Introduction

When I was writing the introduction to the History of Legal Aid, I wondered what fee was paid to counsel assigned to a defendant under the Poor Prisoners Defence Act 1903.By chance I received the answer almost immediately, at any rate for capital murder trials, when I read Sally Smith’s excellent new biography of Sir Edward Marshall Hall[1].   As soon as I finished it, I re-read Edward Marjoribanks’s best-selling biography of Sir Edward[2], which I had first read when I was about 15.   Reading that book had first fired my imagination about the possibilities of a life at the Bar:  I see from Sally’s introduction that Leslie Scarman and John Mortimer, both far greater advocates than I ever aspired to be, had both been equally bewitched.

It then occurred to me that many readers of these blogs may not know the details of the Brides in the Bath case, and as it contains a number of interesting features for a modern reader (not least the fact that a highly complex capital murder trial was started only four months after the defendant’s arrest and completed eight days later), I thought it would be worthwhile retelling the tale (of which the Marjoribanks book gives much more detail than Sally Smith found it necessary to include).

I will tell the story of George Joseph Smith’s life in chronological order, even though only the facts surrounding the unusual deaths of three of his eight brides were explored at his criminal trial.

He was born in 1872.  His “respectable family” could not cope with him, and he was sent to a reformatory as a young boy.  In his youth he is said to have displayed a love of poetry, particularly Shakespeare.  He played the piano and could draw quite well.   He preferred, however, a life of crime.

In 1891 he was jailed for the first time for stealing some tricycles he had hired.  Five years later he served a one-year term of imprisonment for larceny.  On his release from prison he opened a baker’s shop in Leicester, where under the assumed name of George Love he employed Caroline Beatrice Thornhill (“Beatie”), who was to become his first wife.   After they were married, he made her steal for him.

The following year he married his second wife in London, and extorted sums of money from her.  In the meantime, Beatie was convicted of larceny.   In 1900 she saw him, by chance, in London and reported him to the police.  This led to his arrest and subsequent conviction, for which he served another two-year sentence for larceny.   In 1903 he was released from prison, determined to wreak revenge on Beatie, whom he had threatened to murder, but her brothers gave him a good thrashing when he looked for her, and she escaped to go and live in Canada.

In 1908 he defrauded a widow from whom he obtained £80-90 on a promise of marriage before he disappeared from her life.  In the same month he married Edith Pegler, as his third wife, to whom he remained fond.   He returned to live with her from time to time during the next six years.

In June 1909, while he was still living with her, he met Miss Faulkner under the assumed name “George Rose”.   In October that year he married her (as his fourth wife) in Southampton by special licence.  He extracted £300 from her and then deserted her.

The first bride in a bath

On 10^th August 1910, under the assumed name of Henry Williams, he met by chance Bessie Mundy, the 33-year old daughter of a deceased bank manager who had recently left her a legacy of £2,500.  She had entrusted this sum to her brother and an uncle in such a way that she could only dispose of the bulk of it by will.   She was at that time living by herself in a boarding house in Clifton. They married in Weymouth on 20^th August – she was his fifth wife  – after he had first obtained a copy of her father’s will, and he had obtained £139 of her spare cash from her trustees by the time he disappeared the following month, telling her in a letter, quite falsely, that she had infected him with a venereal disease.

He reappeared in her life by chance in March 1912, and they moved to Herne Bay together in May that year.  There they obtained lodgings which did not possess a separate bathroom for their use, so he bought a free standing bath from a local ironmonger.   They then made mutual wills, but he was disappointed when counsel advised them that Bessie would always be free to make a new will if she wished to.  He also took her to see a doctor, whom he told that she suffered from fits.  The same doctor was called to their home a few days later, to be told the same story.  She then wrote and told her uncle that she had had two bad fits, and that her husband had been very kind to her.

On the morning of Saturday 13^th July the doctor was again called to their home.  He ascertained that Bessie had died in the bath.  He certified that she had died of a fit and considered that no post mortem was required.  On the following Monday a local coroner’s jury found that she had died by misadventure.  Her husband arranged for her to have a pauper’s funeral and to be buried in a common grave.

A few days later Smith went to tell a lady at the local house-agents about his wife’s death and his imminent departure from Herne Bay. He commented to her: “Wasn’t it a jolly good job I got her to make a will?”  He then returned to his married life with Miss Pegler.

