In Criminal Law and Justice Weekly (formerly Justice of the Peace) Issue 51 & 52, (2003) 167 JPN 975 20 December 2003

by Alan Murdie, LL.B, Barrister

January 2004 marks the 200th anniversary of one of the great curiosities of English criminal law, the murder of the “Hammersmith Ghost”. The case arose from the fatal error of a vigilante named Francis Smith who on the night of January 3, 1804 shot dead a man he believed to be a ghost.

For folklorists the Hammersmith Ghost is the forerunner of a number of “phantom panics” which swept England in the Victorian era.1 But for legal historians the case is also significant. Although not appreciated at the time, the trial and subsequent conviction of Francis Smith for murdering a man he mistook for a ghost illustrates a legal problem not settled for 180 years and one which still generates argument. To what extent should a person who mistakenly uses force as a result of an honest but unreasonable belief be held liable for his/her actions? The Hammersmith Ghost case provides one of the few practical examples of what might be called an “honest but unreasonable belief” in the context of self-defence or law enforcement. For many years this strange story was a favourite of Professor Glanville Williams who actively argued for reform of the law and whose views are now reflected in the current legal position.

The Events of 1804

The Hammersmith of 1804 was a very different place to the bustling London borough of today. Still a village in the countryside and isolated at night, it provided the perfect setting for a Christmas ghost story. Sure enough, over the festive season of 1803-04 reports circulated of a terrifying apparition lurking around Hammersmith Churchyard. Described as a white robed figure, it was credited with attacking the living, leaping out from ill-lit corners to seize passers by. Two people were left seriously ill from the shock caused by its assaults and according to a report in The Times, the pregnant wife of a locksmith died from fear.2 Nor was there safety in numbers as on one occasion the “Ghost” attacked a wagon carrying no less than 16 passengers. Locals averred that it was the spirit of a suicide buried in the churchyard a year before.

By the start of the New Year the Ghost was the talk of the taverns. On January 3, 1804 the topic of the sensational attacks arose in conversation among regulars at the White Hart Inn, Hammersmith. Among the drinkers was an off duty customs officer, 29-year-old Francis Smith who lived locally. Hearing the stories, he boldly declared he would take immediate action. Collecting his gun (described as a “fowling piece”) from his dwelling, Smith commenced a vigilante patrol of Black Lion Lane into which the Ghost reputedly disappeared. At around 11 o'clock, Smith was rewarded by a figure in white appearing in the lane. Challenging the apparition he demanded to know its identity. Smith repeated his demand but no answer was forthcoming. When the figure moved towards him, Smith discharged his gun.

On reaching the fallen “Ghost”, Smith discovered the terrible consequences of his act. Lying on the ground was the body of a 23-year-old bricklayer named James Milwood (or Milward) whose white apron and flannel clothing he had mistaken as the sepulchral attire of the phantom. According to witnesses arriving at the scene, Milwood had been shot through the jaw and — in contrast to the bold bar-room ghost hunter of few hours earlier — Smith was a gibbering wreck. Milwood's body was duly carried to the nearby Black Lion Inn whilst Smith was taken into custody.

On January 5, an inquest was opened at the Black Lion. The jury returned a verdict of unlawful killing and Smith sent for trial at the Old Bailey. With a speed enviable today the trial opened a mere eight days later on Friday, January 13, 1804, with Smith facing a charge of wilfull murder. The court was presided over by three Judges: Lord Chief Baron Macdonald and Judges Rooke and Lawrence. No full report of the trial survives but contemporary accounts detail some of the most incredible evidence ever received at the Old Bailey.3

A variety of witnesses testified to the existence of the apparition. A Thomas Groom told of how he had been seized by it before Christmas. William Girdle, a night-watchman testified of how he had also seen the phantom on December 29 and how on the night of January 3 he had arrived at the scene of the shooting to find the prisoner in his agitated condition and Milwood lying dead. The sister of the deceased spoke of how she believed the Hammersmith Ghost to be “all in white with horns and glass eyes”. Milwood's mother-in-law, a Mrs Fullbrook, spoke how Milwood had been mistaken as the ghost the previous Saturday evening. Certainly, if the jury doubted the existence of the Ghost, there were many in Hammersmith who were convinced otherwise.

