Jack the Ripper: The Secret Police Files (15 page)

Section 38 of the Summary Jurisdiction Act, 1879:

“A person taken into custody for an offence without a warrant shall be brought before a Court of Summary Jurisdiction [Police Court/Magistrates Court] as soon as practicable after he is so taken into custody; and if it is not or will not be practicable to bring him before a Court of Summary Jurisdiction within 24 hours after he is so taken into custody, a superintendent or inspector of police, or other officer of police of equal or superior rank, or in charge of any police station, shall enquire into the case; and, except where the offence appears to such superintendent, inspector or officer to be of a serious nature, shall discharge the prisoner upon his entering into a recognizance, with or without sureties, for a reasonable amount, to appear before some Court of Summary Jurisdiction at the day, time and place named in the recognizance.”

The question to be addressed is whether, if arrested without a warrant, Tumblety could have been eligible for bail:

“Bail, so far as police purposes are concerned, is the guarantee, under pecuniary [relating to or involving money] liability, to appear, or to produce an accused person to be tried according to law at an appointed time and place. It is of two kinds: —

“[a] That admitted by a police officer
.

“[b] That allowed by Judge or Magistrate
.

“As to police station court bail, the inspector or other officer in charge of a police station may under the provisions of the Metropolitan Police Act, 1829 (10 George IV., c.44, s. 9), and the Metropolitan Police Act, 1839 (2 and 3 Vict., c. 47, ss. 70 and 72), admit to bail persons charged with any petty misdemeanour for which they are liable to be summarily convicted by a Magistrate — such as drunkenness, disorderly conduct, carelessly doing a hurt or damage, etc., and by Section 38 of the Summary Jurisdiction Act, 1879 (42 and 43 Vict., c. 49), if the person in custody without a warrant cannot be taken before a magistrate within 24 hours, bail is compulsory for any trifling offence, even a felony not of a serious nature.”

Procedures were in place had Tumblety been eligible for police bail:

“If persons in custody for a bailable offence wish to send for bail, and are willing to pay for a messenger or telegram being sent, the officer in charge of the station is to take the necessary steps without delay
.

“If prisoners have no money, and are desirous of being bailed, the necessary expenses of sending for bail will be allowed by the Commissioner, there being no object on the part of the Police in unnecessarily detaining in the cells a prisoner who can be legally liberated on sufficient bail being offered. The Police telegraph is to be used in such cases wherever practicable. Money or other property is not in any case to be accepted as a deposit in lieu of bail or of the recognizance of the person charged.”

Tumblety could not therefore have secured bail with cash, a personal cheque or the diamonds in which he later insisted the police were so interested. The key words relating to police bail were:

“If the person in custody without a warrant cannot be taken before a magistrate within 24 hours . . .”

Tumblety was arrested [taken into custody] on Wednesday 7th November 1888. Even had his arrest been in the evening of that day [after court hours], it would have been less than 24 hours before Marlborough Street Police Court reconvened on Thursday 8th November 1888, and so the matter of police bail would not have arisen.

The other option open to the police in effecting Tumblety’s arrest was to go before a magistrate to obtain an arrest warrant. For this to be issued the police would have to have given sworn information as to the grounds for seeking the warrant. And following the issuance and execution of the arrest warrant Tumblety would have been brought straight to court and the charges put to him before a magistrate.

Under these circumstances Tumblety would not have entered a police station, unless of course the arrest warrant was executed out of court hours. In that event he would have been detained in the police station cells until the following morning when the court reconvened. He could not have been bailed at the police station under the terms of the arrest warrant for this type of offence; as such warrants issued by the court were not eligible for bail. Once executed the warrant could not be reused. A specimen arrest warrant is set out below, granted under Section 3 of the Indictable Offences Act 1848.

