An unusual trial took place in Swansea last week. Forty-eight year old David Hampson was convicted of breaching a criminal behaviour order and sentenced to three and a half years imprisonment. Mr Hampson’s peculiar modus operandi is to stand in the middle of a busy Swansea street and stop the traffic. It is annoying but not terribly serious behaviour. But he has been doing it since 2014. For his first offence he was given a conditional discharge, a magisterial slap on the wrist. He immediately re-offended again, and then again, and in due course was convicted in the Crown Court of the more serious offence of public nuisance. In an attempt to stop him once and for all, he was imprisoned and made the subject of a criminal behaviour order. This meant that if he obstructed traffic again he would face a possible maximum sentence of 5 years imprisonment. It made not the slightest difference. As soon as he was released he proceeded to stop the traffic again, “draping himself over a Royal Mail van with his arms outstretched and his face pressed up against the windscreen.”
In all, Mr Hampson has been convicted of carrying out this strange behaviour 8 times, starting in 2014. He has never offered any explanation, either while blocking the road, or during his various trials, all of which have been conducted without him offering a word of defence, explanation or mitigation. Even when he is in prison he very rarely says anything.
It seems very likely that there are some psychiatric issues going on, and in fact in 2016, after his seventh conviction, the court ordered him to be assessed by two psychiatrists. S.36 of the Mental Health Act 1983 allows anyone convicted of an offence to be compulsorily detained and treated in hospital, but only if two doctors agree that he is suffering from a mental disorder. In this case, one doctor thought he was suffering from schizophrenia and recommended treatment. The other thought he was just an attention seeker. As a result, the judge was unable to make a hospital order.
Of course, the problem is made more unfathomable by Mr Hampson’s reluctance to speak.
Courts these days are much more used to defendants who are “unfit to plead” because some mental impairment than with those who simply stand in silence. The test of “unfitness to plead” is in fact very restrictive, and many profoundly unwell and even psychotic defendants are nevertheless legally “fit to plead.” A well-known example of someone who was unfit to plead was Greville Janner, who was completely unable to understand what was going on because of dementia. Again, a finding of unfitness to plead requires the evidence of two doctors, and (since 1992) the issue is determined by a judge alone, without a jury.
A simple refusal to speak at all, even to enter a plea, is very much rarer.
It created a problem for the common law: if a defendant refused to speak, then he could not plead; and if he could not plead, a trial could not start and he could not be convicted; and if he could not be convicted he could not be hanged. On the face of it that meant a guilty defendant could escape justice merely by keeping his mouth shut.
In some circles it is the done thing to hark back to a rather vaguely defined golden age, when proudly independent English judges always stood up for the individual against the might of the state. Michael Gove, for example, the former Justice Secretary, used to speak – probably still does – romantically of “traditional British liberties” created and defended by the common law. Roger Scruton has talked of our common law liberties being eroded by the European Convention on Human Rights.
“the independent rule of law; the availability of remedies to all, without fear or favour; the common law’s marvellous protection of civil liberties; how great we were, how terrible the continent; and all the rest of it.”
And of course, there is some truth in this rosy picture. But it is not the whole truth.
Generations of English lawyers have been brought up, for example, with the rather complacent belief that English common law, unlike inquisitorial continental law, was unsullied by torture. Sir John Fortescue, Chief Justice under Henry VI wrote in his De Laudibus Legum Angliae:
“The law of France prefers the accused to be racked with tortures until they themselves profess their guilt, than to proceed by witnesses who are often instigated to perjury by wicked passions and sometimes by the insubordination of evil persons. By such precaution and disingenuousness, criminals and suspected criminals are afflicted with so many kinds of tortures in that kingdom that the pen scorns to put them into writing.”1
Subsequent English jurists like Sir Thomas Smith, Sir Edward Coke and Sir James Stephens all liked to emphasise that torture was a nasty foreign practice, quite alien to the English. That was always a half-truth. If we leave aside – for a moment – pre-trial interrogations, Englishmen delighted as much as foreigners in thinking up imaginative and painful ways to punish and execute convicted felons.
Petty criminals were ordered to stand in the pillory or the stocks, where they would be tortured or left alone depending on the public mood. Witches and heretics were burned at the stake, poisoners were boiled alive, traitors hanged, drawn and quartered, and for many years travellers were liable to come across the foul smelling bodies of common criminals who had been slowly hanged and then suspended in iron gibbets, swinging and clanking in the wind.
