Category Archives: Policing and Prosecution

Uncovering digital history in Tasmania: The Digital Panopticon

We are delighted to have a guest post by Lauren Vogel of The Prosecution Project reporting on their experience of the Penal History in a Digital Age conference in June 2016.

Perhaps nothing illustrates the intersection between the past and the present more aptly than digital history. Advances in digital technology and new media hold the potential to transform the way historical research is conducted and, in the process, our understanding of both the past and present. The Digital Panopticon – a recent conference convened in Hobart, Tasmania – exemplified the quiet revolution underway in the humanities.

The conference presentations were a testament to the way in which modern technology can be utilised to preserve, research, and understand the history of crime and punishment and the experiences of the individuals who lived these phenomena. Ambitious large-scale digitisation projects from around the world were well represented in the program – the Digital Panopticon, Founders and Survivors, the Prosecution Project, and the Carceral Archipelago.

The conference represented a milestone for the Prosecution Project, with members of the research team presenting the first collective roundtable since the project’s inception in 2013. The Prosecution Project is digitising Australian court records from the 1830s to the 1960s and, serendipitously, the roundtable coincided with the entry of the 100,000th trial record in the online open-source database. A later version of the Digital Panopticon roundtable was presented at the Queensland Supreme Court in celebration of this second milestone (a recording  can be seen here).

The Prosecution Project roundtable explored the Australian trial process from beginning to end, with a focus on some of its important actors and decision-makers. It challenged some long-standing ideas in the historical and criminological literature and highlighted the potential of digital history to reimagine and clarify our understanding of the past.

PhD scholar Lisa Durnian opened the substantive discussion with an exploration of the evolution of the guilty plea. Representing a fundamental shift in the adversarial legal system, the rapid rise of the guilty plea in the mid-20th century is often attributed to an increase in plea-bargaining between prosecutors and defence lawyers at trial. However, Lisa found that from 1941 most guilty pleas were entered at the committal hearing, raising the interesting probability that factors aside from plea-bargaining were at play within the Australian legal system.

Project Leader Mark Finnane explored the role of lawyers in the trial process, showcasing the potential of the Prosecution Project to provide quantitative data in a hitherto speculative research area. Prospective research questions encompassed the effect of lawyers on judicial conduct, how the rights of defendants were shaped by lawyering, and the different tactics employed by lawyers throughout the trial process. Additional findings presented in another paper with Research Fellow Alana Piper indicated that legal representation bestowed significant advantages, including an increased likelihood of acquittal, receiving bail, and favourable sentencing outcomes (e.g. bond, suspended sentence, or probation).

Alana Piper focused on the more anonymous decision-makers within trials – the jury. She questioned whether the increasingly common criticisms of juries expressed by members of the justice system across the late nineteenth and early twentieth century were justified. Trial by jury was often an unwieldy and less-than-ideal process: delivering verdicts encumbered by various biases and in other instances failing to deliver verdicts at all, with almost ten per cent of trials resulting in jury disagreements in some years.

Research Fellow Yorick Smaal considered the nature of legal evidence beyond the usual doctrinal endeavours. Focusing on witnesses in sex offence trials in Queensland from 1870 to 1930, Yorick found that despite an increase in the average number of witnesses per trial across the period, around half of the accused were consistently convicted regardless of the number of witnesses who testified against them. This suggests that quality rather than quantity of witnesses was important to trial outcomes. Nonetheless, a greater number of witnesses in trials involving female and child complainants points to disparities in moral surveillance, policing, and perceptions of complainants.

PhD scholar Robyn Blewer challenged the conventional view of objective and predictable judge craft. The digitised prosecution data facilitated an easy comparison of all known criminal cases presided over by two well-known Australian judges between 1925 and 1939 – Queensland’s Justice Brennan (352 cases) and Chief Justice Webb (234 cases). Even though media reports indicated that the two judges shared a progressive approach to sentencing, Robyn found that the judges handed down significantly different sentences. Brennan, for example, was far more likely to hand down non-custodial and alternative sentences (e.g. convicted but released).

Finally, Research Fellow Andy Kaladelfos explored sentencing patterns in more detail, focusing on the effect of victimisation on sentencing outcomes in sex offence trials. In particular, Andy was interested in the mid-20th century rise in non-custodial sentences, as this trend does not accord with historical scholarship that characterises the sex offence sentences in the period as punitive. Andy found that these non-custodial sentences were primarily used in cases involving adolescent female complainants and homosexual males – although why judges were more lenient in these cases is the topic of future qualitative work.

The digitisation of archival material clearly opens up new avenues for questions, analysis, and interpretation of crime and punishment across history. Of course, digital history is not just about big data. The conference also highlighted forays into digital history beyond such projects, for example, POWs during the South African Boer War (Chris Holdridge and Matthew Kennedy), digital matching of cross-Tasman convicts (Raewyn Dalziel), and digital (re)constructions of penal sites of significance such as Port Puer in Tasmania (Martin Gibbs, David Roe, Richard Tuffin, and John Stephenson) and Bentham’s Panopticon (Zoe Alker and Nick Webb).

Importantly, digital history not only helps us come to new or richer understandings of crime and punishment, but it also permanently preserves a record of the past and makes history accessible to people who may never venture into an archive. Through the use of online open-source databases and new media, digital history can (re)introduce people to the story of their ancestors, their communities and countries, and, ultimately, humankind.

