CW-F-56 Section 16 Report (Thompson)

COMMENTS ON THE CCRC REPORT ON EDITH THOMPSON

Professor René Weis

27 February 2024

For the first time since 1922 the British government, through the Criminal Cases Review Commission (CCRC), has formally addressed the case of Edith Thompson.

The CCRC report acknowledges that Edith Thompson may not have been prosecuted or, if so, found guilty today:

It is acknowledged by the CCRC that by modern standards of fairness, the letters written by Mrs Thompson to Mr Bywaters may have been ruled inadmissible by the trial court …. Had this happened the case against her may not have proceeded. (CCRC: 50)

In spite of this, and notwithstanding further concessions by the CCRC regarding the trial judge’s lack of impartiality, the CCRC has felt unable to recommend a Free Pardon under the Royal Prerogative of Mercy (RPM).

We find their conclusion disappointing and surprising and believe they are wrong.

AN UNFAIR TRIAL WITH AN OPENLY BIASED JUDGE

The CCRC’s repeated emphasis, across their response, on ‘modern standards of fairness’ wrongly implies that, in law, lower standards of impartiality than today were acceptable in 1922 when Edith Thompson was tried. The CCRC notes that

by modern standards of fairness it could be argued that the trial judge’s summing up contained inappropriate judicial comment and lacked fairness and impartiality (51).

The fact that the judge’s summing up was widely perceived to be unconscionably biased at the time of the trial is well documented, to the point that his address to the jury was seen as a misdirection. The distinguished journalist and writer Edgar Wallace was there in 1922. In his words, echoing the sentiments of many of his contemporaries:

Never in our history has there been so terrible a miscarriage of justice, or a verdict based so little upon evidence and so much upon prejudice, as that which sent Edith Thompson to that filthy scene in Holloway Gaol.

The official published transcript of the trial in1923 also references the prejudicial nature of the trial and voices major concern over the treatment of John Webber’s important evidence. The judge sought to undermine the credibility of John Webber, the one key witness to the murder. In the trial judge’s words:

There is one other very curious piece of evidence to which I want to call your attention, and that is the evidence of Mr Webber. He says he heard a noise, and these are his words; he heard those words — ‘Oh, don’t, oh, don’t’ – in piteous tones. You know he is some way off; I am not saying it is true; it is for you to say whether it is accurate, or whether it is imaginary, or whether he has made a mistake; but there is the evidence.

The CCRC goes so far as to concede that the bias of the judge may constitute ‘new evidence’: ‘it is acknowledged that the argument the trial judge’s summing up was lacking in balance and fairness is new.’ (43) But the CCRC then proceeds to note that ‘it is considered that the admissibility and fairness arguments, while potentially going to the safety of the conviction, are not indicators of Mrs Thompson’s innocence’. (45)

The logic of this, in plain language, seems to be that even if the trial was unfair and the conviction unsafe, Edith Thompson was still guilty as charged. This runs counter to all instincts of fairness and natural justice, and particularly in a capital case where blatant untruths by the Crown and a biased judge colluded to take the life of a young woman.

A SHOCKING LIE BY THE CROWN

In this connection the CCRC failed to address what constituted arguably the most serious flaw in the Crown’s case against Edith Thompson, the fact that the Solicitor-General told a direct falsehood in court that was intended to implicate Edith Thompson in the manner, time and place of the murder. It was highlighted prominently in our submission to the Ministry of Justice on 7 July 2022:

Despite the fact that there was no evidence of any kind in the letters that Edith knew that her husband would be assaulted that night in that particular place and in that manner, the Solicitor-General stated, in his opening address to the jury, that ‘there is the undoubted evidence in the letters upon which you can find that there was a preconcerted meeting between Mrs Thompson and Bywaters at the place’. The Solicitor-General’s statement is false and misled the jury as to the content and relevance of the letters. (7 July 2022: 23)

The jury could not assess the truth of the Solicitor-General’s statement, as fewer than half of Edith Thompson’s letters were admitted into evidence. They had little choice but to take his falsehood for the truth, particularly because the trial judge did not see fit to correct this falsehood. Had the jury been allowed to see all the letters, they would have seen that the Solicitor-General was lying about their content.

There is no reference anywhere in Edith Thompson’s letters to the place, time or manner of the murder. This is fact, not argument, and should count as evidence of her innocence. The CCRC is silent on this, seemingly accepting that in spite of serious flaws in the direction of the jury and proven falsehoods by the Crown the trial of Edith Thompson nevertheless yielded a just result, albeit only by the standards of 1922.

‘ABSENCE OF EVIDENCE’ = PROOF OF EVIDENCE?

The CCRC admits that by contemporary standards of fairness to the accused ‘letters written by Mrs Thompson to Mr Bywaters may have been ruled inadmissible by the trial court’. But the CCRC fails to deal with the trial judge’s emphasis to the jury on the evidential value of the letters. The sole purpose of the letters at the trial – they were read out by counsel – was to prejudice the jury against Edith Thompson, by their intimacy and sexual candour. Nowhere in Edith Thompson’s letters is there a reference to the time, place or manner of Percy Thompson’s murder. Nevertheless, in his address to the jury the judge remarked that

what I may call the necessary absence of evidence makes these letters of so much importance.

Here the judge is openly supporting the prosecution case. He is suggesting that the absence of any evidence against Edith Thompson increased the evidential value of the letters. But the letters were not relevant to the indictment being tried. There was moreover objective evidence from the post-mortem examinations which supported her innocence regarding attempts to poison her husband.

The judge morally annotated passages from the letters in his address to the jury, noting that some of Edith Thompson’s declarations of love to Bywaters would fill the jury’s minds, ‘like any other right-minded persons … with disgust.’