And even the supposed common law prohibition against torturing prisoners to extract a confession was sometimes ignored, not least by those who most loudly proclaimed its existence. Coke, for example, was enthusiastic in his use of the rack to torture suspected Jesuit priests; and Guy Fawkes and his fellow conspirators were horribly tortured, at Coke’s direction, to extract information and confessions. He even insisted on making the already unspeakably cruel punishment of hanging, drawing and quartering worse by ordering that the plotters be dragged along the ground by horses to their execution.
What, then, was the common law solution to a defendant charged with a felony standing, like Mr Hampson, mute at the bar?
It was neat, though it would be stretching it to describe it as tidy. The mute prisoner would be subjected to “peine forte et dure.” He would be laid on the ground and crushed with heavy weights until either he agreed to enter a plea or he died. It was, according to Blackstone “a terrible sentence,” but it was quite different from the rack, and a punishment:
“which the law has purposely ordained to be exquisitely severe, that by very means it might rarely be put into execution.”
It was never a very common procedure, for those very reasons. Even so, against the obvious disadvantage of a slow and agonising death, there were some advantages to the defendant, and more particularly to his heirs, in choosing to be crushed to death rather than standing trial. Since there was no conviction, the defendant’s property would not be forfeit to the state. For others, refusing to recognise the jurisdiction of the court allowed them to make a powerful political or religious point.
If you go to the Bar Convent in York you can ask to see Britain’s most grisly religious and legal relic: the hand of Margaret Clitherow, who was pressed to death in 1586. It is displayed inside a glass case and normally kept locked away, but it will be brought out if you ask the nuns politely.
Clitherow – known to Catholics since 1929 as St Margaret of York – had been charged under the 1585 “Act against Jesuites Semynairie Priestes and such other like disobedient Persons.”
It required all “Romish ordained Jesuits &c” [“any Jesuit Seminarie Priest Deacon or any Religious or Ecclesiastical Person whatsoever”]to “leave the realm within Forty Days” (if the “Winde Weather and Passage shall serve for the same”). Once the forty day period was over, any remaining Jesuits were guilty of High Treason and anyone “who shall wittingly and willingly receive relieve comfort aide or maintayne” such a priest was guilty of a felony, for which the punishment was death.
Interestingly, the Act did not apply to all Catholic priests, but only to those:
“being borne within this Realme or any other Her Highnesse Dominions …”
At least to me, the statute seems to to be full of similar surprising inconsistencies, and ambiguities some of which might pose problems for a conscientious judge.
The chief witness against Clitherow was a 12 year old Flemish boy who had been found in her house, sharing lessons with her children.2
In a procedure that passed for Achieving Best Evidence in Elizabethan England, the wretched boy was stripped naked by the Sheriff’s officers and “with rods threatened … unless he would tell … all that they asked.” The terrified child revealed the secret priest’s chamber in Clitherow’s house, which contained Popish vestments books and altar breads. Had I been prosecuting Clitherow, I might have been a little worried that this – though useful circumstantial evidence – fell short of establishing that any Priest seen by the boy was (as the Act required) “borne within this Realme etc.”
It was, though, enough for Clitherow to be arrested. She was paraded through the city and even dunked in the freezing waters of the Ouse with a recently erected ducking stool, before being locked, wet and shivering, in the Castle.
Eventually she was brought up before the court of Kings Bench that was to try her. As with today’s Administrative Court it consisted of two judges: Mr Justice Clench and the more junior Mr Justice Francis Rodes. Clench, “a sad and serious man,” seems, by the not terribly high standards of the time, to have been a relatively merciful judge. The same could not be said for Rodes. Also sitting on the bench were members of the City Council, who had little regard for the law and were determined to see Clitherow executed.
A few months earlier the same two judges had tried a man called Bickerdike on charges of “indiscreet speech and aiding a priest.” To Rodes’s disgust, the jury acquitted him. Soon afterwards he was again put on trial, apparently on almost exactly the same charges, but this time framed as High Treason. Rodes ensured that the jury did not repeat the previous jury’s mistake. He directed them, in terms that today’s Court of Appeal would be likely to deprecate:
“This traitor had too favourable and too scrupulous a jury in the town, but I trust you will look otherwise to him, being the Queen’s enemy and a notorious traitor.”
