A simple title, an impossible task

Another internal LNUK blog.

Today, according to the BBC, the Chancellor George Osborne (for some reason the BBC only uses a lower case c for Chancellor, something I decline to follow) has announced that he is setting up an "Office for Tax Simplification" (OTS).

One has some sympathy for the members of this new office, whom so far include amongst their number former Conservative MP and Treasury minister Michael Jack, as Chairman, and John Whiting, formerly of PricewaterhouseCoopers, who is tax director at the Chartered Institute of Taxation, as Director. Each has just been despatched to legislative drafting's equivalent of the Eastern front but, honourably, "neither will be paid".

We have been here before, of course. The Finance Bill of 1986 prompted much grumblings from solicitors and accountants due to its complexity. A decade later, with characteristically bland understatement, the Inland Revenue reported that the language of the existing law "could be simplified". The then Chancellor, Ken Clarke MP, had a go at this with a rewriting project. It began umpromisingly with Mr Clarke offering that the project was as ambitious as "translating War and Peace into lucid Swahili. He then admitted that that too was an understatement, since War and Peace was a quarter the length of the tax law as it then stood (1,500 pages for the Russian novel versus 6,000 pages for UK tax lawyers) and "hadn't been written by a Tolstoy". Former finance draftsman Francis Bennion later observed: "He might have added that neither is War and Peace a palimpsest of a thousand disconnected fragments from different years ..."

By 2001, following a change of government, the project had managed to come up with the Capital Allowances Bill, which weighed in at a mere 903 pages for just one area of tax law. Mr Jack was still an MP at the time and told the House he was pleased with the effort, though Mr John Redwood MP couldn't resist asking whether he thought Ken Clarke would have been happy with the outcome in the light of his introductory remarks in 1996.

On the reformers pressed and six years later we had the Income Tax Act 2007. One objective of this was to consolidate existing legislation and hence make it easier to find, though it was also hoped that it would be "easier to understand" - which is not the same thing. The Act amounted to almost 1,000 sections and in a depressing act of symmetry in the subsequent three years almost 1,000 amendments have been passed, leaving little of the original wording intact. I wonder if anyone's found anything easier as a result.

Ken Clarke, long thought politically extinct, is of course now back with us as Justice Minister, and so it would be a useful time to ask him Mr Redwood's question again. Given that we have gone from 6,000 pages in 1996 to 11,000 in 2010 we can probably assume he wouldn't have been happy in 1996 and isn't now. He along with the rest of us will be wishing Mr Osborne's simplifying office all the best in their endeavours, but unless the fundamental reason behind tax complexity is addressed their task is impossible, and will have the same outcome as all the other reforming efforts already mentioned.

That fundamental reason was expressed in one sentence by Mr Bennion in the article quoted above: "It is policy that produces complexity". The UK government has always used the tax system and always will not simply as a means to raise revenue but to try and engineer what it considers socially desirable outcomes. Hence in capital allowances it is forever trying to discriminate between different classes of assets. VAT law, too, is absolutely riddled with exemptions dating back to its introduction. All one can say is that they started as they meant to go on. This letter by a former Parliamentary Draftsman tells how the government of the day presented them with an absurd task by wanting an exemption for VAT for "the working man's fish and chips". The results of the effort to provide for such an exemption in a legally satisfying form are still with us today. Much later a similarly absurd complication was unleashed by Parliament when it decided that the other form of chip, that formerly known as crisps, were a bad thing, and therefore had to be exempted from a general exemption. This led to litigation over whether or not the well known Pringles product were actually potato crisps, and accordingly exempted, which in turn depended on whether Pringles were 'similar' to potato crisps 'and made from the potato' (for the record, they were, despite having less actual potato content than other crisps: see Procter & Gamble UK v Revenue and Customs Commrs [2009] EWCA Civ 407, [2009] All ER (D) 177 (May)).

When, therefore, not if, the OTS fails in its task, is it too much to hope that anyone will take heed of the fundamental problem?

Cases that changed our lives

The following are the chapter introductions to a forthcoming LNUK publication on which I have been working.

