As Robin Cook made that response he might have had some inkling of what was happening in New Zealand where the proposed Act had received its second reading and been referred to the Foreign Affairs, Defence and Trade Committee.
In October 2004, the Irish government formally submitted to the United Kingdom government a report, ‘The Court Martial and Execution of Twenty Six Irish soldiers by the British Army during World War 1’, seeking a pardon for the twenty-six men concerned.
In May 2005, a case was brought before the High Court by the family of Private Harry Farr, seeking a full posthumous pardon. It was brought in the name of his daughter, who was aged 92, but the case was adjourned while the Ministry of Defence considered further submissions by the family. Private Farr of the 1st West Yorkshire Regiment had been executed on 18 October 1916, having been found guilty of cowardice.
In November 2005, Andrew Mackinlay, MP, introduced a new version of his Private Member’s Bill, which he had introduced in 1993, seeking a pardon for soldiers of the Great War, but this was again unsuccessful.
Keith Simpson, MP, in the Commons debate of 18 January 2006, raised a number of important questions: Had anything changed since 1998? Had the Ministry of Defence been able to find any official documents relating to the courts martial and execution of British soldiers? Had the government’s legal opinion changed? Had any new evidence come to light? And had any of the files relating to those who had been sentenced to death but subsequently reprieved been found? This last point was important because those documents would have provided something against which to compare and contrast the documents in respect of those executed, and given valuable information for the grounds of the reprieves granted.
The government responded that no new documents had been found or been forthcoming from other sources, no files concerned with those who had been reprieved had been found, and that its legal position had not changed.
There were still many historians, amongst others, who continued to argue against the granting of pardons because it would effectively be changing history, as the above discussion of the case of Private Byers shows. Lord Ashdown summed up the concerns of those opposing pardons on 12 October 2006:
… could create precedents for the future and it cannot but have the effect of impugning the judgment of the people who made those very difficult decisions at the time. It cannot but have the effect of revisiting history, which is very dangerous, and putting the gloss and judgments of today on decisions made in conditions which we cannot in our time and at this distance make proper judgments about. (Official Report, House of Lords, 12 October 2006; Vol. 685, c. 430.)
The commander-in-chief, Field Marshal Sir Douglas Haig, will forever be associated with the prosecution of the war on the Western Front and the military executions, so it is perhaps no surprise that his son, George Haig, also opposed the granting of pardons. He claimed that many of those executed were rogues and criminals who deserved to be shot. His view was that history should not be tampered with and the decisions of the army commanders at the time should be respected as they knew best.
Nevertheless, in August 2006, the campaign finally achieved its objective when the Labour government changed its mind and the then Secretary of State for Defence, Des Browne, who had been more sympathetic to the arguments put forward, announced on 16 August that with Parliament’s support there would be a general pardon for those executed in the First World War. His intentions were set out in a written ministerial statement on 18 September 2006, which is reproduced as Appendix 2. The written statement acknowledged the exceptional circumstances that had led to the executions and the ongoing stigma that had remained for the families of those concerned. As a result, the government was to seek a statutory pardon for those executed as a group because the variability of the records available made individual pardons difficult and could have left some individual cases failing to meet the criteria for a pardon due to a lack of evidence.
Subsequently, a new law was passed on 8 November 2006, which was included as part of the Armed Forces Act, pardoning the men of the British and Commonwealth armies who were executed in the First World War between 4 August 1914 and 11 November 1918, for all offences except murder and mutiny, thereby removing the stain of dishonour with regard to executions from their war records. However, it did not cancel the actual convictions.
The measure, when debated, still had its opponents in the House, and some were critical of the speed with which the new secretary of state had changed the government’s opinion and questioned what precisely this change was based on. One MP reminded the House of Commons in the debate on 7 November 2006 what Dr John Reid had said back in 1998, ‘However frustrating, the passage of time means that the grounds for a blanket legal pardon on the basis of unsafe conviction just do not exist. We have therefore considered the cases individually.’ (Official Report, 24 July 1998; Vol. 316, c. 1372.)
Others were critical of the decision being made by those they saw as having had no direct military experience themselves. Their concern was that this Labour government lacked direct experience of military life, which had not been the case with its predecessors over the previous fifty years. Some MPs, while supporting the principle of granting a pardon, took issue with the pardons being restricted to those executed rather than to all who had been sentenced to death as they felt that the problem was the conviction rather than the sentence. Their argument was that, as one MP put it:
If I were a member of one of the families concerned who thought that my ancestor had been wrongly convicted because, for example, he had had shell shock, it would not encourage me to know that his conviction stood and he was being pardoned only because of the severity of the sentence, not because of the injustice of the conviction.
