• 門雖設而(暫時)常關|戴啟思
  • 2020-03-04    


Smell the Flowers-But Do Not Count on Them

I last visited the Central Criminal Court in London over 25 years ago. The impressive grey building accommodating the court is better known as the 'Old Bailey'. It has been the site of high judicial drama for about four centuries, witnessing treason and espionage trials and countless murder cases. In the later years of the last century it was the haunt of the most famous fictional barrister, Horace Rumpole, the creation of the late John Mortimer Q.C.

The tradition may not continue now, or it may have been discontinued because of the expense, but judges at the Old Bailey used to be given then a small scented bouquet tied in folds of white lace patterned paper. These floral gifts are called 'nosegays'. They were the 18th century's answer to the N95 respirator.

The scent of flowers in the nosegay was supposed to mitigate the effect of foul air in the courts which transmitted disease, specifically one called 'gaol fever' which, as the name suggests, came from prisoners who came to court from overcrowded and filthy prisons. The Old Bailey had been built next to London's Newgate Prison. Prisoners infected with gaol fever but not necessarily showing its symptoms were moved into the court building by a direct connecting passage to the prison so they would emerge in a crowded courtroom.

Unlike modern facemasks and respirators, which offer some protection against the novel coronavirus, the judges' nosegays were quite useless to prevent the transmission of gaol fever, the disease we now know as typhus which afflicted sufferers with a high fever, muscular pains, chills and delirium. It was often fatal.

The reason for the failure of scented flowers to halt the disease was the cause of the illness was not the bad air coming from the malodorous bodies of unwashed prisoners, but bacteria transmitted by human body lice. A louse carrying the bacterium rickettsia prowazekii would bite a person and excrete in the tiny puncture wound and, about two weeks later, the disease would show itself.

Doctors only discovered the source of infection in the early years of the last century when a vaccine was also produced. Although typhus outbreaks still occur today, they are rare. Since the end of World War II, improvements in public housing, better public health and the alleviation of acute poverty mean that the conditions that encouraged typhus epidemics have all but disappeared.

However, it was not unreasonable for 18th Century doctors to suppose that bad air caused typhus. It was common then to assume that many infections were the result of unwholesome airs-the disease malaria means, literally, 'bad air'-and that the way to avoid disease was to meet the bad air with sweet-smelling scents or astringents, like vinegar.

Judges could not keep body lice at bay. Without modern soaps and shampoos, standards of personal hygiene were low compared to today, and most people hosted a few unwelcome tiny creeping guests. For about three hundred years until a series of prison reforms improved sanitation and health in English prisons in the 1800s, typhus outbreaks would, from time to time, carry off not merely prisoners but their lawyers, clerks, jurors, court officials and judges.

There were significant gaol fever outbreaks in the regional courts' centres causing fatalities at Cambridge, Oxford, Exeter, Taunton and Launceston between 1522 and 1742. In 1750 an outbreak at the Old Bailey led to the deaths of sixty people, including the Lord Mayor and two judges. Those deaths led to the introduction of the useless but decorative nosegays.

In this day and age, courts still have to deal with public health issues such as the coronavirus. Unlike the Old Bailey judges in the 18th century, they can draw on the knowledge of doctors and epidemiologists to protect themselves, their staff, court users like barristers and solicitors and, the persons for whom the courts exist, the public at large.

I know many barristers are frustrated with the closure of the courts. They cannot exercise their profession. They are also suffering economically. The business model of a barrister is one that is dependent on access to the courts to enforce and protect clients' rights. It cannot be reconfigured overnight and remain the same profession.

The Judiciary is aware of this, but public health considerations constrain them. Re-opening the courts, so they operate as they did a few weeks ago will take time. No one would want there to be a reverse of the Old Bailey deadly sessions in 1750.

I mean by this that, instead of prisons being the source of disease, courts bring illness to the jails.

Prisons and other custodial institutions are, in some ways, an excellent place to be at times of a flu type epidemic. Prison authorities screen new admissions, and those discovered to have health problems can be removed from the general community. The prison community is, by definition, isolated from the rest of society.

However, if there is contagion within a closed prison community, the consequences can be most severe. The National Health Service of the U.K. offers seasonal guidance to prison managers dealing with what can be called 'ordinary' influenza issued by its agency 'Public Health England'.

That advice in 2020 emphasised that within the prison population, there are not opportunities to 'self-isolate' and, on the contrary, there is an institutional regime of social interaction. Many prisoners have underlying medical issues which make them vulnerable to infection and difficult for them to recover. Finally, there is a regular 'turnover' of prisoners, with some leaving, some being transferred to other custodial establishments and some just entering after having been sentenced.

In the event of a classifiable outbreak in a prison-which could be an incident in which two or more people experiencing a similar infectious illness are linked in time or place or a higher than expected rate of infection compared with the usual background rate for the place and time where the outbreak has occurred-the authorities will activate a public health emergency plan. The Public Health England plan makes comprehensive provision for addressing the medical emergency within the custodial institution and the outside world.

Such planning might avoid a scenario where a prison population becomes a source of infection for the rest of the community. This happened in 1918 when about one-quarter of the prison population in San Quentin Prison in California contracted the deadly Spanish influenza, and the infection spread outside the prison walls to the rest of the U.S.A..

If there is a possibility that a court user or someone working in the courts might be a source of infection to a prisoner or prison staff, the consequences do not bear thinking about. Barristers and solicitors will have to bide their time until when it is safe for everybody to return to court.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.


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