Cases that Changed our Lives - Chapter Introductions

I. Public law

The first five cases in this chapter fall broadly within the category of separation of powers. That was not a phrase which would have been employed by those in Dr Bonham's time, although they were certainly familiar with territorial disputes between Parliament, the Monarchy and the Courts, and within half a century would take those disputes to the ultimate extreme of civil war. In the United States of America and Australia the presence of a written constitution gave rise to different outcomes, reflected in Marbury v Madison and the five Australian cases respectively.

In the years following the Second World War the landmark case of Wednesbury became the leading authority on one issue - the power of the courts to review executive action. It remains the leading authority on that point today, although since it was decided the role of the courts has been considerably altered by the United Kingdom’s accession to the European Union. Aside from the additional complexity of another legislative layer to consider, a fundamental shift in the constitutional balance was effected by Britain’s EU membership in the form of the supremacy of European law, as established by Factortame. The influence of European law will be seen again in several other chapters.

The trial of Dr Sacheverell concerns another key question in constitutional law, the relationship between the citizen and the state. This is an issue as old as the state itself and, as the essays on the right to life in Chapter V and on the state and terrorism in Chapter VI demonstrate, unsurprisingly remains one of the central legal questions of the present day. As to the people involved, there was more than a touch of irony in the champion of non-resistance becoming the icon of the mob, with Parliament eventually responding by way of “An act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishing the rioters”.

The final two essays discuss race relations in the American and Australian contexts. It should not be too trite to observe that the United Kingdom played a key role in the development of both countries and that the ensuing legal issues should accordingly be of interest to British lawyers as well. No one in the present day would defend Plessy - a transparent and iniquitous attempt to justify inequality by little more than calling it something else - although the essay expresses the view that its ghost has not been entirely exorcised. Mabo has been a decision in the other direction: recognition of native title, which was controversial at the time but has become settled law since. As with many of the essays the lives of the people actually involved contain some interesting turns, since as Dr Lindgren QC observes Eddie Mabo himself was derided by some in his own community as a trouble maker and never lived to see the full effect of the legal proceedings for which his surname is now common shorthand.

II. Land law

The United Kingdom has one of the highest rates of private home ownership in the world, and the importance of land law to its citizens corresponds. That said, it is probably fair to assume that the majority of late-night revellers in Leicester Square remain unaware of the case of Tulk v Moxhay in 1848, which preserved that famous piece of land as a public square in perpetuity. Still less would they associate it with a key legal development regarding restrictive covenants.

Lord Denning became one of England's most famous judges partly through his desire to achieve justice notwithstanding apparently hide-bound legal rules, though he did not often admit to it openly. High Trees, decided when he was still a first instance judge, remains one of his best known decisions due to his fashioning a legal answer which provided justice as he saw it. Unlike some of his other attempts, however, rather than being distinguished in later cases, it became the bedrock authority for the now-commonplace doctrine of promissory estoppel.

III. Criminal law

The first two cases in this chapter are classics of law students' tutorials - the moral dilemma of the shipwrecked sailors, and the legal as opposed to medical definition of insanity.

One of the most striking aspects of the real-life tale of R v Dudley and Stephens is that one of the participating cannibalistic seamen wasn't so put off by the whole experience that he didn't repeat the voyage. As related in the essay, Dudley subsequently emigrated to Australia (where he met a more banal end of dying of the plague). But the issue of necessity is not confined to exotic facts from nineteenth century voyages: more recently the issue arose in the context of the tragic Siamese twin litigation (Re A (children) (conjoined twins: surgical separation) [2000] 4 All ER 961) and indeed in the well-known plight of trapped mountaineers recorded in the book and film Touching the Void (where one severed the rope connecting him to another in order to save his own life, though in the event both survived) albeit in that instance no litigation ever followed.

M'Naghten's case too has facts that are quite extraordinary. One way or another the wood turner turned would-be assassin was in possession of a large sum of money, quite inconsistent with his legitimate occupation. Was he paid to undertake "the hit"? If so, whoever made the payment did so before the attempt (or at least made a substantial down payment), and therefore had to have had considerable confidence not only in Mr M'Naghten's contract killer skills but also his propensity to keep to a legally unenforceable bargain.

The case of R v Morgan also contains an interesting factual angle, in that a man who initially pleaded guilty eventually had his conviction quashed. The tragedy of a fatal train crashes always gains the attention of the national press. Usually too the press demand recrimination and reform, though the task of apportioning liability is inevitably a complex and controversial legal task. As Morgan demonstrates, the knee-jerk reaction of blaming the “front line operator” such as the train driver may obscure more serious failings of a corporate nature.


