Caroline: Welcome to Shedunnit. I’m Caroline Crampton.
There are few locations in Britain more steeped in the history of crimes real and imaginary than the Old Bailey. This historic courthouse in central London has been the setting for some of the most dramatic moments in legal memory — such as the trials of Dr Crippen and the Brides in the Bath murderer George Joseph Smith — as well as some truly memorable scenes from crime fiction, including the climax of Agatha Christie’s short story and play Witness for the Prosecution, and the exploits of John Mortimer’s Rumpole of the Bailey.
So storied is the Old Bailey that I think it’s easy to forget that it actually a real place where real trials continue to happen all the time. As the Central Criminal Court of England and Wales, the cases that are heard in its 18 courtrooms are usually of a very serious nature and often high profile, attracting the attention of the media and the public alike. It’s not often that a location referenced so frequently in the novels and newspapers of a century ago is still operating in the same way, but that is the case here. The Old Bailey is still very much a working courthouse at the heart of Britain’s legal system.
Something listeners might not know about me is that for a while when I was younger I wanted to be a barrister — that’s the term in the UK for an advocate who argues cases in court — and I spent some time doing secretarial work at various barristers’ chambers in London to get the feel for it. Of course, I ended up taking a different career path, but there is a photograph of me in a barristers wig somewhere that, if I have any say in it, will never grace the internet, and I’ve never quite been able to let go of my curiosity about how that world works.
When I picked up Wendy Joseph’s new book, Unlawful Killings, I found the perfect person who could satisfy this curiosity and also speak to my love of all things crime fiction. Wendy, or to give her her full title, Her Honour Wendy Joseph QC, is a distinguished barrister and judge who, until her retirement in March 2022, was a full time judge at the Old Bailey. In her career, as she says in the book, she has seen more murder than most people, and even more murder than most judges. And I’m delighted to say that she is my guest for this episode, and will be helping us understand both the historical importance of the Old Bailey and how it works today, as a modern working cog in the giant machine that is the British judicial system.
Wendy, welcome to Shedunnit.
For those who’ve never been there, could you describe the Old Bailey?
Wendy: The Old Bailey is the central criminal court of this country. It takes criminal cases only, and it draws its cases from the entire area within the M25, it also takes some cases from outside that area. If, for example, it is thought that local feeling is running very high and it would be very difficult to get a fair trial in a particular area, a case can be brought down to the Old Bailey.
The building itself consists of 18 courtrooms and it occupies the site, which until 1902 contained Newgate Prison. And Newgate Prison had been on that site for something like 700 years. And you will appreciate, it was a pretty bad place with an awful lot of pain and suffering there.
The courts themselves in those days were a little bit further down the road called old Bailey just adjacent to Newgate Prison and the two buildings were joined together by an underground tunnel. Nowadays Newgate Prison is gone. We’ve got a building which consists in two halves, half that was opened in 1907 and another half that was opened in the late 1960s, early 1970s.
Caroline: And what part does the Old Bailey play in the British legal system? You mentioned the area that it covers, but what kind of cases could you expect to see there on an average day?
Wendy: Death related. Almost everything that we do there has got a body or a nearly dead body in it. When I first came to the Bar, first started practising there in 1975, you could walk along the line of courts and you would see some murders, but a lot of armed robberies, a lot of rapes. These days, we are occupied almost wholly with murders, attempted murders, manslaughters, little bit of terrorism and other stuff, but lots of homicide.
Does that colour the perception of it as a modern working courthouse?
Wendy: All of those cases that took place after 1907, because some of those that you’ve mentioned were earlier, but all of the ones that took place after 1907, I think took place in Court One at the Old Bailey. Court One’s probably the most famous and iconic courtroom in the world and it’s still got quite a lot of that atmosphere about it, but it’s in the old half of the building, the half that was opened in 1907. It is the biggest of those courtrooms and the most impressive, but we don’t try the most serious crimes there anymore, because we can’t actually have appropriate security in there.
The reason that we can’t is we’re not allowed to have glass around the dock and the reason we’re not allowed to have glass around the dock is it’s such a famous courtroom it is listed in its own right and we don’t have permission to do it. The other half of the building is very different, much more modern, lots of light coloured wood, a much brighter atmosphere to work in altogether. So not quite the same atmosphere as the old courts.
Caroline: As you said, a large proportion of the cases that come to the Old Bailey deal with murder or unlawful killing of some kind. And in the preface to your book, you say you’ve seen more murder trials than the average person and even more than the average judge. What is it like to be exposed to that subject matter so intensely over such a long period?