In answer to these questions the government said:
The Ministry of Defence was aware of the views of a number of historians and other interested academics when undertaking its review of this issue. We have also taken account of the views of key interested parties both within Government and more widely, notably the Governments of those countries which are successor states to colonies and dominions from which individuals were executed.
It was also made clear that the government had no plans to extend the pardons to those soldiers convicted of capital crimes but not executed, or to those executed for crimes such as murder and treason.
The outcome in the House of Commons had been by no means certain, and the frustrations of those who sought a remedy for the issue of the executions were summed up by Andrew Mackinlay when he said:
During World War One, attempts were made by people like myself in Parliament to raise these executions. They were slapped down and suppressed. There was no candour or debate. The argument was advanced – it had some legitimacy – that the country was in the middle of a conflict. Come the 1920s, the matter was raised by several hon. Members, one of whom was Ernest Thurtle, the Member for Shoreditch. He was slapped down and told that he was wrong.
The point that cannot be escaped is that for 75 years it suited the British establishment to suppress the documentation relating to these cases. Now that the documents have become available to families, jurors, politicians and journalists and we see how flawed the trials were, people say, ‘It is too late; it is a matter of history.’ How very convenient.
Nevertheless, following the passing of the Act, each file was amended to include the conditional pardon granted under section 359 of the Armed Forces Act of 2006, which had been signed by the Secretary of State for Defence. The file for Private Thomas Highgate, the first soldier to be executed, had a note attached which read that the pardon was ‘as recognition that he was one of the victims of the First World War and that execution was not a fate he deserved’.
As Browne said:
I believe it is better to acknowledge that injustices were clearly done in some cases – even if we cannot say which – and to acknowledge that all these men were victims of war. I hope that pardoning these men will finally remove the
stigma with which their families have lived for years.
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Returning to the case of Private Byers, whatever his age might have been, General Sir Horace Smith-Dorrien, commanding the Second Army, approved the sentence, adding the note ‘deserving of the full penalty’ on the grounds that ‘discipline in the 1st Battalion Royal Scots Fusiliers has been very bad for some time past and I think a severe example is very much wanted’. However, this particular case did seem to give Smith-Dorrien some pause for thought because he went on to write, ‘by pleading guilty he had made it impossible for regulations to permit the taking of sworn evidence … although this is legally correct it is just a question as to whether when a death sentence is involved, the court should make men plead not guilty and take sworn evidence.’ (Linklater, 1998) Some six months before, General Smith-Dorrien had justified the public nature of Private Highgate’s execution by saying that as a result no further desertions occurred in his division, but he may have forgotten that by the time he considered the case of Private Byers.
What these reflections reveal is that even a hard-line commanding officer was beginning to question the processes and procedures involved. The downside of changing these was that the trial process would take longer, which the army did not want, and, therefore, chance and the Alice in Wonderland nature of these things continued and more men undoubtedly died as a result.
† † †
There are still those who consider that pardoning these men was a mistake and, over a century later, the use of the death penalty continues to divide opinion. Some historians argue that such pardons were a mistake and changed nothing because the decision to execute a soldier was taken in the course of a war when commanders were intent on keeping the army united and fighting. Their argument is that such decisions were therefore taken from a moral perspective that would be beyond the understanding of those who had not experienced combat and, therefore, the fact of the matter is that the death penalty for those offences committed on active service were lawful by the law and practices of those times, even if they appear cruel, capricious and wrong-headed now.
A decision to unveil a memorial at the National Memorial Arboretum in Staffordshire in 2001 has further divided opinion, but it nevertheless presents a powerful visual image with its statue depicting the underage soldier, Private Herbert Burden of the Northumberland Fusiliers, who was executed for desertion on 21 July 1915 when still only 17 years of age and therefore too young even to have been at the front.
The statue, some 10ft tall, shows Private Burden standing bare-headed, blindfolded, a disc pinned over his heart and hands tied behind his back, and, judging by the set of his mouth, there seems to be an unmistakeable look of fear on his face. Facing this statue are six trees to signify the firing squad. Around the statue are 306 stakes in memory of those who were executed, the stakes resembling the posts to which the men were tied before being shot. Each stake bears a metal plaque bearing the executed man’s name, age, rank and date of death.
The statue, a sculpture by Andy De Comyn, was unveiled by Mrs Gracie Harris, who was just 3 years old when her father, Private Harry Farr, of the 1st West Yorkshire Regiment, was shot for cowardice on 18 October 1916. Mrs Harris had not learnt about the fate of her father until she was 40 years of age, explaining, ‘My mother was too ashamed to tell me but it explains a lot of things that made my mother very sad over the years.’ She summed up the feelings of the families of those shot, and those who still campaigned, when she said, ‘I am very proud and very grateful that now we have somewhere we can come and pay honour to those soldiers who I consider were wrongly executed.’ (Daily Telegraph, 22 June 2001)
† † †
Even if, 100 years later, the death sentence has to be accepted as being a standard of that time, there are no conceivable grounds for accepting the variation in practice where the actual executions themselves were concerned.