IV. Civil law

No collection of “cases that changed our lives” could omit Donaghue v Stevenson, the most important single step in the law of negligence, something most people encounter almost every day in their relations with neighbours physical and otherwise. Caparo v Dickman is just one of the many significant cases which followed: the law of negligence has never showed signs of slowing its development since the epoch began with Donaghue. The number of times both cases are cited in the law reports each year indicates as much.

Mareva, another of Lord Denning’s famous decisions, today forms a substantial amount of the business of the Commercial Court. In practical terms securing the disputed assets prior to trial is of equal importance to any substantive legal right, for the obvious reason that any substantive legal cause of action may be rendered illusory by an elusive defendant dissipating his or her assets.

Anything approximating a new cause of action will also keep practitioners, judges and legal editors busy, and the developing law of privacy is no exception, as illustrated by the Campbell case. Of course it comes squarely into conflict with one of English law’s proudest traditions, freedom of the press, and as the essay relates the particular newspaper involved wasn’t shy about asserting that tradition. The litigation still has not been concluded at the time of publication of this book, and in the meantime many a famous claimant has sought to rely on a right to privacy when seeking to suppress details of colourful activities which have kept the tabloid press busy.


V. The right to life

Once again the issue of citizen and the state arises in this chapter, in this case with what may uncontroversially be called the most important issue of all. The ultimate legal resolution in the cases of all three individuals considered in this chapter also devolved from another theme explored in chapter I - the constitutional arrangements of the United Kingdom and in particular its relationship with Europe. At the heart of their cases lay the obligations of the United Kingdom under the European Convention on Human Rights, and the decisions thereon of the court in Strasbourg. Among other things, that court has developed the obligation of contracting states under the Convention to undertake an effective investigation into deaths in certain circumstances.

VI. The state and terrorism

English law has occasionally had to deal with individuals whose potential or perceived threat greatly exceeds that of "ordinary criminals", and perhaps inevitably its responses (seen, for example, in Liversidge v Anderson during the Second World War and the Diplock courts in Northern Ireland during the 1970s) have elicited much controversy.

In the twenty-first century, the issues are perhaps more complex than ever before, for at least two reasons. The first is the somewhat nebulous nature of the contemporary enemy which is modern international terrorism: strictly identifying Al Qaeda and its members is a formidable task for the authorities in the present day, arguably more so than other enemies of the British state in the past. The second reason concerns the international obligations the United Kingdom now owes, most notably in the form of the European Convention on Human Rights.

Relations with other nations is a further complicating factor as acutely demonstrated by the Corner House decision, where the somewhat less than seaworthy vessel of English bribery law foundered on the rocks of an allied state's objections to a criminal investigation.

VII. Family law

The first two cases in this chapter concern the division of property between married or co-habiting couples. Obviously the law in this area involves rather more than simply the allocation of money and property; it reflects, occasionally belatedly, changes in social attitudes. In the late 1970s Basil Fawlty was apoplectic at the thought of an unmarried couple staying in the same room in his hotel. Even if some of the humour of the episode was directed at Basil for his old fashioned views, it would never have worked had it not been plausible for 1970s viewers that someone might openly share Mr Fawlty’s values. It is fairly safe to assume, therefore, that Mr Fawlty would not have approved of unmarried couples seeking legal enforcement of property rights as in Stack v Dowden. Indeed, the law regarding married couples’ rights itself has undergone significant transformation over the years, in line with changing social attitudes, as reflected in cases such as White v White.

Occasionally litigants’ names become part of legal parlance for precisely the opposite reason to that which they intended. The unfortunate claimant husband in Scott v Scott went to court hoping to keep his marital issues quiet; instead, his failed appeal to the House of Lords remains the leading statement on the common law principle of open justice almost a century later. A similarly ironic fate was shared by Mrs Gillick, the (unsuccessful) claimant in the final case in this chapter. Objecting to doctors treating her teenage daughter without her consent, the phrase Gillick-competence has become standard legal shorthand for the test for whether a child is competent to give consent to medical treatment independently of his or her parents.

