Edith Thompson and Frederick Bywaters - Critiques of The Case and The Trial

Critiques of The Case and The Trial

Rene Weis echoes a trend of recent and older suggestions that Edith Thompson was innocent of murder. The main basis for this argument is that there was no evidence that Edith was party to arranging the murder on the night in question, but the issue is bound up with his perception of what it means to be "principal to murder in the second degree" (i.e. support, assist, instigate, command, agree, murder) and also his perception of Edith's true character, although he concedes she was an adulteress and no saint.

As to her character, the trial Judge, Mr. Justice Shearman KC, and her Counsel, Sir Henry Curtis Bennett KC, differed. The former labelled her as an adulterer, deceitful and wicked and, by implication, easily capable of murder. Her letters were full of "insensate silly affection" and also "...full of the outpourings of a silly but, at the same time, wicked affection." This was concurred with by the Court of Appeal. Curtis Bennett attempted to cast her immorality as defensible in the context of the "glamorous aura" of a "great love," seeking to overlook the point continually being made by the Judge at the trial that the case concerned only an adulterer and an (adulterous) wife. In his summing up, he had said of Edith: "This is not an ordinary charge of murder....Am I right or wrong in saying that this woman is one of the most extraordinary personalities that you or I have ever met? ...Have you ever read...more beautiful language of love? Such things have been very seldom put by pen upon paper. This is the woman you have to deal with, not some ordinary woman. She is one of those striking personalities met with from time to time who stand out for some reason or another....You are men of the world and you must know that where there is a liaison which includes some one who is married, it will be part of the desire of that person to keep secret the relations from the other partner. It is not the sort of thing that they would bring to the knowledge of their partner for life." "Curtis-Bennett later said: "Was it not proved that she had posed to him (i.e. Bywaters) as a woman capable of doing anything - even murder - to keep his love? She had to: Bywaters wanted to get away from her." The Court of Appeal endorsed the Judge's description of the accused as adulterers: "Now, the learned judge, in his summing-up to the jury, spoke of the charge as a common or ordinary charge of a wife and an adulterer murdering the husband. That was a true and appropriate description."

Weis seeks to draw attention to what he considers to be the inappropriateness of the Victorian morality of Mr. Justice Shearman KC to the era of the 1920s. However, Young, writing contemporaneously with the trial, suggests that it was the young of that generation who needed to learn morality: "Mr. Justice Shearman frequently referred to Bywaters as "the adulterer," apparently quite unconscious of the fact that, to people of Bywaters' generation, educated in the ethics of dear labour and cheap pleasure, of commercial sport and the dancing hall, adultery is merely a quaint ecclesiastical term for what seems to them the great romantic adventure of their lives. Adultery to such people may or may not be "sporting," but its wrongness is not a matter that would trouble them for a moment. Sinai, for them, is wrapped in impenetrable cloud. And if we are not prepared to adapt the laws of Sinai to the principles of the night club and the thé dansant, I see no other alternative but to educate again our young in the eternal verities on which the law is based."

Weis's legal criticisms are better argued by Broad (below), but both raise the same perennial objection to the fairness of Edith's conviction that there was no direct evidence of the involvement of Edith in the planning the murder, or that she had even consented to its commission on the night in question. The deficit in evidence as to direct arrangement was conceded by the Court of Appeal. However, it pursued a line of reasoning to the effect that proof of instigation of murder in a community of purpose without evidence of rebuttal raises an "inference of preconcerted arrangement". The Court of Appeal held that her earlier prolonged incitement to murder revealed in her letters, combined with her extraordinary catalogue of lies about what happened on the night of the murder told to several witnesses, up until her second witness statement, which was open to being found untrustworthy, her meetings with Bywaters on the day of the murder, and the content of her last letter, was sufficient to convict her of arranging the murder.

The Court of Appeal seemed to take a narrower approach to "principal in the second degree" than the Court, but it is unclear, because "preconcerted arrangement" admits of different shades of meaning. The Court of Appeal seemed determined to forestall any argument based on the mere method or timing of the murder being unagreed to, if there was other plausible evidence of a preconcerted object of murder. Its narrow judgment is unsatisfactory to those who now allege Edith played no part in the murder itself. However, its judgement is limited in extent to the point it was addressing, which was continuity of purpose up until the commission of the murder. If non-agreement as to the means and timing of the murder be conceded, there was merit to its claim that the case "exhibits from beginning to end no redeeming feature." Edith and Bywaters were untrustworthy, so besmirched were their reputations before they had even entered the witness box. The compact that they had admitted between themselves was one of "culpable intimacy." Both were on record as admitting perjury in swearing false statements to the police. Everything pointed to Edith desiring the death of her husband over an extended period, to the day of the murder itself, as evidenced by her ridiculous cover for Bywaters after the commission of the murder. What substantive evidence had the Defence put forward to deny her guilt besides her cry "Don't Don't!" uttered just as Bywaters was stabbing her husband to death? One might reasonably posit Edith to have been in some kind of semi-hypnotic trance cast by Bywaters's malevolent spell, that she was unable ever to free herself from.

