History & Film: Strange in Fact, but True in Law: Garrow’s Law

Barrister William Garrow (Andrew Buchan) and his attorney, Mr. Southouse (Alun Armstrong)

I admit to being a fan of the original Law & Order television series, a police procedural/legal drama which ran for 20 years (1990-2010) and resulted in several spin-offs as well as a deluge of related genre offerings. The popularity of this type of programming as well as the rabid interest in high-profile trials shows how compelling the workings of the legal system can be. An American citizen’s rights within this system are enumerated in black-letter law — we have the right to a trial by our peers, the right to an attorney, the right to fully defend ourselves in court by calling witnesses and presenting evidence, appealing to the jury. Prosecutors are trained legal agents paid by the State, acting for the People in the interests of justice; they bring indictments on the People’s behalf and attempt to convict malefactors. The burden of proof lies with these prosecutors — the defendant is innocent until proven guilty. These are all concepts which are taken for granted under our current system, one born out of English judicial tradition. And yet, these basic legal rights, which seem so logical, actually took centuries to develop. A fascinating look at certain aspects of their development can be found in the BBC series Garrow’s Law.

Sir William Garrow is a real historical person, a man who in his later career was a prosecutor, Solicitor General and a member of Parliament. He is even credited by many with first introducing the phrase “innocent until proven guilty.” He began his career, however, as a 23-year-old barrister, practicing criminal defense law at the Old Bailey in the early 1780s. It is this part of his life that is featured in Garrow’s Law (2009-2012). Throughout four series encompassing 16 episodes, this dramatization of the British legal system during the Georgian period has Garrow at its center and a focus on the ground-breaking developments that were taking place in courtroom procedure at this time. These developments would eventually evolve into the current British judicial system and the outgrowths it spawned — the legal systems of its colonial children.

The 1780s saw the true implementation of legal counsel, for both the prosecution and the defense, in England. Before this point, the prosecutor (i.e., the victim) and the accused functioned without the benefit of lawyers — the victim brought his/her case before a magistrate, who decided if it were valid to go before a jury in court, and the accused spoke for themselves. Indeed, until the 1730s, those accused of grievous crimes (felonies such as rape, arson, robbery, et al.) were not allowed to have counsel, though the victim could hire a lawyer to present his/her case if he/she wished. The majority of cases, however, featured no lawyers at all: the victim and the accused confronted each other in court, arbitrated by a judge. The judge and the jury asked questions of those in the witness box. Once victims began adopting legal counsel to present their cases, the system tipped precipitously in favor of the prosecution.

Garrow’s Law illustrates how balance came to be achieved through the implementation of an adversarial system with barristers at its heart. The opening of the series provides brief back-story: Garrow (Andrew Buchan) is a headstrong and brash young barrister, articled (i.e., apprenticed) to the pragmatic older attorney Mr. Southouse (Alun Armstrong). Though in the U.S. there has traditionally been no distinction, in the British system, a barrister, as opposed to an attorney (or solicitor), pled in court but did not directly solicit clients. Instead, clients would hire an attorney (who, at this point in time, was not allowed to speak in court) and the attorney could then instruct (or retain, in American parlance) a barrister on his client’s behalf. Southouse gives Garrow his first instruction — the case of a young man falsely accused of robbery. This case showcases some of the fascinatingly foreign elements of the British legal system during the Georgian period. Defense counsel was extremely limited in what he could do to help the accused. Essentially, all Garrow is allowed is to give his client advice on specific points of law, and in the courtroom, to cross-examine witnesses. Though he is not specifically barred from it, Garrow raises eyebrows when he opts to visit his client in Newgate Prison, since only attorneys visited clients to gain information and/or conduct legal transactions with them. In the courtroom, Garrow is not permitted to directly address the jury in an opening statement, closing statement or at any point during the trial. He is reprimanded by the judge for even looking in the jury’s direction, a jury which will not leave the courtroom for its split-second deliberations and verdict. Garrow is not allowed to speak to or introduce evidence, and while he may call witnesses, they are not bound to appear. One of the things this series does remarkably well is to show how Garrow’s attitude before the bar helped develop the adversarial system, and the resistance there was to that development by the establishment. Before the Georgian period, since defense counsel was so limited, many barristers hardly bothered when it came to the types of antics one often sees in the modern courtroom; they saw themselves strictly as legal advisers, rather than as responsible for taking the initiative to save their clients. It has been said of the historical Garrow that he “adopted a stance of aggressive advocacy of his clients’ rights, and he helped bring a new tone, a new intention to the defence of prisoners in the criminal courts” (Beattie, 1991). To do this, he used sarcasm and belligerence, as well as humor, in his cross-examinations, to both expose ulterior motives and engage the jury. Buchan aptly demonstrates the charisma and wit the historical Garrow must have possessed to approach his clients’ defense in this way. This gained the ire of Garrow’s contemporaries for ungentleman-like behavior, which is also touched on in the series. Garrow taunts Silvester (Aidan McArdle), his prosecutorial adversary, by telling Silvester he will learn the law isn’t a game for gentlemen. Silvester rebuffs him with, “And you shall learn to become a gentleman or there will be no law for you.” Both are partially right: Garrow must temper his impatience and anger as it harms rather than serves him in the courtroom, but after losing several times to Garrow, Silvester realizes he, too, must adapt his methods. Garrow irritates judges as well, who, in order to preserve their own power in the courtroom, take out their bias against Garrow on his clients.

