by Peter Moore
CHAPTER 17
The Assize
The Guildhall, Worcester,1 8–11 March 1830
EARLY ON THE morning of Monday 8 March the Lent assize opened at the Guildhall on Worcester’s High Street. The Guildhall was the most elegant building in the city and one of the finest examples of early Georgian architecture in England. Built of red brick and dressed with stone, it had been designed by Thomas White, one of Sir Christopher Wren’s pupils, and it was believed that the architect had personally carved the bust of Queen Anne which loomed over its arched doorway. The Guildhall was a permanent symbolic and administrative hub in the heart of the city. It had hosted assize sessions since its opening in 1723, and it was a suitably imposing and solemn setting for an orderly dispersal of the King’s law.
An ornate symbol of power: Worcester Guildhall in the early nineteenth century
As part of the preliminary steps, Judge Joseph Littledale convened with members of the grand jury to introduce himself and to offer guidance on the more complicated of the cases that awaited them. A grand jury was a body of between 12 and 23 important local men, whose role was to filter out cases unworthy of Littledale’s court. They met in private, interviewing witnesses and analysing indictments – formal written statements detailing the charges against a defendant. Once a majority was persuaded that a suspect probably2 had committed a crime, the grand jury endorsed the bill of indictment – proclaiming it a true bill – and the case was forwarded to the courtroom for trial.
This process was usually straightforward. The Oddingley case, however, promised to be quite different as it was unclear just which charges Clewes, Banks and Barnett would face. Smith’s coroner’s inquest had already ruled that all three had played a role in Heming’s murder. As this verdict had been reached by a jury of more than 12 people, there was no need for the charges to be ratified and theoretically they could proceed directly to the courtroom. But matters were about to be confused. Over the past few weeks William Smith, as solicitor in charge of the prosecution case, had decided to lay additional charges in connection not just with Heming’s murder but also Parker’s. If these were put, they would have to be written into fresh indictments and then fed through the grand jury filter like any other case. What would happen next, therefore, was uncertain, and Judge Littledale, acknowledging this, chose to issue the grand jurymen some cautionary words.
GENTLEMEN, there is a very important case in the kalender3 [sic], which had occupied a great deal of public attention – I need not say you must not pay any attention to what you have heard out of doors upon the subject, but confine yourselves to the witnesses who shall appear before you – that is, the three persons charged with the murder of Richard Heming, at Oddingley, in this county, of the names of Clewes, Banks and Barnett, who are charged in different degrees upon the finding of the Coroner’s Jury; but you Gentlemen are to look at the evidence yourselves. Gentlemen, the murder of Heming appears to have been committed very nearly twenty-four years ago: at that distance of time, it may be extremely difficult to get at the truth of the case. In the first place, several persons who might give information upon the subject, either for the prisoners or against them, perhaps, are dead; with regard to others who are alive to be examined, from the length of time it cannot be supposed their recollection will be so perfect as it otherwise might have been. At the same time, you will see whether there is sufficient before you to find any bill against these persons, from what the witnesses shall say. They appear, at present, Gentlemen, only to have been committed for being concerned in the murder of Heming; but from what I have seen of it, it appears to me to deserve consideration (and you will see if it is the case) whether there is not ground to charge all or some of them as accessories before the fact, or after the fact, or as principals in the murder of Mr Parker himself, as well as of Heming. They do not appear to have been committed upon that charge, but still it may be material for you to enquire whether there is any evidence to affect any of them with regard to Mr Parker.
Worcester was lucky to have been allotted Littledale. While assize judges were generally able, not all of them shared his pedigree. Some were little more than retired politicians passing from one courtroom to another, drawing the generous salary that accompanied the position and enjoying the prestige in the cosy years of their lives. As there was no fixed retirement age, many judges clung on to their wigs long after their mental abilities had started to wane. An alarming three quarters of the judiciary died in harness4 between 1790 and 1875.
Littledale was a tall man with calm brown eyes and an air of gentle conviction. At 63, he remained intellectually active and devoted to his work. A portrait by William Beechey shows him in court, dressed in a flowing wig and long scarlet robes, an official document in his right hand. In 1830 he was approaching the peak of a long and brilliant career, his reputation in the country only eclipsed by that of the lord chancellor, Lord Eldon. Littledale was cautious, steadfast, erudite and patient. It was said that he had read all five volumes of Comyn’s Digest of English law from cover to cover and retained every detail. As one of only 12 full-time judges he received an annual salary of £5,500, and just three and a half months after presiding over the Oddingley trial he would walk alongside the grandest nobles in the kingdom as part of King George IV’s funeral cortège.
Littledale was also notoriously conscientious. He was late for the Worcester assize as he had sat in an Oxford courthouse debating until one o’clock on the previous Saturday morning, and in his initial address to the grand jury had delivered something of a surprise. He had hinted that they might yet find charges in connection with Reverend Parker’s murder, a cause that had seemed lost ever since Heming had disappeared on Midsummer Day.