There is something abhorrent yet undeniably logical about the public nature of some of the military executions. Abhorrent because of the nature of the event itself, but logical if the death sentence was ever to be a deterrent to those who might be contemplating desertion.
The natural abhorrence could perhaps be tempered if such executions had had the desired effect of deterring others, but there was no consistency about the British Army’s approach to executions, which, as a result, undermined their credibility. There is, therefore, some underpinning logic to General Sir Horace Smith-Dorrien’s desire to have Private Highgate publicly executed as a deterrent to desertion, given that he later claimed that there had been no further instances in his division, although it is hard to escape the overall conclusion that the British Army was in fact acting illogically. As Meyler said, military training was about getting soldiers to a point where they were not impressed by fear, and yet the death sentence was meant to improve discipline by causing fear, and there really seems no way to square that particular circle, hence the inevitable conclusion that it was illogical.
The fact that no Australian soldier was ever executed further strengthens the case for the illogicality of military executions, because there is no evidence that Australian soldiers performed less well than their British counterparts as a result. Throughout his time as commander-in-chief, Sir Douglas Haig tried hard to pressure the Australians to adopt the death penalty, but without success. It is impossible to know whether Haig was motivated by principle or by a desire to have the death sentence validated by more nations adopting it. But the Australian opposition to the death penalty stemmed from the case of Breaker Morant, an Australian officer in the Boer War, who had been executed in controversial circumstances. Subsequently, the Australian government made it a condition that none of its soldiers who were to fight in the First World War would be executed.
Furthermore, without a consistent approach to letting soldiers know that executions were taking place, the deterrent impact of the sentence was lost because, at least for some, it was seen as an empty threat. The deterrent aspect of executions was further undermined by the fact that some of those who were eventually shot were repeat offenders, having deserted a number of times. Was it the case that having deserted and been court-martialled, with the sentence then commuted, such men were given the confidence to do it again in the belief that the ultimate sanction would not be imposed?
This leads to the next point: namely, did the British Army and the country’s politicians want transparency where executions were concerned? There are a number of strands to this to be considered. Between 1914 and 1916 the army was dependent on volunteers and, therefore, if the extent of death sentences and executions became public knowledge then conceivably this could have affected the numbers of men coming forward to fight. Indeed, the numbers volunteering did in any case start to decline in 1915, leading to conscription, so knowledge of military executions may have exacerbated matters.
Government ministers in the early years of the war were themselves reluctant to admit that men were being executed or to give the numbers involved when questions were asked in Parliament.
Another facet of this lack of transparency was that, up until 1917, the official position was that families would be written to by the Army Records Office and bluntly informed that their family member had been sentenced to death, and that this sentence had been carried out. As a result, the man forfeited all rights to campaign medals and benefits, leaving many families destitute. The Army Records Office could only send such letters if it was informed that a sentence had been carried out, and yet, up until 1917, some commanding officers included those executed in the lists of men killed in action. Were such officers motivated by concerns for the men’s families or a desire, for whatever reason, to keep things quiet, thereby protecting themselves and ultimately the army?
The British Army’s official stance was that it supported and wanted to keep the death sentence for all the reasons discussed earlier, and yet its actions seem curiously at odds with that. It is interesting, if hugely frustrating, that there
is a lack of routine orders where executions are concerned and nothing of note in battalion or regimental diaries due almost certainly to the army’s practice of weeding out sensitive documents to defeat the inquisitive. In addition, the papers relating to courts martial proceedings for capital offences were locked away in The National Archives for seventy-five years. The army also refused to hand over the court papers relating to those shot when requested, hiding behind a regulation that only the defendant could ask for such documents and as such men had been shot the army simply refused all requests.
The impression given by the army and the politicians was one of wanting to hide a dark secret and perhaps Mr Clarke was right in claiming that the true figure for the numbers executed was higher than the official figures, although perhaps not as high as he stated.
It is a further unpleasant conclusion that the British class system was indeed a factor where military executions were concerned, despite the sentiments expressed by Sir Douglas Haig in his diary entry. How can it be right that an officer committing a capital offence could be finessed out of the line and sent back to Britain, for instance, and yet a soldier for the same offence could be charged, court-martialled and shot? There can be no defence for the stark statistic that only three officers were ever executed and one of those was for murder. Britain in the early years of the twentieth century was a class-based society and there is an uneasy feeling, based on the sentiments discussed earlier, that the life of an ordinary soldier was valued at somewhat less than that of an officer.
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