The court martial of Private Harry Farr

“... the hand of Time rested on the half-hour mark, and all along that old front line of the English there came a whistling and a crying. The men of the first wave climbed up the parapets, in tumult, darkness, and the presence of death, and having done with all pleasant things, advanced across No Man's Land to begin the Battle of the Somme."

John Masefield, The Old Front Line, 1917

Introduction

At first light on 16 October 1916, Private Harry Farr of the 1st Battalion, the West Yorkshire Regiment, was led by his colleagues into a forest in the region of the Somme River in France. The eponymous allied offensive, the most bloody battle of the most bloody war in British history, was nearing its end. For all the blood spilt, the achievement of the battle had been limited to say the least: little ground had been gained, the general stalemate would thereafter resume, and the war would not be over for another two years and several million more deaths.

Private Farr would live to see none of that, for he was being taken into the woods that day for his own execution, having been found guilty of failing to take his place in the front line. In a gesture reminiscent of Charles I, who chose to wear two shirts on his final walk lest he shiver from cold and be mistaken for suffering cowardice, Private Farr declined the usual procedure of wearing a blindfold and chose instead to look his executioners in the eye. He faced twelve of his comrades, one of whom would have been issued with a blank bullet so that none could be absolutely sure he had killed one of his own. The order was then given by the commanding officer and the final act carried out: Private Farr was shot at dawn.

His trial by court martial a couple of weeks earlier had lasted only about 20 minutes. It resulted in a guilty verdict and a sentence of death. Unlike 90% of British soldiers who received the death sentence in the Great War, his sentence was not commuted, but instead was upheld on review by senior officers and then authorised by General Haig, Britain’s Commander-in-Chief on the Western Front, before being carried out as described on that grim October morning.

It is, one might reasonably suggest, fairly safe to assume that no-one present at Private Farr’s trial or execution would have even begun to imagine that almost ninety years later his daughter would be in attendance at the Royal Courts of Justice on the Strand to hear a judicial review of their actions. Nor would they have anticipated that Parliament would cut the litigation short by issuing a blanket pardon for Private Farr and all others executed for cowardice or related crimes in the Great War. Still less would they have imagined that Private Farr would have a Myspace page devoted to him.

All those things did come to pass, however, and thus in 2006 the trial of Private Harry Farr came to public attention as a reminder of the small part he played in the conflict which inflicted incalculable misery on the nations involved and changed all of them forever.

The context of the Great War

To understand properly the circumstances under which Private Farr’s trial and sentence were undertaken, it is necessary to say something of the nature of the war itself.

Britain actually differed quite markedly in her pre-war armed forces from the Continental powers. Most of the latter – including France, Germany and Russia – maintained a substantial standing army by way of national conscription. Britain did not. Her focus was on her empire, which depended on sea routes for trade, and her military focus was therefore on the navy, still the largest and most respected in the world in 1914. Her “contemptible little army” in the words attributed to Germany’s Kaiser Wilhelm (a badge the British subsequently adopted with honour) was by European standards not much more than a small, highly professional colonial police force. It was not designed for major-power conflict on the continent, for the simple reason that Britain’s strategic planning was aimed directly at avoiding such an event. Since the Napoleonic wars of a century earlier, Britain had intended that in any future general European conflict her contribution would be primarily naval and financial, with the army playing a limited role. The navy would secure the vital Empire trade routes and ensure that no invading army could cross the channel. The rise of Germany as the predominant industrial power was alarming to Britain chiefly because of the High Seas fleet, not the massive standing army.

In turn Britain was not of the greatest concern to Germany. Germany’s pre-war planning centred around the Franco-Russian alliance, which threatened her with war on two fronts. To avoid this Germany devised the Schlieffen plan, by which it hoped to defeat France before Russia had had a chance to mobilise fully.

In the event, of course, both Britain and Germany’s strategies failed completely. Germany was unable to knock out France in the first months of the war and was landed with war on two fronts. Meanwhile, realising that France would never hold Germany on its own, Britain became drawn totally into the land battle. The war was supposed to have been over by Christmas. As it happened, the guns were silent on Christmas Day 1914 – but only because men from both sides were famously meeting in an ad hoc truce in No Man’s Land between static trench defences. They would remain in the same trenches with remarkably little movement, despite enormous loss of life, for almost four more years.