Wendy: It’s quite tough, actually, Caroline, but you’ve got to remember judges don’t drop down from heaven in the latest shower of rain. They get onto the bench having been in the law for a long time. And most judges sitting at the Old Bailey will have been working in criminal law, not all of them, but most will have been working in criminal law for 25, 30, 35 years before they get to the bench and they will mostly have achieved a certain status, they will have been doing serious work. So they will have been doing lots of murders already in all likelihood. And when you are a barrister, you are much more hands on with a murder than you are when you’re on the bench.
When you are defending, you are sitting in a cell with the person accused of murder. When you are prosecuting, you are on a daily basis dealing with, for example, the victim’s family or the people who have to come along and give the evidence itself. So either way you are more directly involved with the emotion than you are when you’re on the bench, but I’m not saying it’s easy. It isn’t, some people don’t cope with it. And if you don’t cope with it, it isn’t a job for you really.
Caroline: And you were a judge for a long time at the Old Bailey, I think for 10 years.
Caroline: How would you describe that role to someone who’s never been inside a British courtroom?
Wendy: As to what a judge does?
Caroline: Yes. I think there’s an idea from popular culture, but I’d be interested to hear what it’s actually like.
Wendy: Okay. So the reason I wanted to become a judge was because I didn’t want to be a barrister anymore. The reason I didn’t want to be a barrister anymore was because when you’re at the Bar, by the very nature of our adversarial system, you are always fighting a corner.
You’re always advancing your argument against the other argument. You’re always cross-examining someone, you are always trying to persuade a jury that you are right and the other person is wrong. And I did that for 32 years and then I found I really didn’t want to do it anymore.
The great thing about being a judge is you don’t do that. You don’t, as the expression goes, descend into the arena. You sit there and your job is to make sure if you can achieve it, that justice is done. So that means each side will say what evidence they want to put before the jury. You will decide if there’s an argument about it, whether it can be put before the jury, whether it’s admissible, whether it’s relevant and probative, you will make sure that the courtroom runs smoothly.
So you are making the decisions of law. You are ensuring that the case itself is able to run in the best possible way. So you are doing an awful lot of case management, an awful lot of sitting there watching what’s going on. Because you’ve got a jury there, you’ve got to make sure they’re following everything and all is well with them.
You’ve got a lot of barristers. Sometimes you’ve got an awful lot of defendants in the dock who also have to be able to participate and you’ve got to make sure there’s no problems in the dock. You will have a public gallery, very often full of people. So there’s a lot to be watching to make sure nothing is going amiss and all is going smoothly.
Then at the end of the case, it’s the judge’s job in this country to give directions of law and to sum up the facts. And that can be a massive job. If you are doing a trial that’s lasted, I don’t know, six weeks and you’ve got, say, five defendants in the dock and they’re all running different defences and there’s lots of law to be explained to the jury, you have to reduce the law to a written form that a layman can follow, absorb, and then apply to the facts as that jury finds them to be. And you have to sum up the evidence to them, which is in a relatively short form, remind them of the important pieces of the evidence.
But you know, Caroline, the evidence comes to the jury often out of sequence. The arguments that each side will have put forward will concentrate on what they want the jury to hear. So very often it isn’t until the judge sums up that the jury hear for the first time, the whole picture put together chronologically. Sometimes it can take three or four days to sum up a case to the jury and it can take many, many, many hours of work to prepare summing up like that.
Caroline: I’ve done a bit of work as a court reporter. So I have seen judges at work and something that always struck me was that they always seem to be writing, always taking notes.
Caroline: Always noting down what’s happened. That’s part of that preparation work, presumably that goes into that summing up.
Wendy: Because if you don’t keep a note of the evidence, you can’t prepare the summing up at the end of the day. In fact, all the evidence is actually recorded, but that’s simply an audio recording, which goes into an archive and it’s there really, if there’s ever a query of what a piece of evidence was, or if the case goes up to the Court of Appeal, and there’s an argument about something that happened in the courtroom, then those archives can be drawn down and typed up.
Caroline: So it sounds like from what you’ve said there, that the job of the judge in the courtroom is far more than just banging a gavel and saying “order, order” as it might appear in films.
Caroline: You’re a manager. You’re an interpreter.
Caroline: And you are there to represent the interests of justice as well as those in the room. Would that be accurate?
Wendy: Yeah, that’s exactly it. There is no gavel in the judge’s hand anymore, there is no cry of order order anymore. That doesn’t happen. You sit there making sure as best you can that every person who has an interest in the case has a fair crack of the whip.
Caroline: Is it right to say that you have specialised particularly in homicide, both as a barrister and a judge, was that a conscious choice you made to go into that area of the law?