Given Edith's reported unedifying performance as a witness, Weis does just about concede that her conviction was inevitable, as does Sir Henry Curtis Bennett KC, although he claims he could have saved her had she not rejected his advice not to take the witness stand. His failure to secure her acquittal had affected him deeply. He appeared to maintain her innocence of murder throughout his life, claiming that Edith "paid the extreme penalty for her immorality." Young takes a similar approach, suggesting that Curtis-Bennett should have resigned his brief at her insistence on going into the witness box, although his quest for fame and fortune could never have allowed it. Curtis-Bennett said to Mr. Stanley Bishop, a journalist, "She spoiled her chances by her evidence and by her demeanour. I had a perfect answer to everything which I am sure would have won an acquittal if she had not been a witness. She was a vain woman and an obstinate one. She had an idea that she could carry the jury. Also she realized the enormous public interest, and decided to play up to it by entering the witness-box. Her imagination was highly developed, but it failed to show her the mistake she was making." One mistake that Edith appeared to make was in testifying that Bywaters had led her into the poison plots. Delusion was no defence to murder and this could not save her. Curtis-Bennett argued a more legally sure but evidentially bankrupt defence based on Edith acting the part of poisoner, or engaging in a fantasy. Yet she seemed to nullify this by her evidence of reacting to Bywater's suggestions.

One of her main lines of defence, that she was constantly seeking a divorce or separation from her husband, and that it rather than murder was the main object of the attested five-year compact between her and Bywaters shown in her letters, was dismissed by the Judge as a sham. "If you think these letters are genuine, they mean that she is involved in a continual practice of deceit; concealing the fact of her connection with Bywaters, and not reiterating it with requests for her husband to let her go."

As the Defence was left without a reply to the Judge's antipathy to its attempts to divest her "great love" of moral accountability and instill it with an aura of majesty - the suffering of her husband in his life and in his death cried out against it - the Defence had little of substance to put before the Jury except that she had not arranged the murder directly. Curtis-Bennett's linking of the innocence of Edith to that of Bywaters at the end of his closing speech disclosed the dire straits to which Edith's defence had sunk.

Young avers that the Defence used the wrong tactics. He said: "If the defence had said on behalf of Mrs. Thompson, 'I did not murder Percy Thompson, I had nothing to do with it. I had no knowledge of it, and I was stunned and horrified when it took place, and I defy the prosecution to introduce any evidence with which that denial is not absolutely compatible,' and had rested on that, I do not think you could have found a British jury to convict her." There is certainly an air of a presumption of guilt surrounding her trial – a presumption that she did little to overturn either before or during it. However, Young's point, that the burden of proof was on the Crown, to prove murder, rather than on the Defence to rebut a presumption of murder, is certainly a valid one.

A criticism can be made of the Court and also the Court of Appeal that it did not define "principal in the second degree" sufficiently precisely to give its critics confidence in the proper administration of justice, especially given that this was a capital case. The contention of the Crown was wide: "...that there was an agreement between these two persons to get rid of Mr. Thompson, or that, if there was not an actual agreement in terms, there was an instigation by Mrs. Thompson to get rid of him, on which Bywaters acted so as to kill him.". This does not seem to have been objected to by the Judge, who averred:

"Now, I am going to ask you to consider only one question in your deliberations, and that is, was it an arranged thing between the woman and the man? I quite accept the law of the learned Solicitor-General that if you hire an assassin and say: 'Here is money,' and there is a bargain between them that the assassin shall go out and murder the man when he can, the person who hires the assassin is guilty of the murder it is plain common sense. I also accept the proposition that if a woman says to a man, 'I want this man murdered; you promise me to do it,' and he then promises her (she believing that he is going to keep his promise as soon as he gets an opportunity) and goes out and murders someone, then she also is guilty of murder."

A five-year compact between Edith and Bywaters was shown to have lasted throughout the entire course of their exchange of letters up until the date of the murder. It was obvious that if only one of its aims had been the death of Percy Thompson, which seemed tolerably plain from the letters, and from Edith's persistent lying on the night of the murder, and her subsequent false witness statement(s), then on the above definition of "principal in the second degree" as no more than as instigator in a community of purpose, Edith would be found guilty. This was presumably the basis on which the Jury's decision rested. It is difficult to see how the Jury could have arrived at any other conclusion. The Judge, Mr. Justice Shearman KC, placed much weight on inconsistencies in her evidence, particularly her statements to the police concerning the night of the murder that suggested she had intended to conceal her witness of the crime, and perhaps conversations of criminal intent with Bywaters preceding it, although she always vigorously denied foreknowledge of it. Broad states that the Judge's summing up was considered to be at the time "deadly, absolutely against her" but he does not claim that the Judge was less than impartial, even though he resolutely argues for her innocence.