The relevant point to be taken from the above is that the British army during the war faced a task of almost indescribable complexity and difficulty, for which it was almost completely unprepared. It went on to make many mistakes, some of calamitous proportions, and incur casualties on a scale which remains unprecedented in the nation’s history. And yet it was the only army engaged throughout the war which did not suffer a collapse at any point as well, of course, as emerging victorious. Moreover, by 1918 it had become the most powerful field army in the world – the only time in history that it has qualified for that description.

Two points follow. First, the popular image of the Generals in charge of this process as nothing more than bungling butchers, “donkeys leading lions”, (1) is not sustainable in the face of the army’s ultimate achievement, for all the undoubtedly serious, indeed horrific, mistakes they made in the process. Secondly, to expect military justice to achieve the same standard in the ghastly circumstances of 1914-18 as in peacetime is simply not realistic. The men who judged Private Farr in 1916 would have known that no significant breakthrough had occurred on the Somme, and that they would all be severely tested for some time to come, as proved to be the case. Indeed, the French army effectively collapsed the following year and Germany’s Operation Michael offensive in early 1918 all but broke the allied line.

Civilian life in the 1910s also requires mention. The understanding and ethos of what modern readers would call health and safety, employment rights and the welfare state were entirely different to that enjoyed by citizens of twenty-first century Britain. Life expectancy was far shorter. The soldiers who fought the Great War were born in Victorian times, and their attitudes to duty and character, particularly in the context of the armed forces, corresponded. The death penalty was the mandatory punishment in civilian Britain for murder and a possible punishment for a number of other offences as well.

It follows that it cannot be assumed that the majority of civilians or soldiers at the time would have viewed the execution of soldiers for cowardice (or any other crime) in the same way as those in the present day might. Nor was the issue of military casualties generally viewed the same way as it is today – indeed, the Great War itself is perhaps the primary reason for the change in attitude towards incurring casualties in war. (2)

Private Farr’s war

Harry Farr enters the story of the Great War at the beginning, volunteering for the British Expeditionary Force in 1914. There is no dispute that he was subjected to shell fire. An excellent article by the psychiatrist and medical historian Simon Wessel describes in more detail the actions which led to Private Farr’s death:

“At 9.00 am [on 17 September 1916] Farr asked for permission to fall out, saying he was not well. He was sent to see the medical officer, who either found nothing wrong with him, or refused to see him because he had no physical injury—the Court Martial papers are unclear on this point. Later that night Farr was found still at the rear, and was again ordered to go the trenches. He refused, telling Regimental Sergeant Major Haking, that he ‘could not stand it’. Then Hanking replied ‘You are a fucking coward and you will go to the trenches. I give fuck all for my life and I give fuck all for yours and I'll get you fucking well shot’. At 11.00 pm that night a final attempt was made to get Private Farr up to the front line, and he was escorted forward. A fracas broke out between Farr and his escorts, and this time they let him run away. The following morning he was arrested and charged with contravening section 4 (7) of the Army Act—showing cowardice in the face of the enemy.

The Field General Court Martial took place 2 weeks later. Four soldiers gave evidence against Farr, confirming the general sequence of events, which Farr did not deny. Farr was not represented by a so called ‘prisoner's friend’ (this was not unusual), but spoke in his own defence. He was asked by the president of the court whether he had the opportunity to report sick between the night of the offence and now; Farr replied that he had indeed had the opportunity but had not done so. When asked why Farr replied, almost certainly unwisely for his future, that this was because ‘being away from the shell fire I felt better’. The Court then heard about his medical history and his disciplinary record, which, apart from a brief period of going absent without leave in 1914 had been exemplary. Private Farr had spent several months in a rear hospital in 1915 with a diagnosis of shell shock, had been treated by the medical officer with the same diagnosis in April 1916, and again for one day in July 1916. Unfortunately, the medical officer who had treated Farr was not able to give evidence: he had been severely wounded.”

As Dr Wessel points out, on those facts, from the perspective of military law Private Farr did not stand a chance. He had willingly gone absent in the face of the enemy. His colleagues had not spoken in his defence, although it had been acknowledged that his service record was mostly exemplary. But the inevitable verdict on the facts was guilty, and the customary sentence was death.

