arises such as child pornography on the internet or credit card cloning

and society wants it dealt with, there's no use looking to the common law for prohibitions

or to earlier judgments for legal solutions. As the Victorians knew only too well,

a fast-changing society requires new laws.

This is where Parliament comes in.

It enacts the appropriate legislation, it creates new crimes and it changes the law of evidence,

which is all good and well provided that that legislation

is coherent, comprehensible and concise.

But since the late 1970s, governments seem to have become increasingly addicted

to enacting new laws.

Some of these new laws were much needed and long overdue.

The 1984 Police and Criminal Evidence Act, for instance, helped to ensure that all suspects

were treated with conspicuous fairness from the moment of arrest, throughout their time in detention.

But what was once a light dusting of new legislation

first of all became a snowstorm and then an avalanche

threatening to overwhelm the entire legal system.

Some may call this overload.

I call it legislative diarrhoea.

'I would argue that some of this legislation is again a result of press influence,

'but popular pressure doesn't always make for good law.

'When I met the Lord Chief Justice, he tried to give me a flavour of just one year's legislation.'

Crime International Co-operation Act has 96 sections and six schedules containing 124 paragraphs...

..227 sections, four schedules, containing 82 paragraphs.

The Sexual Offences Act, 143 sections, seven schedules and 338 paragraphs,

but the big daddy is the Criminal Justice Act itself - 339 sections

and 38 schedules

with a total of no less than 1,169 paragraphs.

That's excluding Schedule 37, which has 20 pages of repealed statutes.

So not only a far greater number of statutes, but the statutes themselves are far, far larger...

Infinitely complex. Infinitely complex.

And there are times when you have to struggle to find out what the answer is to a particular problem.

This is the criminal justice system. It's supposed to be readily understood.

It takes judges a great deal of midnight oil to work out what some of the provisions actually mean

and whether they're in conflict with others.

Does this mean that there are an increasing number of cases coming to the Court of Appeal

where it is at least arguable that the lower courts got it wrong

-because they misapplied the law or got confused about the law?

-Yes.

There are appeals about what I would describe as the technicalities.

They're not strictly technicalities because they are to do with what power the Court has,

so in that sense they're not technical, but in truth what they are is an analysis

of what the legislative provisions may lead us to conclude the law is supposed to be.

I think it's also the case that having enacted, for instance, the Criminal Justice Act 2003,

the Government subsequently had to amend that Act in some provisions...

-Oh, yes.

-..because of the untoward consequences it was leading to.

Oh, yes. And some of it has never been brought into force and some will be repealed before it ever is.

Today's criminal justice system

needs a 21st-century Robert Peel, someone able to reform and rationalise our law,

and stem the avalanche of parliamentary intervention.

But, despite its shortcomings, I remain a firm believer in the English legal system.

Whenever I put on my court robes,

I'm conscious that I am playing a small part

in the long drama

of this country's law.

It's been around for a millennium and a half and for all its imperfections

it still ensures justice, rights wrongs,

protects society

and defends liberty.

To my mind,

the English legal system

is this nation's greatest gift to the world.

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