Amidst this colourful testimony Francis Smith sat silent throughout. Not until the Evidence Act 1898 did the accused became a competent witness in his own defence but it appears that an unsworn statement was received by the court. Smith explained that “on the day on which the fatal catastrophe happened and at the very moment of the affair taking place, he did not know what he was doing. He spoke to the person twice, and was most agitated on receiving no answer, that in his confusion and dread, he was unfortunate enough to commit the rash action; but he solemnly declared to God, that he had no malice against the deceased, nor any intention of taking away the life of any individual whatever.”4

The Verdict and its Aftermath

The jury returned a verdict of manslaughter, seemingly accepting that Smith carelessly fired upon what he honestly took to be a ghost. However, this was rejected by Macdonald LCB who it appears disapproved of the vigilante aspect of the killing. Giving further directions, Macdonald LCB declared:

“The killing of a person through apprehension for one's safety, or by mere accident, may indeed be styled only manslaughter, but unfortunately such circumstances cannot be found in this case. If the law were otherwise, and if a man could say he thinks another deserves death for having committed such and such an act, and therefore goes on to the highway and executes judgment with his own hands, by shooting robbers and others, whom he may deem troublesome dreadful would be the consequences. It is fortunate that the law of this country has made such an offence to be murder”.5

This was tantamount to a direction to convict Smith of murder, which the jury duly did. But although Smith was sentenced to death the Judges did not intend Smith to hang. Conscious that one death was more than enough from the bizarre affair, Macdonald LCB announced that the case would be reported to His Majesty forthwith. According to the report “His Lordship was so speedy in his humane office, that a respite during pleasure arrived at the Old Bailey before seven o'clock.” Smith's death sentence was commuted to one year's hard labour.

Events had the effect of flushing out another culprit. Two days after the shooting an information was laid with magistrates against a shoemaker named James Graham. According to The Times of January 6, 1804, Graham was arrested on charges of nuisance, accused of going out at night with a blanket to impersonate the ghost. On magistrates inquiring as to the reason for his behaviour he said he had hoped to gain revenge on delinquent apprentices who had been terrorizing his children. Following the trial, James Graham enjoyed considerable notoriety as a ghost impersonator for many years after. In trouble again for drunk and disorderly behaveiour in 1807, newspapers gleefully revived his infamy, jocularly calling him “His Ghostship” in honour of his earlier activities.6 But no one ever seems to have been apprehended for the more serious assaults perpetrated by the Hammersmith Ghost which fortunately ceased or suspended its activities after Smith's arrest.

The Hammersmith Ghost and Reasonable Belief

The case of the Hammersmith Ghost appeared in subsequent editions of Blackstone's Commentaries and made a curious anecdote for later textbooks discussing the mens rea for murder. The mental state of an accused was seldom examined closely in the early 19th century and much of the psychological terminology routinely used today had yet to be invented. Although some allowances were made for mistake of fact, common law could not accept that violent deaths simply happened by accident. Some degree of fault was always presumed, with Blackstone stating: “The law sets so high a value upon the life of a man that it always intends some misbehaviour in the person who takes it away unless by the command or express permission of the law”.7

This strict approach was mitigated by complex rules on retreat and homicide in private defence.

Nonetheless, human beings were automatically presumed to know the consequences of their acts and in cases of self defence the legal burden of proof was on the accused, a rule which survived as late as 1957 (R. v. Lobell [1957] 1 All ER 734).

Nonetheless towards the end of the 19th century the mental state of the accused received greater attention and the issues raised by the Hammersmith Ghost case grew in importance. In Rose (1884) 15 Cox 540 it was accepted that any belief justifying the use of force had to be a reasonable one as judged by the jury. However, there was little guidance as to how the reasonableness or otherwise of any belief was to be assessed. When in the early 20th century academic writers brought ideas such as “reasonableness” under scrutiny, the Hammersmith Ghost provided a ready example for discussions. For instance, Kenny considered that: “No belief which has now come to be currently regarded as an obsolete superstition can be treated as a mistake sufficiently reasonable to excuse a crime”.8

However, Kenny treated the case of the Hammersmith Ghost as one of excessive force in suppressing a misdemeanour rather than as a mistake.