It is astounding that in his summing up the trial judge saw fit to refer to Edith Thompson’s alleged intention to poison her husband 27 times but did not once mention the post-mortem examinations, which found no trace of poison, past or present, in Percy Thompson’s system.

EDITH THOMPSON AND DEREK BENTLEY

A key part of our Letter of Claim of 20 December 2022 was the exercise of RPM in the case of Derek Bentley and the ruling by Lord Justice Watkins. (8.4.1; 8.4.3; 8.4.5; 10.2; 10.3) The Bentley case is the one with the closest parallels to Edith Thompson’s for the purpose of RPM in the sense that neither Bentley nor Edith carried out the physical act of murder. Part of the prosecution of Bentley was that he was alleged by the police to have said ‘Let him have it, Chris’. This counted heavily against Bentley. Edith Thompson’s screams of ‘Oh don’t, oh don’t’, at the time of the stabbing, were heard by an independent witness, John Webber. Webber’s wife and a nurse lodging with the Webbers also heard Edith Thompson’s screams, as did two further witnesses living close to the scene of the murder. Of those five witnesses only John Webber was called to testify, and the judge effectively dismissed his testimony (20 December 2022: 8.3.3)

It is a matter of concern that the CCRC does not even mention the important case of Bentley from our Letter of Claim. Instead it refers to the cases of Alan Turing, also highlighted in our Letter of Claim, and Timothy Evans, not referenced in it.

EDITH THOMPSON AND ALAN TURING

With regard to Alan Turing, the CCRC concedes that the case for a pardon did not meet the required criteria for RPM but notes that it was exceptional. The CCRC states that, regarding Turing’s conviction, there has been ‘a moral transformation’ regarding attitudes to homosexuality since Turing’s conviction in 1952, ‘that his conviction and sentence would now be considered unjust and discriminatory’.

Edith Thompson is deserving of the same enlightened exercise of RPM. She was convicted of murder because she was an adulteress, the only moral offence revealed by her letters and irrelevant to the indictment being tried; moreover, she was an adulteress involved with a much younger man whose fate was sealed after he confessed to the murder of another. In the moral climate of 1922, four years after the end of World War I, Edith Thompson counted as a ‘surplus woman’, a term resuscitated in the aftermath of the Great War to reflect the gender imbalance in the country after the losses of young men in Flanders. With one man dead and a twenty-year-old to die, she became a victim of the moral climate of the time. The court was there to do her justice, not to collude with the public hysteria that surrounded the case.

Attitudes towards adultery, as towards homosexuality, have changed radically since Edith Thompson’s trial in 1922. If seismic changes towards mores are accepted as a legitimate part of Alan Turing’s pardon, then the same understanding should be extended to Edith Thompson. Alan Turing was guilty of an offence that was then, however repugnantly, on the statute book. Edith Thompson was found guilty of murder because of her adultery: there is universal agreement on this in the vast literature on her case.

EDITH THOMPSON’S CASE = ‘EXTRAORDINARY’ AND ‘EXCEPTIONAL’

The CCRC uses the concepts of ‘extraordinary’ and ‘exceptional’ as legitimate tests to be applied in considering RPM. Edith Thompson’s case merits ‘exceptional’ status on a number of counts:

1. The prosecution lied about there being ‘undoubted evidence’ in the letters of a preconcerted meeting between Edith Thompson and Freddy Bywaters at the place of the crime.

2. The judge quite wrongly cast doubt on the witness John Webber’s crucial testimony, inviting the jury to find it mistaken.

3. The judge implied that Percy Thompson’s body was not entirely free of poison, blatantly misquoting the pathologist’s report which said there was no trace of poison at all.

4. In their determination to get Edith Thompson convicted, the judge and prosecution used the word ‘evidence’ in a number of places where it was quite clear that there was no such thing. It is almost as if the Crown and judge knew full well that there was no evidence against Edith Thompson, so they had to keep mentioning it wherever they could. A striking instance of this conceptual twisting of ‘evidence’ is the judge’s bizarre statement that the fact that there was no evidence against Edith Thompson was itself evidence: ‘what I may call the necessary absence of evidence makes these letters of so much importance [as evidence]’. Whatever else ‘necessary absence of evidence’ means it has to mean ‘no evidence’ rather than open the door to manufacturing evidence.

The CCRC did not seem to think that such injustices, which amounted to efforts by the prosecution and the judge to make up for the actual lack of evidence against Edith, could be regarded as ‘exceptional’.

The case of Edith Thompson has been contested more extensively and for longer, in legal and related studies, than any other historic miscarriage of justice of the last 100 years. At least in part because it was so openly prejudicial and gendered.

EDITH THOMPSON’S IMPACT ON THE DEATH PENALTY IN BRITAIN

The impact of her conviction and death on British society is, however tragically, exceptional, since her case more than any other may be the reason for the suspension and eventual abolition of the death penalty.

In the words of Sir Beverley Baxter, addressing in 1959 the two first suspensions of the death penalty in Britain:

Let there be no misunderstanding about the matter. The hanging of Edith Thompson is the classic example of the death penalty being used by society as an instrument of revenge. Undoubtedly it was also the origin of the all-party coalitions which twice abolished the death penalty in the British parliament. …     

It was profound unease about Edith Thompson’s case, referenced repeatedly during the debates in the House of Commons, that more than any other perceived miscarriage of justice twice prompted the Commons to suspend the death penalty: first in 1948, and then again in 1956.

The CCRC notes that ‘the sentence of capital punishment offends all modern standards and would be considered unconscionable by those standards’ (CCRC: 3). The more the reason, it is argued, that the one case that above all others contributed to the abolition of capital punishment should be revisited for the purpose of RPM.

As of 14 February 2024 we have been in discussion with our lawyers at BDB Pitmans to consider our next steps. We will look at all options.