Wendy: Not really. It’s what happens as you get bigger and better cases, as you advance in the profession. So solicitors are sending you more serious cases. So you might start off when you first go to the Bar in the Magistrates’ Court doing shopliftings and criminal damage and so forth, then you’ll go up to the Crown Court and gradually bit by bit, you’ll get more serious cases. That will include having rapes, grievous bodily harm, and then you get perhaps junior briefs in murders and so forth.
In the old days, which isn’t so very long ago, legal aid was such that in every murder case, everyone accused of murder and everyone who was prosecuting a murder, there would be both a silk and a junior counsel involved. It is possible that that doesn’t happen these days, but you start off as you go at the Bar doing the junior work, and then if you take silk, you’ll be leading quite often in murders.
When I first became a judge, I was sent to a crown court called Snaresborough Crown Court, where I did an awful lot of different sorts of work. But when I was moved to the Old Bailey there, the work is mainly homicide. And so if you are sitting there, that is your daily diet, really.
Caroline: And just to explain for those who don’t know what is taking silk?
Wendy: Oh, becoming a QC. It’s becoming a Queen’s Counsel, and when there’s a king on the throne, it’s becoming a KC, a King’s Counsel and it’s called taking silk because instead of wearing the cotton gown, you wear a silk gown instead.
Caroline: So murder is considered to be the most serious and complicated matter in criminal law, is that right?
Wendy: Anything that involves the taking of a life is considered to be at the very upper end of the scale. So for example, terrorism that involves multiple murders is extraordinarily serious. Multiple murder cases where, for example, two, three or four people have been killed are thought to be heavier cases to do than where a single victim has been involved.
I’m not sure they’re necessarily the most complicated. For my money, some of the frauds that I’ve seen, I certainly wouldn’t want to be dealing with I’d much rather be dealing with something like a murder, but they are certainly the most serious offences, murders.
Caroline: After the break — justice delayed is justice denied.
Caroline: Who is the justice system designed to serve when it comes to cases involving deaths? Is it victims? Is it witnesses? How does that work?
Wendy: The justice system, no matter what the charge is for my money is designed to serve us all, the community. I think that the courts are, or should be certainly the criminal courts, a service industry. We are there to serve the community. We try very hard to support all the parties in the court, not because we are serving the defence or the prosecution, but because we are there to serve justice and unless all the parties and everyone involved has the opportunity to present their case in the best possible way to the jury, then justice won’t be served.
But it is worthwhile just bearing in mind that although a defendant is represented by the defence, the prosecution is not designed to represent the victim. The case isn’t brought in the name of the victim. If Joe Bloggs was the victim and Jane Doe was the defendant, the case isn’t called Joe Bloggs against Jane Doe. The case is called the Queen against Jane Doe or Regina against Jane Doe.
And that is because the prosecution is not representing the victim. The prosecution represents the state. The community. Of course, one hopes and expects that the prosecution will support the victim’s case, that’s what they’re there for, and support the witnesses that they are calling. So the judge’s job is not to support any one side, it’s to ensure that the jury get the best possible evidence that they can. And that’s not always easy.
Caroline: And I gathered from your book, you’ve devoted a lot of your time and effort to doing exactly this — demystifying the justice system and improving representation among those who work in it. What would you say is the most common misconception about justice that you’ve encountered in your work?
Wendy: I think that a really common misconception, particularly amongst those who have been victims or where victim has died, the bereaved family, is that somehow justice played out in the courts can put it right. And then of course having pinned all their hopes on that when they get the verdict they want. And even when they get a really high sentence for the person who’s hurt them so badly, you see the blankness in their faces because the courts can’t give them what they want. The courts can’t undo the wrong that’s been done. And my view for what it’s worth is that once a case gets to court, once a crime has happened, once someone has been badly hurt or killed, we’ve failed, we’ve all failed. The justice system has failed, society has failed because it’s too late to actually put it right. All we can do is play out that system of justice, which allows us to identify a wrongdoer and then to impose punishments within the law.
Caroline: You mentioned in your book too, that the British legal system is in trouble, that the pandemic among other factors has put the process under great strain. Could you explain a bit more about that and why people should take an interest?
Wendy: Yes. Well, at the Old Bailey, dealing with a sort of work that is dealt with there, almost all defendants are remanded in custody. It’s not an indication of guilt or innocence, it’s the simple fact that the granting of bail in murder cases is quite unusual and most defendants will be in custody and awful lot of those defendants will be quite young.
So if you think about it, Caroline, if you’ve got a domestic murder, so you’ve got one male defendant in mid thirties, who’s accused of having murdered his partner. You’ve got one person in custody, but most of the cases involving a young defendant will have multiple defendants because they tend to be gang related cases, or if not, gang, then youngsters are out together in groups. So you may get five or six young people age 16, 17. 18 years old.