[An aside: How today’s Court of Appeal might decide the case:
“The learned judge was of course entitled to comment, and to do so if necessary in forthright terms, and this Court fully understands the pressures under which trial judges are placed when they are required to try cases of heresy. Nevertheless, it would have been better if this particular observation had been expressed in more moderate language. Furthermore, although evidence of the appellant’s previous acquittal on charges of aiding a priest was clearly relevant and correctly admitted, see R. v. Z  UKHL 68, the learned judge ought to have given the jury a somewhat fuller direction about the proper uses to which such evidence could be put. Nevertheless, our task is to step back and ask ourselves whether overall the conviction can be regarded as unsafe. The judge carefully identified the issues for the jury’s consideration. The prosecution case was overwhelming and in all other respects the judge is to be commended on conducting a difficult and demanding trial with impeccable fairness. The judge’s comment, regrettably expressed though it was, cannot in our view have affected the jury’s verdict. The conviction is safe. We therefore have no hesitation in dismissing this appeal.”]
Even at the time there were many who thought there was some injustice in being tried twice on essentially the same charge, but Rodes brushed such concerns aside:
“We are not sent hither to scan and dispute the statutes,but to give judgment against offenders.”
It would not be a good line to take at an interview with the woolly liberals who sit on today’s Judicial Appointments Commission, but it was a judicial philosophy that proved personally lucrative. Rodes amassed a huge fortune and used it to build himself a magnificent house at Barlborough, near Chesterfield. It is now a Jesuit school.
When Clitherow appeared before the two judges she refused to plead. Clench entreated her to “put yourself upon the country” (in other words to plead not guilty and have a trial). She continued to refuse to enter a plea, probably to save witnesses, especially her own children, the horror of giving evidence against her.
Clench almost begged her:
“Good woman, consider well what you do; if you refuse to be tried by the country, you make yourself guilty and accessory to your own death, for we cannot try you but by order of law. You need not fear this kind of trial, for I think the country cannot find you guilty upon the slender evidence of one child.”
Perhaps he was sincere in his advice that she stood a chance if she stood trial. Perhaps she might have been lucky enough to encounter another favourable and scrupulous jury. Even if Rodes was disinclined to “scan and dispute the statute,” perhaps Clench would have done so. It is difficult to see, for example, how the prosecution could prove that any priest in the house had been “ordeyned out of the Realme of England.” Certainly he knew, and she knew, that she would almost certainly be executed in the most horrible way if she refused to plead.
The case was adjourned till the following morning. Overnight she was visited by a Puritan preacher, Parson Wigginton, who tried without success to get her to change her mind.
The following morning she again refused to plead, observing:
“I think you have no witness against me but children, which with an apple and a rod you may cause to say what you will.”
By now both judges were demonstrating their impatience:
“It is plain that you have had priests in your house by these things which are found, all traitors, rascals and deceivers of the Queen’s subjects,” observed Judge Rodes.
Parson Wigginton stood up and told the judges “you ought not to judge her to die upon this slender witness of a boy.” Clench was still inclined to give her a chance to think things over but Rodes had a more modern approach to case management:
“Brother Clench, you are too merciful in these causes,” he scolded,
“ Why stand you all the day about this naughty, wilful woman? Let us dispatch her” .
This seemed to do the trick, and the senior judge was finally persuaded to pronounce the awful common law procedure reserved for those who refused to plead:
“You must return from whence you came, and there, in the lowest part of the prison, be stripped naked, laid on your back next to the ground, and as much weight laid upon you as you are able to bear, and so continue three days without any food except a little barley bread and puddle water, and the third day to be pressed to death, your hands and feet tied to posts, and a sharp stone under your back”.
Clitherow replied that she “thanked God heartily” for this punishment. She was resigned to her fate, but still there was a chance that she might escape death: it was believed that she might be pregnant. Clench called for a jury of matrons – at his request, four women who knew her well – to be empanelled to decide the issue.
The matrons reported to Clench that she probably was with child. In normal circumstances that might have saved her, or at least have bought time until the baby was born.
The matrons’ verdict seems to have outraged both Rodes J. and most of the Councillors. Clench, Pilate-like, still refused personally to authorise the execution, and stayed it for a few days. After that he delegated the final decision to the Council. It is possible that he hoped that in the intervening period she might still agree to plead.
Despite a constant stream of visitors urging her to change her mind, she remained steadfast, telling them:
“as willingly as ever I put my paps to my children’s mouths, neither desire I to have my death deferred.”