“To the Constable of___________________ and to all other peace officers in the said (County) of _________________ Whereas A .B. of ____________________Hath this day been
charged
upon oath before the undersigned (Magistrates name) of Her Majesty's Justices of the Peace in and for the said (County) for that he on ______________at _____________ did (Offence). These are therefore to command you, in Her Majesty's name, forthwith to
apprehend the said A. B. and to bring him before (me) or some other Justice of The Peace in and for the said (County) to answer unto the said charge, and to be further dealt with according to law
.
Given under my hand and seal this ____________Day of ____________ In the year of our Lord___________ at____________ in the (County) aforesaid.”

Had Tumblety been arrested on such a warrant then Section 3 of the Act sets out specific actions open to the justices thereafter:

“It shall be lawful for such justice and justices, and he and they are hereby justice and justices for the same county or place to be dealt with according to law and afterwards, if such persons be thereupon apprehended and brought before any such justice or justices, such justice or justices upon its being proved upon oath or affirmation before him or them that the person so apprehended is the same person who is charged and named in such indictment shall, without further inquiry or examination commit him for trial or admit him to bail, in a manner herein after mentioned.”

Accordingly, the possibility thus arises of Tumblety having been bailed by a Police Court Magistrate on Wednesday 7th or Thursday 8th November 1888, at which time the final "Ripper" murder was a maximum of 36 hours away.

“If the investigation before the magistrate cannot be completed at a single hearing, he may from time to time remand the accused to gaol for any period not exceeding eight days; or may allow him his liberty in the interval upon his entering into recognizance’s, with or without sureties, for reappearance" [11 and 12 Vict. c.42, s.21]
.

Here again we must refer to the Old Bailey court calendar for November 1888, a document published after the close of that month's session on Friday 23rd November. The calendar clearly states that Tumblety was committed for trial on 14th November and not bailed until 16th November 1888.

Also contained in this official document is evidence to suggest that Tumblety had not been granted earlier bail at a Police Court, for two other persons on trial during the Old Bailey December Sessions — Jane Levy and Arthur Andrew Cottee — are noted as having been "Bailed at Police Court".

No such notation appears in the entry for Tumblety. It is also noticeable that Tumblety’s committal hearing was not reported in the UK press and is easily explained.

In cases which fell outside a magistrate's “
summary jurisdiction”
[cases upon which he could pass sentence]: “
The room in which the examination (Committal Proceedings) is held is not to be deemed an open court; and the magistrate may exclude any person if he thinks fit.” [11 & 12 Vict. c. 42, s. 19, Indictable Offences Act, 1848]

So where was Tumblety between November 7th and 14th 1888? In the absence of any reliable evidence to suggest Tumblety was out on bail at the time of the murder of Mary Kelly at Miller’s Court on 9th November 1888, it may be concluded that during the period between his arrest [taken into custody] on 7th November and his 14th November committal for trial he was remanded in custody for the maximum eight-day period.

“If the investigation before the magistrate cannot be completed at a single hearing, he may from time to time remand the accused to gaol for any period not exceeding eight days . . .” [11 and 12 Vict. c.42, s.21]
.

In 1888 prisoners committed on remand from Police Courts in Middlesex [which included Marlborough Street] were held at the Clerkenwell House of Detention. Here Tumblety would have been able to have visits from friends and also his solicitor. He would also have been allowed to wear his own clothes.

On 14th November 1888 Tumblety would have been returned from the Clerkenwell House of Detention to Marlborough Street Magistrates Court for committal to the Central Criminal Court. Once the evidence had been heard and the magistrate was satisfied it was sufficient, he “
committed”
Tumblety for trial.

He could now either send him to prison for safe custody
(to secure his attendance at his trial and to prevent him absconding)
or admit him to bail, and the guiding principle behind his decision would have been the probability of Tumblety — a foreign national with no permanent UK residence — appearing to take his trial, the likelihood of witness interference, or the fact that he may continue to commit further offences, and not any supposed guilt or innocence. After the committal proceedings Tumblety or his solicitor could obtain a copy of all the witness statements on the payment of a nominal sum.

