Executed at Dawn

by David Johnson

  On 13 December 1995, Andrew Mackinlay rose to his feet in the House of Commons to raise once more the issue of pardons for those who had been executed in the First World War, on the grounds that:

  The men were not given the opportunity to prepare an adequate defence. Many of them were not represented at all; if they were represented, it was by somebody who was demonstrably not qualified to do so. After their field court martial were completed, they were often not told what their sentence was until between 12 to 24 hours before it was carried out. Not only is that demonstrably unfair and unjust, but for all the 300-plus soldiers, there was no right of appeal against the sentence of death.

  In what turned out to be another futile attempt to change the Conservative government’s mind, he added:

  My postbag shows beyond all doubt that, in a sense, those men have been pardoned by the highest court in the land – British public opinion. If one discusses the matter with people in our streets and in clubs among ex-service men and women who went through the first and second world wars, and with serving service men and women today, one finds that, overwhelmingly, they proclaim that those men were brave British soldiers who should be granted pardons. I hope for and look forward to the support not only of Opposition Members but of the many Conservative Members who have over the months told me of their support for such pardons to be granted.

  In 1995, the office of Tony Blair, the leader of the opposition, perhaps with a willingness at that stage still to embrace populist views, issued a statement giving an undertaking that a future Labour government would look sympathetically at this matter. It seems clear, judging by what later transpired, that the statement was made before any documentation had been looked at or legal advice sought.

  In a debate in the House of Commons on 9 May 1996, the Conservative government’s position was outlined as follows:

  The rules that applied during the first world war differ from those now governing the conduct of courts martial. However, these soldiers were convicted by a properly constituted court, according to the laws and procedures of the land, of an offence punishable by the imposition of the death penalty. That we do things differently today cannot alter the fact, uncomfortable as it might be for many of us.

  Andrew Mackinlay replied:

  The principles of English law, that people should have a fair trial, be able to prepare a defence and be able to appeal against sentence, were not invented after 1918. They are the basic principles of English law since long before, and were denied to those men in our century.

  An amendment to the Armed Forces Bill, which would have secured pardons for those executed in the First World War, was defeated by 203 votes to 129. Among the Labour opposition who voted in support of the amendment were Dr John Reid, Douglas Henderson and John Spellar, and all three went on to become armed forces ministers after 1997.

  Understandably therefore, the Shot at Dawn campaign had high expectations of the Labour government that was elected in 1997, and initially were not disappointed when a review was carried out, and an announcement stated:

  For some of our soldiers and their families, however, there has been neither glory nor remembrance. Just over 300 of them died at the hands not of the enemy, but of firing squads from their own side. They were shot at dawn, stigmatised and condemned – a few as cowards, most as deserters. The nature of those deaths and the circumstances surrounding them have long been a matter of contention. Therefore, last May, I said that we would look again at their cases. The review has been a long and complicated process. (Official Report 24 July 1998; Vol. 316, c. 1372.)

  But disappointment followed as Dr John Reid, the armed forces minister, announced in July 1998 (see Appendix 1) that he could not agree to the granting of any blanket pardons, something which the Shot at Dawn campaign had in fact never asked for, as claimed by those who opposed its objective. It had become apparent to Dr Reid from the courts martial papers that he had read – and he claimed to have read over half of those available – that many of those concerned had in fact been guilty based on the standards and practices that existed at the time of the First World War. Dr Reid explained in 2009: ‘I was told on the highest legal advice at the time – I can say that now that I am not a Minister – that I could not give a legal pardon’ (Hansard).

  Dr Reid had also consulted widely in arriving at his decision, including having a meeting with Judge Anthony Babington and Julian Putkowski (Hansard, 20 March 1998). One problem that Dr Reid and his advisers encountered was the variation in the courts martial papers available to them, as some were quite comprehensive while others consisted of just one sheet of paper, and they were handwritten.

  In making his announcement, he expressed his regret for all those killed in the First World War, whether by the enemy or by execution. His decision was based on concerns that the passage of time caused the grounds for a blanket pardon, on the basis of their unsafe conviction, to be non-existent because no new evidence could be presented and no new witnesses could be forthcoming. He concluded that, as a result, any review would leave a significant number of the men re-condemned again because any judgement made had to be based on evidence rather than belief. There is no doubt that, had he felt able to agree to the granting of pardons, he would have done so – as evidenced by his interest in the matter, the support he gave in the House of Commons in 2006, and the explanation that he gave in 2009.

  Therefore, in 1998, the Labour government, which in opposition had appeared to support the campaign, decided that it could not issue a blanket pardon because it was unable to ‘distinguish between those who deliberately let down their country and their comrades and those who were not guilty of desertion or cowardice’. Keith Simpson, MP, was a newly appointed junior front bench defence spokesman when he had to respond to Dr Reid’s statement, but in a debate on 18 January 2006 he shed some light on to the position in the 1970s when he said:

  It is interesting that, in the 1970s, a large number of Labour Members then in opposition felt very strongly that the then Conservative Government and previous Labour Governments had been far too secretive about the records relating to the men executed and that the likelihood was that there had been a cover-up.