The second bride in a bath

In November 1913 he married Alice Burnham – his sixth wife – in Southsea under his true name.  She was nursing an invalid patient there.   He met her at an evening service in a Nonconformist chapel and they were married within a week.  Her family was in control of her money.  With the help of a solicitor he extracted £104 of her money from her father, and then helped her to make a will in his favour.  He also insured her life for £500.  The couple then moved to Blackpool, where he rejected the first lodgings they were offered because there was no bath.  They then found more satisfactory rooms where there was a very nice bath.  They also visited a doctor together, whom Smith told of his wife’s frailty.  Alice wrote and told her family that she was sick with headaches but that she had the best husband in the world.

At about 8 pm on the evening of Friday 12^th December their landlady saw water trickling through her ceiling, and when she looked into the matter she found Smith supporting his wife’s head above water.  He asked her to fetch the doctor because his wife was dead in the bath.  The doctor found that she had had an accidental fit in the bath, and the coroner’s jury certified that she had suffered from heart disease and had died from an accidental death from a fit in the bath.  Smith ordered her a deal coffin and a pauper’s funeral.

Smith then returned to Miss Pegler again.  His landlady called out “Crippen!”[3] as he departed down the street.

In January 1914 he received £500 from the company which had insured his wife’s life.  He used the money to increase his annuity.  In September 1914, under the assumed name of Charles Oliver James (allegedly an artist from Canada), he obtained first £78 and then a further £14 from a poor servant girl.  Although they were married in London on September 17^th  – his seventh wife -he deserted her very soon afterwards, taking with him all her possessions.   He gave her trousseau to Miss Pegler, telling her that he had been dealing in second hand clothes.

The third bride in a bath

In December 1914, under the assumed name of John Lloyd, he married Margaret Lofty – his eighth and last wife – in Bath.  She was the 37-year old daughter of a clergyman, and had been living with her mother and sister in Bristol.   After he had picked her up, her family heard that she had made a number of visits with him to a local solicitor to arrange life insurance.   One day she went out and never returned home.  Instead, she had run away to get married to Mr Lloyd.  She had £19 in her possession at that time which she gave him.  On their wedding night they found lodgings in Highgate, where they had the use of a bathroom which possessed a nice bath.  That evening they visited a local doctor, who was told she suffered from bad headaches.

This marriage lasted only one day.  The following morning (Friday, 18^th December) she went to a solicitor and made a will in which she left everything to her husband.  She then wrote a letter to her family to tell them she had married a thoroughly Christian man.  After finishing her letter she went to have a bath.  After hearing the sound of splashing followed by a sigh, their landlady heard her husband playing “Nearer, My God, to Thee” on a harmonium.  She next heard him calling first to his wife and then to her for help, and when she went upstairs she found him lifting his dead wife out of the bath.  The doctor was called and certified that she had died from a combination of flu and a hot bath which had caused her to faint and then drown.  An inquest was opened the following Monday and then adjourned.

All three baths were free standing metal baths, steeply sloping at one end and tapering at the other.  They were all quite short and narrow by modern standards.  There is a photograph of one of them in Sally Smith’s book.  Of the three dead wives, Bessie was five feet eight inches in height and Alice was said to be very short and very fat.  Margaret, on the other hand, was said to be of slighter build.

On each occasion the death occurred at the start of a weekend, and Smith seems to have planned that an inquest verdict of death by misadventure should be obtained before his wife’s families could make any inquiries of their own.

Smith once again returned to Miss Pegler, and spent the Christmas season with her family in Bristol.

Police inquiries, Smith’s arrest and the retention of defence counsel

The News of the World, however, carried a story about Margaret’s death under the heading “Bride’s tragic fate on day after wedding”.   When Alice’s brother read it, he contacted the police because of the close resemblance of this death to the facts of his own sister’s death.   The police then embarked on a massive investigation, during which they took statements from 130 witnesses in 40 different towns.  There were to be 264 exhibits at Smith’s trial.  When Smith returned to attend the adjourned inquest and to consult a solicitor about obtaining probate of Margaret’s will, he was already under police observation.