This opinion was challenged in 1949 by Glanville Williams in an essay contributed to the Law Quarterly Review entitled “Homicide and the Supernatural”.9 Examining the issue of reasonableness in the context of eccentric or occult beliefs, Glanville Williams took a radically different approach, citing the Hammersmith Ghost at length. Certainly, if Smith had believed the ghost to be a person with a sheet over his head when he fired, he would have been guilty of murder for using excessive force. But what if his belief in the Ghost was genuine? Glanville Williams argued that an accused who honestly but mistakenly believed himself to be fighting off a supernatural entity did not deserve to be convicted of murder if death resulted. Considering it “intolerable that questions as to the reality of psychic phenomena should have to be investigated on a charge of murder”, Glanville Williams proposed the criteria should be the subjective belief of the accused rather any belief judged by objective standards of reasonableness applied by a jury — some of whom might believe in ghosts themselves! Other possible solutions included an alternative verdict of manslaughter in such cases or special statutory provisions covering supernatural beliefs, with the element of honesty being elevated in importance and objective standards of reasonableness being suspended.

Nor was the issue a wholly theoretical one since cases involving supernatural beliefs were reaching courts in countries then under British colonial rule. Here the common law had to be applied in environments where sorcery and magic were accepted as realities of everyday life by native inhabitants. For instance, in R. v. Machekequonabe (1894)10 the accused chased a figure he believed to be an evil spirit called a “Wendigo”. After challenging the figure three times he opened fire, only to discover he had shot and killed his foster father. A Divisional Court upheld his conviction for manslaughter.

Reviewing examples in the Criminal Law Review in 1957, Justin Lewis concluded: “A person who kills a human being, believing that being to be a supernatural one is not necessarily to be considered insane by reason of that belief and such a belief may support the defence of mistake”.11 Taking the lead from further argument by Glanville Williams in his textbook12 Lewis argued that the terms “a genuine belief” and “an honest and reasonable belief” were synonymous and that “a true belief in the existence of a particular state of affairs is sufficient to support the defence of mistake”.

Within a generation this position was accepted in courts in England and Wales. That an honest but unreasonable belief in consent was sufficient to absolve a person from liability for rape was accepted by the House of Lords in Morgan [1976] AC 182HL. Following this decision, the Court of Appeal applied a similar approach with respect to mistakes in self defence, holding that an honest but unreasonable mistake as to the need to use force could found an acquittal in Williams [1984] 78 Cr.

App. R 279. The Privy Council extended the rule to homicide in law enforcement in Beckford [1988] AC 130and it has been applied as the modern test ever since. The jury has to decide whether an accused made an honest mistake, not whether it was a reasonable one in the circumstances.

Questions as to reasonableness or otherwise of a particular belief now only go as to whether the belief was in fact honestly held at all (Beckford, above). Academic debate still continues, it lately being argued that the elevation of honesty above reasonableness is contrary to art.2 of the European Convention on Human Rights which imposes reasonableness as the governing criteria (eg, see “The Use of force in public or private defence and Article 2: A reply to Professor Sir John Smith” by Fiona Leverick [2003] Crim. LR 963).

With the prevailing view that an honest but unreasonable mistake in using force exculpates from liability, it is potentially more difficult today to convict anyone whose judgment is genuinely warped by bizarre beliefs. Were the case of Francis Smith to be repeated, the verdict would almost certainly be not guilty of murder, although manslaughter or conviction of a firearms offence would remain a possibility. But complete acquittal could not be ruled out.

Some 200 years from the original events the story is still commemorated in Hammersmith. The Black Lion Inn has survived and displays a special plaque, contemporary prints and extracts from The Times. Local folklore avers the Ghost (or something similar) makes periodic returns to Hammersmith Churchyard every 50 years, its last visitation being in July 1955. Naturally, one sincerely hopes there will be no repetition of the tragic events of 1804 at its next expected appearance in 2005 but certainly any would-be ghost hunter will stand a far better chance of walking free from court than Francis Smith ever did.