  If the Ministry of Defence had hoped that Dr Reid’s statement would be the end of the matter, it was to be disappointed because, dismayed but not deterred, the Shot at Dawn campaign kept pressing its case and Andrew MacKinlay said, ‘I am deeply disappointed that the Government still refuses to grant pardons but these people have already been pardoned by the highest court in the land, British public opinion’ (Daily Telegraph, 22 June 2001).

  Opponents of the campaign continued to argue about the futility of changing history and that a focus on those executed did a disservice to those killed and wounded in the First World War. But Dr Reid was given cause to reconsider this decision as he explained in 2009 (Hansard):

  During the interval between being Armed Forces Minister and being Secretary of State, I discovered that New Zealand had apparently managed to accomplish that which I had been told was impossible in Britain. Naturally, and in my normal delicate fashion, I interviewed some of my officials who were still there about why that which we had found impossible had been found possible elsewhere. We re-opened the inquiry, and I am glad to say that my successor, my right hon. Friend the Member for Kilmarnock and Loudoun [Des Browne], did a great deal of work on the matter as Defence Secretary. The result is as is known.

  The Shot at Dawn campaign was not daunted and continued to argue for pardons, with a particular focus on the cases of the underage soldiers. It is a further disturbing thought that, in the same way that some of those executed were below the age of 19, having joined up when they were below the minimum age, it is also likely that some of those in the firing squads would have been under the age of 16 as well.

  On 16 September 1915, Brigadier-General F.G. Anley, who commanded the 4th Division, issued routine orders that showed that the army was already aware of the problem of underage soldiers and its
attitude to the problem. The orders state: ‘Lads who are under 17 years of age, according to their birth certificate, which should be produced, will be sent to England unless they are passed fit for service and wish to remain at the front.’ This statement is interesting because it made it a condition of repatriation that the ‘lad’, who was already at the front, had to produce a birth certificate – how many were likely to have this document with them in a legible state after service in a trench? The production of a birth certificate was not something the army had required as a condition of enlistment.

  The Ministry of Defence’s head of Army Historical Branch, Miss A.J. Ward, OBE, made the ministry’s position clear on the execution of underage soldiers in a letter dated 24 March 1999 to John Hipkin:

  You also mention that a number of soldiers who were under age were illegally tried and executed. I am afraid this is not the case. Anyone over the age of 14 was deemed legally responsible for his actions, and Army regulations provided no immunity from Military Law for an underage soldier. While measures were taken to remove under age soldiers from the front line when their ages were discovered, anyone who had voluntarily placed himself – albeit through fraudulent enlistment – under Military Law, could not exempt himself from the legal consequences of doing so. John Reid (Secretary of State) paid particular attention in his review to the views, and representations which you, the veterans, and especially the families of those executed made to him. He also consulted and took advice from a number of people outside the Ministry of Defence on historical, legal, and medical aspects of the matter.

  In effect, the Ministry of Defence’s position was that underage soldiers who had given a false age when enlisting had willingly placed themselves under military law, which stipulated the age of criminal responsibility as 14. This meant that desertion by any serviceman, including those who were technically underage, was correctly punishable by death if so directed by a court martial. The letter also sought to clarify the reasons for the embargo of the courts martial records: namely to ‘safeguard the privacy of individual servicemen and their families’, which has been discussed elsewhere in this book.

  It is debatable whether such a response would have satisfied many people in the immediate aftermath of the war, let alone in more recent times. It certainly did not satisfy an embittered and frustrated John Hipkin, who wrote to David Lewis, a fellow campaigner, regarding the court martial and execution of Private Joseph Byers of the 1st Royal Scots Fusiliers, who had been found guilty of attempting to desert on 8 January 1915. Byers had been arrested on 18 January 1915 and brought before a court martial, where he was found guilty and subsequently executed on 6 February 1915:

  Dear David,

  Now that the 79 day air war against Yugoslavia has ended, perhaps Mr Blair can turn compassionately to the 79 day war of Fusilier Joseph Byers, the first Kitchener volunteer to be shot at dawn – a patriotic boy aged 16 years and 4 months on 6/2/1915, and his court martial papers kept secret for 75 years.

  Fusilier Byers lied about his age to enlist on Nov. 20th, 1914, was shipped to France on Dec. 5th.1914, after only 2 weeks basic training, was later charged with desertion, (a military capital offence abolished by Parliament in 1929) and as an under aged soldier was illegally executed, drugged or drunk, by a reluctant firing squad made up of his own comrades.

  The Officers of his court martial received a letter from Gen. Sir Horace Smith-Dorrien commander of 2nd Army dated 2/1/1915 (Public Records Office WO71/397), stating [sic] would urge that discipline in the 1st. Batt. Royal Scots Fusiliers had been very bad for some time past and that a severe example is very much wanted. Byers after 79 days in the army was shot at dawn 6/2/1915.

  Fusilier Byers like most soldiers was undefended, and like all defendants was not allowed to see what had been written about him. Most court martial officers were without any legal training, and were in fact Judge and Jury. No appeals were allowed.

  Pardons for these boys and 303 adolescent and adult soldiers were blocked in parliament in 1996, 1998, and 1999 by both Lab. and Con. Governments.