On 1^st February 1915 he was arrested in North London on suspicion of Bessie Mundy’s murder.  He had by now spent all the money he had obtained, much of it on his annuity, and because he was penniless his solicitor devised a plan whereby his client would write his life story for a newspaper and then assign the copyright to it in return for substantial funds which could be used to remunerate his defence lawyers.  The solicitor had consulted independent counsel about the legality of this scheme. Counsel advised that it was legal and not improper, and drafted the terms of the agreement.

In the meantime, the solicitor had instructed Edward Marshall Hall QC under the provisions of the Poor Prisoners Defence Act 1903 on the understanding that more significant funds would become available from the newspaper when the agreement was signed.  With this promise the solicitor instructed both Marshall Hall and two juniors at conventional market rates for a substantial murder trial.

Unfortunately, because Smith was in custody, he required the permission of the Home Secretary before he could sign the agreement, and three days before the trial was due to start Sir John Simon refused to give his permission.  He said that the arrangement was contrary to the public interest and to public morals.  In any event it was academic because he thought that no honourable member of the Bar would agree to accept fees supplementary to those that were available from the fund provided by Parliament.  [This allowed for payment of £3.5.6d (three guineas for counsel and half a crown for his clerk[4]) for a defence in a capital murder trial].  Although this fee would be worth £300 in today’s money, it would not go very far when shared between two junior barristers and the leading criminal defence King’s Counsel of the day.  The solicitor would receive 3 guineas (plus carefully defined expenses).

Marshall Hall’s outraged letter to the Home Secretary (whom he knew well) has survived[5], but it cut no ice with him, and because the trial date was so near, he felt he had no option but to continue to defend Smith although he would only be paid a pittance for his services. [At the subsequent appeal on a point of law of great public importance, Marshall Hall’s fee of £17 was paid as to £10 by the Director of Public Prosecutions and as to the balance by Kent County Council.]

The trial

The trial began at the Old Bailey on Monday 22^nd June 1915 and lasted nine days.   Mr Justice Scrutton was the trial judge.  He was a very recent appointment to the High Court bench, and I have not conducted any research into the question whether he had ever tried a criminal case before.   He had, on the other hand, built up a formidable reputation at the Commercial Bar and was the author of the leading textbook Scrutton on Charterparties, which in its 23rd edition is still in use today.  [In her biography of Edward Marshall Hall[6], Sally Smith comments that “no criminal lawyer such as Marshall would ever have had any use for it other than as a wedge under a broken desk leg.”]

On the first day of the trial leading counsel for the prosecution, Archibald Bodkin KC, confined his opening speech to the facts of Bessie Mundy’s case.  On the second morning he made an application to the judge, in the absence of the jury, that he be permitted to adduce in evidence the facts relating to the deaths of Alice and Margaret, not for the purpose of showing that Smith was likely to have committed all three murders, but to rebut any defence he might have to the effect that the death of Bessie Mundy had been an accident.

Every law student will have been taught the words of Lord Herschell, presiding as Lord Chancellor in the Judicial Committee of the Privy Council in the Australian case of Makin[7] (which related to a number of infants’ bodies being buried in the defendants’ garden) in which he said:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.

On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.”

Marshall Hall, for whom arguments on points of law were never his strongest suit, valiantly tried to argue that the prosecution had not established  a prima facie case that Smith had murdered Bessie Mundy, and that this line of authority could not be used to bolster a case which would not stand up on its own, but the judge overruled him and for the next eight days, in the absence of radio or television broadcasting, Press and public had a field day from the newspaper reports of the proceedings.

As Sally Smith records, the Crown called registrars to prove marriages, solicitors and bank managers to prove legal and financial transactions, ironmongers to prove purchases of baths, doctors and undertakers to prove illnesses and deaths, gossipy landladies and grieving relatives in their dozens.  The facts were not in dispute.  The defence Marshall Hall was instructed to put forward was that all three deaths had been accidents.

When the prosecution case ended at the end of the seventh day of the trial Marshall Hall said that he would be calling no evidence.  Although he had been one of the first criminal defence counsel to avail his client of the right of a defendant to give evidence in his defence in a criminal trial, a right newly conferred by the Criminal Evidence Act 1898 – notably in the case of Seddon in 1912 –  he judged it prudent not to expose his client in the witness-box.   A consequence of calling no evidence was that he was able to make his closing speech after the closing speech of counsel for the prosecution instead of having to speak first.[8]

It was never clearly ascertained how his brides had in fact met their death.  The Crown’s pathologist, Bernard Spilsbury, said that the women showed no signs of having been knocked out, and that they would only have lost consciousness immediately if they had been very suddenly submerged.  A police inspector had conducted an experiment in the police station with a policewoman in a bathing dress in which she had very nearly drowned: this was on the basis that Smith had grabbed his brides’ ankles suddenly and pulled their heads under water.