The Council decided that, pregnant or not, she must die.
Her execution took place at the toll booth on Ouse Bridge. She faced it with extraordinary courage, showing more dismay at the prospect of public nakedness than of death.
She asked at least to be pressed in a linen smock, which she had sewed herself for the purpose. Sheriff Fawcett who was charged with carrying out the sentence refused even that small act of mercy, demanding that she remove all her clothes: “you must die naked, as judgment was pronounced against you,” he explained. She was made to lie on the ground. A door from her own house was then laid on her chest and four men hired for the occasion piled weights on it. She tried to cover her face with her hands: Fawcett ordered them tied. As Gerard Manley Hopkins put it in his fragmentary poem:
She held her hands to, like in prayer;
They had them out and laid them wide
(Just like Jesus crucified);
A sharp stone “the size of a man’s hand” was placed underneath her back and she was dead within 15 minutes, instead of the three days that the sentence envisaged. Fawcett had arranged for her body to be dumped on the town dung-heap. It was recovered some weeks later and her hand was cut off as a relic, and her body secretly buried.
The peine forte et dure remained the common law solution to those refusing to plead for a further 200 years after Clitherow’s death. Along with the rest of the common law it crossed the Atlantic, and was used in 1692 at the height of the Salem witch trials in Massachusetts.
In England the practice continued well into the eighteenth century, although most of those inclined to stand mute became disinclined once the judge ordered that their thumbs be tied and they be taken to Newgate’s “press room.”3 One who persevered in 1721 was a highwayman called Spiggot. The law at that time was that a person apprehending a highwayman was entitled to keep his horse and furniture. Spiggot refused to plead unless his horse was returned to him. As a result, he was stripped (in a demonstration of how much the common law had developed in the preceding 150 years, unlike Clitherow he was permitted “something to cover his privy members”) and laid face up, tied and spread-eagled on the floor of Newgate Gaol. He endured half an hour of torture, with 350 lbs of weight laid on him. When a further 50 lbs was added he “altr’d his mind and said he would Plead.” He was duly convicted (along with his Co-Defendant who had capitulated at the sight of the Press Room). Both were then hanged.
One of the very few who endured the Press until death was a man called John Weekes, who in 1735 was charged with murdering a young woman near Petworth. He was brought to Lewes Assizes, where he “pretended to be dumb … even though 4 or 5 persons swore they heard him speak,” suggesting that some sort of trial to determine if his silence was voluntary was held, although the Gentleman’s Magazine report is frustratingly vague about it. He was taken to Horsham Gaol and, “gradually press’d to death, continuing obstinately dumb until the last Moment.” Quite how gradual the process was is left to the imagination of the Gentlemen reading the Magazine.
The press was finally abolished in 1772 when Parliament passed the Act for the more effectual proceeding against Persons standing mute on their arraignment for Felony or Piracy. It provided that anyone refusing to plead would simply be treated as guilty. Then, in 1827 the position was reversed: a defendant standing “mute of malice” would be treated as having entered a plea of Not Guilty. Essentially this is the law today.
What then of Swansea’s mysterious Mr Hampson? A jury was sworn to decide if he was mute of malice or mute by visitation of God. As with John Weekes a number of witnesses swore that they had heard him speak: a prison officer said he had asked for a battery for his TV remote control, and a police officer that he had asked for a cup of tea. It took the jury just 9 minutes to find him “mute of malice.” The rest of his trial was then quickly concluded, with the same jury convicting him of breaching his criminal behaviour order.
Three and a half years? Opinions will differ, but to me this seems excessive. He endangers no-one but himself and is a nuisance to society, but hardly a menace. I would be astonished if he were not more in need of psychiatric treatment than punishment.
We may have moved on from the gallows and the press, but our criminal justice system is still a very imperfect thing.
1For a fascinating discussion of the history torture in English law see Danny Friedman Torture and the common law  EHRLR 180
2For a fuller account of the trial and execution of Margaret Clitherow see Katharine M. Longley The “Trial” of Margaret Clitherow Ampelforth Journal (1960) 75 p.335, much of which derives from a contemporary hagiography by Fr John Mush A True Report of the Life and Marterdom of Mrs Margaret Clitherow
3See Andrea McKenzie “This Death some Strong and Stout Hearted Man Doth Choose” The Practice of peine forte et dure in Seventeenth and Eighteenth Century England (2005) Law and History Review 279.