The Defence did succeed in some points, showing that guesswork by the prosecution over ambiguous content of some of the letters was fanciful and wrong. An autopsy on Percy Thompson had failed to reveal any evidence that he had been fed ground glass or any type of detectable poison. That her letters did not necessarily reflect her deeds in respect of the so-termed poison plots was fairly clear. Even though perceived in her favour by Broad and Young, the Court of Appeal held the poison-plots against her and against him: "... if the question is, as I think it was, whether these letters were evidence of a protracted, continuous incitement to Bywaters to commit the crime which he did in the end commit, it really is of comparatively little importance whether the appellant was truly reporting something which she had done, or falsely reporting something which she merely pretended to do." Moreover "it matters not whether those letters show or, at any rate, go to show, that there was between this appellant and Mrs Thompson an agreement tending to the same end. Those letters were material as throwing light, not only upon the question by whom was this deed done, but what was the intent, what was the purpose with which it was done" said the Court of Appeal to Bywaters.

The impending crime of Bywaters is seen in the morbid and almost demented possessiveness of his last letters to Edith. This was at odds with Edith's last letter to him in which she complained that she was obliged to continue living with her husband as his "dutiful wife" if only in appearance, because she lacked the funds to do otherwise. Bywaters was further apprised that, as Percy was now always suspicious, Bywaters was not going to be allowed to dominate Edith's life to quite the same extent as before. Combined with Edith's earlier ambiguous remark to "be jealous of so much that you will do something desperate", it seems that matters reached a juncture, albeit in a dangerously unstable mind, long since blinded to the norms of morality by his hatred of Percy. Despite the culpability of Bywaters, whose only claim to leniency was that he had been led astray by Edith, which was an unlikely proposition due to his reported lack of innocence, the press of the day "hardened in favour of condemnation of the woman and forgiveness of the youth because he was a weak and often unwilling slave of her stronger will."

The entire folio of letters was later published by Filson Young in Notable British Trials Series in 1923, although the letters are not in any kind of chronological order, for which see Lewis Broad (below).

Edgar Lustgarten, "Verdict in Dispute," 1949, states on p.161 that the "The Thompson verdict is now recognised as bad, and the trial from which it sprang stands out as an example of the evils that may flow from an attitude of mind." From this it may be reasonably surmised that his essay is something of an apology for Edith, whose culpability he diminishes on the basis that "she was a woman of quality whose talents were frustrated." He adds "She was a remarkable and complex personality, endowed with signal attributes of body and of mind. She had intelligence, vitality, a natural grace and poise, sensitiveness, humour and illumining all these that quintessential femininity that fascinates the male." He writes " all that could be said against her was that she had lied in a futile attempt to protect and cover Bywaters. That might make her an accessory after the fact. It could not bring her into danger of the rope." Given that it was the murder of her husband that was involved, the more credible view is surely that her lies had raised immediate suspicion that she was somehow involved. As the Court of Appeal inferred, the circumstances of the case - two adulterers and a murdered spouse - were essentially "commonplace" and, moreover, Edith appears to have foreseen, as she was being led back to her house by a police sergeant just after the murder, that she would be implicated, for she had said to him "they will blame me for this."

Although Lustgarten does not allege any defect in legal procedure, he says that the Court was unable to understand questions of "sex and psychology" and the consequent possibility of fantasy.

A critique of the conduct of her trial and the state of the law was made by Lewis Broad. He argued that it was the misfortune of Edith Thompson that she was unable to separate herself from the prejudice due to her immorality whereas, if it had been a former crime, she was entitled not to have it mentioned. He also attacked the Judge for using morally prejudiced language to incite the prejudice of the Jury. He concedes that it was within the rules for the Jury to decide what the words in Edith's letters meant and what was intended by them. Broad went on to attack the general conduct of the trial:

1. She should have been granted a separate trial in that she was handicapped by having to appear alongside Bywaters.

2. The Judge allowed the Jury to be inflamed by prejudice on account of her immorality.

3. Suspicion based on prejudice was allowed to take the place of proof of meaning, motive and intention in respect of her letters.

Broad also levels criticism against the prosecution for the unfair use of her letters at trial, covering such matters as:

a) 1500 word extract used at trial from 25000 words in total. Many of the letters were censored by the court during the trial, because they dealt with subjects such as menstruation and orgasm, subjects that were not then considered fit for public discussion.

b) Only one unambiguous reference to poison in five months preceding the murder.

c) Meaning of uncertain phrases allowed to be suggested by the Crown and determined according to the prejudice of the Jury.

d) The context of the murder suggested no element of planning.

e) Due to their meandering and casual subject matter, nothing in the letters amounted to agreement or evidence of one.

f) Break in the chain of causation after Bywaters had indicated he did not want to continue to see Edith, evidenced from her letters Jun 20-Sept 12 1922.

g) That the letters were part of a fantasy between the parties was not put to the Jury.

The Home Office files were marked not to be opened for 100 years, which, while adding fuel to growing rumours, has not stifled criticism of the case.