‘Mischievous’ or ‘evil’? An 11 year-old before the Guildhall Police Court

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In the nineteenth century the age of criminal responsibility was just 7 (today it is 10). It had been set at 7 for centuries and was not raised (to 8) until 1933. However, there was an understanding in law that while a 7 year-old could be tried for a crime the courts had to prove (up until the age of 14) that the child understood that what they had done was serious and not merely ‘mischievous’. This principle in law is termed doli incapax and in the wake of the murder of James Bulger in 1993 the Labour government abolished it.

Not only was it harder to prove that a child had committed an offence under the age of 14 it was also difficult to build a case if that was based on the evidence of children as well. There seems to have been no restrictions on children giving evidence or being cross-examined but in many historical cases where young people appear at the Old Bailey the court asks them to declare that they understand the consequences of lying on oath. This was not something that adult witnesses were asked to affirm.

Today child witnesses are protected in court and often give their testimony behind a screen or via a video link. The latter was not available in the 1800s of course, but in this case we do get a sense of the courts recognising the need to shield young victims and witnesses from the harsh reality of the operation of the criminal law, or at least a recognition that any testimony they gave might be suspect.

In May 1839 William Henry Browning, a child of 11 years of age, was brought up again at the Guildhall Police Court. He had appeared there at least one before in the past few days, on a charge of trying to kill an infant boy.

Two smaller boys appeared to give evidence against him. One was the victim, a three year-old, the other his older brother who was 5 or 6. They made a statement to the effect that William had placed a rope around the younger boy’s neck, ‘pulled him down, and then loosened the cord and ran away’.

The child still bore the marks of the attack, which revealed that ‘some force’ had been used and the court was told that ‘the little fellow had been in considerable danger of being choked’.

No adult seemed to have witnessed the event but a couple of women (including the victim’s mother, a Mrs Birbeck) turned up to testify that William was a naughty child. He had apparently been ‘saucy’ to Mrs Birbeck and her servant, and threatened to break her windows. She also accused him attempting to steal her chickens.

The boy’s father appeared to make a counter complaint about Mrs Birbeck for accusing his child of theft and attempted murder, and picking on him unfairly. He added that his family were in desperate circumstances, which may have affected the boy’s mental health, and this may explain his son’s erratic behaviour:

Mr Browning, a shoemaker, was ‘in very ill-health’. His son had ‘not been out of his sight for above half an hour, and he complained of Mrs Birbeck having given the boy into custody. instead of bringing him home to be corrected. A reverse of fortune, and the loss of his wife, obliged him to live in this low neighbourhood, and he should be glad if the alderman would get the boy into some asylum’.

Alderman White, the presiding magistrate at Guildhall Police Court, rather unnecessarily conceded that ‘the mother very naturally felt some exasperation’ when she saw that her little boy had nearly been strangled, but it was going to be hard to prove it in court. Mr White told her that he had to consider the ‘tender age of the accused as well as the two witnesses’. Turning to Mr Browning however, he added that the boy could not be let off scot free. Instead of sending him to an ‘asylum’ (whether the shoemaker meant this literally or not) he was going to send him to prison for a short, sharp, shock.

William was sent down for 14 days ‘lest impunity should encourage repetition’.

At 11 years of age William Browning was just a year older than Jon Venables and Robert Thompson, the killers of James Bulger (who was 2).

[from The Morning Chronicle, Thursday, May 23, 1839]

Two little urchins embark on a life of crime

The age of criminal responsibility in England stands at ten years old, below that children are not deemed responsible for their actions. Up to 1998 they were not considered capable of criminal intent (doli incapax) until the age of 14 but the Bulger case led to a change in the law in the face of widespread horror at the actions of the two boys involved. In 1836 the law held those aged over 7 accountable with the caveat that those under 14 were obliged to demonstrate that they knew the difference between right and wrong.

Two little boys, James Branston and James Oxford, found themselves in court at the Guildhall in July of that year. The ‘little urchins’ (as they were described by the newspaper reporter) had been accused of breaking into a silk manufacturer’s shop and stealing four pair of gloves. This was a serious crime with potentially serious consequences. An adult criminal might expect to be transported to Australia or to suffer a lengthy prison spell at best.

Branston had been brought to the local beadle by his parents when they discovered the stolen items. Presumably they hoped the parish officer would admonish the child and scare him out of future criminality. He questioned the lad who spun a few lies before he spoke the truth. At first he said he’d picked up the parcel of gloves in Puddle Dock (near Blackfriars’ bridge), then that he had pinched them from a shop on Blackfriars’ Road.

The truth was that he and his mate had climbed over the board that protected Mr Ellis’ silk shop (on Ludgate Street) at six in the evening of Sunday last, where they had found some carpentry tools. They used the tools to cut a hole around the lock and break in. The beadle checked the story and found it to be accurate. It was quite an accomplished burglary for children and all the more so given that Branston was 7 and Oxford just 6 years of age!

Nor was it the first time they had raided a shop in this way; a witness testified that they had been seen giving away pairs of gloves to their little friends before.The magistrate could do little with them because he noted they were too young to ‘be held accountable for their acts in a criminal court’. Instead he said that their parents would have to ‘watch them closely, and punish them when they did wrong’.

The hope that they might change their ways seems to have been unlikely in the eyes of the paper’s correspondent, who noted that the two showed no sign that they found being arrested or presented in court in the least bit troubling.

[from The Standard, Tuesday, July 12, 1836]