Private Farr was one of 306 in the British army to be executed in the Great War. Of those 266 were shot for desertion, 18 for cowardice, seven for quitting their posts and two for casting away their arms. The remaining 13 were executed for other, unrelated crimes such as murder. As mentioned the 306 constitute only approximately 10% of the total number actually sentenced to death following a court martial in the War; the rest had their sentences commuted.

The aftermath

Private Farr’s widow, Gertrude, was not told of the circumstances initially, and therefore believed he had died in action. In fact she only discovered the truth when her war pension was stopped. For the Farr family, as for the families of all of the executed soldiers, the manner of Private Farr’s death was kept as a shameful secret for years afterwards. His daughter, Gertrude Harris, born two years before the outbreak of the war, did not learn what had happened until she was 40. She in turn kept the secret for another 40 years, and it was not until the British Government’s decision in 1992 to lift the classification of the relevant surviving documents for all the executed soldiers that a public campaign began in earnest to clear his name.

As it happened, only some half a dozen documents were found relating to Private Farr’s trial and as Dr Wessel states his full medical records had been lost. Based on what was known, however, his relatives and their supporters formed the view that in modern medical terminology he had been suffering from hyperacusis/misophonia, or category 4 acoustic shock, which renders the ear incapable of softening and filtering sound and makes loud noises physically unbearable.

Nevertheless, the initial response of the government of the day was to refuse a pardon for any of the executed soldiers. Its reasoning concerned the paucity of documentary evidence and the fact that almost all relevant witnesses were long deceased, as well as opposition in principle to passing official reinterpretations of the actions of soldiers in a war which had taken place almost eighty years previously.

The change of government in 1997 brought no immediate success for the campaign. The then-armed forces minister, Dr John Reid, considered the possibility of pardons under the royal prerogative, and concluded in 1998 that few if any of the individual cases would meet the standard requirements, again due to the quality of evidence. (3) It was considered that as far as could be discerned the law as it then stood seemed to have been followed. It was, however, declared that “those executed were as much victims of war as the soldiers and airmen who were killed in action ..." (4)

That last gesture did not satisfy Private Farr’s relatives and in March 2006, all other avenues having failed, they appeared in the High Court seeking judicial review of the refusal to grant a pardon. Parliament was spurred into action and, following an adjournment of the proceedings, responded with the final act in the legal saga, s 359 of the Armed Forces Act 2006. It was freely acknowledged in the House that the inherent difficulties in the issue rendered the solution a compromise.

Section 359 is headed: “Pardons for servicemen executed for disciplinary offences: recognition as victims of First World War”. Subsections (1) and (2) provide:

(1) This section applies in relation to any person who was executed for a relevant offence committed during the period beginning with 4 August 1914 and ending with 11 November 1918.

(2) Each such person is to be taken to be pardoned under this section in respect of the relevant offence (or relevant offences) for which he was executed.

Subsection (3) defines “relevant offence” as including various offences along the lines of cowardice, then subsection (4) states somewhat casually:

(4) This section does not—
(a) affect any conviction or sentence;
(b) give rise to any right, entitlement or liability; or
(c) affect the prerogative of mercy.

And that was that. No individual soldier’s conviction or sentence was overturned and no surviving relatives or anyone else was to be given any compensation. It was simply that each of the executed soldiers was, by legal fiction, “taken to be pardoned ... in respect of the relevant offence ... for which he was executed”.

The Act was not passed without opposition. For Gerald Howarth MP, the fudge represented by s 359 achieved nothing. Since it did not overturn any conviction and could not commute the sentence, he argued, “we are entitled to ask what it does do.”(5)

For Gertrude Harris, however, by then 93 years of age, it was enough:

“Well to be truthful, I'm overwhelmed. I prayed that it would happen in my lifetime but I never realised really that it would. It's come really as a shock today.

We were determined for my mother’s sake because she always said he was no coward, he was a very brave soldier and he fought for his country and he died fighting for his country.”

Reactions in the media were mixed. Corelli Barnett, a military historian, told the Telegraph newspaper:

“These were decisions taken in the heat of a war when the commanders' primary duty was to keep the Army together and to keep it fighting. They were therefore decisions taken from a different moral perspective.

"For the people of this generation to come along and second-guess decisions taken then is wrong.

"It was done in a particular historical setting and in a particular moral and social climate. It's pointless to give these pardons. What’s the use of a posthumous pardon?”

Others endorsed the move, citing Mrs Harris’ arguments with approval.

