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Wednesday 24 Sep 2014

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Garrow's Law: interview with co-creator and writer Tony Marchant

Garrow's Law

The late 18th century was a period of great change, a time of agricultural and industrial revolution in Britain and political revolution in France.

The rights of individuals as outlined by Thomas Paine in The Rights Of Man and in the American Declaration Of Independence, and ideas of universal enfranchisement, began to take shape as part of the continuing age of enlightenment.

But it was still a world where rough justice was the order of the day.

In London's Old Bailey, the innocent and guilty alike could find themselves fighting for their lives before baying mobs and judges more interested in their lunch than any legal niceties.

Enter William Garrow, a brilliant young barrister who, in the space of 10 years, revolutionised the legal system, bringing about through the sheer force of his personality the introduction of the adversarial system that still operates in British courts today.

Surprisingly, explains Tony Marchant, writer of Garrow's Law, BBC One's new four-part drama series, Garrow is little known today, even among barristers whose daily work still follows his blueprint.

Tony's interest in Garrow was sparked by the production company, Twenty Twenty Television, discovering accounts of the trials from that period on a website called The Proceedings Of The Old Bailey.

"These transcripts were a fantastic oral and written account of the period," he says. "Reading the words of the accused and the prosecutors gave me an insight into the history. Around 1,000 cases over the course of a decade revolved around Garrow, a trailblazer who changed the trial forever.

"Until his emergence, anyone accused of a crime was put in the dock, often with no-one to defend them. Judges thought that all they had to do was speak for themselves – they could be hung or pardoned depending on how they answered the questions. Obviously that was skewed massively towards the prosecution."

The youthful Garrow, played by Andy Buchan, who played Jem Hearne in BBC One's Cranford and Mercer in ITV1's action drama The Fixer, became an attorney's assistant at 15.

Once qualified as a barrister by the age of 23, he ripped into the prosecutors at the Old Bailey. During his legal studies he watched obsessively what passed for fair trials and set about redressing the balance, attacking prosecution witnesses with verbal assaults that undermined their credibility.

"At the time, all prosecutions were private and taken out by the so-called victim," says Tony, "but a lot of those prosecutions were reward-driven, brought about because somebody would earn reward money. Everything was skewed against what we call defendants now, prisoners then.

"There was little or no representation, you could be hung for pickpocketing, tree felling or poaching, all sorts of trivial things, it wasn't only innocence or guilt that was at stake, it was people's lives."

Emerging as the dominant force at the Old Bailey throughout the 1780s, Garrow turned cross-examination into an art form, revelling in the celebrity it brought him.

But inevitably his rebellious nature made enemies among his contemporaries and higher up in the establishment.

"Garrow was called the Billingsgate Boy because his route into the law was quite unorthodox and he didn't go to Oxford," Tony explains.

"We don't know a lot about him, but he came from a lower middle class background in Uxbridge and worked for an attorney called John Southouse [played by Alun Armstrong].

"Garrow was considered common and ignorant by his rivals and had the insecurity of not being as high-born as his contemporaries."

What little is known of Garrow's private life is extraordinary. He lived with Sarah (played by Lyndsey Marshal), the former wife of Sir Arthur Hill (played by Rupert Graves), an MP with his own interest in law and order. Hill not only resented Garrow as an upstart who was too big for his boots, but wanted revenge for being made a cuckold.

"The real scandal, and something we might explore in a second series," says Tony, "is that Garrow brought up Hill's two children – an arrangement that at the time was completely unknown."

Given the limited knowledge of Garrow's life, how much licence did Tony have to work on the character?

"I invented and extemporarised on what is known to make an interesting drama, but you have to be truthful," he says.

"Trying to give a literal account would be self-defeating and not very interesting. What is interesting is seeing how his impact threatened the status quo.

"Audiences enjoy characters who are passionate, wayward and rock the boat, but who are vulnerable because of their insecurities. The personal and professional sides of Garrow's Law run along together.

"There's his forbidden love affair with Sarah Hill and a kind of father-son relationship with Southouse, who disapproves of the way he conducts himself in court while grudgingly admitting that it's effective.