The series also illustrates the harshness of sentencing — prime examples are given of England’s “Bloody Code,” a legal system that prescribed the death penalty for over 200 offenses, many of them quite minor. It also highlights the rampant self-interest that could drive the prosecution of crimes, unjustly divesting the accused of their lives. The first episode introduces a thief-taker, Forrester (Steven Waddington), who faces down Garrow in court. The successful conviction of a robber brought with it a statutory £40 reward. The unsurprising result, as this episode adeptly illustrates, is that corrupt thief-takers would frame unsuspecting “robbers,” pay for the prosecution, then split the reward with the “victim,” or keep it entirely. In the historical case upon which this episode is based, Garrow managed to get the accused convicted only of minor theft, a lesser crime which resulted in transportation. This may seem like a disappointing consolation prize until one takes into account that a conviction for robbery brought with it a sentence of death. Unlike the historical Garrow, the series Garrow loses, his client is convicted and immediately sentenced to hang. This is done in furtherance of character development — to show that Garrow has much to learn, and lives hang in the balance. His education comes through these failures as well as through interaction with his attorney, Mr. Southouse, who tempers Garrow’s hot-headedness with experience and stresses the importance of combining Garrow’s courtroom theatrics with facts and knowledge of the law.

Another attempt at character development comes in the person of Garrow’s love interest, Lady Sarah Hill (Lyndsey Marshall), wife of an MP (Rupert Graves) who has been asked by her husband to observe at the Old Bailey. This character is based on a historical woman who, though not married to him, gave birth to a child by Sir Arthur Hill, and with whom Garrow had an unusual relationship; they would eventually marry. While Sir Arthur represents the old guard who resent and oppose Garrow’s attempts to mitigate the vengeance of the Bloody Code, Lady Sarah does not share her husband’s views. She acts as Garrow’s foil and conscience, as well as his partner in the pursuit of justice. Garrow is concerned with truth, and the series also examines how this can sometimes be at odds with the unsavory characters he defends. His is not conventional Georgian morality, but Garrow has a conscience and an individualistic sense of right and wrong — he is not the slimy ambulance chaser willing to take any case for money. While he is ambitious, Garrow is unconcerned with making highly-placed enemies, Lady Sarah’s husband amongst them. Through Sir Arthur, the flip side of the squalor of Newgate and the Old Bailey is shown — the quiet elegance of the aristocracy. This is illustrated in the interiors of his home as contrasted by the dark Old Bailey sets, but those searching for textile or architectural porn won’t find it in this series. There is enough attention given to historicity to keep viewers from being pulled out of the period, but this series is, first and foremost, a courtroom drama.

And speaking of historicity, perhaps the most interesting element of Garrow’s Law is that the cases which appear in the series are drawn directly from history. The historical Garrow figured in some of them; in others, the series places him in the middle of cases which were presented by other barristers. The cases themselves are sometimes modified in verdict and other elements, but parts of the dialogue are drawn directly from the proceedings of the Old Bailey. These proceedings for the years 1674-1913 have been digitized and are available online. For those who wish to learn more about this ground-breaking period in legal history, be sure to check them out: www.oldbaileyonline.org. Some of them are tragic, others humorous, and many, as Garrow likes to say, are cases “strange in fact, but true in law.”

About the contributor: Bethany Latham is a professor, librarian, and Managing Editor of HNR. She has written a book, Elizabeth I in Film and Television (2011), and she also publishes in various scholarly and popular journals, as well as writing for EBSCO’s NoveList database. She also serves as Internet Editor and a regular reviewer for Reference Reviews.

References:
Beattie, John. (February 1991). Garrow for the Defense. History Today, 41(2): 49-53.

Pallis, Mark. (November 2010). Garrow’s Law Draws from Real-life Court Dramas. The Guardian. Accessed from:
www.guardian.co.uk/tv-and-radio/tvandradioblog/2010/nov/12/garrows-law-court-dramas

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Published in Historical Novels Review   |   Issue 61, August 2012