As it is clear that Tumblety was not bailed following his 14th November committal for trial, he would have immediately been transferred from Marlborough Street Police Court to Newgate Prison to await trial. Newgate at this time was reserved for prisoners awaiting trial at the Central Criminal Court, and the two institutions were connected via an underground passageway.

At Newgate the constable escorting Tumblety would have handed the gaoler the warrant of commitment:

“To the constable of and to the keeper of the [house of correction] at, in the said [county] of. "Whereas A. B. was this day charged before me, J. S., one of Her Majesty's justices of the peace in and for the aid [county] of on oath of C. D. and others, for that [&c stating shortly the offence]: These are therefore to command you the said constable of , to take the said A. B., and him safely to convey to the [house of correction] at aforesaid, and there to deliver him to the keeper thereof, together with this precept; and I do hereby command you the said keeper of the said [house of correction] to receive the said A. B. into your custody in the said [house of correction], and there safely keep him until he shall be thence delivered by due course of law. Given under my hand and seal, this day of , in the year of our Lord at , in the [county] aforesaid. J. S.” [11 & 12 Vict. c. 42, Sched. T.1]
.

In return the gaoler handed the constable a receipt for Tumblety:

“I hereby certify, that I have received from W. T., constable of , the body of A. B., together with a warrant under the hand and seal of J. S., Esquire, one of Her Majesty's justices of the peace for the [county] of , and that the said A. B. was [sober, or as the case may be], at the time he was delivered into my custody. P. K. Keeper of the house of correction [or common gaol] at . . .”" [11 & 12 Vict. c. 42, Sched. T.2]
.

It is therefore possible Tumblety was bailed from Newgate Prison on [Friday] 16th November 1888. Under 11 & 12 Vict. c. 42, s. 23, Indictable Offences Act, 1848, “
Where a person charged with other indictable misdemeanours is committed to prison to take his trial for the same, he can apply:”

“ . . . to any one of the visiting justices of such prison, or to any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, before the first day of the sitting or session at which he is to be tried, or before the day to which such sitting or session may be adjourned, to be admitted to bail, such justice shall according admit him to bail in manner aforesaid; and in all cases where such accused person in custody shall be admitted to bail by a justice of the peace other than the committing justice or justices as aforesaid, such justice of the peace so admitting him to bail shall forthwith transmit the recognizance or recognizance’s of bail to the committing justice
[in Tumblety's case, J. L. Hannay]
or justices, or one of them, to be by him or them transmitted, with the examination, to the proper officer . . .”

So why was there a two-day delay between Tumblety’s committal and him being granted bail? In “
Summary Jurisdiction Procedure
,” by Cecil George Douglas [1907], which discusses the 1848 to 1899 summary jurisdiction acts regulating the duties of justices of the peace, the author appends a note regarding 11 & 12 Vict. c. 42, s.21 and the eligibility of bail in cases of misdemeanour.

“Bail Before or After Committal — A distinction appears to be drawn as to the rights of an accused person to bail in cases of misdemeanour before and after committal for trial. The generally received impression appears to be that the right of bail in misdemeanour does not arise until committal for trial.”

It therefore appears that Tumblety was not eligible for bail until
after
his Wednesday 14th November committal for trial. Only then would Magistrate J. L. Hannay have agreed to bail, but on the understanding that suitable sureties were found. Tumblety was, after all, a foreign national, with no permanent UK residence. In the meantime he would be held at Newgate.

Even if we assume that Tumblety himself came up with his own suitable sureties or alternatively via his solicitor, there were further legal hurdles to overcome before he could be finally released on bail.

Douglas’, “
Summary Jurisdiction Procedure” — “
Bail was taken by stating verbally to the accused and his sureties the substance of the recognizance, thus:

You A. B. of, and you C. D. of, and you E. F. of, severally acknowledge yourselves to owe our Sovereign Lady the Queen the several sums following, that is to say, you the said A. B. in the sum of , &c. [11 & 12 Vict. c. 42, Sched. S.1
. gives the full wording and terms of the recognizance].