"That relationship is based on affection and friendship but Southouse is more of a traditionalist who respects the etiquette of the law, while Garrow is trying to outgrow his former mentor and want to throw everything up in the air. It's a classic rites of passage thing."

The cases Garrow fights are drawn from actual examples on the Old Bailey archive.

"We feature a major case in each episode and also a smaller 'B case'," says Tony. "For the first episode I chose infanticide as the prime example of where there was no presumption of innocence. In such cases, isolated young women, often maidservants impregnated by their masters, had to prove that they didn't kill their child.

"Garrow invented the term innocent until proven guilty and went on to try to establish that in law and change the bias where the innocent are required to disprove the prosecution."

The legal system of the time also relied heavily on the work of "thief takers", effectively bounty hunters, who Tony describes as "the embodiment of the corruption of justice".

In the third episode, Garrow takes on those who think nothing of framing the innocent for generous rewards often out of all proportion to the sums stolen in the first place.

The second episode also covers a now important legal principle which Garrow helped to establish.

"I came across a remarkable case that had the whole of London convulsed a hundred years before Jack The Ripper," Tony explains.

"A man they called the London Monster had been stabbing the thighs and buttocks of mainly middle class gentlewomen, creating not only a sense of hysteria and terror but exposing the inability of the police, the Bow Street Runners, to catch the culprit. The Home Office, especially, felt under siege because they were failing to protect Londoners."

The solution, almost inevitably, was to find a scapegoat, in this case an unsavoury character that even Garrow felt reluctant to defend.

"He decides to take the case as an example of 'the cab rank rule', which establishes the obligation of a barrister to accept any work that comes his way," Tony says. "That you defend whoever you need to defend regardless of your own personal sense of whether they are guilty or not shows Garrow learning that, if the man isn't represented in court and is hung, then that is just a lynching."

The final story concerns treason and sedition. "As the series progresses we up the stakes as Garrow's enemies become more powerful with the Attorney General and Home Secretary involved," he says.

"There are very good reasons why we chose these particular cases."

Such was Garrow's impact on the legal system that it's surprising that so few people have heard of him.

"Even some barristers haven't," Tony agrees, "but if it weren't for him they wouldn't enjoy the freedoms to ply their trade and there wouldn't be the adversarial system of cross examination we have today.

"I don't really know why he wasn't given the credit he deserves, maybe it's because, as he got older, he moved from defence to prosecution to King's Counsel to judge to become Attorney General – it's the classic journey of someone who starts out as a trailblazing radical and becomes part of the status quo he once condemned.

"There's perhaps a story there, but in drama terms it's always better to write about people at the height of their passions than in the depths of cynicism."

Usually associated with hard-hitting contemporary drama such as the RTS award-winning Holding On for BBC One and the Bafta-winning Mark Of Cain for Channel 4, the Daily Telegraph once described Tony Marchant as the "conscience of British tv drama".

Although he previously adapted Dickens's Great Expectations and Dostoevsky's Crime And Punishment for the BBC, he agrees that Garrow's Law is something of a departure.

"With the adaptations I was interested in the story and great literature. This is probably a first as I do feel that I'm trying to present historical developments in a way that is engaging and entertaining.

"There are obvious contemporary resonances. When Garrow started to defend prisoners there were all sorts of restrictions – you weren't allowed to see the indictment against your client or copies of the depositions; you weren't allowed to visit your client in Newgate Prison; you weren't allowed to address the jury or make an opening or closing address.

"You could call character witnesses, but they weren't compelled to turn up and most of the time they didn't. It was very hard for a defence counsel.

"On top of that, there was no presumption of innocence. In Garrow's Law I'm saying look at what he had to contend with and what he was fighting for and ask whether those rights are in danger of being eroded 300 years later."

Ultimately, courtroom dramas make for excellent television.

"If you do them well they are inherently potent and fascinating," Tony agrees. "I think the tone of Garrow's Law is perhaps lighter than I have done for a while. Episode two is a lot more comic and ironic, it has dark bits but it's fun.

"I didn't want to be finger-wagging or didactic, I hope I'm going to make people think but also be engaged. We are still dealing with heavy topics – infanticide, rape, murder – but we're trying to get at the truth. Garrow is a man who wanted to get at the truth."

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