  There are a number of disturbing aspects to this case. Firstly, at his court martial, Private Byers entered a plea of ‘guilty’ and therefore according to military law the court could not consider any evidence or mitigation – it was in effect a one-word suicide note. Why did Private Byers plead guilty? It was probably a combination of poor or non-existent legal representation, and ignorance (although on the same day, before the same court martial, Private Andrew Evans of the same regiment had already been sentenced to death for desertion).

  Some people might say that Private Byers pleaded guilty to perhaps incomprehensibly hide his age because it was for many years believed that he was under 17 years of age when he was executed – when in fact this was not the case (Linklater, 2014).

  Private Byers had been wrongly identified by Putkowski and Sykes in their book Shot at Dawn as the youngest soldier to be executed. This was the second mistake referred to earlier: an embarrassment that provided further ammunition to those who opposed the Shot at Dawn campaign for pardons, and argued that it highlighted the problems of attempting to rewrite the history books.

  This development was a potentially devastating body blow for the campaign. Immediately, John Hipkin had no alternative but to destroy some 3,000 leaflets that had featured a photograph of Private Byers and prominently featured the fact that he had been shot whilst only 16 years of age. Embarrassingly, his face was also on campaign placards, on in-memoriam notices in newspapers, on wreaths laid at the Cenotaph, and in lobbying material sent to Members of Parliament, making him literally the poster boy of the campaign (Linklater). Fortunately, this did not derail the campaign and it continued to ‘argue general principle of the injustice of the executions is more important than individual cases’.

  The Shot at Dawn campaign continued to make progress, gaining the support of the Royal British Legion. There had been just a solitary dissenting vote when the Royal British Legion supported a call for a pardon for all officers and men sentenced to death for desertion and cowardice in the First World War, believing that a general amnesty or exoneration to mark the new millennium would remove the burden of shame, guilt, and resentment from the families of those executed. In November 2000, an important psychological threshold was crossed when the relatives of those executed were allowed to participate in the Remembrance Day ceremonies at the Cenotaph. The Shot at Dawn campaign was initially only offered five tickets for the march, though this was increased to fifty after some lengthy telephone calls to the Royal British Legion. For the 2001 ceremony the ticket allocation rose to 110 and remained at that level until the pardons were granted.

  As the families of those executed took their place in the November 2000 procession, they would have been struck by the irony (some would say insensitivity) of being told to assemble alongside the statue of Field Marshal Sir Douglas Haig (later Earl Haig), the man who had confirmed the death sentences for many of their relatives. At the end of the ceremony the families were informed by reporters that Secretary of Defence Geoff Hoon had announced that it would not be appropriate retrospectively to pardon those executed. The news reduced many to tears.

  The British government’s opposition to the granting of pardons was undermined when, in 1999, the New Zealand Labour Party was elected into office and the new prime minister, Helen Clark, announced in April 2000 that: ‘our conscience wouldn’t rest if we didn’t do something to retrospectively pardon those soldiers … It’s just so pitiful that men who were sick, drunk, epileptic, shellshocked ended up being executed.’

  In 2000, the New Zealand Parliament considered the Peck Bill, as it was known; the bill proceeded through Parliament (the vote was 112 in favour with 8 against) and received royal assent as the Pardon for Soldiers of the Great War Act on 14 September 2000. Five New Zealand soldiers who had been executed were granted an unconditional retrospective pardon. In July 2005, the New Zealand prime minister presented the relatives of those soldiers with
any outstanding medals, decorations and certificates. Interestingly, in December 2001, the Canadian government issued a formal apology to the families of the twenty-three Canadians who had been executed, but stopped short of granting statutory pardons ‘because there is no mechanism for granting them’ – despite the actions of New Zealand.

  This meant that in three countries, the United Kingdom, New Zealand and Canada, there were three different approaches to dealing with this issue, despite the men having been executed under the same British Army Act of 1914 and in the same war. In Britain there had been neither an apology nor a pardon, although there had been a motion of regret, which it could be argued was as near as possible to an apology; in New Zealand there had been a complete apology and a restitution of all civil rights, and the Canadian government had made an apology, but had not granted a statutory pardon.

  † † †

  The campaign for pardons continued, and on 17 January 2002, Robin Cook, the leader of the Commons, in response to a request to bring the issue back to the House once again said:

  I am well aware of the strength of feeling of the relatives of those who were shot. I think everybody in the House would express great sympathy with their position and concern about the action that was taken at the start of the last century. It is plain now, in retrospect, that many of those who were sentenced and executed at the time would never have been sentenced or executed under modern law or standards. However, as the hon. Gentleman will know from previous exchanges, there is a bona fide issue as to whether it is credible to apply a legal pardon posthumously in very different circumstances – including the state of the law – from those that applied at the time. Nor would this be the only occasion when we might be invited to do so. Therefore, what I can say to the hon. Gentleman is that he should offer comfort to relatives by telling them of the very strong sympathy and regrets of all of us who are alive today about what happened. However, it is not really for us to make legal judgements by today’s standards about what happened 100 years ago.