It was an opportunity that the prosecution, headed by coroner William Smith, was determined to grasp. As Littledale set to work on the 48 prisoners who awaited trial (42 men and six women, of whom six faced capital charges), Smith and his team worked industriously on the case, drawing up a number of new charges. Two days later they were ready, and on the morning of Wednesday 10 March Smith presented the grand jury with three fresh indictments. The first two related to Parker’s murder and charged all three defendants with being accessories, both before and after the fact. The third bill, however, was perhaps the most important. It concerned Heming’s murder and was intended to clarify and enlarge on the words of the coroner’s verdict. It comprised two counts: one asserted that Clewes, Banks, Taylor and Evans had gathered at Netherwood Farm on 25 June 1806, where Taylor had killed Heming: the second was identical except it had Clewes striking the fatal blow. The bill was written in the weaving and repetitive language of legal documents and was an aggressive move from Smith, who had decided there was enough evidence to convict Clewes outright as the principal in Heming’s murder.
The indictments were left with the grand jury, who spent the whole of Wednesday examining them behind closed doors. The day passed slowly amid mounting anticipation. It was seven in the evening before its business was complete and they emerged. It was announced to the court that from Smith’s indictments they had found a total of three true bills. One was against all three farmers for being accessories before the fact in Parker’s murder. The second and third had been found true for Clewes alone, accusing him of being an accessory after the fact to Parker’s murder and the principal killer of Richard Heming. They had thrown out two of the charges against Banks and Barnett and absolved them completely of having any hand in Heming’s murder. This was, on the face of it, encouraging news for Banks and Barnett, but they knew that – like Clewes – they still faced the possibility of being tried on the findings of the coroner’s inquisition. None of them could feel safe.
As the day’s business was concluded, officials, journalists and members of the public were left to digest this tangle of different charges: four against Clewes and two each against George Banks and John Barnett. It was the outcome of weeks of legal manoeuvring. Ever since Charles Burton had dug his spade into Heming’s gr
ave on 21 January a series of escalating dramas had been being played out: the identification of Heming’s skeleton, Clewes’ arrest, his confession, Banks and Barnett joining him in gaol, the coroner’s verdict and now the decision of the grand jury. Almost 24 years after the crimes had been committed, the path to justice was finally clear. The following morning Thomas Clewes, George Banks and John Barnett would be tried for the Oddingley murders.
For many, the day began long before sunrise on Thursday 11 March. At six o’clock the first keen onlookers were already beginning to mill in the High Street outside the Guildhall’s tall iron palisading. Although the city centre remained cloaked in the chilly gloom of a spring morning, those who hoped to catch a glimpse of the suspects or gain entry to the courtroom knew they would have to be patient and lucky. The city was ‘crowded with strangers desirous of hearing this extraordinary investigation’, the Birmingham Journal wrote, adding, ‘several persons at the trial having come expressly from Norfolk and other distant parts of the kingdom’. This was echoed by the Morning Chronicle’s reporter, who had roamed the inns the night before and encountered several gentlemen who had decided to sit up all night in anticipation of the trial and planned to arrive early to do ‘justice to their curiosity’.
By about eight o’clock the knots of visitors and curious locals had grown into a large and excitable crowd, blocking the path of the dogcarts and trade wagons that usually dashed through the city centre. Just after eight a cry went up. A prison van carrying Thomas Clewes had pulled to a stop in the street. It was followed closely by a hackney carriage containing Banks and Barnett. The authorities had, seemingly, decided to keep the two others separate from Clewes. In any case, the farmers could be thankful for the closed coaches and a degree of anonymity. These were new luxuries for prisoners. Traditionally criminal suspects were conveyed to the courthouse in open carts, and in the West Riding of Yorkshire prisoners had still been marched between the gaol and shire halls in chains as recently as the 1820s.
As the vehicles’ doors swung open, the crowd heaved in excitement, and for the next few minutes constables pushed and shouted as they strove to clear a path through which the men could be escorted into the building. The Crown Court was hidden away at the back of the Guildhall, behind the central staircase, which swept up to a banqueting hall on the floor above. Like the rest of the Guildhall, the courtroom was panelled in gleaming oak, its atmosphere a mix of quiet authority and proud tradition. Portraits of sheriffs, lord lieutenants and mayors hung from the walls, gazing over a room which had been specially prepared to receive the large audience that was expected.
The sheriff had planned to keep the courtroom closed until Littledale had assumed his seat, but the crowd made this impossible. ‘So intense was the throng and the pressure against the door that bolts and bars gave way and a general rush into the interior took place,’ a journalist for the Worcester Herald wrote. Another reporter, safely installed in the press gallery, watched as ‘the court and hall in front became momentarily filled to an overflow’, ‘the eye’, he wrote, ‘in every direction met with a sturdy contention not only for seats, but for the occupation of the smallest nook affording even standing room and a glimpse of the bench’.
At a little after eight o’clock Littledale entered the court and Clewes, Banks and Barnett were called before the bench. It was the first chance for many to examine the characters they had read so much about. Banks ‘appeared to excite the greatest interest in court’, the Birmingham Journal reported. Now in his mid-forties, he was a powerful-looking man dressed in a new suit of black. On ‘entering the dock he at first appeared stultified by the awful situation in which he was placed’, it observed. Next to Banks was John Barnett, standing motionless, gazing forward, not displaying the slightest emotion, and then a short distance away was Thomas Clewes. Clewes seemed ‘heavy-looking’ with ‘the appearance of a humble labourer, of anything but a sanguinary disposition’. In contrast to Banks he was dressed in a shabby black suit, or – as one paper drily put it – ‘a rusty suit of mourning’.