We used to be able to get cases on reasonably quickly, certainly within about eight or nine months. When things were going well, we have 18 courts at the Old Bailey and it was not unusual for us to be running 14 or 15 trials at the same time.
But when the pandemic struck, we couldn’t do that. We couldn’t do it because we weren’t able to use our jury rooms for the juries. They were too small for social distancing. And if we were going to have juries in at all, instead of a jury room, they had to be given an adjacent and linked courtroom to use as a jury room.
So immediately for every trial, we were using two courtrooms instead of one. Then because we weren’t allowed for the same reason, social distancing to have more than say three defendants, two or three defendants in a dock together with the staff who were there to secure them and look after them, that meant in every case where we had say four or five or six defendants, we had to have yet another courtroom linked up.
In the eight defendant cases, we just weren’t able to get them on at all. But even where we could get cases on, we were using so many courtrooms for each one that instead of running. 14 or 15 cases, we were running three cases, four cases, and then eventually five. And then it began to build back up again. But the backlog simply extended exponentially.
That means there’s an awful lot of people in custody awaiting trial who saw their trial dates moving further and further away. Just as significant there would be bereaved families waiting to hear the details of how their boy ended up on a morgue table. There’d be witnesses desperate to get the evidence over and done with. And indeed whose memories would become less and less reliable as time went on.
So it’s really important to get things dealt with as quickly and fairly as you can. You’ve probably heard the expression “justice delayed is justice denied”, but it has become extremely difficult because of the pandemic. That is not to say all was well before, we had quite a backlog before, but it’s become really very pronounced in the course of the pandemic.
Caroline: I just wanted to finish by asking you a little bit about your own career and your trajectory within the legal system. Because I read in your bio that at most of the stages you reached, you were the only woman, one of a very small handful of women rising up through the legal profession. What was that like and is it improving, do you think?
Wendy: It was bad and yes, it’s improving. When I came to the Bar in 1975, that’s how old I am, there were a handful of senior women who had made it. But most of the youngsters had a real problem, not because they were badly treated, they were very nicely treated, but they weren’t taken seriously as potential tenants to be taken on in chambers and have their careers developed.
Over the years, that has got a lot better. On the bench we’ve made a lot of progress too. So when I went to the Old Bailey in 2012, there was 16 full-time judges, 15 men and me. When I left 10 years later, there were 14 full-time judges, half men and half women. And that is a lot of progress. Other courts weren’t quite as male dominated as the Bailey was for quite so long.
And I think on the bench and particularly that part of the judiciary who sits on tribunals, there is a much better balance now. So in terms of gender there’s been a real improvement and I’m thrilled about that because one of my roles was as a diversity and community relations judge. Where we have not made any progress, not real significant and meaningful progress, is in expanding the ethnicity of the judiciary.
It has improved at the Bar, though not as much as it should have done, but there’s been really not much improvement yet on the bench. And that is the next big thing to be tackled.
Caroline: Presumably all of this improvement is something that takes a very long time because to become as senior as you were takes a whole lifetime.
Wendy: Yeah. I mean, that’s the problem. The problem is you can’t go from university to judge school. There is no judge school. You can’t become a judge BA, there’s no training like that. It’s not like in France. Being a judge is a second career. So you start off either as a solicitor or a barrister or rarely, but sometimes as an academic.
And then after many years of gaining experience in the law, you may be lucky enough to be appointed to the judiciary, but it’s going to be someone who has been many years in the law. And so you’ve got to get that build up through the ranks.
Caroline: Well, thank you very much, Wendy, for explaining all of this to us, it’s been incredibly interesting.
And yes, I will encourage everyone to read your book all about it.
Wendy: Thank you very much indeed, Caroline.
This episode of Shedunnit was written and narrated by me, Caroline Crampton. Find links to all the books mentioned and other information about this episode at shedunnitshow.com/attheoldbailey. I publish transcripts of every episode including this one; find them all at shedunnitshow.com/transcripts.
Thanks to my guest, Wendy Joseph. Her book, about her time as an Old Bailey judge and the legal side of murder is Unlawful Killings, available now from all good booksellers.
If you’d like more Shedunnit, consider joining the Shedunnit Book Club — I make two bonus episodes a month for members, or three if you join at the higher level. You can find out more and sign up at shedunnitbookclub.com/join.
Shedunnit is edited by Euan MacAleece. Production assistance from Leandra Griffith. Member support for the Shedunnit Book Club from Connor McLoughlin.
Thanks for listening. I’ll be back in two weeks with a new episode.