Men of Bad Character: the Witham Fires of the 1820s

Whether to prosecute

If, by the use of these various means, a suspect was identified and caught, the victim still had to decide whether to press the case further. King estimates that in 18th-century Essex, well over 90 per cent of offences were never prosecuted, and the same would have been true of the 1820s; the figure for the present day is thought to be between 50 and 80 per cent.⁸² These figures include the cases where no suspect was found, but also those where one was found but no further official action was taken. There were various times during the Witham fires when suspects were questioned, released, and not heard of again, and this must have happened frequently.⁸³

Prosecution entailed a conglomeration of forces similar to that which has already been seen at the detection stage. It amounted to a combination of subsidised laissez-faire and privatised intervention. For felonies, which were the majority of cases in the jury courts, the prosecutor like the constable was entitled to claim expenses. These were nearly always awarded in Essex, and accounted for about one fifth of county expenditure.⁸⁴ But reimbursement was only made after the trial, and did not include the cost of a solicitor, so not all prosecutors employed one. In multiple prosecutions such as the eight against Edmund Potto for the Witham fires, solicitors' costs could be shared, but they must still have been considerable.⁸⁵

In addition to the financial deterrents, there were many social pressures against prosecution, particularly where there was a potentially very severe punishment, and the suspect was local. Indeed James Cook might not have been prosecuted had the outcome been foreseen. There are strong indications that many victims hesitated about prosecuting, and only did so at a later date and for a particular reason. This can be illustrated by the gap in time between the date of an offence and the date of committal for trial by a magistrate; in many cases this gap was surprisingly long. In Essex in 1824 and 1829, it was over eight days in half the cases and over twenty-six days in a quarter of them. A scare or 'moral panic' could increase prosecutions of both recent and long-standing offences. A good example of this is the apparent effect of the 1828/9 Witham arson, when for a time the level of committals for past offences in Essex was well above the level of recorded new offences.⁸⁶

There is evidence that it caused no surprise when known regular offenders were not prosecuted.⁸⁷ However, contemporary impressions were that victims were more likely to prosecute by the 1820s than they had been before. Thus Benjamin Dealtry of Yorkshire told the 1828/9 Select Committee, 'I think one reason we may give for the increase of crime or the greater exhibition of it to the public view is the seizure and delivery to the police of all those who commit offences, that are styled offences at all. I remember in former days persons were taken and pumped upon, or something of that sort; but now they are handed over to the police and tried on it'.⁸⁸ This is no doubt a cry of many periods including our own.

Once suspects were in the custody of the prosecutor or of the constable, and a decision had been made to continue, they were taken before a magistrate. He was the one figure absolutely essential for an event to be officially recorded as an offence. Once found, the magistrate acted on his view of the evidence, which gave him considerable discretion; his various choices according to the type of offence are shown on the diagram. However, finding a magistrate in the first place was often difficult, even though their number was increasing during the 1820s. By 1831 England and Wales had about one acting county magistrate for every eleven square miles, whilst Essex had one for every ten square miles or 2,000 inhabitants. They were unevenly distributed, so that large areas had no acting magistrates at all and had to rely on those of neighbouring towns.⁸⁹

The need to search for magistrates could thus be a considerable deterrent to proceeding further with a case. Even in those areas that were theoretically well provided with them, their activities were, like so many other aspects of the legal process, very variable, so they could not all be regarded as equally available to the potential prosecutor. Many members of the Witham Bench only rarely managed to attend even the regular Petty Sessions meetings in Witham. Three of the 24 advertised sessions in 1829 had no magistrates there at all, and could not be held; three others had only one magistrate in attendance, which was not enough for certain types of case.⁹⁰ But some men, such as William Luard at Witham, and Samuel Shaen, the newly-appointed Dissenter at Hatfield Peverel, must have been virtually full-time in their judicial activities; the role of Luard in the case of the Witham fires even began with 'detective' work, and without him matters might have taken a different course. Western called Luard 'a very attentive magistrate'.⁹¹

Next page: The trial