Judge Joseph Littledale5 in his ermine robes at the height of his career, painted by William Beechey
Before the trial commenced Littledale called the court to order. He announced that he had reconsidered his position on the charges that related to Parker’s murder. Having initially suggested that a prosecution might be mounted, he said that he had since changed his mind. He told the court he thought it was doubtful that the prisoners could be tried, as the principal had not been convicted and the statute removing the need for a prior conviction had not been made retroactive. He explained that the three defendants could therefore object to being tried on any of the charges concerning Parker’s murder. However, he added, according to a precedent, ‘if the prisoners choose to be put on their trial, my objection will be waived’.
It was a strange proposition, as it seemed plain that any defendant would object to being tried on a capital charge and John Curwood, chief counsel for the prosecution, was the first to rise in response. Curwood was an enormously experienced and eloquent barrister with upwards of 30 years’ service in England’s courtrooms. All hopes for a conviction rested on his ability to navigate a path through the complexities of the case and fend off any legal objections that the defence raised. Curwood began by acknowledging Littledale’s point but argued that the defendants should still be arraigned – formally charged before the court – with the indictment as a matter of form. This suggestion was roundly attacked by each of the defence counsels, who argued that as there were no grounds on which the charge could be put, arraigning their clients was a waste of time. Their objections were short and pointed, but they gave the crowd a first glimpse of the defence barristers. Banks and Barnett had spared no expense. William Taunton, chief counsel for Barnett, was 57 years old, an experienced and fierce performer with a reputation as a heavyweight on the trial circuit. John Campbell, defending Banks, was a precocious talent with political ambitions: three decades later he would become Queen Victoria’s lord chancellor. Clewes, without the means of his fellow defendants, had not been able to select from the glittering stars of England’s courtrooms. His counsel, Ebenezer Ludlow, was a veteran sergeant-at-law with 25 years’ experience. Ludlow did not have the education, class or reputation of Campbell or Taunton, and representing Clewes, by far the most vulnerable of the three prisoners, was going to be an enormous test of his skill.
Ludlow argued that charging Clewes with a crime he could not be tried for was distracting. ‘Clewes is indicted for a murder,’ he said. ‘On that murder he ought to have a fair and unprejudiced trial, which will not be the case if he is borne down by the extraneous circumstances which belonged to the other indictments.’
‘But at all lengths it would be proper to arraign the three prisoners,’ Curwood countered. Littledale agreed, and they were asked to stand as the indictment charging them with Parker’s murder was read. It was a moment of procedural farce, perhaps a little bewildering to those packed into the Guildhall, dressed in greatcoats, holding tall hats in their laps and decoding as much as they could.
‘How say you, Thomas Clewes, George Banks and John Barnett? Are you guilty or not guilty?’ asked the clerk of the arraigns.
They said nothing, and one by one Taunton, Campbell and Ludlow interjected, objecting on behalf of their clients. Littledale acknowledged their right to do so, and the first of Oddingley’s two murders thus went unpunished. There might yet be justice for Richard Heming, but for Parker, by far the more innocent of the two victims, there would be no vengeance under English law.
For the audience it may have seemed a disappointment, but in reality it was the outcome that those familiar with the esoteric details of the case had long anticipated. ‘It is believed that the prisoners will, as regards this indictment, endeavour to escape by the death of the principal,’ William Smith had written in his notes before the trial. Having realised this, the prosecution had adopted the tactic of pressurising the court into arraigning the
men. Thereafter, ‘if they do not consent the Bills will hang over them and very properly so’, Smith had added. It was a good point. A lingering sense of thwarted justice would pervade the remainder of the case. Smith knew that Clewes, Banks and Barnett were within their rights to avoid the charge, but he was keen to display their good fortune to the court. The men had escaped a capital charge not through their innocence, but via a technicality so obscure that it had even confused Littledale and members of the grand jury. Hereafter the momentum would shift. More charges awaited, and on these there were no legal loopholes to slip through.
The clerk was called forward again to read the remainder of the charges. These included the findings of the coroner’s inquistion and the true bill passed by the grand jury accusing Clewes of murdering Heming. The defendants were asked to stand.
‘How say you, Thomas Clewes, George Banks and John Barnett? Are you guilty or not guilty?’ asked the clerk.
‘Not guilty,’ said Clewes.
‘Not guilty,’ said Banks.
‘Not guilty,’ said Barnett.
As they spoke, each prisoner was compelled to raise his right hand beside his head. Clewes’ ‘grey hairs lay straight upon his forehead’, noted one reporter; Barnett paused momentarily before responding firmly; Banks, who had been drawing the most attention from the press gallery, seemed shaken. Throughout his time at the bar his lips quivered and moved ‘as if [he was] engaged in subdued and silent conversation’, one journalist noted.