The pardon: right or wrong?

The length of time it took for Gertrude Harris to obtain the pardon given by s 359 indicates the extent of the controversy involved. Those in favour of the pardon argued that given that so few of those sentenced to death had actually been executed, to be shot at dawn was a form of random chance rather than the application of legal principle. Moreover, they considered that there were strong indications that a miscarriage of justice had occurred in at least some of the executions. Understanding of shell-shock had increased out of all recognition since 1916. Thus, the argument ran, even if the executions were justified on the understanding of the time, the families of the deceased should not have to live with the feeling of shame when, by the standard of knowledge in the present day, no wrong had been committed. The fact that there were readily identifiable direct descendants such as Gertrude Harris was used to distinguish the case of the Great War executions from the countless predecessors. (6) Further, Germany, France, Ireland and New Zealand had already pardoned their soldiers who were executed in the Great War.

Some concessions were made along the way which rendered the 2006 Act much less than a full acquittal for all the dead. Section 359(4)(a) explicitly stated that the convictions stood, in order to acknowledge that the men who sat on the courts martial were undertaking conscientiously the duty of maintaining military discipline in accordance with the law then applicable; indeed they were doing what they were legally bound by military law to do.

Those opposed, of whom this author remains one, always maintained that it could not be right for a generation that had not known the horrors of the First World War to be casting judgement on those that had. A number of modern historians have challenged the idea that conduct of the Great War was little more than a serious of disastrous blunders by uncaring and antediluvian Generals (7). The courts martial should be seen in the context of the extraordinary crisis that the British army faced, and if there is to be judgement with hindsight it surely has to include the knowledge that the British army eventually won.

That there were identifiable and living descendants of the men shot at dawn was not necessarily persuasive for considering their cases as opposed to any other alleged historical injustice. The actual victims were the soldiers themselves, who were obviously all dead. One could trace living descendants of countless other supposed historical injustices. Instead of picking and choosing on the happenstance of living relatives, or trying to decide the most worthy historical causes, it cannot be too callous logic to argue that judicial and Parliamentary resources should be prioritised for the living and to allow the rights and wrongs of the past to remain the preserve of historians.

It is not as though the offences themselves were contrary to modern morals: the crimes of desertion and cowardice remain just as much a part of military law in 2006 as in 1916. The main objection therefore has to be the correctness of the individual convictions – which Parliament itself regularly found impossible to judge given the paucity of surviving evidence – or the use of the death penalty (the public campaign used the phrase “shot at dawn” not “convicted of cowardice or desertion”).

Two points are relevant to the death penalty: first, by abolishing capital punishment completely (8) the Government had already made clear that no-one would be shot at dawn in today’s army even in a reprise of the Great War. If anything, that was a more concrete gesture than the watered-down pardon under the 2006 Act. Secondly, given that the death penalty in 1914-18 was a generally accepted and regularly used form of civilian punishment, there does not seem to be a justification for a specific pardon for those executed during wartime. The pardon did not extend to those who were sentenced to death but whose sentences were commuted, despite the fact that their names were just as shamed. The offences of cowardice and desertion are also still considered to be severe offences, particularly for soldiers on active duty, rather than some of the trivial offences which attracted capital punishment in centuries past.

The prior objections of the state to a pardon had focused primarily on the quality of evidence, and those objections were never fully answered. Indeed, they were cited as a reason for the pardon in the form it eventually appeared. Whatever the qualifications in the 2006 Act, however, the reality was and remains that most of the lay public would read the granting of the pardon as being exculpatory of the executed.

Some 5.7 million served in the British army and it would be statistically improbable for there to have been no instances of cowardice or desertion amongst them. The authorities during the Great War decided that there had been approximately 3,000 such instances, but applied the ultimate sanction only to 10% of them. That seems less arbitrary and cruel than humane. Indeed, the statistics point to an unknown and unknowable further probability. More than 80,000 veterans were diagnosed with shell shock after the war, prompting the Government of the day to establish a commission on the subject, and indeed shellfire caused the majority of all casualties on the Western Front. One can assume therefore that there must have been thousands of instances of minor shell shock, the sufferers of which did not actually become recorded casualties. Some would have become disorientated for a short while at least, and been separated from their units. Technically they would or might have been considered deserters. And yet what must have happened on many such occasions (for, if it had not, there would have been far more prosecutions than there were in fact) is that sympathetic soldiers from other units would have ushered the men back to their own units, where they would have been received without many questions being asked.