The judge, for his part, invited the jury to clamber into the [empty] baths (which were all exhibits in the case) when they retired in order to try out for themselves what might have happened.   During his summing up he showed them what might have happened, acting in dumbshow to demonstrate how it would have been possible to lift a woman up and put her into the bath, and then force her head down while holding her knees up with the other hand.  He added that the jury were also at liberty to consider any other possibility (including the possibility that the three women had been drugged, even though, he said, there was no evidence of this).  [When dismissing Smith’s appeal Lord Reading CJ said it would have been better if the judge had not put forward his own speculations as to what might have happened.]

Sir Edward Marshall Hall, for his part, thought that his client had hypnotised his wives and secured their co-operation in that way.

At one moment in the judge’s summing up Smith shouted from the dock:

“It is a disgrace to a Christian country, this is.  I am not a murderer, though I may be a bit peculiar.”

The jury retired to consider their verdict at 2.48 pm on the ninth day of the trial.

At 3.10 pm they returned to court with a “guilty” verdict and Smith was sentenced to death.

His appeal was heard in the Lord Chief Justice’s court on 29^th July.   In dismissing the appeal Lord Reading held that there was indeed a prima facie case that Smith had murdered Bessie Mundy, so that the case made no new law[9].

Postscript

Smith’s case was concerned with the admissibility of similar fact evidence in criminal trials.  I was myself presiding in a panel of the Civil Division of the Court of Appeal nearly 90 years later[10] when we had to make new law in relation to the admissibility of similar fact evidence in a civil trial.   Our necessarily cautious approach was later upheld by the House of Lords[11], who was willing to go further in admitting such evidence in an appropriate case than we had felt was open to us at appeal court level.

 

 

 

[1]  Marshall Hall, A Law unto Himself, Sally Smith, Wildy Simmonds & Hill Publishing, 2016.  Sally Smith QC is a practising barrister (when she is not writing books) and a fellow bencher of the Inner Temple, Marshall Hall’s Inn.  Her book is based on meticulous research into material not previously available.

[2] The Life of Sir Edward Marshall Hall, by Edward Marjoribanks MP, 1929.  It was first published by Victor Gollancz Ltd in September 1929, and my own battered copy, which I seem to have bought for £1.50, is of the Seventh Impression, published 14 months later   The author was the brilliant older half-brother of Quintin Hogg QC (later, as Lord Hailsham of Marylebone, Lord Chancellor for two terms totalling 12 years in all between 1970 and 1987).  He tragically committed suicide by shooting himself in 1932.

[3] The famous murder case involving Dr Crippen, whom Marshall Hall did not defend, took place in 1910.

[4] This was the standard fee I was paid when I started at the Bar 50 years later, although I was once paid the minimum fee of £2.4.6d (two guineas for myself and half a crown for my clerk) on a watching brief on the hearing of an assault case in a London magistrates’ court on a very hot Saturday afternoon in June 1964.

[5] See The Life of Sir Edward Marshall Hall, by Edward Marjoribanks MP, 1929.

[6] Marshall Hall, A Law unto Himself, Sally Smith, Wildy Simmonds & Hill Publishing, 2016.

[7] Makin v Attorney General for New South Wales [1894] AC 57.

[8] If one of the law officers had been prosecuting – as often happened in those days – he would have had the last word, notwithstanding the fact that the defence had called no evidence.

[9] The appeal was reported as Rex v Smith (1915) 11 Cr App R 229.

[10]  O’Brien v Chief Constable of the South Wales Police [2003] EWCA Civ 1085  In this action for malicious prosecution and misfeasance in public office the claimant was permitted to adduce evidence from two other police investigations which he said contained strikingly similar features to the way in which he had been treated by two of the police officers involved in his own case.

[11] O’Brien v Chief Constable of South Glamorgan [2005] UKHL 26.