Lauren Vogel
The Prosecution Project, Griffith Criminology Institute

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PhD Work in Progress: The Prosecution of Fraud in the Metropolis, 1760-1820

My PhD research focuses on the prosecution of fraud at the Old Bailey from 1760 to 1820. Having previously worked for a number of prosecuting agencies, including the Serious Fraud Office, I became well-acquainted with the great number of difficulties that prosecuting fraud poses in the 21st century. My interest in 18th and 19th century fraud is therefore derived from a concern with whether such difficulties have always been associated with tackling fraudulent behaviour, as well as a wider interest in 19th century criminal trial procedure.

In order to explore the offences of fraud and how these offences were addressed and disposed of within the criminal justice system during the 18th and 19th centuries, I have identified three specific research questions: (i) what was ‘fraud’ in the 18th century and how were these laws treated by the criminal justice system?; (ii) who prosecuted fraud and why?; and (iii) how did the treatment of fraud in the summary courts impact upon fraud at the assize level?

Figure 1: Chart of fraud verdicts at the Old Bailey between 1794 and 1853

How these questions will be answered

These questions will be answered through consideration of a number of historical sources and archives. The first research question will be answered partly through methodologies arising from legal history. The laws have been traced through looking at a series of legal treatises and texts in order to comprehensively lay out the substantive laws relating to fraud[1]. Having located this substantive law, I then address how this law translated into practice.

The main source material of my research in any question of law in practice will be the Old Bailey Proceedings. This is not solely because these records have been digitised, but because they are the most detailed record of criminal trials available from the 18th and 19th centuries.[2]

Bow Street

Figure 2: An edition of the Old Bailey Proceedings

Having conducted extensive research of legal sources it is apparent that there existed a raft of laws under which to prosecute for financial and deceptive misbehaviour. However, the Old Bailey records have suggested that the majority of cases which could have fallen under these laws were in fact prosecuted under larceny or forgery. This is, in itself, a research finding of significance and goes a long way to illustrating why fraud causes so many problems for both the modern practitioner and the historical researcher.

My second research question relates to the prosecutors of these offences and will answer wider questions surrounding the end users of the criminal justice system.  What can be concluded about the types of people prosecuting for fraud offences at the Old Bailey? Does this cohort of prosecutors tell us how the upper levels of the criminal justice system were used and by whom?

My final question is related to the administration and prosecution of fraud offences at the lowest level, and the most common point of entry into the criminal justice system, the magistrates’ court. By comparing how magistrates in the City of London disposed of fraud cases with how Middlesex and Westminster magistrates handled fraud cases, a lot can be revealed about perceptions of fraud as well as about the wider workings of the summary courts.

Figure 3: Thomas Rowlandson, Bow Street Office, from The Microcosm of London, 1808. ©London Lives.

There has been very little research dedicated to the historical treatment and prosecution of fraud. What work has been done has focused upon offenders and has resulted in studies of middle-class criminality[3]. This ‘offender-focused’ approach is certainly an important line of research as there is limited work on the crimes of the middle-classes. In contrast, however, my research is ostensibly ‘offence-focused’, thereby seeking to question who was committing different types of fraud, rather than questioning the crimes of the middle-classes per se.

Another strand of research that has emerged in the last 15 years has been a renewed interest in the history of the company, particular in the work of Freeman, Pearson and Taylor under their ESRC funded project, ‘Shareholder Democracies’. Such work has naturally included research into company-related fraud and provided new data regarding the development of companies, which will be of wider significance outside of the study of economic history[4]. However, company fraud is only one form of fraud and by focusing upon this specific misbehaviour, we again see a skewed view of fraud, one in which only the middle and upper classes are perpetrators.

The study of fraud, whilst raising its own ontological and practical difficulties, may shed some much needed light on the process of prosecutions in the 18th and 19th centuries. In a system so reliant on the discretion of particular actors such as the prosecutor, the magistrates clerk, and the magistrate themselves, fraud is the perfect subject matter through which to assess how these actors influenced the day-to-day operations of the criminal justice system. It is hoped that some significant conclusions will be drawn regarding the structural changes to the criminal justice system, and wider life, in the Metropolis during the Industrial Revolution.

 

[1] In particular, Blackstone’s Commentaries on the Laws of England, Fitzjames Stephen’s General View of the Criminal Law of England, Chitty’s A Practical Treatise of the English Law and a number of Justice of the Peace records from the 18th and 19th centuries.

[2] http://www.oldbaileyonline.org/

[3] See in particular R. Sindall ‘Middle Class Crime in Nineteenth-Century England.’ Criminal Justice History (1983) pp23-40 and G. Robb White-Collar Crime in Modern England. Financial Fraud and Business Morality, 1845-1929 (Cambridge University Press, 1992)

[4] See for example James Taylor, Creating Capitalism: Joint-stock enterprise in British politics and culture, 1800-1870. (The Royal Historical Society, 2006), Freeman, Pearson and Taylor ‘“A Doe in the City”: Women shareholders in eighteenth and early nineteenth century Britain’. Accounting, Business and Financial History, 16:2, pp.265-291.

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