Perhaps too the soldiers who carried out the courts martial and executions would have felt slurred by the pardon, or at least an inference that they been doing other than their lawful duty in a conscientious fashion. Or perhaps they would have approved of the pardon – certainly one who spoke eighty years after the war, John Laister, may well have done if his reported comments were accurate. Laister, speaking to the BBC in 1999, said of his experience as part of a firing squad: “There were tears in his eyes and tears in mine”. He also described his victim as “looking no more than a boy.” But by 2006 all involved had died (since then all remaining veterans of the Western Front have as well) and the majority never spoke of the events, and so we will never know.

Which of course brings one back to the fundamental objection: the pardon was imposing a judgment on men who were not there to defend their actions, who acted in circumstances which the people of 2006 never knew for themselves, and who were prosecuting acts which remain military offences to this day. We should hesitate long before deciding for ourselves before passing judgment on them. (9)

Afterword

On one view Private Farr’s case could be seen as a mere footnote in four years of unprecedented bloodshed. But it certainly came to be of the foremost importance to the relatives and descendants of the men who shared his fate, and, moreover, it served to bring to a later generation’s attention the war which had an incalculable and irrevocable effect on Britain and her Empire. It brought again to public attention the debates over the competence of those who ran the war and whether it had been a just war.

As to those involved, General Haig was made Field Marshal in January 1917. He returned from the war a national hero, and had the choice of virtually any peacetime role he might have chosen. He declined official posts, however, and spent the remaining ten years of his life dedicating himself to the welfare of veterans. Among other things he was instrumental in the formation of the British Legion. Of course public opinion turned against him, and his family too fought for many years to defend his name, though unlike Private Farr there was no official condemnation to challenge. (10)

Private Farr’s wife died in 1993, but their daughter, Gertrude Harris, as we have seen, lived to hear of her father’s pardon. Private Farr’s name appears on one of the many Great War memorials, and the Shot at Dawn campaign has since been represented, not without some controversy, at the Remembrance Sunday parade. The legal debate having been concluded, the matter now rests once more with military historians, who will doubtless continue to debate the merits of the pardon for many years yet.

Note: the above was written for a forthcoming book, though it is not now going to be included. I am considering various other places which might be appropriate.

Endnotes

(1) The phrase “lions led by donkeys” is often wrongly attributed to a German general speaking of the British army of the First World War, when there is no evidence for that. Nevertheless the image it creates is one still found in the popular imagination, thanks no doubt in part to fictional works such as the film Oh! What a Lovely War or the television series Blackadder Goes Forth. This part of the essay seeks very briefly to counter the view; the further reading list contains a rather fuller account.

(2) At the outset, when Germany invaded neutral Belgium, there was a great public outcry demanding that Britain intervene. When she did, news of the declaration was greeted with public celebrations in Trafalgar Square and elsewhere. By the end, of course, the war had come to be known as the “war to end all wars”. The subsequent decade saw the rise of the pacifist movement, and there was no celebration whatever when Britain found herself manoeuvred into the Second World War.

(3) See Hansard HoC debates 7 Nov 2006 : Column 766.

(4) Richard Holmes, The Western Front 1999, p 176.

(5) Hansard, HoC debates, 7 November 2006, col. 772

(6) See eg “End of Shame” by Stephen Moss The Guardian, 19 August 2006

(7) One rather churlish comment was made in Parliament about the absurdity of reviewing alleged injustices committed during the battle of Agincourt (Hansard, HoC debates, 7 Nov 2006 : Column 778).

(8) See eg John Terraine, Gordon Corrigan, Richard Holmes and Gary Sheffield.

(9) The last remaining provisions for the death penalty under military jurisdiction (including during wartime) were removed on 9 November 1998 when s 21(5) of the Human Rights Act 1998 came into force. On 10 October 2003, effective from 1 February 2004, the UK acceded to the 13th Protocol of the European Convention on Human Rights, which prohibits the death penalty under all circumstances.

(10) In this respect Francis Bennion’s article Rewriting history in the Court of Appeal 148 NLJ (1998) 1228 makes cogent points.